Torts: Principles, Skills & Application [1 ed.] 0409348511, 9780409348514

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Torts Principles, Skills and Application

Andrew: for Stella, Rebecca, Jasmine and Imogen John: for Sarah Julia: for Christopher, Mitchell and Alexander Murray: for Ken,Val and Cameron

Torts Principles, Skills and Application

Andrew Clarke LLB and B Juris (UWA), LLM (Bristol), Grad Cert HE (UNE), Masters of Professional Education and Training (Deakin), MBA (Training and Development Specialisation) (Asia Pacific Graduate School of Management CSU), Doctor of Legal Science (Comparative Corporate Governance) (Bond) Professor of Law, College of Law and Justice, Victoria University

John Devereux BA LLB (Qld), D Phil (Oxford) Grad Dip Military Law (Melb) Professor of Common Law, TC Beirne School of Law, University of Queensland

Julia Day BA LLB (UNE), MHlth & MedLaw (Melb) Senior Lecturer, School of Law, University of New England

Murray Greenway BA (La Trobe), Grad Dip Info Serv (RMIT), Grad Dip Comp (Deakin) College Librarian, College of Law and Justice, Victoria University

LexisNexis Butterworths Australia 2019

LexisNexis AUSTRALIA LexisNexis Butterworths 475–495 Victoria Avenue, Chatswood NSW 2067 On the internet at: www.lexisnexis.com.au ARGENTINA LexisNexis Argentina, Buenos Aires AUSTRIA LexisNexis Verlag ARD Orac GmbH & Co KG, Vienna BRAZIL LexisNexis Latin America, Sao Paulo CANADA LexisNexis Canada, Markham, Ontario CHILE LexisNexis Chile, Santiago CHINA LexisNexis China, Beijing, Shanghai CZECH REPUBLIC Nakladatelství Orac sro, Prague FRANCE LexisNexis SA, Paris GERMANY LexisNexis Germany, Frankfurt HONG KONG LexisNexis Hong Kong, Hong Kong HUNGARY HVG-Orac, Budapest INDIA LexisNexis, New Delhi ITALY Dott A Giuffrè Editore SpA, Milan JAPAN LexisNexis Japan KK, Tokyo KOREA LexisNexis, Seoul MALAYSIA LexisNexis Malaysia Sdn Bhd, Petaling Jaya, Selangor NEW ZEALAND LexisNexis, Wellington POLAND Wydawnictwo Prawnicze LexisNexis, Warsaw SINGAPORE LexisNexis, Singapore SOUTH AFRICA LexisNexis Butterworths, Durban SWITZERLAND Staempfli Verlag AG, Berne TAIWAN LexisNexis, Taiwan UNITED KINGDOM LexisNexis UK, London, Edinburgh USA LexisNexis Group, New York, New York LexisNexis, Miamisburg, Ohio

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9780409348514 (pbk). 9780409348521 (ebk).

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Contents Publisher’s Note

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Prefacexxv Acknowledgmentsxxvii Table of Cases

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Table of Statutes

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Chapter 1 Tort Law in Australia: An Overview 1 Background concepts 1 First principles1 Difficulties with getting to grips with negligence principles3 Historical perspectives 4 A very brief history of negligence4 A general test for negligence liability4 The negligence liability of professionals6 Some further thoughts on the growth of negligence liability7 Economic paradigms8 The changing negligence environment9 Contemporary issues 10 The Australia Act 198610 The path of the Australian courts to independence11 Social developments12 Common fact scenarios giving rise to negligence claims 13 Legal concepts relevant to negligence 13 General litigation principles13 Negligence principles14 Questions and answers: tort law generally 14 What is a tort?14 Civil wrongs — what are they?15 Civil wrongs — where do they fit in the legal system?15 At the heart of the concept of torts is monetary compensation (also called ‘damages’), but compensation for what?15 What is the aim of tort compensation or damages?15 How would a ‘timeline’ between the dates of the accident/incident/loss and the settlement look?16 What is the basis of tort damages?16 What is the aim/basis of contractual damages?16

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Torts: Principles, Skills and Application

Questions and answers: the tort of negligence specifically 17 What is negligence?17 What are some of the other torts?17 How are these classifications made?17 How important is the historical classification nowadays?17 What is involved in a negligence claim?17 As a legal adviser, what do you need to consider in terms of negligence analysis?17 The basic elements of a negligence action 18 Background concepts and first principles 18 The role of the High Court19 The rise and rise of statute19 The Ipp Review 20 Origins20 Terms of reference20 Reactions to the legislative changes in light of the Ipp Report21 Key case: New South Wales v Ball28 Case comment: New South Wales v Ball32 Other reforms: impact of the National Disability Insurance Scheme (NDIS) 33 Drawing some conclusions 34 The new complexity: the bane of the torts litigant, practitioner and other stakeholders 35 Torts — a civil liability legislation decision tree 38 The relevant civil liability legislation for each state and territory 39 The scope and coverage of the civil liability legislative regime for each state and territory39 Tort law now and in the future 41 Chapter 2 The Statutory Framework of Tort Law  65 Background concepts 65 The main torts-based legislation 70 The main practice areas of no-fault schemes 75 The NDIS (National Disability Insurance Scheme)78 The national redress scheme for victims of child sexual abuse80 Matters for the plaintiff to establish 82 Other matters depending on the facts, circumstances and context 87 Occupiers88 Public authorities 94 Making a claim in statute 97 Defences 102 Damages114

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Contents

Chapter 3 Negligence 137 Background concepts 137 First principles137 The basic elements of a negligence claim137 Duty of care 139 Incrementalism and salient features140 Duty of care — concluding remarks141 Breach of duty of care141 Other elements in a negligence action 144 Quantum of damages issues in personal injury cases 144 Hypothetical case study: the aims of torts damages 145 Facts scenario145 The hypothetical: questions and answers145 Compensation issues and insurance factors 146 Motor vehicle accidents146 Property damage146 Workers’ compensation issues146 Insurance and strategy issues147 Case analysis and problem solving: an approach 147 Chapter 4 Duty of Care 157 Background concepts 157 First principles157 The history of the duty of care concept 158 Pre-Donoghue v Stevenson: an incremental (or developmental) approach158 Cases leading to Donoghue v Stevenson 159 Reflections on the four cases161 A United States influence pre-Donoghue v Stevenson  161 Donoghue v Stevenson 162 Reflection on and review of Donoghue v Stevenson164 The meaning of ‘reasonably foreseeable’164 Why is Donoghue v Stevenson such a significant case?167 Why is duty of care so important a concept?167 Does a duty of care exist?168 Existing duties of care168 The implications of finding a duty of care exists 200 Summary201 Predicting the future of duty of care202 Non-pure economic loss and non-building liability cases  203 Claims against a statutory authority203

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Torts: Principles, Skills and Application

Landlords and criminal assault204 High Court cases after Modbury205 Duty issues regarding the service of alcohol210 Cases reflecting the influence of statute216 Duty in the context of psychiatric damage217 What is psychiatric harm? 218 Nervous shock220 Recognisable psychiatric condition226 Statutory reforms229 Intentional infliction of psychiatric harm 230 Trends In High Court torts-related litigation232 Legal practice and negligence233 The parties to a basic negligence action234 Some basic potential negligence scenarios and how they are dealt with in practice235 General negligence scenarios235 Professional/specialist skills scenarios237 The litigation process 238 The main phases of a negligence claim238 Alternative dispute resolution  238 Background issues with ADR239 The ADR options239 Negligence litigation 240 Assessing the merits of litigation240 ‘Prognosis’ of the case’s merits by the plaintiff’s solicitor243 Preliminary evidential issues243 The main litigation steps244 The litigation steps explained 247 Initial assessment of the claim by the plaintiff’s lawyer247 The letter of demand247 The defendant’s counter-assessment248 The writ and statement of claim248 The defence document248 Settlement issues249 Discovery of documents249 Interrogatories249 Pre-trial conference249 The trial, the verdict and enforcement249 Appealing the decision249 An overview of the litigation steps 253 Conclusion254

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Contents

Chapter 5 Breach of the Duty of Care 263 Background concepts 263 First principles263 Standard of care263 How is the defendant’s standard of care determined? 263 The objective and subjective approaches in practice264 The objective model: the ‘reasonable person’ test for defendants 264 Particular contexts of the reasonable person test 265 Drivers in general265 Children265 Children as defendants265 Children as plaintiffs267 Breach of the duty of care 268 Introduction268 Has the defendant breached the duty of care in this case?268 Legislative provisions269 Probability of injury to the plaintiff; that is, what were the chances of the plaintiff being injured?271 Seriousness of consequences of the injury273 Practical alternatives open to the defendant273 Practicality issues when children are involved275 Justifiability/social utility275 Other breach issues 277 Relevant time period and critical inquiry277 State of knowledge and timing of new developments278 Use of statistics at the trial 279 Breach issues in games, sports and other activities 280 Defendant with ‘special skills’: medical surgeons 281 Chapter 6 Vicarious Liability and Non-Delegable Duties 291 Background concepts 291 First principles291 Vicarious liability: the elements involved292 Historical perspectives292 Practical issues: vicarious liability 293 The basic concept of vicarious liability in the employment context293 Practical issues relevant to litigation294 The legal principles of vicarious liability 295 An example of vicarious liability in an employer–employee context295

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Defences to vicarious liability in the employment context295 An example of an employee on a frolic of his or her own295 The ‘course of employment’ test: the relevant legal principles and cases 296 The first type of employee case — determining the ‘authority’ given to employees296 The second type of employee case — the ‘frolic’ cases298 Other employee cases 298 Acting in spite of an express prohibition by the employer299 Employee acting for his or her own benefit299 An analysis of the two types of frolic cases300 Independent contractors: the relevant legal principles and cases 300 Employees and independent contractors300 The elements of control and the control test301 The impact of self-employment302 The threshold test for vicarious liability302 Tests to determine the nature of the relationship 305 A departure from the traditional English approach of control?306 Tests other than control for determining employment status306 What are we left with as a test in Australia?307 Cases applying the Stevens v Brodribb principles 307 Other High Court cases dealing with vicarious liability in the work context308 The High Court and recent workplace accident cases309 Intentional criminal acts and vicarious liability315 Vicarious liability in the social context316 Piecing the cases together318 Particular issues concerning vicarious liability 319 Vicarious liability in the context of hospitals and health professionals319 Non-delegable duties321 Joint and concurrent liability331 New South Wales Workers Compensation Act 331 Summary of the key changes340 Recent High Court litigation340 Chapter 7 Defences to Negligence Claims 353 Background concepts 353 First principles353 The main defences in a negligence action: contributory negligence, volenti non fit injuria and obvious risks355 Contributory negligence 355 Threshold issues355

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Australian motor vehicle cases dealing with contributory negligence356 Special considerations regarding contributory negligence 357 Sudden emergencies357 Anticipation of breach by others358 Contributory negligence in the work context359 Contributory negligence issues relevant to child plaintiffs 360 Statutory provisions dealing with contributory negligence 361 Statutory interpretation of s 5S of the Civil Liability Act 2002 (NSW)362 Volenti non fit injuria — voluntary assumption of risk 362 Background issues362 Statutes dealing with voluntary assumption of risk 363 Motor accidents364 Obvious risks and dangerous recreational activities 364 Obvious risks364 Statutory interpretation of s 5F of the Civil Liability Act 2002 (NSW)365 Other obvious risk provisions 366 Statutory interpretation of s 5H of the Civil Liability Act 2002 (NSW)366 Standard of contributory negligence 367 Statutory interpretation of s 5R of the Civil Liability Act 2002 (NSW)367 Recreational activities 368 Sport368 Recreational activities and tort reform 369 Risk warnings and legislation 370 Chapter 8 Causation

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Background concepts 377 First principles377 Factual causation: basic concepts 378 Factual causation: the ‘but for’ test 379 Developments under the Civil Liability Act383 The drawing of inferences383 Drawing of inferences to bridge evidentiary gaps endorsed by the High Court 385 The problem of multiple sufficient causes 386 Multiple causes of injury to a plaintiff — novus actus interveniens? 386 More complex causation scenarios 388 Multiple contributing causes388 Multiple successive causes389 Res ipsa loquitur 391 Remoteness of damage 391 Early approaches to remoteness391

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Torts: Principles, Skills and Application

Interplay of remoteness and reasonable foreseeability 392 Types of foreseeable damage393 Extent of injuries394 Child plaintiffs395 Scope of liability under the Civil Liability Acts396 Chapter 9 Damages 405 Introduction405 The aim of tort damages 405 Damages arising in other contexts406 Classifying damages 406 Nominal damages407 Contemptuous damages407 Aggravated damages407 Exemplary damages407 Compensatory damages408 Assessing damages 408 Special and general damages408 Pecuniary and non-pecuniary damages410 Heads of damages 411 Pecuniary damages411 Gratuitous services: caring for children419 Tort legislative reform and gratuitous services420 Loss of earning capacity423 Benevolent payments426 Non-pecuniary damages427 No-fault schemes 432 Arguments used to support a fault-based system432 Arguments in favour of a no-fault compensation scheme433 Motor vehicle accidents433 Workers’ compensation435 The National Disability Insurance Scheme (NDIS)436 Requirement for a person to seek compensation under the NDIS437 Damages in life and death 439 Predicting the future: life expectancy of plaintiffs439 Wrongful birth and wrongful life440 Wrongful death441 The estate’s action and the dependants’ actions441 The statutory base relevant to wrongful death cases443 Case law relating to dependants’ actions447

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Wrongful death damages449 Contributory negligence453 Tort reform and damages 455 Non-economic loss455 Economic loss456 Discount rates456 Chapter 10 Medical Negligence 463 Background concepts 463 The two principal tortious causes of action 464 Diagnosis464 Treatment465 Battery465 The notion of consent in terms of battery465 Competency465 Developments in the law467 Other competency issues468 Scope of the battery action for a competent patient468 Negligence470 The medical standard of care470 The notion of ‘expertise’ in terms of professional negligence470 The notion of ‘medical expertise’ in particular470 The various tasks performed by medical practitioners471 A brief history of medical negligence principles in Australia 472 Overview472 The Bolam case472 Rejection in Australia of the Bolam test in cases of advice: Rogers v Whitaker 472 Lessons from Rogers v Whitaker for the litigator473 Summarising the effects of Bolam and Rogers474 Trends in terms of professional negligence474 Post-Rogers v Whitaker developments 475 Misdiagnosis: the Naxakis case475 Legislative developments 476 Particular instances of failures in diagnosis, advice and treatment481 Treatment482 Material risks 485 Practical lesson for the litigator 487 Know your client487 Difficult cases — wrongful birth and wrongful life488 Wrongful birth 489

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Torts: Principles, Skills and Application

Case law relevant to wrongful birth489 Leading case in Australia490 Section 71 of the Civil Liability Act 2002 (NSW)493 Wrongful birth after Cattanach494 Wrongful life 497 Chapter 11 Pure Economic Loss 515 Background concepts 515 Reasons for limiting damages in pure economic loss516 The general rule  517 The breakaway517 Defective buildings 520 Commercial premises522 The subsequent application of Bryan v Maloney and Woolcock Street Investments523 Conclusion524 Chapter 12 Legal Professional Negligence 537 Background concepts 537 First principles537 Contemporary issues relevant to lawyers 538 Communication skills538 Specialisation539 Ethical issues539 The solicitor’s duty of care: key legal principles and cases 540 An advocate’s duty of care: key legal principles and cases 544 The extent of the immunity in Giannarelli546 Australian developments after Giannarelli546 English developments 547 D’Orta’s case in the High Court 549 Developments post-D’Orta554 Chapter 13 Trespass to Land 567 Background concepts 567 First principles567 The distinction between negligence and intentional torts 568 Taking instructions and advising your client 568 Evidence569 Other considerations 569 The key elements of trespass to land 569 What is intentional interference to land? 570 What is land? 571

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A person’s interest in land 571 Trespass to subsoil572 Trespass above the ground572 Legislation relating to airspace578 The actions of the defendant 578 Voluntary or intentional578 Directness579 Continuing trespass579 Trespass ab initio 580 Express and implied licences 582 Consent and licences582 Express licence582 Implied licence583 Limitations on the implied licence to enter property586 Limitations on implied rights to enter premises: the revocation of consent591 If consent is revoked, when does the implied licence expire?592 Remedies for trespass to land 593 Damages593 Injunctions593 Ejectment593 Chapter 14 Trespass to the Person 599 Background concepts 599 First principles599 Classifying torts 600 The types of trespass to the person 600 Battery600 Examples of battery601 The elements of a battery601 Directness and positive acts601 Are anger or hostility required for there to be a viable action?602 Defences to battery604 Limits of implied consent or bodily contact in sport605 Assault607 Case study for defining assault607 What is reasonable apprehension?608 What is imminent contact?609 Verbal threats and the telephone611 Other relevant cases612 Self-defence613

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Torts: Principles, Skills and Application

Conditional threats614 False imprisonment614 Directness615 Complete restraint616 Reasonable means of escape617 Plaintiff does not have to be physically imprisoned618 Does the plaintiff have to be aware of his or her imprisonment?621 False imprisonment and the stolen generation623 Third parties and false imprisonment626 Defences627 Damages627 Tort reform and trespass to the person 628 Chapter 15 Nuisance 635 Background concepts 635 Distinction between trespass, nuisance and negligence 636 Trespass636 Nuisance636 Negligence636 Nature of interests protected 638 Test of liability 638 The general rule638 The sensitive plaintiff640 Balancing factors 641 Type of harm642 Duration, timing and location642 The plaintiff ‘moving to the nuisance’644 The purpose of the alleged nuisance644 Public nuisance 644 Difference between private nuisance and public nuisance645 Highway authorities and nuisance 646 New South Wales647 Tasmania648 Chapter 16 Breach of Statutory Duty 653 Background concepts 653 First principles: the nature of statutes653 Example: an injured worker654 Workers’ compensation provisions655 The common law655 Statute655 Interplay between courts and parliament 656

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Statutory interpretation 657 Commonwealth interpretation statute: Acts Interpretation Act 1901658 New South Wales interpretation statute: Interpretation Act 1987658 Plaintiff’s case based on breach of statutory duty 659 What is a breach of statutory duty?660 Negligence and breach of statutory duty660 Establishing a cause of action for breach of statutory duty661 Public vs private interest considerations662 When is a private duty owed as opposed to a duty owed to the public at large?663 Aspects of the duty664 Breach668 Causation673 Defences674 Chapter 17 Defamation 683 Background concepts 683 First principles683 Defamation legislation — some of the main issues684 Damages for defamation686 Alternative dispute resolution (ADR) issues relevant to defamation686 The objects of the Defamation Act 2005 (NSW)687 The elements of defamation 688 What is a defamatory matter?688 The standard of the hypothetical referee689 Innuendo690 The defamatory matter must identify the plaintiff691 Disclaimers691 Requirement of publication to a third person692 What is a publication?692 Can a dead person be defamed?692 Limitation periods693 Procedure693 Defences693 Statutory defences 694 Justification694 Contextual truth694 Absolute privilege694

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Torts: Principles, Skills and Application

Publication of public documents694 Fair report of proceedings of public concern695 Qualified privilege under s 30 of the Defamation Act 2005 (NSW)695 Honest opinion695 Innocent dissemination696 Triviality696 Common law defences 697 Absolute privilege at common law697 Qualified privilege at common law697 Justification (truth) at common law698 Honest opinion at common law698 Freedom of speech under the Constitution699 Consent699 Offer of amends700 Remedies700 Case study: defamation and statutory authorities700 Case study: defamation and the internet702 Defamation and the media 704 Chapter 18 Intentional Torts Relating to Goods 717 Background concepts 717 The difference between ownership and possession717 The three principal causes of action 717 Trespass to chattels718 Conversion720 Detinue722 Goods723 Chapter 19 Occupiers’ Liability 731 Background concepts 731 The concept of being an occupier731 The stretching of the concept of being a ‘trespasser’732 The modern statutory context 742 Statutory treatment of occupier’s liability 742 The standard of care relevant to occupiers744 The occupier’s duty to trespassers745 The historical approach of case — the United Kingdom influence 748 The High Court approach — breaking with the United Kingdom approach 748 Occupier’s liability and defences 750 Is the occupier liable for the acts of third parties?757

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Chapter 20 Class Actions  769 Background concepts and terminology  769 The process of bringing class actions in Australia771 The types of class action claims  775 Critiquing the system of class actions  776 Law reform in the area of class actions 777 Federal law reform activity 777 Victorian law reform 778 Class actions — a case study  791 Class actions and their intersection with negligence claims  794 Some current questions concerning class actions 808 The future of class actions in Australia810 Chapter 21 Tort Law in Practice 813 Background concepts 813 The modern statutory context  814 The main torts-based legislation 814 The main practice areas of no-fault schemes 819 Matters relevant to practice in motor vehicle accident-related work  821 Workers’ compensation: no-fault schemes  823 Matters relevant to practice in workers’ compensation  824 Workers’ compensation claims 824 Tort law practice relevant to sports law 826 The complexities of sports participation833 Chapter 22 Research in Torts 837 Learn by doing 837 Constructing searches 837 Boolean logic837 Proximity operators838 Natural language searching838 Primary and secondary sources 839 Books839 Legal dictionaries 839 Legal encyclopaedias 840 Halsbury’s Laws of Australia 840 Searching Halsbury’s840 To search the text of Halsbury’s840 To browse Halsbury’s841 Browsing the table of contents841

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Putting it all together — using Halsbury’s Laws of Australia for a tort law research task842 The Laws of Australia 842 To search the text in The Laws of Australia 843 To browse The Laws of Australia 843 Putting it all together — using The Laws of Australia for a tort law research task844 Journals844 Locating a journal in hard copy in a library845 Federated search engines845 Legal journals databases845 AGIS845 To locate a journal article by author name846 To locate a journal article by title846 To locate a journal article by subject847 Putting it all together — using AGIS for a tort law research task847 Other legal journal databases 848 CCH IntelliConnect 848 To search the text in CCH849 Browsing the table of contents849 Browsing the index850 Using roadmaps850 Putting it all together — using CCH for a tort law research task851 Case law 852 Case citations852 Unreported judgments853 Alternative or parallel citations853 Authorised reports for the High, Federal and Supreme Courts854 Abbreviations854 Locating case law using a case citator855 CaseBase855 To locate a case by name856 To locate a case by its popular name856 To locate a case by its citation857 To locate cases that consider a piece of legislation857 To locate cases that consider a word or phrase858 To locate cases by subject858 Putting it all together — using CaseBase for a tort law research task859 FirstPoint860 To locate a case by name861 To locate a case by citation861

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To locate cases that consider a piece of legislation861 To locate cases that consider a word or phrase861 To locate cases by subject861 Putting it all together — using FirstPoint for a tort law research task863 LawCite864 To locate a case by name865 To locate a case by citation866 To locate a case by court and jurisdiction866 To locate a case by the legislation considered866 Putting it all together — using LawCite for a tort law research task866 Legislation and delegated legislation 867 Legislation citations867 Locating legislation868 Types of legislation868 Legislation is frequently amended869 Where to find legislation869 Government websites869 AustLII ()869 Commercial publisher databases870 To locate legislation by name and jurisdiction870 To locate legislation by subject870 Finding out more about legislation871 To locate an explanatory memorandum and second reading speech871 Putting it all together — using TimeBase for a tort law research task872 Conclusion873

Index875

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Preface Torts in the 21st century is a reflection of a more complex Australian society. Since the year 2000, there has been enacted a great deal of tort legislation in each of the states and territories that supplements, but does not replace reference to the common law of torts. Torts today is therefore a fascinating amalgam of statute, and of case law. This new work seeks to capture and explain this rapid evolution. Torts, it has been said, has the capacity, simultaneously, to captivate and confuse. Regulating the diversity of human interactions was never going to be an easy task.Today that task is multi-faceted. The statutory overlay makes reference to the statutes, and to the principles of statutory interpretation, are matters of primary importance. Added to this is the common law. The flexibility of response of the common law in particular cases has long been testament to its genius. It has also had to take on the challenge of the rise and rise of legislation in the areas of tort law. At the same time, the ongoing lack of a unifying theory of torts continues to exercise the minds of the best common lawyers. Perhaps the elusive nature of a unifying theory remains the ultimate challenge for Australian tort law. Taken together, these developments make the current era both a fascinating and challenging time to be examining the history and evolution of tort law, and its practical effects. Torts: Principles, Skills and Application therefore provides insights into the rapidly evolving and intellectually exciting area of Australian tort law. Tort law is fundamental to understanding the wider society and notions of risk, personal responsibility, insurance and justice. Understanding the law of torts also provides a necessary link to more effectively learning about other areas of Australian law. This new book is part of its own evolutionary journey; it is a successor to Torts: A Practical Learning Approach, and to Negligence:A Practical Learning Approach, and explicitly continues with the approach from the award-winning original text. Principles of law are stated succinctly and clearly, supplemented by case summaries and commentary. Learning is augmented by writing tasks which challenge the reader to consider, explain and apply the law in a practical context. Skills training within a law degree promotes a rich teaching and learning experience. Good written communication, whether by way of in-house memoranda or letters to clients, is an essential component of a professional skills portfolio, and part of a suite of lifelong professional assets to be nurtured and developed. We hope that Torts: Principles, Skills and Application provides a

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valuable contribution to this important dimension of contemporary legal education. We welcome your feedback on any aspect of this book and wish you well as you embark upon your study of tort law. Andrew Clarke John Devereux Julia Day Murray Greenway January 2019

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Acknowledgments We thank the following people: • Danielle Leo and Ben McIlwain from Maurice Blackburn Lawyers for their valuable contribution to Chapter 21; • Charles Giacco, Lecturer of Law, Federation Business School, Federation University and Brooke Dellavedova, Lawyer, Maurice Blackburn Lawyers, for their insights and discussions into tort law and practice; • The dedicated team at LexisNexis Butterworths for their guidance, advice and expert assistance; • The student contributors who generously provided the example answers to the tutorial questions; and • Dane Howard and Bronwyn Betts for their research assistance. And of course, producing this book was very much a labour of love — and not a task we faced alone. We gratefully acknowledge the support, love and understanding of our families. The authors and publisher are grateful to the holders of copyright in material from which extracts appear in this work, particularly the following: Australasian Legal Information Institute – LawCite screen shots at 22.58, 22.63 CCH Australia Ltd – CCH IntelliConnect screen shots at 22.31, 22.33, 22.34, 22.35 RMIT Training Pty Ltd – AGIS screen shots at 22.25, 22.26, 22.27, 22.28 SAI Global Ltd – LawLex screen shots at 22.74, 22.76 Thomson Reuters (Professional) Australia Limited – FirstPoint screen shots at 22.54, 22.56, 22.57 – Laws of Australia screen shots at 22.17, 22.18, 22.19 TimeBase Pty Ltd – LawOne screen shot at 22.77

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Table of Cases References are to paragraph numbers

A Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48 .… 2.2, 2.3, 2.4, 4.53, 4.54, 8.8 Agar v Hyde (2000) 201 CLR 552 .… 21.14 Ainger v Coffs Harbour City Council [2005] NSWCA 424 .… 7.26, 7.27 Amaca v Booth [2011] HCA 53 .… 8.15 Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 .… 4.105 Anderson v Gregory [2008] QCA 419 .… 17.9 Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955 .… 7.30 Anns v Merton Borough Council [1979] AC 728 .… 4.30, 4.33, 4.43, 4.44, 4.46 Arthur J S Hall & Co v Simons [2000] UKHL 38; [2002] 1 AC 615; [2000] 3 All ER 673 .… 12.14, 12.15, 12.16, 12.18 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 .… 9.34 Ashby v Tolhurst [1937] 2 KB 242 .… 18.10 — v White (1703) 2 Ld Ray 938 .… 4.64 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169; [1957] 1 All ER 894 .… 15.27, 15.28 Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 .… 4.28, 12.23 Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259 .… 17.41 — v Hanson [1998] QCA 306 .… 17.17 Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250; 142 ALR 177 .… 20.24 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 .… 19.13, 19.14

B Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 .… 14.47 Bamford v Turnley (1862) 3 B & S 62 .… 15.9, 15.12 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 .… 17.38

Barclay v Penberthy (2012) 291 ALR 608; [2012] HCA 40 .… 4.89, 6.65, 11.9 Barker v R (1983) 153 CLR 338 .… 13.22, 13.26 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1968] 1 All ER 1068 .… 8.4, 8.5 Barton v Armstrong [1969] 2 NSWR 451 .… 14.23, 14.27, 14.28, 14.29, 14.30 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 .… 17.1 Becker v Smith’s Newspapers Ltd [1929] SASR 469 .… 17.40 Beckwith v R (1976) 135 CLR 569; [1976] HCA 55 .… 16.31 Bendall Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 .… 13.41 Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902 .… 13.13, 13.14 Bird v Jones (1845) 115 ER 668 .… 14.42, 14.45 Blyth v Birmingham Waterworks (1856) 156 ER 1047 .… 4.6 Boehm v Deleuil [2005] WADC 55 .… 10.27 Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 .… 5.42, 10.18, 10.19, 10.20, 10.22, 10.26 Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575; [1999] HCA 64 .… 12.12, 12.13 Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 .… 5.17, 5.19 Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615 .… 8.20, 16.34 Bourhill v Young [1943] AC 92 .… 4.69 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 .… 17.8 — v Terminal Railroad Association of St Louis (1956) 58 Am LR 2d 1222 .… 4.17 Bradburn v Great Western Railway Co (1874) LR 10 Exch 1; [1874–80] All ER Rep 195 .… 9.39 Brady v Schatzel (1911) St R Qld 206 .… 14.21, 14.22

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Torts: Principles, Skills and Application

Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 .… 13.16 Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319 .… 13.35 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 .… 4.40 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; 180 ALR 145; [2001] HCA 29 .… 15.30, 15.31, 16.22, 20.22 Brown v Allied Ironfounders Ltd [1974] 2 All ER 135; [1974] 1 WLR 527 .… 16.31 Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163; [1995] HCA 17 .… 4.40, 4.43, 4.44, 4.97, 11.2, 11.8, 11.10, 11.11, 11.12, 11.13, 11.14, 11.15, 12.6 Bugge v Brown (1919) 26 CLR 110 .… 6.17 Bull v Attorney-General for New South Wales (1913) 17 CLR 370; [1913] HCA 60 .… 16.31 Bunyan v Jordan (1937) 57 CLR 1 .… 4.86 Burke v New South Wales [2004] NSWSC 725 .… 4.81 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 .… 6.47, 6.55 Burton v Davies [1953] St R Qd 26 .… 14.43 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 .… 16.21

C Cabassi v Vila [1940] HCA 41 .… 12.23 Cairns v Modi [2012] EWHC 756 .… 17.21 CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47 .… 4.55, 4.56 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 .… 5.17, 5.24 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; 100 ALR 746 .… 6.57 Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529; 11 ALR 227 .… 11.5, 11.6 Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 .… 15.12 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 .… 20.25 Canute v Comcare (2006) 226 CLR 535; 229 ALR 445; [2006] HCA 47 .… 16.8 Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568 .… 4.34, 4.36, 4.46, 4.52, 4.58

Carmarthenshire County Council v Lewis [1955] AC 549 .… 4.17 Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234 .… 4.86 Carroll v Purcell (1961) 107 CLR 73 .… 9.81 Carter v Walker [2010] VSCA 340 .… 4.87 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 .… 16.36 Caterson v Commissioner for Railways (NSW) (1973) 128 CLR 99 .… 7.11 Cattanach v Melchior (2003) 215 CLR 1; [2003] HCA 38 .… 4.28, 10.43, 10.44, 10.45, 10.46 Caven v Women’s and Children’s Health (2007) 15 VR 447 .… 10.45 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 .… 10.41, 10.42, 10.45 CGU Insurance v Coote [2018] WASCA 117 .… 6.33 Challen v McLeod Country Golf Club [2004] QCA 358 .… 15.25 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 .… 17.41 Chaplin v Dunstan Ltd [1938] SASR 245 .… 6.14 Chapman v Hearse (1961) 106 CLR 112 .… 4.16, 4.17, 6.60, 8.17, 8.19 Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 .… 8.14, 10.36 Chatterton v Gerson [1981] QB 432; [1981] 1 All ER 257 .… 10.11 Chester v Waverley Municipal Council (1940) 62 CLR 1 .… 4.69 Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 .… 17.31, 17.38, 17.47 Chic Fashions v Jones [1968] 2 QB 299 .… 13.22 Christie v Davey [1893] 1 Ch 316 .… 15.26 Cinnamond v British Airports Authority [1980] 2 All ER 368 .… 13.22 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 .… 22.50 Cole v Turner (1704) 6 Mod 149; 87 ER 907 .… 14.10 Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 .… 14.54 Collins v Wilcock [1984] 1 WLR 1172 .… 14.10, 14.14 Commissioner for Railways v Halley (1978) 20 ALR 409 .… 22.46 — v Quinlan [1964] AC 1054 .… 19.7 — (NSW) v Cardy (1960) 104 CLR 274; [1960] HCA 45 .… 19.5, 19.6

xxx

Table of Cases

Commissioner of Main Roads v Jones (2005) 79 ALJR 1104 .… 4.25 Commonwealth v Connell (1986) 5 NSWLR 218 .… 6.12, 6.13, 6.14, 6.43 — v Introvigne (1982) 150 CLR 258; 41 ALR 577 .… 6.50 — v Smith [2005] NSWCA 478 .… 4.78 Cook v Cook (1986) 162 CLR 376; 68 ALR 353; 61 ALJR 25; [1986] HCA 73 .… 1.34, 5.7, 19.14 Cooper v Mulcahy [2012] NSWSC 373 .… 14.31, 14.56, 14.57 Coote v Forestry Tasmania (2006) 227 ALR 481; [2006] HCA 26 .… 4.50 — v Kelly; Northam v Kelly [2017] NSWCA 192 .… 10.29 Cornes v The Ten Group Pty Ltd [2012] SASCFC 99 .… 17.18 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 .… 13.27, 13.28, 13.38 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; [1999] HCA 59 .… 1.1, 4.46, 4.49, 4.50 CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1 .… 2.40, 9.22, 9.27, 9.30 Cutler v Wandsworth Stadium Ltd [1949] AC 398 .… 16.19 Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 .… 6.52, 6.53

D D & F Estates Ltd [1989] AC 177 .… 4.40 Darcy v New South Wales [2011] NSWCA 413 .… 14.36, 14.52 Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 .… 16.24 Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Limited (No 2) [2006] FCA 1388; (2006) 236 ALR 322 .… 20.24 Davies v Bennison (1927) 22 Tas LR 52 .… 13.20 Davison v Queensland (2006) 226 CLR 234; 227 ALR 1; [2006] HCA 21 .… 16.7 De Franceschi v Storrier (1988) Aust Torts Reports ¶80-176 .… 4.76 De Sales v Ingrilli (2002) 212 CLR 338 .… 9.79, 9.80 Deatons Pty Ltd v Flew (1949) 79 CLR 370 .… 6.11, 6.12, 6.13, 6.14, 6.43 Delaney v TP Smith Ltd [1946] KB 393 .… 13.24

Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; 106 ALR 385 .… 10.7, 10.8, 14.13 Derry v Peek (1889) 14 App Cas 337 .… 4.8, 4.9 Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52 .… 13.11 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 .… 14.38 Dobler v Halverson [2007] NSWCA 395 .… 8.4 Donoghue v Stevenson [1931] UKHL 3; [1932] AC 562; [1932] SC (HL) 31; [1932] All ER Rep 1 .… 1.3, 1.4, 1.5, 1.6, 1.7, 1.9, 3.5, 4.2, 4.3, 4.5, 4.11, 4.12, 4.13, 4.14, 4.15, 4.18, 4.20, 4.22, 4.23, 4.30, 4.40, 4.45, 4.97, 8.26, 18.4, 19.4, 19.7, 19.14, 19.18, 20.22, 21.14 Doodeward v Spence (1908) 6 CLR 406 .… 18.14 Dorset Yacht Co Ltd v Home Office [1970] AC 1004 .… 1.6, 4.30, 19.18 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; [2005] HCA 12 .… 12.18, 12.19, 12.20, 12.21 Doubleday v Kelly [2005] NSWCA 151 .… 7.29 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139; [2003] HCA 51 .… 4.38 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 .… 17.20, 17.49 Dulieu v White & Sons [1901] 2 KB 669 .… 4.67 Dumont v Miller (1873) 4 AJR 152 .… 13.2

E E v Australian Red Cross (1991) 31 FCR 299; 105 ALR 53 .… 5.35 Elias v Pasmore [1934] 2 KB 164 .… 13.22 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 .… 6.30, 6.31, 6.45, 6.46, 6.48 Elysee v Hassam [2018] NSWDC 137 .… 10.28 Environment Agency v Empress Car Co Ltd [1999] 2 AC 22 .… 19.18 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 .… 17.9 Evans v Balog [1976] 1 NSWLR 36 .… 13.40

F F (Mental patient: sterilisation), Re [1990] 2 AC 1 .… 14.10 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 .… 14.9 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 .… 4.54

xxxi

Torts: Principles, Skills and Application

Falvo v Australian Oztag Sports Association (2006) Aust Torts Reps 81-831 .… 7.38 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 .… 17.11 Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 .… 17.27 Finbow v Domino (1957) 11 DLR (2d) 493 .… 7.17 Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2002] WASCA 206 .… 18.14 Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports ¶81–244 .… 18.12 Fontin v Katapodis (1962) 108 CLR 177 .… 14.34 Forde v Skinner (1830) 172 ER 687 .… 14.5 Foster v Cameron [2011] QCA 48 .… 9.22 Fox v Percy (2003) 214 CLR 118 .… 4.25 French v QBE Insurance (Australia) Pty Ltd [2011] QSC 105 .… 8.33

G Gala v Preston (1991) 172 CLR 243 .… 22.57 Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 .… 16.29 Gattelaro v Spencer [2010] NSWSC 1122 .… 12.22 Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417 .… 4.98, 12.10, 12.11, 12.12, 12.13, 12.15, 12.18 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 .… 4.74 Giller v Procopets (2008) 24 VR 1 .… 4.88 Giumelli v Johnston (1991) Aust Torts Reports ¶81-085 .… 14.15, 14.16 Golden Eagle International Trading Pty Ltd v Zhang (2007) 234 ALR 131; [2007] HCA 15 .… 9.65 Goldman v Hargrave (1966) 115 CLR 458; [1967] 1 AC 645 .… 15.5, 15.6, 15.7 Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 .… 17.41 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337; 77 ALJR 183; [2002] HCA 54 .… 4.37, 4.38, 5.17, 5.25, 20.22 Grant v Australian Knitting Mills [1936] AC 85 .… 1.6, 22.45 Gregory v Piper (1829) 9 B & C 591 .… 13.20 Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45 .… 2.39, 2.40, 9.22, 9.26, 9.29, 9.30

Grosso v Deaton [2012] NSWCA 101 .… 9.77, 9.78

H Haber v Walker [1963] VR 339 .… 9.74, 9.75 Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84 .… 19.4, 19.7, 19.13 Haley v London Electricity Board [1965] AC 778 .… 5.37 Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 .… 13.29, 13.34 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683 .… 15.18, 15.21, 15.27 Hambrook v Stokes Brothers [1925] 1 KB 141 .… 4.67 Harbutt’s Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 QB 447 .… 20.24 Harper v Haden [1933] Ch 298 .… 15.10 Harrison v National Coal Board [1951] AC 639 .… 16.31 — v Thornborough (1713) 10 Mod 196 .… 17.13 Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 .… 4.28, 8.1, 10.47, 10.49 — v Stephens; Waller (by his tutor) v James (2004) 59 NSWLR 694 .… 10.48 Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 .… 17.52 Hawkins v Clayton (1988) 164 CLR 539 .… 12.8 Haynes v Harwood [1935] 1 KB 146 .… 4.17 Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 .… 13.26 Heaven v Pender (1883) 11 QBD 503 .… 3.5, 4.7, 4.8, 4.9, 4.14, 19.14 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 .… 1.3, 1.8, 1.9, 4.30, 4.40, 4.98, 12.1, 12.6 Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 .… 4.40 Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 .… 14.48 Hickson v Goodman Fielder Ltd [2009] HCA 11 .… 6.38 Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 .… 4.28, 22.63 — v Higgins [2012] NSWSC 270 .… 15.15, 15.17 Hill (t/as RF Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 .… 4.28, 4.40, 4.98, 12.5, 12.6, 12.7, 19.18

xxxii

Table of Cases

Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158 .… 18.15, 18.16 Hodges v Frost (1984) 53 ALR 373 .… 9.21 Hogan v Wright [1963] Tas SR 44 .… 13.39 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44 .… 6.35, 6.43 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 .… 4.28 Hughes v Lord Advocate [1963] AC 837; [1963] 1 All ER 705 .… 8.28 Hunter v Canary Wharf Ltd [1997] AC 655; [1997] 2 All ER 426 .… 15.7 Hutchins v Maughan [1947] VLR 131 .… 18.4, 18.5 Hyett v Great Western Railway Co [1948] 1 KB 345 .… 4.17

I Imbree v McNeilly; McNeilly v Imbree (2008) 236 CLR 510; [2008] HCA 40 .… 4.97, 5.7, 6.42, 7.1, 7.8 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 .… 16.38 Indermaur v Dames (1866) LR 1 CP 274 .… 19.14 Innes v Wylie (1844) 174 ER 800 .… 14.9 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; 276 ALR 497; 85 ALJR 629; [2011] ATPR 42-354; [2011] HCA 16 .… 6.64, 7.41

J Jaber v Rockdale City Council (2008) Aust Torts Reps 81-952 .… 7.32 Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 .… 4.32, 4.65, 4.71, 4.72 James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 .… 4.105 James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 .… 4.105 Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 .… 16.10 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 277 ALR 257 .… 15.7 Jobling v Associated Dairies Ltd [1982] AC 794; [1981] 2 All ER 752 .… 8.22 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 .… 18.13 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 .… 17.12 John Summers & Son Ltd v Frost [1955] AC 740 .… 16.31

Johnson v Buchanan [2012] VSC 195 .… 13.19 Jones v Keney [2011] 2 AC 398 .… 12.16 — v Skelton [1963] 3 All ER 952 .… 17.13, 17.15 Joslyn v Berryman (2003) 214 CLR 552 .… 7.7

K Kars v Kars (1996) 187 CLR 354 .… 9.23, 9.24 Kaye v Robertson [1991] FSR 62 .… 14.5 Kelly v Bega Valley County Council (unreported, 13 September 1982) .… 5.11, 7.17 King v McKenzie (1991) 24 NSWLR 305 .… 17.35 Kite v Malycha (1998) 71 SASR 321 .… 10.34 Klein v Minister for Education (2007) 232 ALR 306; [2007] HCA 2 .… 16.6 Knupffer v London Express Newspapers Ltd [1944] AC 116 .… 17.16 Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 .… 6.52, 19.18 Konskier v B Goodman Ltd [1928] 1 KB 421 .… 13.21 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 .… 17.22 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 .… 4.111, 6.66 Kuru v New South Wales (2008) 236 CLR 1 .… 13.33

L Landon v Ferguson (2005) 64 NSWLR 131 .… 1.44, 1.49 Le Lievre v Gould [1893] 1 QB 491 .… 4.9, 4.14, 19.18 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35 .… 6.37 Letang v Cooper [1964] 2 All ER 929 .… 14.2 Leyden v Caboolture Shire Council [2007] QCA 134 .… 7.22 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 .… 13.34, 13.35 Lisle v Brice [2001] QCA 271 .… 9.75 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 .… 13.13, 13.14, 13.16, 13.41 Lloyd v Grace, Smith & Co [1912] AC 716 .… 6.19 London Graving Dock Co Ltd v Horton (1951) AC 737 .… 19.14 Lord Bishop of Rochester v Bridges (1831) 1 B & Ad 847; 109 ER 1001 .… 16.16 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 .… 7.39

xxxiii

Torts: Principles, Skills and Application

Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51 .… 4.122, 4.123 Lyle v Soc [2009] WASCA 3 .… 9.74, 9.75 Lynch v Nurdin (1841) 1 QB 29; 113 ER 104; [1841] EngR 52 …. 19.5

M Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 .… 1.12 Macpherson v Kevin J Prunty & Associates [1983] 1 VR 573 .… 22.37 Maestrale v Aspite [2012] NSWSC 1420 .… 12.7 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 .… 8.22, 9.49 Malette v Shulman (1990) 67 DLR (4th) 321 .… 10.13 Mallick v McGeown [2008] NSWCA 230 .… 17.12 Manchester Airport plc v Dutton [2000] 1 QB 133 .… 13.24 Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79 .… 4.25 Mann v Elbourn (1974) 8 SASR 298 .… 9.35 — v O’Neill (1997) 191 CLR 204 .… 17.36 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 .… 8.18, 8.19 Marshall v Nugent (1955) 58 Am LR 2d 251; 222 Fed 2d 604 .… 4.17 Masson v The State of Queensland [2018] QSC 162 .… 10.31 Mayfair Ltd v Pears [1987] 1 NZLR 459 .… 13.39 McCarthy v Coldair Ltd (1951) 2 TLR 1226 .… 16.31 McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107 .… 22.37 — v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 .… 9.38, 14.17 McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts Reps 81-768; [2004] NSWCA 297 .… 16.5 McHale v Watson (1964) 111 CLR 384 .… 14.2 — v — (1966) 115 CLR 199 .… 4.97, 5.9, 7.17 McKenna v New England & Hunter Local Health District [2013] NSWCA 476 .… 10.35 McKinnon Industries Ltd v Walker [1951] 3 DLR 577 .… 15.15 McLean v Tedman (1984) 155 CLR 306; 56 ALR 359 .… 7.15 McNamara v Duncan (1971) 26 ALR 584 .… 14.15, 14.17 Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315 .… 8.12

Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 .… 14.49 Meyers v Easton (1878) 4 VLR (L) 283 …. 19.18 Milk Bottles Recovery Ltd v Camillo [1948] VLR 344 .… 18.8 Millington v Wilkie (2005) 62 NSWLR 322 .… 16.38 Minchillo v Ford Motor Company of Australia Ltd [1995] 2 VR 594 .… 4.40 Mitchel v Alestree (1676) 83 ER 504 .… 4.4 MM and R Pty Ltd v Grills [2007] VSC 528 .… 12.21 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61 .… 4.52, 4.53, 4.54, 19.18 Model Daily v Whites (1935) 40 Argus LR 432 .… 18.8 Monson v Tussauds Ltd [1894] 1 QB 671 .… 17.10 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 .… 17.19 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 .… 4.70, 4.76, 8.1 Mummery v Irvings Pty Ltd (1956) 96 CLR 9 .… 16.27 Munnings v Barrett [1987] Tas R 80 .… 13.29 Munro v Southern Dairies Ltd [1955] VLR 332 .… 15.20 Murphy v Brentwood District Council [1991] 1 AC 398; [1990] 2 All ER 908 .… 4.44 Murray v Ministry of Defence [1988] 2 All ER 521 .… 14.49 — v United Kingdom (1995) 19 EHRR 193 .… 14.49 Myer Stores v Soo [1991] 2 VR 697 .… 14.39, 14.40, 14.44

N Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 .… 8.32 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 .… 9.41 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 .… 4.87 Naxakis v Western General Hospital .… 10.24, 10.25 New South Wales v Ball (2007) 69 NSWLR 463; [2007] NSWCA 71 .… 1.44, 1.45, 1.47, 1.49 — v Fahy (2007) 236 ALR 406 .… 5.17, 5.30 — v Ibbett (2006) 229 CLR 638 .… 13.10 — v Lepore (2003) 212 CLR 511 .… 6.38 — v Zreika [2012] NSWCA 37 .… 9.9, 9.10

xxxiv

Table of Cases

O’Connor v SP Bray Ltd (1937) 56 CLR 464 .… 16.16 O’Donnell v Ainslie Football and Social Club Ltd [2013] ACTSC 18 .… 4.78 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 .… 8.25, 8.26, 8.33 — v Mort’s Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 .… 8.25, 8.26, 8.33

Pittar v Alvarez (1916) 16 SR (NSW) 618 .… 15.23 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 .… 9.43 Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 .… 13.31, 13.34 — v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 .… 4.77 Polemis and Furness, Withy & Co Ltd, Re [1921] 3 KB 560 .… 8.25, 8.26 Pollock v Volpato [1973] 1 NSWLR 653 .… 13.40 Powercor Australia Ltd v Thomas [2012] VSCA 87 .… 9.41 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 .… 6.39, 6.40 Project Company No 2 Pty Ltd v Cushway Blackford and Associates Pty Ltd [2011] QCA 102 .… 11.15 Public Transport Commission (NSW) v Perry (1977) 137 CLR 107 .… 13.19 Puttick v Tenon Ltd (formerly Fletcher Challenge Forests Ltd) [2008] HCA 54 .… 4.104, 4.105

P

Q

New South Wales Insurance Ministerial Corp (formerly GIO) v Willis (1995) 35 NSWLR 668 .… 9.77 Newcrest Mining Ltd v Thornton [2012] HCA 60 .… 4.89 Newington v Windeyer (1985) 3 NSWLR 555 .… 13.24 Nguyen v Nguyen (1990) 169 CLR 245 .… 9.77 Nilon v Bezzina [1988] 2 Qd R 420 .… 8.21 Nominal Defendant v GLG Australia Pty Ltd (2006) 225 ALR 643; [2006] HCA 11 .… 16.9

O

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 76 ALJR 163 .… 13.40 Palsgraf v Long Island Railroad Co 248 NY 339 (1928) .… 4.12, 4.15, 8.26 Papatonakas v Australian Telecommunications Commission (1985) 156 CLR 7 .… 5.5 Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 .… 4.25, 5.17, 5.22 Park v Peach [1967] VR 558 .… 6.14 Parker v Commonwealth (1965) 112 CLR 295 .… 9.85 Parry v Cleaver [1970] AC 1 .… 9.23 Pask v Owen [1987] 2 Qd R 421 .… 16.25 Patel v W H Smith Ltd [1987] 2 All ER 569 .… 13.41 PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 .… 13.16 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 .… 18.6, 18.8, 18.15 Perisher Blue Ltd v Harris [2013] NSWCA 38 .… 8.5, 8.6 Perl Ltd v Camden LBC [1984] QB 342 .… 19.18 Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36 .… 4.36, 4.37, 4.40, 4.46, 11.6, 11.7, 11.8, 11.16

Queensland v Nudd [2012] QCA 281 .… 8.9 Qumsieh v Guardianship and Administration Board [1998] VSCA 45 .… 10.13

R R v Adams (1935) 53 CLR 563; [1935] HCA 62 .… 16.31 — v Cotesworth (1704) 87 ER 928 .… 14.5 — v Dale [1969] QWN 30 .… 14.23 — v Ireland [1997] QB 114 .… 14.31 — v — [1998] AC 147 .… 14.31 — v Macquarie and Budge (1875) 13 SCR (NSW) 264 .… 14.43 — v Mostyn (2004) 145 A Crim R 304 .… 14.28 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 .… 17.8, 17.10 Randwick City Council v Muzic [2006] NSWCA 66 .… 7.22 Read v Croydon Corporation [1938] 4 All ER 631 .… 16.25 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 .… 17.11 Refina Pty Ltd v Binnie [2010] NSWCA 192 .… 13.24 Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5 .… 11.8

xxxv

Torts: Principles, Skills and Application

Reynolds v Clarke (1725) 2 Ld Raym 1399; 92 ER 410 .… 18.4 — v — (1726) 93 ER 747 .… 14.9 Rhodes v Lake Macquarie City Council [2010] Aust Torts Reports 82-073; [2010] NSWCA 235 .… 5.17, 5.31 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 .… 14.10, 14.11 Roads and Traffic Authority v Royal [2008] HCA 19 .… 8.7 Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 .… 5.17, 5.20 Roberts v Bass [2002] HCA 57 .… 17.39, 17.42 Robinson v Kilvert (1889) 41 Ch D 88 .… 15.14 Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131 .… 5.34 Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; [1992] HCA 58 .… 4.24, 4.98, 5.42, 10.14, 10.18, 10.20, 10.21, 10.22, 10.24, 10.25, 10.26, 12.18 Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn v Hadba (2005) 221 CLR 161 .… 5.17, 5.27 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263 .… 4.44, 4.97, 6.53 Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993 .… 12.10 Rootes v Shelton (1967) 116 CLR 383 .… 5.39, 5.40, 7.36 Rosecrance v Rosecrance (1995) 105 NTR 1 .… 9.20 Rosenberg v Percival [2001] HCA 18 .… 10.37, 10.38 Rozsa v Samuels [1969] SASR 205 .… 14.27, 14.33 Rylands v Fletcher (1868) LR 3 HL 330 .… 6.55

S Safaris 4x4 Engineering Pty Ltd v Doncaster Motors Pty Ltd [2006] VSC 460 .… 18.11 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 68 ALR 161; [1986] HCA 68 .… 19.14 Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289 .… 7.22 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 .… 8.23

Scott v Davis (2000) 204 CLR 333; 175 ALR 217 .… 6.42, 6.43 Sedleigh-Denfield v O’Callaghan (1940) AC 880 .… 15.21 Seidler v Luna Park Reserve Trust (unreported, NSWSC, Hodgson J, 21 September 1995) .… 15.21 Seltzam Pty Ltd v McGuiness [2000] NSWCA 29 .… 8.4 SGIC v Oakley (1990) Aust Torts Reports ¶81-003 .… 8.21 Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 .… 9.20, 9.33, 9.43 Shaw v Thomas [2010] NSWCA 169 .… 5.16 Sheehan v State Rail Authority of New South Wales [2007] NSWSC 1346 .… 4.81 Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93 .… 16.31 Sheppard v Swann [2004] WASCA 215 .… 10.32 Sibley v Kais (1967) 118 CLR 424 .… 7.13 Sidaway v Governors of the Bethlem Royal Hospital [1985] AC 871; [1985] 1 All ER 643 .… 10.19 Simpson v Blanch (1988) Aust Torts Reports ¶81-458 .… 6.56 Singh v Smithenbecker (1923) 23 SR (NSW) 207 .… 13.26 Six Carpenters’ Case, The (1610) 77 ER 695 .… 13.22 Skelton v Collins (1966) 115 CLR 94 .… 9.33, 9.43, 9.46, 9.47 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 .… 16.12, 16.34 Smith v Eric S Bush [1990] 1 AC 831 .… 4.40 — v Leurs (1945) 70 CLR 256 .… 4.97, 19.18 — v Littlewoods Ltd [1987] AC 241 .… 19.18 — v Scott [1973] Ch 314 .… 15.12 South Australia v Lampard-Trevorrow (2010) 106 SASR 311 .… 14.50, 14.51 Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 .… 13.20 Southwark London Borough Council v Mills [1999] 4 All ER 449 .… 15.12 — v Tanner [2001] 1 AC 1 .… 15.12 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397; [1967] HCA 31 .… 16.31 Sparks v Hobson, Gray v Hobson [2018] NSWCA 29 .… 10.35 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; [1972] 3 All ER 557 .… 11.3, 11.4

xxxvi

Table of Cases

St Helen’s Smelting Co v Tipping (1865) 11 HLC 642 .… 15.7 Stephens v Myers (1830) 172 ER 735 .… 14.23, 14.25 Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 .… 8.30 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 .… 4.97, 6.25, 6.26, 6.28, 6.29, 6.30, 6.31, 6.32, 6.33, 6.35, 6.36, 6.37, 6.43 Stockdale v Hansard (1839) 9 Ad & El 1; 112 ER 1112 .… 17.36 Stoneman v Lyons [1974] VR 797 .… 13.11 Storey v Ashton (1869) LR 4 QB 476 .… 6.14 Strong v Woolworths Ltd (2012) 285 ALR 420; [2012] HCA 5 .… 4.25, 8.9 Stuart v Kirkland-Veenstra (2009) 237 CLR 215 .… 4.27 Sullivan v Gordon (1999) 47 NSWLR 319 .… 9.26, 9.27 — v Moody; Thompson v Connon (2001) 207 CLR 562; 183 ALR 404; [2001] HCA 59 .… 4.56, 4.58 Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1 .… 3.5, 4.42, 4.43, 4.44, 4.46, 4.97, 19.18 Sweedman v Transport Accident Commission (2006) 226 CLR 362; 224 ALR 625; [2006] HCA 8 .… 16.7 Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161 .… 6.27 Symes v Mahon [1922] SASR 447 .… 14.45, 14.46

T T & X Co Pty Ltd v Chivas (2014) 67 MVR 297 .… 7.8 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 .… 4.28, 4.64, 4.74, 4.76, 4.79 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 .… 13.37 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 .… 17.42 Thomas v Powercor Australia Limited [2011] VSC 614 .… 20.24 Thompson v Bankstown Corporation (1953) 87 CLR 619; [1953] HCA 5 .… 19.5 — v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 .… 19.16

Todorovic v Waller (1981) 150 CLR 402 .… 9.11, 9.36, 22.37 Trkulja v Google Inc LLC (No 5) [2012] VSC 533 .… 17.50 Trobridge v Hardy (1955) 94 CLR 147 .… 14.36 Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684 .… 14.29, 14.33, 14.35

U Ultramares Corp v Touche, Niven and Co 174 NE 441 (1931) .… 4.21, 11.2, 12.6 Union Pacific Railway Co v McDonald [1894] USSC 92; (1894) 152 US 262; 38 Law Ed 434 .… 19.5 United Zinc & Chemical Co v Britt [1922] USSC 62; (1922) 258 US 268 .… 19.5

V Vagg v McPhee [2013] NSWCA 29 .… 12.7 Vairy v Wyong Shire Council (2005) 223 CLR 422; 80 ALJR 1; 142 LGERA 387; 221 ALR 711; [2005] Aust Torts Reports 81–810; [2005] HCA 62; [2006] ALMD 1241; [2006] ALMD 1449; [2006] ALMD 1445; [2006] ALMD 1446 .… 22.39, 22.53 Van Gervan v Fenton (1992) 175 CLR 327 .… 9.24, 9.25 Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 .... 6.40 Varmedja v Varmedja [2007] NSWDC 385 .… 14.56 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 .… 15.7 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 .… 4.64, 4.67 Voli v Inglewood Shire Council (1963) 110 CLR 74 .… 4.44, 11.10

W Walker v Hamm [2008] VSC 596 .… 14.11 Wallace v Kam [2013] HCA 19 .… 8.33, 10.39 Waller v James [2013] NSWSC 497 .… 10.46 Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 .… 17.37 Watson v Cowen [1959] Tas SR 194 .… 13.20 — v Marshall and Cade (1971) 124 CLR 621 .… 14.46 Watt v Hertfordshire County Council [1954] 2 All ER 368 .… 5.17, 5.29 — v Longsdon [1936] 1 KB 130 .… 17.37 Watts v Turpin (2000) Aust Torts Reports 81–544 .… 22.37

xxxvii

Torts: Principles, Skills and Application

Waugh v Kippen (1986) 160 CLR 156 .… 16.30, 16.31 Whayman v Motor Accidents Insurance Board [2003] TASSC 149 .… 4.78 Wheelahan v City of Casey [2011] VSC 215 .… 20.24 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455; [1999] 1 All ER 1 .… 4.64 — v Jones [1995] 2 AC 207 .… 4.40 — v South Australia [2010] SASC 95 .… 14.11, 14.20 Whitehouse v Jordan [1981] 1 All ER 267 .… 5.41 Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22 .… 3.10, 4.82 Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135 .… 6.33, 6.43 Wilkinson v Downton [1897] 2 QB 57 .… 4.83, 4.84, 4.87, 4.88 Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 .… 20.24 Williamson v New South Wales [2010] NSWSC 229 .… 14.57 Wilson v Bauer Media Pty Ltd [2017] VSC 521 .… 17.1 — v New South Wales (2010) 207 A Crim R 499 .… 13.27, 13.28 — v Pringle [1987] QB 237 .… 14.10 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145; 76 ALJR 483 .… 5.39, 5.40, 6.53, 7.37, 19.16

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; 78 ALJR 628; [2004] HCA 16 .… 4.40, 4.43, 11.8, 11.13, 11.14, 11.15 Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 .… 9.34 Wyong Shire Council v Shirt (1980) 146 CLR 40 .… 5.30

X X (Minors) v Bedfordshire County Council [1995] 2 AC 633 .… 16.21

Y Yakamia Dairy Pty Ltd v Wood [1976] WAR 57 .… 13.20 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 .… 17.10

Z Zanker v Vartzokas (1988) 34 A Crim R 11 .… 14.27, 14.28 Zanner v Zanner (2010) 79 NSWLR 702; [2010] NSWCA 343 .… 7.19, 8.33 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 .… 14.34 Zhang v Hardas (No 2) [2018] NSWSC 432 .… 10.33 Zheng v Cai (2009) 239 CLR 446 .… 9.41 Zordan v Metropolitan (Perth) Passenger Terminal Trust [1963] ALR 513 .… 9.82

xxxviii

Table of Statutes References are to paragraph numbers

Commonwealth Acts Interpretation Act 1901 .… 16.8 Australia Act 1986 .… 1.12, 1.13, 1.20, 1.34, 6.30 Australian Securities and Investments Commission Act 2001 s 12GJ .… 20.18 s 23 .… 20.18 Competition and Consumer Act 2010 .… 11.2 s 87 .… 1.55, 2.35, 2.43 s 87U .… 2.38 s 87W .… 2.41, 2.42 Corporations Act 2001 Pt 9.6A .… 20.18 s 601AG .… 4.111 Crimes Act 1914 s 3J(3) .… 13.33 s 3ZB .… 13.33 Damage by Aircraft Act 1999 .… 13.17 s 10 .… 13.17 s 11 .… 13.17 Family Law Act 1975 .… 22.73 Federal Court of Australia Act 1976 .… 20.13 Pt IVA .… 20.9, 20.18 Industrial Relations Act 1988 .… 16.21 Military Rehabilitation and Compensation Act 2004 .… 2.9, 9.59, 21.10 National Disability Insurance Scheme Act 2013 .… 1.46, 2.11, 9.60, 9.61 Ch 1 Pt 2 .… 2.11 s 3 .… 2.11 s 3(1)(c) .… 9.60 s 3(1)(d) .… 9.60 s 3(1)(e) .… 9.60 s 3(1)(f) .… 9.60 s 3(1)(g) .… 9.60 s 3(1)(h) .… 9.60 s 3(2) .… 2.11 s 24 .… 1.46 s 104 .… 1.46, 9.61 ss 104–116 .… 1.46 s 104(1) .… 9.62 s 104(2) .… 9.62 s 104(3) .… 9.62

s 105 .… 1.46 s 105(1) .… 9.62 s 105(2) .… 9.62 s 105B(a) .… 9.62 s 105B(b) .… 9.62 s 106(1) .… 9.62 National Redress Scheme for Institutional Child Sexual Abuse Act 2018 .… 2.12 Div 2 s 3 .… 2.12 Div 3 s 4 .… 2.12 Navigation (Loading and Unloading) Regulations .… 16.24 reg 31 .… 16.24 Privy Council (Appeals from the High Court) Act 1975 .… 1.13 Privy Council (Limitation of Appeals) Act 1968 .… 1.13 Safety, Rehabilitation and Compensation Act 1988 .… 2.9, 9.59, 21.10 Seafarers Rehabilitation and Compensation Act 1992 .… 2.9, 9.59, 21.10 Trade Practices Act 1974 .… 12.13, 18.16, 20.22 s 74 .… 4.54

Australian Capital Territory Civil Law (Wrongs) Act 2002 .… 1.54, 2.5, 2.15, 2.18, 2.21, 2.41, 4.54, 4.89, 19.11, 21.5 Ch 8 .…  2.22 Ch 9 .… 17.1 Pt 2.4 .… 2.26, 9.70 Pt 3.1 .… 2.27, 9.73 Pt 3.2 .… 2.37 Pt 7.3 .… 2.34, 9.87 Pt 9.3 .… 7.4 s 4 .… 2.24 s 5 .… 2.30 s 5B .… 4.54 s 5B(2) .… 4.54 s 5D(1) .… 4.54 s 5D(2) .… 4.54 s 27 .… 2.34, 9.87 s 32 .… 4.80 s 32(2) .… 4.80 s 41(2) .… 1.54, 2.6, 21.6

xxxix

Torts: Principles, Skills and Application

Limitation Act 1985 .… 2.7, 21.7 s 11(1) .… 13.5 Scaffolding and Lifts Regulation 1950 .… 16.16 Supreme Court Act 1933 s 22 .… 17.2 Victims of Crime (Financial Assistance) Act 2016 .… 2.10 Workers Compensation Act 1951 .… 2.9, 9.59, 21.10

Civil Law (Wrongs) Act 2002 – cont’d ss 42–43 .… 2.13 ss 43–44 .… 2.14, 2.32 s 43(1) .… 5.14 ss 45–46 .… 2.16 s 47 .… 2.34, 9.87 ss 95–96 .… 2.29, 2.45 s 98(2) .… 2.38 s 99(1) .… 2.36, 9.44 s 102 .… 2.28 s 109 .… 2.22 s 100 .… 2.40, 9.30 ss 111–112 .… 2.33 s 113 .… 2.23, 15.31 s 115 .… 17.2 s 116 .… 17.2 s 118 .… 17.2 s 119 .… 17.2 s 120 .… 17.2 s 121 .… 17.2 s 122 .… 17.2 s 123 .… 17.2 s 124 .… 17.4 s 125 .… 17.4 s 126 .… 17.4 s 127 .… 17.4 s 128 .… 17.4 s 129 .… 17.4 s 130 .… 17.4 s 131 .… 17.4 s 132 .… 17.4 s 133 .… 17.2 s 134 .… 17.2 s 135 .… 17.2 s 136 .… 17.2 s 137 .… 17.2 s 138 .… 17.2 s 139 .… 17.2 s 139A .… 17.2 s 139B .… 17.2 s 139C .… 17.2 s 139D .… 17.2 s 139E .… 17.3 s 139F .… 17.3 s 139G .… 17.3 s 139H .… 17.3 s 139I .… 17.3 s 139J .… 17.3 s 168 .… 2.19, 2.20, 19.9, 19.10 Lifetime Care and Support (Catastrophic Injuries) Act 2014 .… 2.8, 9.55, 21.8

New South Wales Casino Control Act 1992 .… 14.11 s 85 .… 14.11 Civil Liability Act 2002 .… 1.44, 1.54, 2.1, 2.2, 2.3, 2.4, 2.5, 2.19, 2.20, 2.21, 4.56, 6.64, 9.9, 9.56, 9.90, 10.26, 10.44, 10.46, 14.57, 16.12, 19.9, 19.10, 19.11, 21.5 Pt 1A .… 2.2, 9.87 Pt 1A Div 8 s 5T .… 2.34 Pt 3 .… 2.37 Pt 5 .… 2.22 Div 2 .… 2.2 Div 3 .… 2.2 Div 6 s 5O .… 2.18 Div 8 .… 9.87 s 3B .… 1.54, 2.6, 14.57, 21.6 s 3B(1)(f) .… 1.44 s 5 .… 2.2, 2.15 s 5A .… 2.2, 2.24, 10.26, 16.24 s 5B .… 2.2, 2.13, 2.14, 5.12, 5.15 s 5B(1) .… 5.16 s 5B(1)(a) .… 5.16 s 5B(1)(b) .… 5.16 s 5B(1)(c) .… 5.16 s 5B(2) .… 2.14, 5.17 s 5B(2)(a) .… 5.17 s 5B(2)(b) .… 5.17 s 5B(2)(c) .… 5.17 s 5B(2)(d) .… 5.17 s 5C .… 2.2 s 5D .… 2.2, 2.16 ss 5D–5E .… 2.16 s 5D(1) .… 2.2, 8.4 s 5D(1)(b) .… 8.24 s 5D(2) .… 8.10, 8.33 s 5E .… 2.2, 2.16 s 5F .… 2.15, 2.32, 7.27, 7.28, 7.29 ss 5F–5H .… 2.15, 2.32 s 5G .… 2.15, 2.32, 7.30 s 5G(1) .… 7.30 s 5H .… 2.15, 7.30

xl

Table of Statutes

Compensation to Relatives Act 1897 .… 6.62, 9.68, 9.73, 10.26 s 3 .… 2.27, 9.73 s 3(1) .… 9.73 Crimes Act 1900 .… 13.33 ss 357F–357I .… 13.33 s 357H(1)(a) .… 13.33 Defamation Act 2005 .… 17.1, 17.5 Pt 3 .… 17.4 s 3 .… 17.2, 17.5 s 4 .… 17.2 s 6 .… 17.2 s 6(2) .… 17.7 s 7 .… 17.2 s 8 .… 17.2 s 10 .… 17.2, 17.22 s 11 .… 17.2 s 12 .… 17.4 s 13 .… 17.4, 17.44 s 14 .… 17.4, 17.44 s 15 .… 17.4, 17.44 s 16 .… 17.4 s 17 .… 17.4 s 18 .… 17.4 s 19 .… 17.4 s 20 .… 17.4 s 21 .… 17.2, 17.24 s 22 .… 17.2, 17.24 s 23 .… 17.2 s 24 .… 17.2 s 24(2) .… 17.32 s 25 .… 17.2, 17.26 s 26 .… 17.2, 17.27 s 27 .… 17.2, 17.28 s 28 .… 17.2, 17.29 s 29 .… 17.2, 17.30 s 30 .… 17.2, 17.31 s 30(4) .… 17.32 s 30(5) .… 17.32 s 31 .… 17.2, 17.33 s 32 .… 17.2, 17.34 s 33 .… 17.2, 17.35 s 34 .… 17.3 s 35 .… 17.3 s 36 .… 17.3 s 37 .… 17.3 s 38 .… 17.3 s 39 .… 17.3 Dust Diseases Tribunal Act 1989 s 12B .… 2.26, 9.70 Evidence Act 1995 s 75 .… 17.52

s 5H(2)(a) .… 7.30 s 5H(2)(b) .… 7.30 s 5H(2)(c) .… 7.30 s 5L .… 7.38 s 5N .… 7.40, 7.41 s 5R .… 7.31, 7.34 s 5R(2)(a) .… 7.18, 7.33, 7.35 s 5R(2)(b) .… 7.18, 7.33 s 5S .… 7.18, 7.19 s 5O .… 2.18, 10.35 s 5O(1) .… 10.34 s 5Q .… 16.24 ss 5R–5T .… 16.37 s 5T .… 2.34, 9.87, 9.89 s 12 .… 2.38, 2.39, 9.29 s 12(2) .… 9.91 s 13(1) .… 9.91 s 14 .… 2.42 s 14(2) .… 9.92 s 15 .… 2.39, 2.41 s 15(2) .… 2.39, 9.29 s 15B .… 2.40, 9.30 s 16 .… 1.55, 2.35, 2.36, 9.44 s 16(1) .… 9.90 s 16(2) .… 9.90 s 17 .… 1.55, 2.35, 2.36 s 17A .… 2.36, 9.44 s 21 .… 2.43, 2.44, 9.9, 9.10 ss 27–33 .… 2.37 s 29 .… 2.37 s 42 .… 1.44 s 42(b) .… 1.44 s 43 .… 2.33 ss 43–44 .… 2.33 s 44 .… 2.33 s 45 .… 2.23, 15.31, 15.34 s 49 .… 2.29 ss 49–50 .… 2.29 s 50 .… 2.29, 2.45 s 56 .… 2.30 ss 56–58 .… 2.30 s 57 .… 2.30 s 58 .… 2.30 s 71 .… 2.25 s 71 .... 10.44 s 73(1) .… 13.17 Civil Procedure Act 2005 Pt 10 .… 20.9 s 101 .… 6.62 Compensation (Fatal Injuries) Act 1974 .… 9.73

xli

Torts: Principles, Skills and Application

Motor Accidents (Lifetime Care and Support) Act 2006 .… 2.8, 9.55, 9.58, 21.8 s 4(4) .… 9.58 s 7(2) .… 9.58 s 7(3) .… 9.56 s 11A .… 9.58 s 11A(2) .… 9.58 Suitors’ Fund Act 1951 .… 1.44 Supreme Court Act 1970 s 75A(5) .… 4.122, 4.123 Victims Rights and Support Act 2013 .… 2.10 Workers Compensation Act 1987 .… 1.44, 2.9, 6.62, 9.59, 21.10 Pt 3 Div 1 .… 6.62 Pt 3 Div 6 .… 6.62 Pt 3 Div 9 .… 6.62 Pt 5 .… 6.38, 6.62 Pt 5 Div 3 .… 1.44 s 9 .… 16.3 s 10 .… 6.38 s 151D .… 6.62 s 151H .… 1.46, 6.62 s 151N .… 16.37 s 151O .… 2.31, 7.24, 16.38 s 151Z .… 6.38 s 151Z(1)(b) .… 6.38 Workplace Injury Management and Workers Compensation Act 1998 .… 2.9, 9.59, 21.10

Fair Trading Act 1987 .… 12.13 Fisheries Management Act 1994 s 156 .… 20.22 Interpretation Act 1987 .… 16.9 Law Reform (Miscellaneous Provisions) Act 1944 .… 6.62, 9.68 s 2 .… 9.72 Law Reform (Miscellaneous Provisions) Act 1946 .… 6.61 s 6(4) .… 6.37 Law Reform (Miscellaneous Provisions) Act 1965 .… 7.11 Pt 3 .… 2.34, 6.62, 9.87 s 2 .… 2.26, 9.70 s 9 .… 2.28 s 9(1)(a) .… 6.38 s 9(1)(b) .… 6.38 s 10(2) .… 6.38 s 13 .… 6.62, 10.26 Law Reform (Vicarious Liability) Act 1983 s 7 .… 16.24 Limitation Act 1969 .… 2.7, 6.62, 21.7 s 14(1)(b) .… 13.5 s 14B .… 17.23 Liquor Act 1982 .… 2.2, 2.4, 4.54 Local Government Act 1919 .… 4.42 Local Government Act 1993 .… 20.22 Minors (Property and Contracts) Act 1970 .… 10.9 Motor Accidents Act 1988 .… 6.62 Ch 3 .… 6.62 Ch 7 Pt 6 .… 6.62 Ch 7 Pt 7 .… 6.62 s 3D .… 6.62 s 35 .… 6.62 s 76 .… 7.25 s 76(2) .… 7.25 s 281 .… 6.62 s 281(2)(b) .… 6.62 s 315 .… 6.62 s 316 .… 6.62 s 322 .… 6.62 s 327 .… 6.62 s 329 .… 6.62 Motor Accidents Compensation Act 1999 .… 1.44, 9.15, 9.58, 21.8 Ch 5 .… 6.62 s 3B .… 6.62 s 138 .… 2.29 s 140 .… 2.31 Motor Accidents Compensation Amendment Act 1999 .… 2.8

Northern Territory Compensation (Fatal Injuries) Act 1974 s 7 .… 2.27 Defamation Act 2006 .… 17.1 Pt 3 .… 17.4 s 2 .… 17.2 s 3 .… 17.2 s 5 .… 17.2 s 6 .… 17.2 s 7 .… 17.2 s 9 .… 17.2 s 10 .… 17.2 s 12 .… 7.4 s 13 .… 7.4 s 14 .… 7.4 s 15 .… 7.4 s 16 .… 7.4 s 17 .… 7.4 s 18 .… 7.4 s 19 .… 7.4 s 20 .… 7.4, 17.2 s 21 .… 17.2

xlii

Table of Statutes

s 23 .… 17.2 s 24 .… 17.2, 17.25 s 25 .… 17.2 s 26 .… 17.2 s 27 .… 17.2 s 28 .… 17.2 s 29 .… 17.2 s 30 .… 17.2 s 31 .… 17.3 s 32 .… 17.3 s 33 .… 17.3 s 34 .… 17.3 s 35 .… 17.3 s 36 .… 17.3 Juries Act s 6A .… 17.2 Law Reform (Miscellaneous Provisions) Act 1956 .… 2.13, 2.19, 2.23, 19.9 Pt II .… 2.26, 9.70 Pt V .… 2.34, 9.87 s 16 .… 2.28 s 17 .… 2.29 s 24 .… 2.37 s 25 .… 2.37 Limitation Act 1956 .… 2.7, 21.7 Limitation Act 1981 s 12(1)(b) .… 13.5 Motor Accidents (Compensation) Act 1956 .… 2.8, 9.55, 21.8 Personal Injuries (Civil Claims) Act 2003 .… 2.38, 2.41, 2.42, 2.43, 21.5 s 4 .… 21.6 s 9 .… 19.10 ss 9–10 ….19.11 ss 24–28 .… 2.35 Personal Injuries (Liabilities and Damages) Act 2003 .… 1.54, 2.5, 2.14, 2.15, 2.16, 2.18, 2.32, 2.35, 2.40, 9.30 s 4 .… 1.54, 2.6 s 4(1) .… 2.24 s 8 .… 2.30 s 9 .… 2.20 ss 9–10 .… 2.21 ss 14–15 .… 2.45 s 19 .… 2.44 s 20 .… 2.38 s 23 .… 2.41, 2.42, 2.43 s 23(1) .… 2.39, 9.29 s 23(2) .… 2.39, 9.29 s 24 .… 2.36, 9.44 ss 24–28 .… 1.55

s 27 .… 2.36, 9.44 Return to Work Act 2015 .… 2.9, 9.59, 21.10 Victims of Crime Assistance Act 2006 .… 2.10

Queensland Civil Liability Act 2003 .… 1.54, 2.5, 2.19, 2.20, 2.21, 9.44, 19.9, 19.10, 19.11, 21.5 Ch 2 .… 9.87 Ch 2 Pt 1 Div 6 .… 2.34 Ch 2 Pt 3 .… 2.22 Pt 1 .… 9.87 Div 6 .… 9.87 s 4 .… 2.24 s 5 .… 1.54, 2.6, 21.6 s 9 .… 2.13 ss 9–10 .… 2.14 s 9(1) .… 5.14 ss 11–12 .… 2.16 ss 13–15 .… 2.32 ss 13–16 .… 2.15 s 15 .… 2.18 ss 20–22 .… 2.18 s 35 .… 15.31 ss 35–36 .… 2.23, 2.33 s 36 .… 15.31 ss 46–49 .… 2.29 ss 47–48 .… 2.45 s 49 .… 2.25 s 51 .… 2.35 s 52 .… 2.43, 2.44 s 54(2) .… 2.38 s 59 .… 2.41, 2.42 s 59(1)(a) .… 2.39, 9.29 ss 59A–59D .… 2.40, 9.30 s 61 .… 2.35 ss 61–62 .… 1.55, 2.35, 2.36 s 61(2) .… 9.44 s 62 .… 2.35 Civil Proceedings Act 2011 Pt 13A .… 20.9 s 62 .… 2.27, 9.73 s 63 .… 2.27, 9.73 Criminal Code Act 1899 s 245 .… 14.29 Defamation Act 2005 .… 17.1 Pt 3 .… 17.4 s 3 .… 17.2 s 4 .… 17.2 s 6 .… 17.2 s 7 .… 17.2 s 8 .… 17.2

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Torts: Principles, Skills and Application

Defamation Act 2005 – cont’d s 10 .… 17.2 s 11 .… 17.2 s 12 .… 17.4 s 13 .… 17.4 s 14 .… 17.4 s 15 .… 17.4 s 16 .… 17.4 s 17 .… 17.4 s 18 .… 17.4 s 19 .… 17.4 s 20 .… 17.4 s 21 .… 17.2 s 22 .… 17.2 s 23 .… 17.2 s 24 .… 17.2 s 25 .… 17.2 s 26 .… 17.2 s 27 .… 17.2 s 28 .… 17.2 s 29 .… 17.2 s 30 .… 17.2 s 31 .… 17.2 s 32 .… 17.2 s 33 .… 17.2 s 34 .… 17.3 s 35 .… 17.3 s 36 .… 17.3 s 37 .… 17.3 s 38 .… 17.3 s 39 .… 17.3 Electricity Act 1994 s 137 .… 13.33 s 138 .… 13.33 Factories and Shops Act 1960 .… 16.30 Fire and Rescue Service Act 1990 s 53 .… 13.33 Law Reform Act 1995 .… 7.15 Pt 3 Div 3 .… 2.34, 9.87 s 10 .… 2.28 s 16 .… 2.30 Limitation of Actions Act 1974 .… 2.7, 21.7 s 4(1)(a) .… 13.5 s 10(1)(a) .… 13.5 National Injury Insurance Scheme (Queensland) Act 2016 .… 9.55 ss 42–44 .… 9.57 Succession Act 1981 .… 12.6 s 66 .… 2.26, 9.70 Victims of Crime Assistance Act 2009 .… 2.10

Workers Compensation and Rehabilitation Act 2003 .… 2.9, 9.59, 21.10

South Australia Aborigines Act 1934 s 10 .… 14.51 Civil Liability Act 1936 .… 1.54, 2.5, 21.5 Pt 5 .… 2.27, 9.73 Pt 6 .… 2.22 s 3 .… 2.24, 2.35 s 4 .… 1.54, 2.6, 21.6 ss 19–22 .… 2.19, 2.20, 19.9, 19.10 s 20 .… 2.21, 19.11 s 23 .… 2.27 ss 23–30 .… 2.27 s 24 .… 2.27 ss 31–32 .… 2.13 s 32 .… 2.14 s 32(1) .… 5.14 s 33 .… 2.37 ss 34–35 .… 2.16 ss 36–39 .… 2.15 ss 40–41 .… 2.18 s 42 .… 2.22, 2.23, 2.33, 15.31 ss 46–47 .… 2.29 s 52 .… 1.55, 2.35, 2.36, 2.43, 9.44 s 54 .… 2.38 s 56 .… 1.55, 2.35 s 58 .… 2.41, 2.42 s 58(1)(a) .… 2.39, 2.40, 9.29, 9.30 s 58(2) .… 2.39, 9.29 s 58(3) .… 2.39, 9.29 s 62 .… 13.17 s 67 .… 2.25 Consent to Medical Treatment and Palliative Care Act 1995 s 12 .… 10.9 Defamation Act 2005 .… 17.1 Pt 3 .… 7.4 s 3 .… 17.2 s 4 .… 17.2 s 6 .… 17.2 s 7 .… 17.2 s 8 .… 17.2 s 10 .… 17.2 s 11 .… 17.2 s 12 .… 7.4 s 13 .… 7.4 s 14 .… 7.4 s 15 .… 7.4 s 16 .… 7.4

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s 5B(1)(a) .… 3.9 s 5B(1)(b) .… 3.9 s 5B(1)(c) .… 3.9 s 5B(2) .… 3.9 s 5B(2)(a) .… 3.9 s 5B(2)(b) .… 3.9 s 5B(2)(c) .… 3.9 s 5B(2)(d) .… 3.9 s 5D .… 3.11 s 10 .… 2.24 s 11 .… 2.13, 2.14 s 11(1) .… 5.14 ss 13–14 .… 2.16 ss 15–17 .… 2.32 ss 15–20 .… 2.15 s 21 .… 2.44 ss 21–22 .… 2.18 s 26 .… 2.38 s 27 .… 1.55, 2.35, 2.43 s 28 .… 1.55, 2.35, 2.41, 2.42 s 28(1) .… 2.36, 9.44 s 28B(2) .… 2.39, 9.29 s 28B(3) .… 2.39, 9.29 s 35 .… 2.30 s 37 .… 2.22 ss 38–41 .… 2.33 s 42 .… 2.23, 15.31, 15.35 Criminal Code s 45 .… 4.56 Damage by Aircraft Act 1963 ss 3–4 .… 13.17 Defamation Act 2005 .… 17.1 Pt 3 .… 7.4 s 3 .… 17.2 s 4 .… 17.2 s 6 .… 17.2 s 7 .… 17.2 s 8 .… 17.2 s 11 .… 17.2 s 12 .… 17.4 s 13 .… 17.4 s 14 .… 17.4 s 15 .… 17.4 s 16 .… 17.4 s 17 .… 17.4 s 18 .… 17.4 s 19 .… 17.4 s 20 .… 17.4 s 21 .… 17.2 s 22 .… 17.2 s 23 .… 17.2

s 17 .… 7.4 s 18 .… 7.4 s 19 .… 7.4 s 20 .… 7.4 s 21 .… 17.2 s 22 .… 17.2 s 23 .… 17.2 s 24 .… 17.2 s 25 .… 17.2 s 26 .… 17.2 s 27 .… 17.2 s 28 .… 17.2 s 29 .… 17.2 s 30 .… 17.2 s 31 .… 17.2 s 32 .… 17.2 s 33 .… 17.2 s 34 .… 17.2 s 35 .… 17.2 s 36 .… 17.2 s 37 .… 17.2 Juries Act 1927 s 15 .… 17.2 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 7 .… 2.28, 2.34, 9.87 Limitation of Actions Act 1936 .… 2.7, 21.7 s 35(c) .… 13.5 Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013 .… 2.8, 9.55, 21.8 Return to Work Act 2014 .… 2.9, 9.59, 21.10 Supreme Court Act 1935 ss 36–38 .… 2.32 ss 46–48 .… 2.45 s 74 .… 2.30 Survival of Causes of Action Act 1940 s 2 .… 2.26, 9.70, 9.71 s 3 .… 2.26, 9.71 Victims of Crime Assistance Act 1988 .… 2.10

Tasmania Administration and Probate Act 1935 s 27 .… 2.26, 9.70 Civil Liability Act 2002 .… 1.54, 2.5, 2.19, 2.20, 2.21, 2.40, 9.30, 19.9, 19.10, 19.11, 21.5 Pt 8 .… 2.37 Pt 9 .… 2.22 Div 7 .… 2.34, 9.87 s 3B .… 1.54, 2.6, 21.6 s 5 .… 2.29, 2.45 s 5B .… 3.9

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Torts: Principles, Skills and Application

Defamation Act 2005 – cont’d s 24 .… 17.2 s 25 .… 17.2 s 26 .… 17.2 s 27 .… 17.2 s 28 .… 17.2 s 29 .… 17.2 s 30 .… 17.2 s 31 .… 17.2 s 32 .… 17.3 s 33 .… 17.3 s 34 .… 17.3 s 35 .… 17.3 s 36 .… 17.3 s 37 .… 17.3 s 38 .… 17.3 s 39 .… 17.3 Fatal Accidents Act 1934 s 27 .… 2.27, 9.73 Limitation Act 1974 .… 2.7, 21.7 Liquor and Accommodation Act 1990 .… 4.56 Motor Accidents (Liabilities and Compensation) Act 1973 .… 2.8, 9.55, 21.8 Victims of Crime Assistance Act 1976 .… 2.10 Workers Rehabilitation and Compensation Act 1988 .… 2.9, 9.59, 21.10 Wrongs Act 1954 s 4 .… 2.28, 2.34, 9.87, 9.88

Victoria Accident Compensation Act 1985 .… 21.11 s 134AB(22)(c) .… 2.44 Administration and Probate Act 1958 s 29 .… 2.26, 4.105, 9.70 Civil Procedure Act 2010 .… 20.13, 20.19, 21.9 County Court Civil Procedure Rules 2018 .… 21.9 Defamation Act 2005 .… 17.1 Pt 3 .… 17.4 s 3 .… 17.2 s 4 .… 17.2 s 6 .… 17.2 s 7 .… 17.2 s 8 .… 17.2 s 10 .… 17.2 s 11 .… 17.2 s 12 .… 17.4 s 13 .… 17.4 s 14 .… 17.4 s 15 .… 17.4 s 16 .… 17.4

s 17 .… 17.4 s 18 .… 17.4 s 19 .… 17.4 s 20 .… 17.4 s 21 .… 17.2 s 22 .… 17.2 s 23 .… 17.2 s 24 .… 17.2 s 25 .… 17.2 s 26 .… 17.2 s 27 .… 17.2 s 28 .… 17.2 s 29 .… 17.2 s 30 .… 17.2 s 31 .… 17.2 s 32 .… 17.2 s 33 .… 17.2 s 34 .… 17.3 s 35 .… 17.3 s 36 .… 17.3 s 37 .… 17.3 s 38 .… 17.3 s 39 .… 17.3 Electricity Safety Act 1998 s 75 .… 20.24 Factories and Shops Act 1928 s 59(1)(a) .… 16.27 Guardianship and Administration Act 1986 .… 10.13 Judicial Proceedings Act 1958 s 4(1A) .… 16.10 Legal Aid Act 1978 .… 12.18 Limitation of Actions Act 1958 .… 2.7, 10.45, 21.7, 21.9 s 5(1)(a) .… 13.5 s 27D(1)(a) .… 10.45 Magistrates’ Court Act 1989 .… 12.18 Mental Health Act 1986 s 10 .… 4.27 Railways Act 1928 s 200 .… 18.13 Road Management Act 2004 Pt 6 .… 2.22 s 102 .… 15.31 ss 102–103 .… 2.23 s 103 .… 15.31 Supreme Court Act 1986 .… 20.19 Pt 4A .… 20.13, 20.19, 20.24 s 33ZD .… 20.19 s 33N .… 20.19 s 33T .… 20.19

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Table of Statutes

s 33V .… 20.19, 20.24 s 33V(1) .… 20.24 s 65A .… 20.19 Supreme Court (General Civil Procedure) Rules 2015 .… 20.19 Transport Accident Act 1986 .… 2.8, 9.55, 21.8, 21.9 s 93 .… 2.43 s 93(7) .… 2.44 Victims of Crime Assistance Act 1996 .… 2.10 Workplace Injury Rehabilitation and Compensation Act 2013 .… 2.9, 9.59, 21.10, 21.11 Wrongs Act 1958 .… 1.54, 1.55, 2.5, 2.21, 10.26, 19.11, 21.5 Pt III .… 2.27, 4.105, 9.73 Pt XI .… 2.37 Pt XII .… 2.22 s 14 .… 2.20, 19.10 s 14A .… 2.20, 19.10 s 14A–14E .… 2.19, 19.9 s 14B .… 2.19, 2.20, 2.29, 19.9, 19.10 s 14G .… 2.29, 2.45 s 16 .… 9.74 ss 16–23AE .… 2.27 s 25 .… 2.34, 9.87 s 26 .… 2.28, 2.34, 9.87 s 26(1) .… 2.28 s 26(1A) .… 2.28 s 28 .… 2.41, 2.42, 2.43 s 28LB .… 1.55 s 28F(2) .… 2.38 s 28G .… 1.55, 2.35 s 28H–28HA .… 1.55, 2.35 s 28HA .… 2.35 s 28HA(1) .… 2.36, 9.44 s 28IA(1) .… 2.39, 9.29 s 28IA(2) .… 2.39, 9.29 s 28ID .… 2.40, 9.30 s 28IE .… 2.40, 9.30 ss 30–31 .… 13.17 s 31 .… 2.30 s 44 .… 2.24 s 45 .… 1.54, 2.6, 21.6 s 48 .… 2.13 ss 48–50 .… 2.14 s 48(1) .… 5.14 ss 51–52 .… 2.16 s 53 .… 2.32 ss 53–54 .… 2.32 ss 53–56 .… 2.15

s 54 .… 2.32 ss 57–60 .… 2.18 s 62 .… 2.34, 9.87 ss 83–85 .… 2.33

Western Australia Civil Liability Act 2002 .… 2.5, 2.40, 9.30, 21.5 Pt 1A Div 5 .… 2.34, 9.87 Pt 1B .… 2.37 Pt 1C .… 2.22 s 3A .… 1.54, 2.6, 21.6 s 4 .… 1.55, 2.35, 2.43 s 5 .… 2.15, 2.16, 2.30, 2.45 s 5A .… 2.24 s 5B .… 2.13, 2.14 s 5B(1) .… 5.14 s 5L .… 2.29 ss 5M–5O .… 2.32 s 5P .… 2.18 ss 5W–5Y .… 2.33 s 9 .… 1.55, 2.35, 2.43 s 10 .… 1.55, 2.35, 2.43 s 10A .… 1.55, 2.35 s 10A(1) .… 2.36, 9.44 s 11(1) .… 2.38 s 12 .… 2.41, 2.42 s 12(1) .… 2.39, 9.29 s 12(5)–(7) .… 2.39, 9.29 s 52 .… 2.23, 15.31 Defamation Act 2005 .… 17.1 Pt 3 .… 17.4 s 3 .… 17.2 s 4 .… 17.2 s 6 .… 17.2 s 7 .… 17.2 s 8 .… 17.2 s 10 .… 17.2 s 11 .… 17.2 s 12 .… 17.4 s 13 .… 17.4 s 14 .… 17.4 s 15 .… 17.4 s 16 .… 17.4 s 17 .… 17.4 s 18 .… 17.4 s 19 .… 17.4 s 20 .… 17.4 s 21 .… 17.2 s 22 .… 17.2 s 23 .… 17.2 s 24 .… 17.2

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Torts: Principles, Skills and Application

Defamation Act 2005 – cont’d s 25 .… 17.2 s 26 .… 17.2 s 27 .… 17.2 s 28 .… 17.2 s 29 .… 17.2 s 30 .… 17.2 s 31 .… 17.2 s 32 .… 17.2 s 33 .… 17.2 s 34 .… 17.3 s 35 .… 17.3 s 36 .… 17.3 s 37 .… 17.3 s 38 .… 17.3 s 39 .… 17.3 Damage by Aircraft Act 1964 ss 4–5 .… 13.17 Fatal Accidents Act 1959 .… 9.73, 9.75 s 4 .… 2.27 Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 .… 7.13, 9.87 s 4 .… 2.28, 2.34 Law Reform (Miscellaneous Provisions) Act 1941 s 4 .… 2.26, 9.70 Limitation Act 2005 .… 2.7, 21.7 s 13 .… 13.5 Motor Vehicle (Catastrophic Injuries) Act (WA) 2016 .… 9.55 s 5(3) .… 9.57 s 8(3) .… 9.57

Occupational Safety and Health Act 1984 .… 6.53 Occupiers Liability Act 1985 .… 6.53 s 5 .… 2.19, 2.20, 2.21, 19.9, 19.10, 19.11 Victims of Crime Assistance Act 2003 .… 2.10 Workers and Injury Management Act 1981 .… 2.9, 9.59, 21.10 s 93E .… 4.111

United Kingdom Betting and Lotteries Act 1934 .… 16.9 s 11 .… 16.9 s 11(2) .… 16.9 s 11 (2)(b) .… 16.9 s 30 .… 16.9 Coal Mines Regulation Act 1887 .… 14.48 Courts and Legal Services Act 1990 .… 1.48 s 58 .… 1.48 s 58A .… 1.48 Factories Act 1937 s 22(1) .… 16.29 Grinding of Metals (Miscellaneous Industries) Regulations 1925 reg 1 .… 16.34 Judicature Act 1875 .… 18.4 Legal Aid, Sentencing and Punishment of Offenders Act 2012 .… 1.48 s 44 .… 1.48 Occupiers’ Liability Act 1957 .… 19.5 Waterworks Clauses Act 1847 s 35 .… 16.25

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Chapter 1

Tort Law in Australia: An Overview Legal practice skill: Appreciating the system of tort law and key issues

Learning aims •

Understand the basis of modern tort law as a compendium of statute and common law

•

Familiarise with the main trends and themes of the last 20 years in particular

•

Appreciate the context of the Ipp Review and the legislative reforms since 2002

•

Apply the jurisdictional nature of tort law within a federal system, given the six states and two territories

Background concepts First principles 1.1

Tort law is a fascinating area of the law, principally because it involves and develops notions of justice and fairness in relation to people suffering harm or injury. An example of this is the waterside workers’ compensation claim for the asbestos-related disease, mesothelioma, contracted as a result of workers unloading ships at Australian ports in the 1960s. The case, which went to the High Court of Australia just before the turn of the new millennium,1 highlighted some of the issues critical to tort law: should workers be compensated and by whom? Could long-ago events give rise to present-day compensation? How do such cases impact on workplace practices? Tort law is a feature of virtually every legal practice in Australia, from high street, sole-partner firms to multinational, thousand-lawyer conglomerates. A ‘tort’ is a civil (as opposed to a criminal) wrong.Torts, therefore, range from relatively simple ‘slip and trip’ cases and motor vehicle accidents, at one end

1. Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; [1999] HCA 59.

1

1.1

Torts: Principles, Skills and Application

of the spectrum, to complex insurance and professional negligence claims (for example, against specialist medical practitioners or auditors or other qualified professionals) at the other end. Tort law focuses on compensation for harm. The common law and the legislation produced by Australia’s nine parliaments both respond to and drive change in Australian society. Tort law reflects this mosaic as it seeks to balance access to compensation and justice for claimants (plaintiffs) with fairness — both procedural and substantive — for defendants. This book aims to provide an overview of the most common of the torts, that of negligence, and its basic and irreducible features. It also covers the impact of legislation, and the range of other common torts. By ‘negligence’ we mean, in everyday language or parlance, something very close to ‘carelessness’. It is a form of carelessness recognised by law; crucially, it carries legal consequences. It can involve the defendant doing something carelessly, or failing to do something which the defendant should have done. That is, it has both positive and negative aspects, formally referred to as ‘misfeasance’ and ‘non-feasance’. The law of negligence holds that in certain situations, one ‘legal person’ has a duty to take reasonable care not to cause harm (harm is also referred to as ‘loss’, ‘injury’ or ‘damage’) to another legal person. A ‘legal person’ includes individuals, as well as other legal entities, such as businesses or the directors of companies, and the company itself as a separate legal entity. The legal person owing the duty takes on the role of the defendant. The ‘pursuer’ of the claim, the person claiming injury or loss as a result of the negligence, is the plaintiff. They may be complete strangers until the moment of the alleged tort. Take a motor vehicle accident — two strangers collide, quite literally, but negligence law may well impose a profound relationship that may also involve years of litigation. In this sense, torts, such as negligence, have unanticipated scope, scale and significance as compared with, for example, the consensual, deliberative process which underpins contract law. It is important to bear in mind that negligence is one of several torts. There is a variety of other torts, including trespass, assault, battery, defamation, false imprisonment and so on. These other torts are also covered in this book. Negligence is by far, however, the most commonly referred to tort in the day-to-day practices of Australian law firms. Many lawyers will specialise in some common branch of negligence law; these include claims involving motor vehicle accidents, or workplace injuries. There will not, on the other hand, be many lawyers who specialise in, say, intentional torts such as assault and battery cases, as opposed to negligence, because the litigated cases are far less common in these areas.

2

1.2

Tort Law in Australia: An Overview

As a matter of modern practice, all lawyers involved in tort law will have day-to-day regard to the relevant legislative provisions. These have become commonplace in the field as a result of the legislative reforms of the last two decades. Common law and statute both inform the field. In any negligence claim, a ‘cause of action’ needs to be disclosed by the plaintiff. That is, a set of allegations which, if proved, satisfy the particular elements or ingredients of that particular type of claim. Causes of action are based on fact scenarios or instructions provided by clients to lawyers. Causes of action, in the context of negligence, can be found in relevant statutes and legislative provisions and in the common law (that is, in judge-made law via relevant precedent).This means that a claimant (plaintiff) may, depending on the facts, allege a negligence claim: •• in terms of statutory law alone; •• in terms of common law alone; or •• in both common law and statute law (as we shall see in the precedent letters referred to in the Tutorial at the end of this chapter).

Difficulties with getting to grips with negligence principles 1.2

Negligence is, conceptually at least, one of the more difficult areas of the law. Why is this? Probably the main reason is that it is not a neat linear concept such as, say, litigation, where each link follows chronologically from the other. That is, the litigation process is a step-by-step process with the issuing of the writ, the filing of the defence, etc, taking place in a particular order so that each of the parts connects so as to make a chain of events. Negligence, on the other hand, involves a cluster of concepts that together make up the relevant key elements of the law. The heart of negligence in the Australian common law system is the duty of care. It is a ‘hurdle’ requirement, in that the plaintiff needs to show that the defendant owed them a duty of care. The case can fail at this stage if no duty of care can be shown to exist. In many instances, the duty of care is established. A driver owes a duty to his or her passengers; an employer owes a duty to his or her employees. But there are some cases giving rise to new and not yet considered facts. This may be where the existence of a duty is not determined, so the courts need to determine if a duty is owed. In these cases, it is also the most difficult conceptual issue. In a sense, everything flows from an appreciation of the duty of care concept, so in studying tort law, and negligence in particular, we need to be aware of its centrality in the early stages of case, but not get weighed down in the technical details and the sometimes intricate nature of duty issues. This is especially the case in the so-called ‘novel cases’, which refers to those cases

3

1.2

Torts: Principles, Skills and Application

and facts which stretch the known boundaries of the established Australian common law principles dealing with negligence. Additionally, we need to bear in mind the complex legislative framework that must be considered alongside the common law. In this book, we deal with the duty of care principles and hurdle requirement in Chapter 4 as a key element of a negligence claim. Duty is a necessary ingredient, along with the other main elements, which are breach of the duty, causation of harm or loss to the plaintiff by the defendant, and damage or loss which is compensable and recognised as such in law.The duty of care concept is covered in some detail; its intricacies are discussed and recent High Court cases are referred to for meaning and elucidation of this complex but fascinating ‘control mechanism’ that is effectively the gateway into the law of negligence. Put simply, if there is ‘no duty of care’, there is ‘no case’ for the plaintiff to be able to pursue, or for the defendant to deny.

Historical perspectives A very brief history of negligence 1.3

Negligence law, as we know it today, is a product of the 20th century and the United  Kingdom House of Lords case, Donoghue v Stevenson,2 which is discussed below at 1.4–1.6. The genesis of Donoghue is a series of 19th-century United Kingdom cases, together with some influential United States cases of the early 20th century. The ‘story’ of negligence in the last 100 years, therefore, is a good illustration of the common law growing, shaping and evolving in a gradual process, and of the importance of the development of ‘comparative’ (that is, as between countries) common law. If Donoghue in 1932 represents the seminal negligence case in terms of setting out the general principles of negligence liability, Hedley Byrne & Co Ltd v  Heller & Partners Ltd3 in 1963 represents the engine room for the growth of a distinct new category of negligence, that of professional liability. In the nearly 50 years since its delivery, Hedley Byrne has changed the liability landscape for lawyers, doctors, accountants, architects and any other number of professions.

A general test for negligence liability 1.4

Donoghue v Stevenson is a fundamentally important case because it sets out, for the first time, a generic test for tortious liability.That is, it provides a framework for examining whether there is negligence in a multitude of fact scenarios

2. Donoghue v Stevenson [1932] AC 562. 3. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] 1 AC 465; [1963] 2 All ER 575.

4

1.5

Tort Law in Australia: An Overview

and, in so doing, provides guidance well beyond its particular (and somewhat unusual facts). It principally does this through Lord Atkin’s judgment, which hinges on the notion of the ‘neighbour’ principle.

1.5

Donoghue v Stevenson [1932] AC 562 Court: House of Lords Facts: Person A purchases ginger beer for herself and a friend, B. B’s ginger beer contains the remains of a snail. The bottle is opaque, so that B could not see the snail. B is violently ill and wants compensation from the manufacturer. There is no remedy for B in contract because the only relevant contract is between A and the shop owner. Does B, in the alternative, have a remedy in tort against the manufacturer? Legal principle: Lord Atkin, one of the Law Lords hearing the case, wrote:4 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. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injury your neighbour.

This immediately became known as the ‘neighbour principle’; it provided a relationship recognized at law between a defendant and plaintiff. Potential defendants, such as the manufacturer of the ginger beer, must have regard to those people, businesses and others who, in law, would be regarded as their ‘neighbours’. The neighbour concept acts as the legal link between a defendant and plaintiff; prior to the alleged loss and negligent act (or failure to act), the plaintiff and defendant may have been complete strangers. In the case of Donoghue, the ultimate consumers of the ginger beer in the shop were, despite no physical proximity and no contract or any other point of contact, ‘neighbours’ in law to the manufacturer of the product. The court’s decision (application of the legal principle to the facts): The manufacturer was liable in negligence to the consumer of the ginger beer, B. Significance of this case: Lawyers around the world are familiar with this case. (It is revered in the common law world, where its anniversary is celebrated.) It has driven the growth of liability principles, and given rise to whole new areas of law such as product liability. Donoghue has a common law importance rating of 10 out of 10! The neighbour concept is both a vehicle for growth and flexibility of

4. Donoghue v Stevenson [1932] AC 562 at 580.

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Torts: Principles, Skills and Application

common law principles, and a problem. The problem is: where does the neighbour concept end? To how many cases can it be applied? It is a control mechanism whose outer limits continue to exercise the minds of the senior common law courts of Australia, England and elsewhere. Background and context: As we shall see in Chapter 3, Donoghue, as with any other case, does not appear out of ‘thin air’; the groundwork for, and the discrete elements of, the principles that come together in Lord Atkin’s judgment, arose in previous cases.

1.6

The principles enunciated in Donoghue were soon after applied in Australia in the well-known case of Grant v Australian Knitting Mills.5 This was a case referred to the Privy Council. It affirmed the neighbour principle and extended it to the context of clothing — a woollen undergarment worn by Dr Grant. The years after Donohue saw the tort of negligence expand to many and various factual contexts. While Donoghue had focused on product liability and misfeasance (a negligent act by the defendant), the law extended in the United Kingdom and Australia to non-feasance (a negligent failure to act by the defendant or a negligent omission by them). The first case to do so was Dorset Yacht Co Ltd v Home Office,6 which involved consideration of the Home Office’s oversight of juvenile detainees. Donoghue is often referred to as the case which founded the modern law of negligence, and as (arguably) the most famous United Kingdom case of the last century. Its centenary in 2032 will no doubt affirm its eminent place in the history of the common law in the United Kingdom and Australia. Since Donoghue’s case, the concepts of negligence, and the neighbour principle espoused by Lord Atkin, have continued to expand into numerous new areas of activity, including the work done by professionals. As Justice Edelman of the High Court has written extra-judicially of the case: ‘Lord Atkin’s speech, and its generalising tendencies, was a revolution in the law of torts’.7

The negligence liability of professionals 1.7

Just as ‘the snail in the bottle case’ (as Donoghue is referred to) has given rise to a whole new direction for tort law, an obiter dictum judgment of the House of Lords has fundamentally altered the lives of professionals in contemporary Australia and other common law jurisdictions.

5. Grant v Australian Knitting Mills [1936] AC 85. 6. Dorset Yacht Co Ltd v Home Office [1970] AC 1004. 7. J Edelman and S Degeling, ‘The Future of the Common Law of Torts’ (2010) 33 Australian Bar Review 45 at 46.

6

1.9

Tort Law in Australia: An Overview

1.8

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] 1 AC 465; [1963] 2 All ER 575 Court: House of Lords Facts: A bank is asked for a credit assessment of one of its customers, B, by a third party, C. The written reference turns out to be unduly positive about B’s credit position and leads to C incurring heavy financial losses. The reference includes a disclaimer of liability; that is, the bank insists that it will not be legally liable for its opinion. Legal principle: Does a party, such as a bank, armed with knowledge and expertise of its customers’ financial affairs, owe a duty to the requestor to take care when the requestor will rely on the financial reference which is supplied? The court’s decision (application of the legal principle to the facts): The bank did owe a duty to the requestor to take care when giving financial references that it knew would be relied on by the requestor. However, in this particular case, the bank was protected from legal liability by the terms of its disclaimer. Significance of this case: Hedley Byrne is one of the most influential cases of the last century and one of the most influential obiter dictum decisions in the history of the common law. Background and context: The repercussions of the Hedley Byrne decision are still being felt as judges grapple with the ‘outer limits’ of the negligence liability of professionals. The case provided the genesis for the growth of professional liability principles both in the United Kingdom and Australia.

Some further thoughts on the growth of negligence liability 1.9

The ripples that were created, first by Donoghue and then by Hedley Byrne, are, in effect, still spreading in the common law world. The developments since Donoghue and Hedley Byrne illustrate that tort law develops via and responds to social, economic and cultural changes. The development of Australian principles of negligence also illustrates how the common law of one country is increasingly influenced by other jurisdictions. Historically, of course, United Kingdom law has been fundamentally important in Australia and, in the area of tort law, United Kingdom law (and indeed the laws of New Zealand, Canada and other countries) has had, and continues to have, a profound influence on the way the law in Australia develops. This may have a lot to do with the fact that tort law has, until recent times, largely been judge-made law (as opposed to statute-based law). In the last two decades this has changed. In each state and territory there has been a rush to introduce statutes which began at the start of this century.Tort law now is a dualistic system in which both statute and case law needs to be considered. Statute and common or case law may intersect and overlap.This can occur in several ways: 7

1.9

Torts: Principles, Skills and Application

•• If the statute is clear on its terms, it prevails as a matter of statutory interpretation. •• The terms of the statute often, however, rely on common law to further clarify the essential provisions and meaning of the statute; therefore, both statute and common law need to be considered. •• Alternatively, the principles in dispute may not be covered by statute, and the relevant common law applies. The cases and judgments in tort law are still fundamentally important in terms of setting out, clarifying and applying legal principles. Many of the cases referred to are High Court cases and they will provide you a valuable insight into essential legal skills, such as legal writing, legal reasoning and problem solving. We will examine these issues further in Chapter 3. We will also see that the next phase in the development of negligence law is bound to be one dominated by statute.

Economic paradigms 1.10

If one were to examine the economic history of 20th-century Australia (as a so-called industrialised Western nation), a key term that an economic historian might use would be ‘Fordism’. It is an expression coined to stand for the type of economy characterised by mass production and the prevalence of factories and assembly lines, and was made famous by the United States carmaker, Henry Ford. Fordism became the dominant economic paradigm of Western capitalism until World War II. Fordism was characterised by the mass production of new types of technical and scientific machines, such as cars. The second major Western economic phase is ‘Sonyism’, a reference to the Japanese multinational, Sony Corporation. The expression stands for the goods that were increasingly being manufactured by machines in factories after World War II: transistor radios, stereos, CD players, Walkmans and so forth. The third (and current) phase is often referred to as ‘post-Sonyism’. This phase captures the e-commerce revolution, where the emphasis is as much on services as it is on goods. These broad-based economic labels — namely, Fordism, Sonyism (also referred to as post-Fordism) and post-Sonyism8 — may be of limited practical use to the tort lawyer, but they do help to provide a contextual framework to an understanding of the dynamic nature of economic paradigms that comprise the broader mosaic in which tort law generally, and negligence principles specifically, operate.

8. For an interesting discussion on Fordism, see L Iacocca with W Novac, Iacocca: An Autobiography, Sidgwick and Jackson, London, 1984, dealing with the life story of Lee Iacocca, the former president of Ford, who went on to turn around the fortunes of competitor car company, Chrysler. For the story of Sony and its impact, see A Morita with E M Reingold and M Shimomura, Made in Japan, Signet, New York, 1988.

8

1.11

Tort Law in Australia: An Overview

Take, for instance, the characteristics of the modern labour market, which includes the following features: •• •• •• •• ••

high levels of self-employment; increasing ‘casualisation’/part-time employment; an increasing trend for people to work and run businesses from home; increasing specialisation; and new growth industries such as IT and teleworking.

This picture is vastly different from the workplace of 20 years ago, when typewriters and telexes were commonplace and faxes were revolutionary. Judged against these developments, the modern ‘working world’ can be seen as marked by turbulence and rapid change. In another sense, with the increasing phenomenon, for instance, of more people working from home, it could be argued that, in some senses, there is a return to the pre-Industrial Revolution type of workplace, which was characterised by guilds, start-up businesses and small organisations.

The changing negligence environment 1.11

The modern Australian economy is now complex and highly international. It juxtaposes several types of businesses: •• multinational corporations with Australian branch offices (put forward by many as evidence of an increasingly global economy); •• large publicly listed companies; •• not-for-profit organisations; •• public and government organisations (whether at the local, state or national level); and •• a growing entrepreneurial or micro economy with many start-ups and small and medium-sized enterprises (SMEs). The internet and the online economy provide every business with ‘global reach’ and the opportunity for rapid growth and expansion; that is, for the first time, they can access the tools where they can quickly develop, scale up and prosper via international strategic alliances and so forth. This second phase of the growth of the internet (after the 2000 ‘Dotcom’ bubble) will no doubt present new challenges to economists and torts lawyers, especially as we enter the age of AI or artificial intelligence. The ‘look and feel’ of the next phase of the economy is difficult to pinpoint, as is the changing role of negligence law in Australian society.The dynamic nature of economies and, in turn, negligence law, is illustrated by the following brief examples:

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Torts: Principles, Skills and Application

•• Twenty years ago: – Smoking was considered a socially acceptable personal activity and one’s freedom to smoke in the workplace and public places, such as restaurants, was unquestioned. – Personal injury lawyers were grappling with repetitive strain injury (RSI) claims made in relation to typewriters and the first cumbersome PCs with their green cursors.9

•• Ten years ago: – The health effects of mobile phone use were just being considered. – The deleterious nature of long-haul air flights and deep vein thrombosis (DVT) were also recognised as issues.10

•• Today, we know that: – Asbestos dust can be deadly.11 – There is increasing evidence that smoking is harmful to foetal development and infant stages of life. – Passive smoking can affect all people. – The so-called obesity epidemic will have major health consequences and this is an area of law where negligence may prove important. – Climate change litigation is upon us. It is predicted that negligence law will be relevant and important in this context.

Contemporary issues The Australia Act 1986 1.12

The Australia Act 1986 (Cth) marked the development, as the High Court noted in Mabo v Queensland (No 2),12 of a distinctive new strand of common law, namely the Australian common law. This statement can be misleading because obviously Australian common law has, to various degrees, been developing since the first common law courts were established following the arrival of the First Fleet. The first such court was established in the early 1800s. The point about the Australia Act was that it marked the moment at which all Australian courts were for the first time, in a formal and legal sense, entirely independent of English or imperial courts; that is, no litigant in Australia could appeal to the Privy Council based in London.The zenith of Australian common law and the final appeal court in all cases originating in Australia was, for the first time in 1986, the High Court of Australia, based in Canberra.

9. Open a search engine; enter the words ‘repetitive strain injury’ — a range of information comes up. 10. Open a search engine; enter the words ‘deep vein thrombosis’ — a range of information comes up. 11. Open a search engine; enter the word ‘mesothelioma’ — a range of information comes up. 12. Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1.

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1.13

Tort Law in Australia: An Overview

The path of the Australian courts to independence 1.13

The path of the Australian courts to independence from the English imperial courts was marked by gradualism. The Australian Constitution of 1901 is also contained in a United Kingdom Act of parliament. As such, when the colonies became states in 1901, they had reserved powers which allowed them to have ties to the United Kingdom, and rights of appeal to the United Kingdom Privy Council. The High Court was subject to appeals to the United Kingdom Privy Council as a matter of United Kingdom law.The United Kingdom therefore had to give up power to the Australian courts, and took up until 1986 to relinquish control of legal appeals. This process commenced in stages. In 1931, the Statute of Westminster stopped the United Kingdom from legislating for Australia. The process of the independence of Australia’s courts, however, only commenced in 1968 and occurred in three separate legislative steps, as set out in Table 1.1.

Table 1.1 Australian court(s) subject to imperial control from 1901

Form of imperial control

Up until 1968: All courts including the High Court

Appeals could be made to the Privy Council in London from:

Statute effecting change

Effect of the statutory change

Step 1:

Decisions of the High Court on matters of federal law could not be appealed to the Privy Council; that is, the High Court was, from 1968, the final court on matters of federal law.

• decisions of State Supreme Courts; and • decisions of the High Court. 1968

Privy Council (Limitation of Appeals) Act 1968 (Cth)

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Torts: Principles, Skills and Application

Australian court(s) subject to imperial control from 1901 1975

Form of imperial control

Statute effecting change

Effect of the statutory change

Step 2:

Decisions of the High Court on matters of state law could not be appealed to the Privy Council; that is, the High Court was, from 1975, the final court on matters of both state and federal law.

Privy Council (Appeals from the High Court) Act 1975 (Cth)

1986

Step 3:

No further appeals were allowed from the state Australia Act Supreme Courts. As 1986 (Cth): from 1986, the High involved separate Court was the ultimate United Kingdom appellate court on all and Australian matters of Australian law. legislation (State and Commonwealth Acts passed)

Only after 1986, therefore, was the High Court the ultimate court of appeal on all aspects of Australian law.13

Social developments 1.14

As we have seen, negligence law developments reflect changes in broader economic, social, political and cultural concerns. Take, for instance, the subject of tort law in the transport context. In the 1970s, the courts developed liability principles concerning the wearing of seatbelts (whereas a chief new concern is the issue of DVT on long-haul flights). Another instance of the law having to respond to societal change was in the wake of the AIDS epidemic and the issue of blood transfusions. Australian courts are currently grappling with the development of principles governing class actions or mass litigation. Examples arise out of diverse contexts, including the use of breast implants, smoking-related diseases and the development of legal actions against fast-food companies. These are all instances of the law having to adapt and modify long-held methods and processes.

13. For more details, see R Creyke, D Hamer, P O’Mara, B Smith and T Taylor, Laying Down the Law, 10th ed, LexisNexis Butterworths, Sydney, 2018, [3.11], [3.14]–[3.15].

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1.16

Tort Law in Australia: An Overview

Liability issues expand and contract over time. For instance, at present there are reports that doctors are leaving the medical profession due to the perceived ‘widening’ of negligence liability and the (arguably related) increase in professional negligence insurance premiums. It may be that, in a decade, the pendulum will swing the other way.

Common fact scenarios giving rise to negligence claims 1.15

There are several factual scenarios that may give rise to a potential claim in negligence. Certain matters will need to be proved by the plaintiff ’s lawyer in order for the plaintiff (the person commencing the legal action) to be successful. It is important to appreciate that each case turns on its own particular facts and circumstances. Possible negligence scenarios include: •• car accidents: consider this situation — a driver pulls up at a set of traffic lights and the car behind collides with their vehicle. The driver of the first car suffers a whiplash injury. It may well be the driver can bring a claim in negligence. The first driver would allege that the other driver did not take sufficient care – that is, that the other driver was careless. For example, depending on the particular circumstances, it might be alleged that the other driver did not keep a proper lookout, or was talking or texting on his or her mobile phone or driving too fast, etc; •• ‘slip and trip’ accidents; for example, slipping at the supermarket on liquid spilt on the floor, or tripping on a poorly laid council footpath; •• injuries suffered at work; •• collapsed houses and buildings; •• financial loss cases; for example, the purchase of a business based on a valuation that proves to be inflated (and carelessly produced); •• suing professionals for work that the client believes falls short of appropriate standards; for example, the solicitor who arranges for a beneficiary to a will to sign it as a witness (which invalidates it); or a doctor who fails to inform the patient of the risks associated with an operation; and •• psychiatric illness (or ‘nervous shock’); for example, after witnessing an accident.

Legal concepts relevant to negligence General litigation principles 1.16

A central task for a lawyer is to classify the facts of a case and to compartmentalise or characterise it correctly. For example, does the client’s version of events give rise to a claim in tort, in contract, or in both tort and contract? This remains a crucial and continuing part of the analytical process as the case proceeds towards trial or settlement. 13

1.16

Torts: Principles, Skills and Application

Litigation that proceeds all the way to a contested trial represents only a small percentage of the cases actually commenced in the courts. Most matters will be settled at some point prior to trial, by reference to precedent cases and established legal principles. Cases involving novel or untested points of law, on the other hand, will generally be the sorts of cases that go to a contested trial. The role, therefore, of the torts lawyer is to work with the established legal principles in such a way as to optimise the result for the client. This will be, depending on the client’s instructions, the plaintiff or defendant at first instance and the appellant or respondent at the appeal stage.

Negligence principles 1.17

As with any area of legal practice, lawyers in tort law work with the ‘building blocks’ or sources of law, namely custom, common law and legislation.Tort law is increasingly dominated by statute, but it is still an area where the common law is important. Customary law is rarely used. As noted at 1.9 above, many principles of tort law are informed by common law principles. However, the broad trend of the last two decades has been for legislation to be relevant to areas which were formerly the exclusive province of the common law. In tort law generally, and negligence law in particular, the common law is and will, for the foreseeable future, remain important for the following reasons: •• The common law principles have been developed over the last centuryand-a-half against the broader backdrop of social and economic change. •• The common law principles generally underpin the implementation and meaning of statutory provisions. •• The common law principles inform the content and interpretation of the statutory provisions. •• The senior common law courts are increasingly taking a comparative approach; for example, developments in the House of Lords are of great interest to the High Court of Australia, and vice versa.

Questions and answers: tort law generally What is a tort? 1.18

The word ‘tort’ is a French word meaning ‘civil wrong’.14 Tort law sits within the category of law known as ‘civil’ law, as opposed to the criminal law. The tort of negligence was regarded as a ‘classical’ area of the common law. Its development was largely the work of judges. In contemporary Australia, however, the application of statute-based law has become critical to the tort of negligence.

14. Defined as a ‘wrong; so called because it is wrested (tortum), wrung, or crooked.The word tort is especially used to signify a civil wrong’: Mozley and Whiteley’s Law Dictionary, 10th ed, Butterworths, Oxford, 1988.

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Tort Law in Australia: An Overview

Generally, tort law is regarded as private law as opposed to public law, but the lines can be blurred. For example, negligence and criminal behaviour can overlap. Take the tragic case in Canberra of the demolition of a building in which a 12-year-old was killed while watching proceedings from some distance away. That case involved private law (that is, compensation law) and public law (that is, criminal law).

Civil wrongs — what are they? 1.19

Civil wrongs are basically breaches of the civil law, the main elements being contract and torts. The remedy for a civil wrong is damages; that is, monetary compensation (whereas the remedy for a criminal wrong is the imposition of some form of punishment for a criminal wrong).

Civil wrongs — where do they fit in the legal system? 1.20

The common law of Australia (derived from the United Kingdom common law and independent of the United Kingdom since the Australia Act 1986 (Cth)) comprises, in basic terms, two broad divisions: criminal law and civil law.This division can have very important consequences. For example, take the standard of proof concept, which is the degree of proof required to succeed in a case. In a criminal case, the prosecution must prove its case against the accused ‘beyond reasonable doubt’; expressed as a percentage, this would be akin to 98 per cent or better. In a civil case, the plaintiff need only prove his or her case ‘on the balance of probabilities’; expressed as a percentage, this would be akin to 51 per cent or thereabouts — that is, that the scenario of events put forward by the plaintiff is more likely than not to have occurred.

At the heart of the concept of torts is monetary compensation (also called ‘damages’), but compensation for what? 1.21

The main items or heads of damage are as follows: •• Personal injury and property damage: these are both part of the ‘physical’ world and, therefore, relatively easy to prove. •• The more problematic areas of damage for the law are: – psychiatric damage; and – economic loss (monetary losses), for example loss of profits. These areas of damage are more difficult to prove and present the courts with difficult policy issues. We look at these issues in Chapter 2.

What is the aim of tort compensation or damages? 1.22

The aim is to put the injured person back in his or her pre-accident position as far as money can; that is, as if the accident had not occurred. In this sense, tortious damages look ‘backwards’ to try to remove the effect of events that have occurred. 15

1.23

Torts: Principles, Skills and Application

How would a ‘timeline’ between the dates of the accident/incident/loss and the settlement look?

1.23

Tortious event

Investigation of merits

• Date of accident • Research by or date of loss the plaintiff’s lawyer • Do the facts disclose a cause of action?

Legal steps

Completion

• Letter of demand

• Settlement date or trial

• Issue of proceedings

• Award of some amount of compensation by agreement or settlement • Award of damages at trial

What is the basis of tort damages? 1.24

Tort damages look ‘back’ to the pre-accident circumstances:

Tortious event Settlement date or trial

Theoretical aim of damages in torts

Date of accident or date of loss

To put the person who has suffered the loss back in his or her pre-accident position, insofar as money can provide such compensation

Award of compensation

What is the aim/basis of contractual damages? 1.25

The aim of contractual damages is to put the parties in the same position as if the contract had been completed. In this sense, contractual damages look ‘forward’ to future (theoretical) events, that is, to the completion of the contract, which is referred to as the ‘entitled result’, and damages are assessed as against the ‘normal expectancies measure’.

16

1.31

Tort Law in Australia: An Overview

Contractual breach

Settlement date or trial

Theoretical aim of damages in contract

Date of accident or date of loss

Award of compensation

To put the person who has suffered the loss in the position he or she would be in if the contract were completed

Questions and answers: the tort of negligence specifically What is negligence? 1.26

Negligence is the most common of the ‘torts’.

What are some of the other torts? 1.27

Assault, battery, nuisance and breach of statutory duty are examples of other torts. We examine other torts in later chapters of this book.

How are these classifications made? 1.28

These classifications are made by virtue of the facts of the alleged accident.

How important is the historical classification nowadays? 1.29

It is still fundamentally important.The cause of action approach categorises the case from day one of the proceedings and has consequences throughout the whole litigation process.

What is involved in a negligence claim? 1.30

Negligence involves a judgment that someone’s conduct or behaviour fell below a theoretical standard; that the person failed to act with due care in a given situation or, literally, that the person was careless.

As a legal adviser, what do you need to consider in terms of negligence analysis? 1.31

Always analyse: •• who is the injured party (that is, the plaintiff who brings the case)?; •• who is the potential defendant (that is, the party who defends the claim)?; and •• who are the potential witnesses? 17

1.32

Torts: Principles, Skills and Application

The basic elements of a negligence action 1.32

There are three key elements of a negligence action.They can be formulated as questions: 1. Duty of care: Does the defendant owe a duty of care to the plaintiff? 2. Breach of duty: Is the duty of care breached in the particular circumstance? This will require an examination of all of the facts and circumstances. 3. Damage (loss; injury): Did the breach of the duty result in compensable damage? Or, alternatively, did the breach of duty by the defendant cause the damage to the plaintiff? These three basic ingredients are essential to a successful claim being brought by the plaintiff. We will return to these concepts in Chapters 2 and 3. These concepts underpin every negligence claim. We will examine them in different contexts and in relation to different fact scenarios.

Background concepts and first principles 1.33

Law reform occupies a central place in the Australian law. The Australian Law Reform Commission (ALRC) is the peak body in this area.15 The ALRC is usually headed by an eminent legal academic. It is currently Professor Rosalind Croucher (on leave from Macquarie University). It has also been led by a former justice of the High Court, Michael Kirby, who was, in fact, its first president. Tort law reform is a subset of the wider law reform process. Tort law reform has had a high profile in legal and political debate at certain times over the last decade.This was certainly the case in the late 1990s and early 2000s, when there was a great deal of debate and even ‘moral panic’16 about: •• the notion of ‘personal responsibility’ and looking out for one’s own safety. This is highlighted by reference to dangerous recreational activities, such as hang-gliding or bungee jumping. If a person chooses to participate in these activities, do they do so at their own risk? •• the availability or otherwise of public liability insurance. With the collapse of the large HIH Insurance Group in March 2001, the availability and affordability of insurance has been an ongoing issue. This issue has several related facets; for example, even if insurance is available, is the obtaining of adequate cover prohibitively expensive? Many fairs, fetes, street parades, festivals and other community events struggled to survive in the face of this issue.We also witnessed more widespread insurance ‘gaps’ with, for example, homeowners in flood-prone areas not being able to insure their properties.

15. The ALRC website is (viewed 17 August 2018). 16. ‘Moral panic’ is a term often used in the context of criminology.

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Tort Law in Australia: An Overview

•• the concern that courts were ‘pro-plaintiff ’, that is, somehow predisposed towards plaintiff claims. This newsworthy claim has since been largely discredited.17 •• key areas of tort law, such as medical liability, which had become too onesided and disadvantaged doctors and others in the medical profession in favour of plaintiffs. As with the point above, this claim has not been supported by the evidence of case outcomes.18

The role of the High Court 1.34

The High Court is the gatekeeper and architect of Australian common law. It is also the ultimate arbiter on the meaning of statutes. As such, it controls the two primary sources of law relating to Australian tort law. An issue of the last several decades has been the changing shape and nature of Australian law in the wake of the Australia Act 1986 (Cth).19 The ownership and shaping role of the court in relation to the Australian common law have been more explicit as a result. Other issues concern: •• the interplay between the common law and statute; •• the role and influence of the High Court in developing the common law of torts; and •• the comparative nature of tort law development in the common law jurisdictions of the world. As the High Court noted in the majority joint judgment of Mason CJ, Deane, Wilson and Dawson JJ in Cook v Cook:20 The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of … other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.

The rise and rise of statute 1.35

The history of the development of tort law had generally been dominated by the courts and thus common law until the last decade.The last decade has seen the rise and rise of statute. This is likely to continue. The historical connection with the United Kingdom courts has been of particular importance, but this has diminished since 1986 when the Australia Act was passed.While the United Kingdom remains an important touchstone of comparison, it is one of several countries to which the Australian courts and legislatures refer, rather than the dominant example, as was

17. H Luntz, ‘Torts Turnaround Downunder’ (2001) 1 Oxford University Commonwealth Law Journal 95. 18. Luntz, ‘Torts Turnaround Downunder’, note 17 above. 19. See (viewed 29 August 2018). 20. Cook v Cook (1986) 162 CLR 376 at 390; 68 ALR 353 at 363 per Mason CJ, Wilson, Deane and Dawson JJ.

19

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Torts: Principles, Skills and Application

historically the case. A new international basis of comparison has replaced the old singularity of the United Kingdom as a beacon for Australian law reform. Today, Canada, New Zealand and the United States, among other countries, are likely to be useful points of reference, alongside the United Kingdom.

The Ipp Review Origins 1.36

In the wake of concerns about the common law system of tort law, the Commonwealth, state and territory governments appointed a panel of experts to review the law of negligence. It was chaired by Justice David Ipp of the New South Wales Court of Appeal. The purpose of the Review of the Law of Negligence: Final Report21 was to address the public view of the rapidly rising public liability insurance premiums and damages awards to plaintiffs.

Terms of reference 1.37

The terms of reference for the Ipp Review were as follows:22 Principles-based Review of the Law of Negligence The award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another. It is desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death. Accordingly, the Panel is requested to: 1. Inquire into the application, effectiveness and operation of common law principles applied in negligence to limit liability arising from personal injury or death, including: (a) the formulation of duties and standards of care; (b) causation; (c) the foreseeability of harm; (d) the remoteness of risk; (e) contributory negligence; and (f) allowing individuals to assume risk. 2. Develop and evaluate principled options to limit liability and quantum of awards for damages.

21. Australia. Treasury. Review of the Law of Negligence, Final Report, Department of Treasury, Canberra, September, 2002 (viewed 5 November 2018). 22. Australia. Treasury, Review of the Law of Negligence, note 21 above, p ix.

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3. In conducting this inquiry, the Panel must: (a) address the principles applied in negligence to limit the liability of public authorities; (b) develop and evaluate proposals to allow self assumption of risk to override common law principles; (c) consider proposals to restrict the circumstances in which a person must guard against the negligence of others; (d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission; (e) develop proposals to replace joint and several liability with proportionate liability in relation to personal injury and death, so that if a defendant is only partially responsible for damage, they do not have to bear the whole loss; and (f) develop and evaluate options for exempting or limiting the liability of eligible not-for-profit organisations23 from damages claims for death or personal injury (other than for intentional torts).

Reactions to the legislative changes in light of the Ipp Report 1.38

As we shall observe in Chapter 2, the main thrust of legislation since the Ipp Review has been to restrict the rights of plaintiffs to bring proceedings in negligence. Each state and territory has gone about this in varying ways, so there is no one system or singular response as such. The reactions to the legislative changes in light of the Ipp Report have, in effect, also been many and varied. So as to reflect a post-modern stakeholder approach, reactions have largely been aligned to particular interest group perspectives. Groups include: •• •• •• ••

legal bodies such as the Law Council of Australia; the Australian Plaintiff Lawyers Association; political parties; and insurance bodies.

Response from the Law Council of Australia to the Ipp Report 1.39

A useful discussion site is that of the Law Council of Australia, from which the following commentary is extracted: Bringing balance to personal injury laws24 In 2002, the Federal, State and Territory Governments commissioned the Negligence Review Panel, Chaired by the Hon Justice David Ipp, to recommend

23. A not-for-profit organisation in this context may include charities, and community service and sporting organisations. 24. (viewed 5 November 2018).

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changes to personal injury laws for the primary purpose of reducing the numbers of litigated claims and size of court awarded compensation payments to injured claimants.The review was commissioned in response to the so-called ‘insurance crisis’ of 1999–2002, during which the cost of public liability and professional indemnity insurance rose to unsustainable levels. There is significant conjecture about the source of the insurance crisis. Whilst the insurance industry blamed the crisis on an ‘explosion’ in litigation and ‘overly generous’ courts, most commentators believed the insurance crisis was precipitated by the collapse of HIH Insurance in 1999, combined with several other factors including a hardening global insurance market, increase in the cost of reinsurance and unrealistically low public liability insurance premiums in a highly competitive domestic insurance market. The changes to personal injury laws implemented in several jurisdictions in response to the insurance crisis has led to a patchwork of laws which have invariably weakened the common law rights of people injured due to the carelessness of others. The reforms have also enabled insurers to reap a massive windfall of profits in public liability, motor accidents and workers compensation insurance, due to the dramatic reduction in the number of compensable claims caused by changes to personal injury laws. The changes have been subject to extensive criticism from the judiciary, legal profession, consumer groups, unions and disability rights groups. Even the supposed ‘author’ of the reforms, Justice Ipp, has declared that the changes went too far. In a speech in 2007 Justice Ipp stated: ‘Certain of the statutory barriers that plaintiffs now face are inordinately high.’ 1.40

The Law Council of Australia was opposed to many of the proposals in the Ipp Report, finding that the resulting ‘reforms’ have impacted victims greatly but resulted in only minor reductions in the cost of insurance premiums.25 The council commissioned research by Professor Wright of Newcastle University Law School to examine some of the underlying assumptions of the Ipp Report, including the contentions that: •• there was more personal injury litigation in the 1990s; •• awards of damages were higher; and •• there was an insurance crisis that was both real and substantial. Professor Wright commenced his report on the following basis:26 In 2002 the Commonwealth, state and territory governments reacted to a ‘crisis’ over the availability and affordability of personal injury liability insurance cover by appointing a ‘Panel of Eminent Persons’ to review the law of negligence (the Ipp Review). Between 2002 and 2004 the legislatures in every Australian

25. See New South Wales Bar Association et al, ‘Personal Injury Compensation (A Fair Go for Injured People Campaign) Background Briefing Paper’, Sydney. 26. Professor E W Wright, ‘National Trends in Personal Injury Litigation: Before and After “Ipp”’, 26 May 2006, commissioned by the Law Council of Australia, p 5, available at (viewed 5 November 2018).

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jurisdiction enacted significant tort law reforms, many of them recommended or inspired by the Ipp Review. This report analyses data on trends in personal injury litigation (excluding motor and workplace accident claims) in Australian state and territory courts over the past decade. The data show that, contrary to widespread belief, litigation rates had not, generally, been increasing in the period leading to the Ipp Review.This finding provides no empirical foundation for the premises underlying tort law reform as a strategy for addressing the insurance crisis in 2002. It is evident that the reformers could have had no empirical foundation, either for predicting the impact of the reforms on personal injury litigation in their jurisdictions, or for determining by how much it was desirable to reduce it. The reforms introduced by the state and territory legislatures have caused a substantial decline in personal injury litigation rates in most jurisdictions. The ‘corrections’ in the three largest states, New South Wales, Queensland and Victoria, have been particularly dramatic. The data also show that litigation rates both before and after the reforms varied appreciably among the states and territories, and that the degree of change wrought by their reforms also vary appreciably.

Professor Wright concluded:27 We have observed that personal injury claiming rates varied appreciably between jurisdictions before the reforms, and continue to do so following them. We cannot pretend to know the reasons for this but it begs an obvious question about what ought to be regarded as an acceptable norm. Likewise, it is also evident that the reforms in each jurisdiction have had differing effects on claiming rates. We have made some suggestions about the significant differences among the reforms in each jurisdiction that may be responsible for their differing impact, but it must be admitted that these suggestions are largely speculation. We would conclude simply by noting again that the tort law reformers also had no empirical foundation for knowing by how much it was desirable to reduce tort litigation, nor by how much their reforms would reduce it. These are not facts which inspire confidence in the reform process.

Political and related debate concerning the Ipp Review 1.41

As early as the start of 2007, there was evidence of a campaign to ‘wind back’ tort law reforms in New South Wales.28 According to the New South Wales Bar President, Michael Slattery, ‘support for the campaign has been coming from all quarters’.29 These include:30 •• criminal law barristers;

27. E W Wright, ‘National Trends in Personal Injury Litigation: Before and After “Ipp”’, note 26 above, p 32. 28. S Moran, ‘Big Campaign on Tort Reform’, The Australian, Sydney, 2 March 2007, p 26. This campaign also coincided with a general election in New South Wales. 29. S Moran, ‘Big Campaign on Tort Reform’, note 28 above. 30. S Moran, ‘Big Campaign on Tort Reform’, note 28 above.

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•• ‘barristers who speak foreign languages, including Korean,Vietnamese and Arabic … and have been acting as translators for interviews in the ethnic press’;31 •• the New South Wales Bar Association; •• the Law Council of Australia; •• the New South Wales Law Society; and •• the Australian Lawyers Alliance. The main argument was that the pendulum has swung too far away from plaintiffs, and has instead become too much in favour of defendants. Any fair and sustainable system of justice needs to calibrate the rights of the parties on an individual basis and also to look out for larger, longitudinal trends. If the assertion prior to Ipp was that the courts were pro-plaintiff, the claim is now the other way, but even more fundamentally pitched. One assertion is that the rules exclude vital claims, such as workers with whole-of-body disability below the 15 per cent threshold, and, as a result, a whole class of potential plaintiffs is excluded from access to justice. From a financial point of view, the new rules have resulted in a windfall for defendant funds. For example, it is noted that ‘the NSW government’s WorkCover scheme is set to enjoy a $3.3 billion surplus in the next four years’.32 The criticism is that the fund should be used each year, so that end-of-year balances are small, rather than building up into huge and ongoing surpluses which are likely to be clawed back by government on the basis of greater budgetary need in other areas of public expenditure. 1.42

The following articles provide a flavour of the issues involved. Premier shuns calls to reverse tort reforms33 NSW Premier Morris Iemma has launched his first salvo against lawyers and union leaders demanding more lucrative workers compensation as the NSW election campaign begins shaping up as a bitter fight to the finish. Mr Iemma rejected outright calls from the peak legal bodies for a clawing back of tort reform to restore more rights to workers to sue bosses for injury. He implied the lawyers had launched the campaign in an attempt to line their own pockets through personal injury cases. Mr Iemma said the reforms would stay and that he would not consider changes that would put more money ‘in the hands of lawyers’. But the leader of the lawyers’ campaign, Bar Association president Michael Slattery QC, vigorously rejected Mr Iemma’s allegation. ‘If the Premier says this is just a lawyer’s campaign then why is it being supported by unions in NSW?’ he said.

31. S Moran, ‘Big Campaign on Tort Reform’, note 28 above. 32. S Moran, ‘Big Campaign on Tort Reform’, note 28 above. 33. E Higgins and S Moran, ‘Premier Shuns Calls to Reverse Tort Reforms’, The Weekend Australian, Sydney, 3–4 March 2007, p 10.

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The issue is set to become a significant battleground in the three weeks remaining to the state election, with the Coalition expected to announce a policy that would go some way to meeting the lawyers’ demands. Mr Iemma is up against a powerful alliance: the lawyers who have marshalled funds for an advertising and roadshow campaign, and the union movement, which claims the Labor Government’s tort law reforms have undermined the welfare of workers. The Premier made his comments on the day The Australian revealed that the Government’s WorkCover scheme will rake in a $3.3 billion surplus in the next four years. The lawyers want the Government to wind back tort law reforms introduced by the Carr government in 2001, which apply to workplace injuries and road accidents. They claim that although over the five years the average payment for successful claims has risen from $33,784 to $79,664, the percentage of claims that result in a payout has declined from 58 per cent to 11 per cent. The law groups want the Government to adopt the suggestions of a NSW upper house committee report, which found ‘anomalies and injustices’ occur under the system in which injured are treated differently according to where the injury occurred — at work, in a car, or in a public area. ‘We are only asking that motor accidents and workers compensation claims be determined under the Civil Liability Act — which was a Bob Carr reform to ensure that excessive claims for legal costs would be eliminated,’ Mr Slattery said. But Mr Iemma said the reforms had saved the workers compensation system from collapse and that employees were better off. ‘These changes have put more money in the pockets of injured workers, and less in the pockets of lawyers,’ he said. The surplus would be used to reduce workers compensation premiums, constituting ‘a cut in the cost of doing business, which creates jobs’. Some union leaders are directly backing the campaign, and others, while not joining Mr Slattery’s roadshow, have voiced support for clawing back tort reform. ‘Workers are in many cases worse off under those laws, especially the most seriously injured,’ the NSW secretary of the Australian Manufacturing Workers Union, Paul Bastian, said.The NSW secretary of the Construction Forestry Mining and Energy Union, Andrew Ferguson, also supported winding back tort reform, but said his union did not believe the Coalition would do better than Labor.

The critical point raised in this article is the reference to ‘the percentage of claims that result in a payout [which] has declined from 58 per cent to 11 per cent’.34 This is a clear reference to the cases with less than 15 per cent wholeof-body disability in workers’ compensation litigation. It is clear from this article that the government is not moved to act on further tort reform. From a cynical point of view, pro-defendant headlines are probably more newsworthy, and politically more troublesome, than:

34. E Higgins and S Moran, ‘Premier Shuns Calls to Reverse Tort Reforms’, note 33 above.

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•• the more complex and decidedly less glamorous issue of ‘under-claiming’, where rights are not pursued through cost barriers, ignorance or complexity; or •• the issue of whole groups of claimants, particularly employees, who are not able to access the courts to pursue their former common law rights, as those rights have been removed via statute. 1.43

In the aftermath of the legislative rush, there has been discussion identifying the reality that the tort reforms may have gone too far. For example, Anna Katzmann SC, past President of the New South Wales Bar Association, noted in 2009 that: Benefits for workers whose injuries were caused by their employer’s negligence have been savaged. Workers who sue their employers now receive no damages for non-economic loss; they forfeit forever any entitlement to damages for medical or similar expenses and have to bear most of the cost of proceedings. Tort law reform deprived many deserving people of compensation for injuries caused by others. Few elderly people now have any remedy. Many children miss out. Anyone injured through negligent action by government agencies is worse off. Only this week the Court of Appeal held that two policemen engaged in the rescue effort after the Waterfall train disaster, and who were commended by the Commissioner for their courage, were not entitled to damages for psychiatric injury they claimed to have suffered as a result of the negligence of State Rail. They lost their cases because of the Government’s tort law changes. And what about those ‘plaintiff lawyers’? The vast majority wait until the outcome of a case before they are paid, and will not charge unless their clients are successful. Few others are willing to forfeit any reward for their labour or to wait, sometimes for years, to be paid. As government funding for legal aid has declined considerably, few people would be able to afford access to the justice system but for ‘plaintiff lawyers’. It is high time the Government reconsidered the Carr-Della Bosca reforms and restored some justice and fairness to the compensation system in NSW.

The issue of tort law is largely off the front pages of newspapers and the top of television and radio news bulletins. However, opposition to the changes has come from unexpected quarters as the following article reveals: Tort changes went too far: judge35 The judge who drew up plans for national restrictions on compensation payments says the changes have gone too far, after being forced to strike out sensational claims about the flawed pursuit of paedophiles. NSW Court of Appeal judge David Ipp criticised the restrictions on damages payouts two days after those restrictions obliged him to strike out part of a compensation claim from an injured policeman. He has since denounced his own judgment in that case as an example of unfairness. Justice Ipp, who 35. C Merritt, Legal Affairs Editor, The Australian, Sydney, 5 April 2007, p 3.

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wrote a report at the height of the insurance crisis telling state governments how to restrict negligence claims, has now joined those who believe the restrictions need to be wound back. The judge told a legal conference that ‘tort reform has gone too far’ and he intended to take that message to the insurance industry. His public conversion came soon after he was obliged to strike out parts of a compensation claim by retired detective chief inspector Gordon Ball of the Child Protection Enforcement Agency. Inspector Ball had claimed in court that underresourcing by the NSW Government had forced him to suspend some child abuse investigations. Instead of testing Inspector Ball’s claims in court, the NSW Government instructed its lawyers to take the former policeman to the Court of Appeal. Government lawyers then urged Justice Ipp and the other judges to apply a provision of the Civil Liability Act that quarantines government agencies from claims arising from the allocation of resources. Those provisions were introduced at the height of the insurance crisis amid concern that public authorities needed to be protected from damages claims. Justice Ipp, with the agreement of judges Ruth McColl and Peter Young, accepted the Government’s argument and struck out Inspector Ball’s accusations of under-resourcing. But Justice Ipp reproduced those allegations in his judgment and criticised the Civil Liability Act for causing anomalies. Inspector Ball claims under-resourcing meant the Child Protection Enforcement Agency had insufficient resources ‘to adequately carry out its investigations or prosecute paedophiles’. He also claims staff shortages led directly to ‘many’ investigations being suspended when he believed they should have been pursued. As a result, he claims he had to ‘prioritise every investigation’ until he retired on medical grounds in 2001 suffering from guilt, depression and post-traumatic stress syndrome. At last Friday’s NSW conference of the Australian Lawyers Alliance, Justice Ipp referred to the Ball decision as an example of how lack of consistency in compensation can lead to anomalies and unfairness. He said he still approved of the changes he had recommended in his report on reforming the law of negligence. But many aspects of the laws that had been introduced by state governments had gone further than he recommended and ‘sometimes much further’. He also revealed that two weeks earlier he had told another group of lawyers he was concerned that the balance in litigation had shifted too far in favour of government authorities and other defendants. At Friday’s conference, he said he understood why the legal profession had been campaigning against tort reform and believed that campaign ‘has really good points … It is a genuine issue and requires a genuine response’. NSW Bar Association president Michael Slattery QC yesterday said the restrictions used against Inspector Ball were similar to changes introduced around the nation. But the NSW restrictions were the most severe. ‘The legislation in NSW goes way beyond the recommendations of the Ipp report,’ Mr Slattery said. ‘The Government has armour-plated itself from claims by its own citizens.’ 27

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Key case: New South Wales v Ball 1.44

New South Wales v Ball [2007] NSWCA 71; BC200702203 Court: New South Wales Court of Appeal Facts: Gordon Ball was a Detective and Chief Inspector employed by the New South Wales Police Service. For a period of six years, from 1995 to 2001, he worked within a specialist unit of the Child Protection Enforcement Agency (the CPEA). Ball brought a claim in negligence against his employer, the New South Wales Government. He alleged that his particular duties caused him to suffer from post-traumatic stress disorder and that these injuries were caused by the negligence of the New South Wales Government. Legal principle: Could Ball succeed in this case and, in particular, what was the effect of s 42 of the Civil Liability Act 2002 (NSW)? Section 42 provides that a case is not ‘justiciable’ — that is, able to be heard by a court — on the basis of matters listed. One such matter was the budgetary position of the New South Wales Government and its spending priorities. The court’s decision (application of the legal principle to the facts): The Court of Appeal granted leave to the New South Wales Government to appeal the decision. That is, it upheld the validity and effect of s 42. Ipp JA 1. This is an application for leave to appeal and, if granted, an appeal against a judgment of Hughes DCJ. The proceedings before this Court concerned the dismissal by Hughes DCJ of the claimant’s application for an order that the entire amended statement of claim, or in the alternative, paras 7 (a), (b), (d), (e) and (g) thereof, be struck out on the grounds that no reasonable cause of action was disclosed. The claimant has not persisted in its claim that the entire statement of claim is defective and has proceeded to argue only that the paragraphs mentioned be struck out. 2.  By the opponent’s statement of claim he alleged that, at all material times, he was a detective chief inspector in the New South Wales Police Service. From 1995 to 2001, he worked within the Child Protection Enforcement Agency (the CPEA). He alleged that his duties caused him to suffer from post-traumatic stress disorder and that these injuries were caused by the negligence of the claimant. 3.  Paragraphs 7 (a), (b), (d), (e) and (g) of the statement of claim contained part of the opponent’s particulars of negligence. They read as follows: (a) Allowing the CPEA to operate without sufficient funds or resources to adequately carry out its investigations or prosecute paedophile offenders. Because of the drop in staff levels particularized in (b) below, many investigations were carried out by one investigator, not a team. Apart from being less effective, this also added to the delay in investigations.

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The Plaintiff experienced, inter alia, stress and guilt in not being able to effectively allocate resources to CPEA investigations. (b) Failing to provide sufficient staff to the CPEA. Between 1996 and September 2001 the authorized staff strength of CPEA under the Plaintiff’s supervision dropped from 50 to 30 persons whereas the workload did not reduce. The actual staff numbers were much lower than the ‘authorized strength’. The Plaintiff made frequent complaints to his superior officer, Superintendant [sic] Heslop, about the staff shortages but no relief was forthcoming. … (d) Placing the Plaintiff in a position where he was forced to be chronically overworked because of lack of staff. The Plaintiff worked long hours and was effectively ‘on call’ throughout his time at the CPEA. At times, he had 40 active ‘strike forces’ under his command. The next lower ranked officers in the group were detective sergeants. It is alleged that there should have been more senior staff available for delegation of supervisory and administrative duties and to share the work load. (e) Failing to follow up the Plaintiff’s investigations. As a direct consequence of the staff shortages noted in (b) above, many investigations were suspended. The responsibility fell upon the Plaintiff to prioritise every investigation and suspend cases that he felt should not have been suspended. Again, complaints were made by the Plaintiff to Superintendant [sic] Heslop. Further, the Plaintiff’s concerns in this regard were documented by him in his monthly, and later fortnightly, reports to the Crimes Agencies Operations Co-ordination Review Team but nothing was done to rectify the situation. … (g) Expecting the Plaintiff to carry out duties that were too burdensome for one individual. Because of the lack of senior staff the Plaintiff was required to be more involved in the paedophile investigations in addition to his supervisory and administrative duties. His exposure to horrific crimes was more extensive and intensive than it should have been. It is against this background that the Plaintiff alleges that [sic] Defendant should have known that it was dangerous for the Plaintiff to experience daily exposure to allegations of child sexual assault, child pornography, and to conduct investigations into the dealings of notorious paedophiles including Robert ‘Dolly’ Dunn, Michael Hill, Frank Arkell and others. 4.  The claimant contends that these particulars are not justiciable by virtue of s 42 of the Civil Liability Act 2002 (NSW) and, for that reason, should be struck out. 5.  Section 42 relevantly provides:

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… (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 those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), … 6.  The opponent contends that s 42 does not apply to his claim by reason of s  3B(1)(f) of the Civil Liability Act. This section provides that it does not apply to ‘civil liability relating to an award to which Div 3 of Pt 5 of the Workers Compensation Act 1987 applies’. 7.  The opponent concedes that he does not fall within the definition of a worker under the Workers’ Compensation Act 1987, as only police officers who joined the New South Wales Police Service after 1 April 1988 fall within that definition and he joined the Service before that date. 8.  It was submitted by Mr Ower, on the opponent’s behalf, that a purposive or contextual construction should be applied. He submitted that s 3B(1)(f) should be construed as excluding the application of the Civil Liability Act to civil liability claims by any employee in an employer/employee relationship. He submitted that, otherwise, the Civil Liability Act might apply to one police officer, but not to another, where both are injured at the same time under precisely the same circumstances. He submitted that this could not have been the legislative purpose underlying 3B(1)(f). He submitted that that would be anomalous. 9.  There is no doubt that s 3B(1)(f) can produce anomalies. Indeed, that is the case as regards the legislation that presently governs civil liability in this state. For example, different persons injured in the same incident may be governed by one of three different statutory regimes, the Civil Liability Act, the Motor Accidents Compensation Act 1999 (NSW), and the Workers’ Compensation Act. This may result in different legal consequences for each person. In Landon v Ferguson (2005) 64 NSWLR 131 (with the concurrence of Hodgson and Santow JJA) I said (at 135): The statutes in this State relating to workers compensation and common law damages claims by workers against their employers and others can be described as a hodge-podge. No consistent thread of principle can be detected. For example, the caps on  damages under the Workers Compensation Act are lower than the caps under the Motor Accidents Compensation Act. Some workers’ injuries occur in circumstances where the workers are required to bring their claims under the Workers Compensation Act. In other circumstances workers are required to bring their claims for damages under the Motor Accidents Compensation Act. In yet other circumstances neither Act applies, but other legislation governs the claims.

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No detectable rational reason explains the difference in categories. In some cases it is difficult to discern under which particular statute the case falls, and difficult and sometimes illogical distinctions have to be drawn.

10.  It is impossible, in my view, in this context, to arrive at a contextual purpose. The different legislative regimes that have application to civil liability, generally, render any legislative purpose in regard to provisions such as 3B(1)(f) impossible to determine with any degree of reliability. A linguistic construction must be applied. 11.  The words of 3B(1)(f) are crystal clear. They admit of no ambiguity whatever. To construe, as Mr Ower suggests, would require a fundamental reworking of the language. This Court is not entitled to do that. I would not uphold that submission. 12.  Mr Ower next drew attention to s 42(b), which provides that a general allocation of resources by a public authority is not open to challenge. He submitted that the particulars under challenge did not allege a general allocation of resources. Rather, he submitted, they alleged a specific allocation. This submission requires attention to be given to the precise words used in the particulars that are the subject of this appeal. 13.  Paragraph 7(a) opens by alleging negligence on the ground that the claimant allowed the CPEA to operate without sufficient funds or resources to adequately carry out its investigations or prosecute paedophile offenders. The balance of the paragraph supports or amplifies these allegations. 14.  The opening allegation is, in my view, a clear allegation of an inappropriate general allocation of resources. It complains, in effect, of a general allocation of resources within the authority such that the CPEA was under-resourced. I would not uphold Mr Ower’s submission in regard to that paragraph. 15.  As regards para 7(b), the opening sentence alleges negligence by the claimant in failing to provide sufficient staff to the CPEA. The next sentences go on to allege that the actual staff numbers of the CPEA were less than the authorised staff strength of the agency. No allegation is made in this paragraph that there had been a general allocation of resources to the CPEA that the agency had not used. Paragraph 7(b) as a whole, in my view, alleges a failure to allocate, generally, sufficient resources to enable the authorised staff strength to be met. This construction of para 7(b) is supported by the general thrust of the opponent’s case as manifested by paragraph 7(a), which is an allegation that the claimant allowed the CPEA to operate without sufficient funds. I  would not uphold the opponent’s submissions in regard to para 7(b). 16.  The words in question that are under challenge in paragraph 7(d) are those in the first sentence, ‘[b]ecause of lack of staff’, and the last sentence of that paragraph (which alleges that more senior staff should have been available for particular purposes). The same vice that appears in paras 7(a) and 7(b) applies in relation to those parts of para 7(d) and, in my view, those parts should be struck out. 17.  The words under challenge in the second sentence of para 7(e) allege that, ‘[a]s a direct consequence of staff shortages noted in para 7(b), many investigations

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were suspended’. Again, the same problem arises. Those words should be struck out. 18.  In para 7(g), the words under challenge are in the second sentence. They are, ‘[b]ecause of the lack of senior staff’. The comments I have made above apply. Those words should be struck out. 19.  To summarise, in my view, the following orders should be made: (1)  Leave to appeal should be granted. (2)  The appeal should be upheld. (3)  The orders made by Hughes DCJ should be set aside and, in lieu thereof, the following orders should be made: (a) Paragraph 7(a) of the statement of claim should be struck out. (b) Paragraph 7(b) should be struck out. (c) The words ‘[b]ecause of lack of staff’ in the first sentence of para 7(d) should be struck out. (d) The last sentence of para 7(d) should be struck out. (e) The second sentence of para 7(e) should be struck out, and (f) The words ‘[b]ecause of the lack of senior staff’ in the second sentence of para 7(g) should be struck out. (4) The opponent should pay the costs of the appeal and the proceedings before Hughes DCJ. (5)  The opponent is entitled to a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise qualified. McColl JA 20.  I agree with Ipp JA. Young CJ in Eq 21.  I also agree. Significance of this case: This case demonstrates the gatekeeper role played by recent legislation enacted in New South Wales. The irony is that the author of the Ipp Report was required to rule that the common law rights of a claim had been clearly reduced by the legislation. The words in the legislation were clear and did not allow for ambiguity. As such, judges are required to give full effect to the meaning of the statute. This is a basic working of the principles of the separation of powers, where judges interpret the legislation made by parliament.

Case comment: New South Wales v Ball 1.45

The discomfort of the judges in this case is evident. While the position of the statute may be clear, does this afford with basic and contemporary common law concepts of fairness and justice? 32

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Other reforms: impact of the National Disability Insurance Scheme (NDIS) 1.46

No-fault compensation schemes interact with claims for damages in tort. The most recent legislative initiative is the National Disability Insurance Scheme (NDIS).This initiative introduces a no-fault scheme of support for people with disabilities and was established by the National Disability Insurance Scheme Act 2013 (Cth). The NDIS aims to provide support services to people with disabilities, as opposed to paying out sums of compensation. However, the key role of tort law in providing compensation for those disabled by tortious conduct appears likely to continue. This is because the Act specifically provides for (indeed it may even require) disabled people with valid legal claims to take reasonable action to seek compensation.36 Any compensation payments awarded under such legal action would be subject to claims for recovery of amounts expended on the victim under the scheme.37 Although it does not distinguish between participants according to the cause of their disability, the scheme is restricted in its scope of coverage.The NDIS only covers people who meet specific criteria, including either early intervention criteria or the scheme’s ‘disability’ requirements. The latter are set out in s 24 of the Act: Disability requirements (1) A person meets the disability requirements if: (a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and (b) the impairment or impairments are, or are likely to be, permanent; and (c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: (i) communication; (ii) social interaction; (iii) learning; (iv) mobility; (v) self-care; (vi) self-management; and (d) the impairment or impairments affect the person’s capacity for social and economic participation; and

36. National Disability Insurance Scheme Act 2013 (Cth) ss 104 and 105. 37. National Disability Insurance Scheme Act 2013 (Cth) ss 104–116.

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(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime. (2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

The definition focuses on permanent ‘substantially reduced functional capacity’ to undertake any of the listed specific functions.This could result in the scheme applying to a narrow range of people, perhaps even narrower than the ‘15% permanent impairment’ threshold for workers seeking compensation.38

Drawing some conclusions 1.47

Given cases such as New South Wales v Ball,39 it will be interesting to observe whether the torts pendulum in the longer term swings back towards the claims of plaintiffs. It is a debate with many stakeholders: individual plaintiffs and defendants, lawyers, insurers, and of course the nine parliaments (the Commonwealth, six states and two territories) that make up Australia’s legislative mosaic. The first decade of the new century witnessed a flurry of torts-based legislation. Tort law is no longer largely pristine common law; great tracts of complex legislation now cover the legal landscape. The question is not, therefore, whether the courts have gone too far towards defending the position and immutability of defendants. Rather, the issue is whether Australia’s nine legislatures have gone too far in embedding the legal position of defendants. There is an inevitable ‘wave effect’ over the long term, where the rights of plaintiffs play out and eventually ‘crest’ or peak against the duties imposed on defendants. The courts mediate this balancing act. The rise of legislation has both prescribed and reduced plaintiff claims and moved defendants to an arguably more advantageous point on the wave crest. Whether this delivers the best justice possible, or is indeed sustainable, will be played out in the courts of Australia in the next decade. The High Court as gatekeeper of the Australian common law and chief interpreter of statute will surely be engaged and challenged by novel claims in the area of tort law.

1.48

One factor that has assisted plaintiffs with the risks and costs of legal action is the increasing use of class actions. Without the availability of class actions and ‘no win, no fee’ arrangements for legal costs, many victims of major incidents such as fire, flood and storms on the one hand, or poor financial and services advice on the other, would be much less likely to see their cases litigated.

38. Workers Compensation Act 1987 (NSW) s 151H. 39. New South Wales v Ball [2007] NSWCA 71; BC200702203.

34

1.49

Tort Law in Australia: An Overview

A counter-argument is that ‘no win, no fee’ arrangements may lead to a rise in the number of groundless claims being litigated and to increases in legal costs due to the ‘success fee’ premium charged by counsel successful in the case. Overseas, these arguments have been raised in support of recent reforms to tort law in the United Kingdom. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK) amended the Courts and Legal Services Act 1990 (UK) by, inter alia, capping the success fees recoverable by the lawyers acting in a ‘no win, no fee’ civil action to a fixed percentage (currently 25 per cent) of the damages amount awarded.40 Time will tell the impact on tort law and tort claims in the United Kingdom.

The new complexity: the bane of the torts litigant, practitioner and other stakeholders 1.49

Tort law has undergone something of a Rip Van Winkle effect in the last 20 years. If one had been out of the country and returned anew, the changes wrought would be remarkable. Since 2000, tort law in Australia has gone from a largely common law (and thereby national) system of rules, to a very complex myriad of varying statute law comprising eight jurisdictions: six states and two territories. The common law which was relevant to tort law has largely been replaced, or reduced in scope and effect. Instead of delivering clarity, however, and a national sense of the law, the states and territories have added layers of complex legislation to their pre-existing arrangements. Consequently, we now have a mosaic of differing state provisions. As a nation, we now have a far more complex situation for stakeholders in the tortious process. This is a concern because the system is principally designed to compensate people who have suffered loss or injury. These are the chief ‘consumers’ of the law, and its primary stakeholders, but the law is inaccessible and difficult to navigate for plaintiffs and for their legal representatives. Michael Kirby, a justice of the High Court from 1996 to 2009, refers to the current situation as being ‘the chaotic modern law of torts in Australia’.41 A similar viewpoint of difficulty and systemic complexity is also put by Luntz et al, the authors of the pre-eminent book in the area of Australian tort law: Torts: Cases and Commentary.42 The authors opine that: 43 The statutory law relating to civil liability for personal injury has been described as ‘a hodge-podge’ in which ‘no consistent thread of principle can be detected’:

40. Courts and Legal Services Act 1990 (UK) ss 58 and 58A, as inserted by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK) s 44. 41. In reviewing P Vout (ed), Torts:The Laws of Australia, 3rd ed, Thomson Reuters, Pyrmont, 2018. 42. H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017. 43. H Luntz et al, Torts: Cases and Commentary, note 42 above, Preface.

35

1.49

Torts: Principles, Skills and Application

Landon v Ferguson (2005) 64 NSWLR 131 at [17] per Ipp JA (Hodgson and Santow JJA agreeing); New South Wales v Ball (2007) 69 NSWLR 463 at [9]– [10] per Ipp JA (McColl JA and Young CJ in Eq agreeing). Furthermore, in our opinion, the civil liability statutes that were enacted in the name of ‘tort reform’ in all Australian jurisdictions early in this century were based on false premises, and misdirected. Litigation requiring the courts to interpret and apply this legislation has proliferated, to little if any social advantage.

The system now arguably favours the well-resourced and expert parties from the defendant’s perspective, including corporate and public defendants, specialist defendant law firms, and insurers.There is an asymmetry of power, information and expertise between the individual plaintiff litigant and the corporatised resources which the litigant must navigate in order to be successful in their claim for compensation and a remedy. The ‘psychological overlay’, or burden of being involved in drawn-out litigation, is exacerbated by this calculus. One of the mitigating factors for plaintiffs, however, is the rise of class actions. They represent a new mechanism in Australian law, unlike in New Zealand where they have barely been adopted. An attendant influence of their use is in providing a mechanism for redress by multiple parties in an efficient, riskreducing process. That such innovations have arisen is fortunate because they mask the manner in which the law of torts has grown ever more complex since the turn of the century. 1.50

The principles and coherence of the common law are now being eroded into a sclerotic set of complex law and regulation. The national big picture and sweep of the common law enunciated by the High Court is being lost in the thicket of state and territory law. It is an arguable case of the failures of federalism. It represents the unfortunate dividend of the moral panic which followed Ipp and swept, like wildfire, through each of the eight state and territory separate legislatures. Is this simply misplaced, self-interested nostalgia by the commentators? One would suggest not when leading academics and justices of the High Court are of the same broad view, as outlined above. Tort law is marked by the complexity of the multiple jurisdictions regimes. Complexity brings with it explicit and implicit carrying costs, transaction costs, court costs, access to justice costs and administrative costs.

1.51

The current development of the NDIS before its full roll-out in 2020 reflects a number of serious issues. These include the funding guarantee by the Commonwealth, and by state and territory governments. The NDIS requires a co-axial approach by both levels of government on a cooperative basis. This includes analysis and projections of the level of care and the adequacy of the services provided on a case-by-case and person-by-person basis. The NDIS is also grappling with the principle of no person being worse off under the new scheme as it rolls out.

36

1.52

Tort Law in Australia: An Overview

Funding adequacy, efficacy of provision and an implicit ‘no disadvantage’ type of test represent three major issues facing the NDIS. One could, however, observe that any major new system or reform has transitional or teething issues. Change is necessarily challenging. Perhaps these issues will be addressed and clarified, and resolved to the satisfaction of the key stakeholders. If the former common law was sometimes a lottery, where there were winners and losers, a compensation scheme such as the NDIS — aimed at covering disability, however caused — must be adequately funded. There must be sufficient funds in the scheme to meet a basic test of fairness and adequacy for each claimant who meets the qualifying criteria. The comparison with the system of fault-based tort law is instructive. Nearly 15 years after the suite of major reforms, dating from the mid-part of the 2000s,44 the key markers of workability and sustainability have arguably not emerged. These are, variously, the sense of the system not having transitioned to maturity, not having been bedded down, and not reverting to a working long-term ‘mean’ or median state of relative efficiency and fairness for its key stakeholders. Stakeholders are critical to the success of any government or legal service; the question is, has tort law reform borne them sufficiently in mind? 1.52

An issue intrinsic to both the NDIS and the growing legislative patchwork regarding tort law is the basic governmental arrangement extant in Australia. We have a complex, expensive and duplicative system of government, leaving aside local government, with the states and the territories on one side, and the federal government on the other. There is also a charged political environment between the two major political parties. A decade ago, the new then Prime Minister, Kevin Rudd, wanted the Council of Australian Governments (COAG) to be ‘the workhorse for the nation’.45 This prediction has not worked out in practice. In an ideal world, Australia would have a national comprehensive no-fault scheme for all harm-based compensation. Corporate law, by contrast, has benefited from a level of cooperative federalism between the states and territories on the one hand and the Commonwealth on the other. There are many questions, large and small, which arise from the current patchwork arrangement. For the moment, we can pose five main questions which traverse the ‘pre-’ and ‘post-Ipp’ micro-world of Australian tort law. They are — together with tentative sketch-like answers — as follows: 1. What was the problem to be fixed? There was a view that personal responsibility had been abandoned and that the courts were providing too many outlier claims to success.

44. Typically, the years 2005 and 2006. 45. M Grattan, ‘COAG Heralds New Age of Cooperation’, The Sydney Morning Herald, 20 December 2017, www.smh.com.au/national/coag-heralds-new-age-of-cooperation-20071220-1i4y.html> (viewed 9 November 2018).

37

1.52

Torts: Principles, Skills and Application

2. Was the legislative response too reactive? It was fast, it was major, and, some 10–15 years later, is viewed broadly as having created a great deal more complexity without necessarily solving the issues that were seen as problematic. It has laid bare much of the pristine landscape of the common law. 3. What is the purpose of tort law for the individual? To put them, as closely as can be judged, back in, and returned to, their pre-accident position. 4. What is the higher order/higher calling of tort law in a modern economy and democracy? To compensate people for their loss. 5. As to the middle- and long-term future, what is the prognosis for Australian tort law? It may be that a simple national federal system referred by the states and territories to the Commonwealth, like corporations law 20 years ago, is the only way to save it from itself.

Torts — a civil liability legislation decision tree 1.53

Figure 1.1 sets out the decisions which plaintiffs and their legal advisers need to make in relation to seeking compensation for harm, loss or damage.

Figure 1.1 Workers’ compensation Statutory schemes No-fault claims

Compensation provided via statutory formula

Qualifying conditions: an employee, injured at work, -level of injury

Motor vehicle accident (MVA)

Criminal injuries

NDIS Compensation General legislative override, eg Wrongs Act 1958 (Vic); Civil Liability Act 2002 (NSW) Negligence claims?

Fault-based claims

Some claims for serious injury permitted by the relevant legislation

Common law claims in tort?

eg intentional torts Other torts eg defamation

38

Legislation provides filter/gateway to the possibility of common law claims - thresholds for serious injury eg 30% disability in terms of Transport Accident Act 1986 (Vic) -serious injury certificate eg 30% impairment in terms of Accident Compensation Act 1985 (Vic)

1.54

Tort Law in Australia: An Overview

The relevant civil liability legislation for each state and territory 1.54

The Acts set out in Table 1.2 are the headline or main pieces of legislation in respect to the provision of civil liability. Two of the Acts retain their original dates; the others have dates reflecting the Ipp Review. All have been amended as a result of the Ipp Review. These Acts need to be read in conjunction with particular contextual Acts within the relevant jurisdiction. These include those relating to motor vehicle accidents, workers’ compensation claims and defamation. There may be other relevant legislation, depending on the particular jurisdiction, and the particular facts and circumstances.

Table 1.2 State or territory

Relevant Act

ACT

Civil Law (Wrongs) Act 2002

NSW

Civil Liability Act 2002

NT

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Civil Liability Act 2003

SA

Civil Liability Act 1936

Tas

Civil Liability Act 2002

Vic

Wrongs Act 1958

WA

Civil Liability Act 2002

The scope and coverage of the civil liability legislative regime for each state and territory Table 1.3 gives the section of each headline Act that sets out the civil liability excluded from the scope of the Act. The table then lists seven categories for particular accident or claim contexts. For example, the two main contexts are injuries as a result of motor vehicle accidents (MVAs) and incidents, and injuries in the workplace. The effect of these sections is that many areas of potential application of the headline acts are excluded or modified within a given state or territory. These matters are discussed further in Chapter 2.

39

Relevant section of Act

s 41(2) Civil Law (Wrongs) Act 2002

s 3B Civil Liability Act 2002

s 4 Personal Injuries (Liabilities and Damages) Act 2003

s 5 Civil Liability Act 2003

s 4 Civil Liability Act 1936

s 3B Civil Liability Act 2002

s 45 Wrongs Act 1958

s 3A Civil Liability Act 2002

State or territory

ACT

NSW

NT

Qld

SA

Tas

Vic

WA

Table 1.3

40 Excluded

Excluded

Partially excluded

Excluded

Partially excluded

Motor accidents

Excluded

Excluded

Excluded

Excluded

Excluded

Excluded

Excluded

Workplace claims

Excluded

Excluded

Excluded

Intentional acts

Excluded

Excluded

Excluded

Sexual assault or related misconduct

Excludes asbestos inhalation

Excluded

Excluded

Excluded

Excluded

Dust diseases

Excludes

Excluded

Excluded

Excluded

Excluded

Smoking or tobacco product claims

Civil Aviation claims are excluded

Other exclusions

1.54 Torts: Principles, Skills and Application

1.55

Tort Law in Australia: An Overview

Tort law now and in the future 1.55

We can state and extrapolate as follows: •• The irony is that Justice Ipp himself has been critical of the legislative zeal that followed the Ipp Review. Complexity is an unintended consequence of the Ipp Review. •• The common law has become the secondary law for consideration after the effect of statutes has been taken into account. •• The common law may, depending on the context, still usefully inform the tests and matters contained in the various Acts. For example, the tests for breach of the duty of care owed by the putative defendant set out in the Wrongs Act 1958 (Vic) replicate the calculus of negligence factors determined by and constructed over time from the common law.These four factors are probability, gravity, justifiability and social utility. Alternatively, we could say that the various Acts codify the common law on breach. •• The legal practitioner must, however, first consider the particular tortious context for loss within the relevant state or territory, look carefully at the relevant legislation, select the relevant pathway to proceed, and seek, if it is available, the no-fault provision in the first instance. •• The no-fault provision is pertinent in most states and territories in relation to the two major areas of compensation — that is, MVAs and workplace injuries — but again this is not consistent: see Table 1.2 above. •• Common law claims may arise in the areas of MVAs and workplace injuries as a secondary consideration, depending on the context and on the particulars within the state and territory legislation. – For example, a common law claim can be brought on the plaintiff providing proof of a 30 per cent whole-of-body disability in relation to MVAs or work-related accidents in Victoria. Issues of duty, breach and damage still need to be proven, as the case may be. •• The headline civil liability legislation for each state and territory sets out general provisions for statutory negligence claims, subject to areas being excluded by the Acts in each case. – For example, MVAs and workplace accidents are generally excluded. •• The civil liability legislation also restricts certain heads of damage unless there is medical assessment at the threshold level of impairment. – For example, the threshold level in Victoria is 5 per cent for physical impairment and 10 per cent for psychiatric impairment, as defined in s 28LB of the Wrongs Act 1958 (Vic) (see Table 1.4 below for the stateby-state variations). – This is based on medical assessments and sign-off by qualified medical practitioners in each case. 41

1.55

Torts: Principles, Skills and Application

•• This means the practice of the law is more complex for lawyers working in the area, and access to the law is considerably more perplexing to the injured person. •• More firms are offering ‘no win, no fee’ services, which is a US innovation. These claims are subject to the out-of-pocket expenses still being paid by the client. Given the mosaic of complexity, applying the right legislative provisions has, arguably, largely reduced the area of tort law to a process of statutory interpretation and application. It is thereby a more mechanical process than that previously offered by the common law as enunciated by the High Court.

Table 1.4 Threshold or eligibility to receive

Sliding scale

Maximum limit or cap; 100% claim

Relevant statute, or the common law applies

Commonwealth s 87

15% most extreme cases

% measured against the most extreme case

About $250,000 for most extreme cases

Competition and Consumer Act 2010

ACT

-

None

-

None

Common law

NSW

ss 16 and 17

$350,000

Yes, up to most extreme cases

15% of the most extreme cases

Civil Liability Act 2002

NT

ss 24–28

-

-

-

Personal Injuries (Civil Claims) Act 2003

State or territory

Section

Personal Injuries (Liabilities and Damages) Act 2003 Qld

ss 61–62

None, but minimum award of about $1,200

42

Yes, up to gravest conceivable kind

Caps depend on injuries over the year statewide

Civil Liability Act 2003

1.56

Tort Law in Australia: An Overview

State or territory

Section

Threshold or eligibility to receive

Sliding scale

Maximum limit or cap; 100% claim

Relevant statute, or the common law applies

SA

ss 52 and 56

Impaired for 7 days and costs of about $3,000

Yes, up to the gravest conceivable kind

Cap of about $300,000 indexed

Civil Liability Act 1936

Tas

ss 27 and 28

About $4,000

-

None

Civil Liability Act 2002

Vic

ss 28G and 28H–28HA

Restrictions Has to be apply significant injury — 5% physical injury or 10% psychiatric

Cap of $577,050

Wrongs Act 1958

WA

ss 4, 9, 10 and 10A

About $12,000

None

Civil Liability Act 2002

Restrictions apply

Source: Based on M Davies and I Malkin, Focus: Torts, 7th ed, LexisNexis Butterworths, Sydney, 2015, p 601

1.56

Given Australia’s federal system it is likely that the statutes of the states and territories will one day form part of a single federal system. Ideally, this will be a no-fault, universal scheme covering all forms of harm, loss, damage and disability.This change, if and when it eventuates, will be driven by at least three factors: first, the complexity of the state-by-state system; second, the high costs of ‘transacting’ and litigating within the system; and third, the fact that the system is arguably no more conducive to the respective rights of plaintiffs and defendants than the system it replaced.

43

Torts: Principles, Skills and Application

Review This chapter has provided an overview of the main legal and related issues relevant to the contemporary law of torts in Australia. While there is a single common law as enunciated by the High Court, there are eight distinct jurisdictional approaches provided by the six states and two territories respectively. These differences and nuances are a theme of this book.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 1 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 1

Key Cases Donoghue v Stevenson [1932] AC 562 Grant v Australian Knitting Mills Ltd [1936] AC 85 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 New South Wales v Ball [2007] NSWCA 71; BC200702203

Chapter 1 Review Questions Note: The review questions for each chapter deal with simple introductory issues as regards the particular chapter topic and information covered. It is important to come to grips quickly with the terminology in the subject and to be comfortable with the basic principles; these building blocks are essential to a working knowledge of tort law and negligence in practice. 1. How is tort law classified in terms of the broader legal system? 2. What are the generic titles/name of the parties in a negligence action at first instance? 3. And if the case is appealed? 4. What do we mean by the Australian tort system being a fault-based system? (See Chapters 1 and 2.) 5. What are the three essential elements of a fault-based action? (See Chapters 1 and 2.) 6. For no-fault actions, how does your answer to question 5 differ, and why? (See Chapters 1 and 2.) 7. What is a cause of action?

44

Tort Law in Australia: An Overview

Tutorial 1.1: Accident compensation and tort law Tutorial 1.1: Tasks The substantive tasks are: (a) Working in pairs where you can, review the three precedent letters (‘the precedents’) set out under the heading ‘Documents’ below. In particular, in relation to each of the three precedents, identify the following elements: (i) the duty situation; (ii) the breach; and (iii) the resultant damage. (b) In general, in relation to the precedents, what can you identify as the common elements of each? Make a checklist of the sort of items that make up those elements. (c) Using the precedents, prepare a draft letter in accordance with the following instructions.

Instructions

Internal memorandum To: Trainee From: Antonia Johnson46 Date: 21/11/20XX Re: Grimshaw, Boating incident We act for Colin and Mary Grimshaw, retirees from Amityville, New South Wales. Last weekend, they went whale watching off the coast at Coiffs Harbour on a tour boat, Pacific Blue One (PBO), along with a dozen other tourists. PBO is owned and operated by a Coiffs Harbour tourist company, Pacific Blue Pty Ltd (Pacific). PBO is a 20-metre-long converted fishing trawler with a purpose-built viewing deck. The seas were fairly heavy and at one point, about a kilometre offshore and near South Solitary Island, a swell tipped the boat sharply. Colin and Mary went 46. See the Introduction to this book for details on the firm scenario.

45

Torts: Principles, Skills and Application

to grab the aluminium handrail (one metre high and located on the starboard side) on the viewing deck, but it gave way and snapped off. As a result, both were thrown to the deck. Mary has suffered a broken arm, deep abrasions in her arm and lower back strain. Colin suffered concussion. They are coming in this afternoon and would like us to pursue a damages claim for them. I want you to sit in on the meeting today. (It will be held at 3 pm in the boardroom.) Can you please prepare an initial draft letter ready to send to Pacific so that I can go through it with them? Cheers, Antonia Johnson

Documents (From the Johnson Markewicz precedents collection) Precedent document 1

(Address) Dear X, Re: (our client’s details) We act on behalf of (client). We are instructed that on (date), our client was stopped at traffic lights in his motor vehicle (make, model and registration number of client’s vehicle), on (street address), a (public highway?), when his vehicle was struck from behind by (make, model and registration number of other driver’s vehicle). We are instructed that this car was: (a) owned and driven by yourself at the time of the accident; and (b) insured with (insurance company) under policy (). Our client, as a result of the accident, has sustained severe whiplash-type injuries to (his/ her) (neck, shoulders and upper back, other?). It is clear from our instructions that the accident was caused by your negligent driving. Our client therefore claims damages for (personal injury and for the losses and expenses) arising from the accident. 46

Tort Law in Australia: An Overview

We urge that you pass this letter to your insurers or your solicitors as soon as possible. Regarding the latter, if you care to inform us of their name and relevant reference, we will communicate with them directly. Thank you for your attention. Yours faithfully, (Signature) Precedent document 2

(Address) Dear X, Re: (our client’s details) We act on behalf of (client) whom we are instructed is employed by you as a (details of occupation). Our client informs us that an accident occurred at the workplace on (date). It is clear from our instructions that the accident was caused through the negligence of you, your employees or agents and/or breach of statutory duty. Accordingly, our client claims damages for (personal injuries received and for the losses, expenses and inconvenience suffered). We urge that you pass this letter to your insurers or your solicitors as soon as possible. Regarding the latter, if you care to inform us of their name and relevant reference, we will communicate with them directly. Thank you for your attention. Yours faithfully, (Signature) Precedent document 3

(Address) Dear X, Re: (our client’s details) We act on behalf of (client). We are instructed that on (date), our client was (walking along the pavement in ? street and address), when he tripped (over a protruding paving stone) suffering severe personal injuries, including, but not limited to, (a shattered elbow). 47

Torts: Principles, Skills and Application

We are instructed that: (a) the paving stone in question was located immediately outside the main door of the Council Chambers; (b)  the pavement is three paving stones wide at that point; (c)  our client tripped over the middle one; and (d) the scene has been inspected by a surveyor whose report has confirmed that the paving stone in question protrudes by more than three centimetres. It is clear from our instructions that the accident was caused by the negligence and/or breach of statutory duty of you, your employees or agents. Our client therefore claims damages for (personal injury and for the losses and expenses) arising from the accident. (We urge that you pass this letter to your insurers or your solicitors as soon as possible. Regarding the latter, if you care to inform us of their name and relevant reference, we will communicate with them directly.) Or (Please let us have an acknowledgment of receipt of this letter, and we look forward to your detailed response in due course.) Thank you for your attention. Yours faithfully, (Signature)

Tutorial 1.1: Answer Guide The following issues are some of the main points you may wish to discuss. There is no such thing as a model answer in law and the notes are given for general guidance and by way of illustrative example only. General note One of the key skills that you need to develop in preparing for the tutorials is time management. The key concern, therefore, is to identify what are the main points to cover and what are the minor points. Task (a): This task involves analysing the typical first letter documents that underpin a motor vehicle accident (Precedent 1), a work accident (Precedent 2) and a public liability/’slip and trip’-style claim (Precedent 3): (i) The precedents are typical first letters for typical personal injury (PI) scenarios, that is, motor vehicle accidents, work injuries and public liability claims.They should only be written after obtaining careful and accurate instructions from 48

Tort Law in Australia: An Overview

the client. First, they should state that you act and for whom you act. This means the solicitor for the other side should write to you as the solicitor acting for your client (it would be a breach of professional conduct rules for the other solicitor to knowingly write directly to your client if you have notified him or her of your appointment to represent your client). (ii) Such letters should disclose a theoretical cause of action in negligence, so they should refer to the basic elements of a negligence action: duty, breach and damage. They should correctly document the details of the parties, alleged times, dates, locations, weather conditions and other salient features. They should refer to a ‘next step’ or practical requirement in the matter that will progress the claim. (iii) While you can become familiar with these formats, you should remember they are only examples and can always be improved on.You always need to view precedent letters or documents with a certain amount of scepticism and ensure that they suit your particular client’s needs.

Precedent 1 The relevant duty of care in Precedent 1 is that owed by one driver (as defendant) to another driver (as plaintiff). The letter is in relation to a rear-end collision. The cause of action is common law negligence. (There is no breach of statute referred to. There could have been a statute referred to as well; this will depend on the facts and circumstances.) The breach of duty is alleged by virtue of the collision being a rear-end one. Each of the succeeding paragraphs links to the facts set out in paragraph one. The injuries for which damages are sought are whiplash-type injuries. Precedent 2 The relevant duty of care in Precedent 2 is employee (as plaintiff) to employer (as defendant). The cause of action is common law negligence and/or breach of statute; that is, there can be more than one cause of action referred to (and pleaded in a court document). The breach of duty is not detailed. The damages sought are for personal injuries. Precedent 3 The relevant duty of care in Precedent 3 is that owed by a local authority (as defendant) to a member of the public (as plaintiff). The cause of action is common law negligence and/or breach of statute; that is, as with Precedent 2, there can be more than one cause of action referred to (and pleaded in a court document). 49

Torts: Principles, Skills and Application

The breach of duty is the allegation that the paving stone in question protrudes. The damages sought are for personal injuries. Task (b): See the answer in (a)(ii) above. Task (c): Subject to the instructions available at this stage, and pending further instructions that you may receive this afternoon from the clients, a first draft might look as follows:

(Address) Draft only (Pacific Blue Pty Ltd’s address) The General Manager Dear X, Re: Colin and Mary Grimshaw, Amityville, New South Wales We act on behalf of Mr and Mrs Grimshaw. We are instructed that on (date), our clients were paying guests aboard the boat, Pacific Blue One, owned and operated by Pacific Blue Pty Ltd. They each suffered personal injury when the handrail located on the purposebuilt viewing deck gave way. Those injuries are as follows: (a) Mary Grimshaw has suffered a broken arm, deep abrasions in her arm and lower back strain; and (b)  Colin Grimshaw has suffered concussion. We are further instructed that: •  the handrail in question was located on the starboard side of the purpose-built deck; •  the handrail is approximately one metre in height at that point; and •  as a result of its collapsing, both our clients were thrown to the deck of Pacific Blue One.

It is clear from our instructions that the accident was caused by the negligence (and/or breach of statutory duty — you need to check relevant statutes) of Pacific Blue Pty Ltd, its employees or agents. Our clients therefore claim damages for (personal injury and for the losses and expenses) arising from the accident. We urge that you pass this letter to your insurers or your solicitors as soon as possible.

50

Tort Law in Australia: An Overview

Regarding the latter, if you care to inform us of their name and relevant reference, we will communicate with them directly. Thank you for your attention. Yours faithfully, (Signature) Note on the draft letter for Task (c) above: •  We have assumed, on the basis of instructions at this point, that the company is the potential defendant.

Tutorial 1.2: Negligence against the police Internal memorandum From: Guido Markewicz To: Trainee Date: 20/11/20XX Please prepare a discussion paper on the key issues involved in bringing negligence claims against the police.

Tutorial 1.2: Student Example Answer

Prepared by: Alan Butorac, JD student, University of Canberra; reviewed by Kayt Hogan, LLB student, University of New England Internal memorandum To: Guido Markewicz From: Alan Butorac Date: 20/11/20XX Re: Bringing negligence claims against the police Guido, You have asked me to prepare a discussion paper on the key issues involved in bringing negligence claims against the police. In the absence of any detail regarding any specific set of material facts in which a claim for negligence may have arisen, I will endeavour to canvass the issues as widely as possible. I will, however, for the present purpose, assume your request relates to a potential action by a member of the public against the police, and not an action by a police officer against another officer or against the Police Service. Broadly, claims for damages in negligence against police arising out of the conduct of a police investigation, or the general execution by police of their duties, will be very difficult to sustain. In general terms, it has been held that 51

Torts: Principles, Skills and Application

police ought, in the main, to be considered immune from liability in negligence in the performance of their duties, even in circumstances where there is compelling evidence of negligence by police in their execution of those duties.47 Typically, claims against police for damages in negligence have floundered on the question of whether police owe a duty of care to the individual claiming harm. For the most part, it has been held that police owe a higher duty to the community as a whole, which must prevail over and, if necessary, exclude any duty to the individual. However, a number of exceptions to the concept of police immunity have been established, both here and in other common law jurisdictions; in particular, where police may have acted outside the bounds of ‘good faith’, or where police have explicitly or impliedly assumed a duty of care to the individual. Depending on the facts of a specific case, there may well be a cause of action which might carry a good chance of success. Elements of liability in negligence In order to establish a cause of action in negligence, it is necessary to demonstrate each of the three core elements: 1. existence of a duty of care; 2. breach of that duty; and 3. damage caused by that breach. As noted above, claims in negligence against police will typically fall at the first hurdle. Duty of care The House of Lords, in Hill v Chief Constable of West Yorkshire,48 held that police owed no duty of care in the conduct of their investigation of the crimes of the ‘Yorkshire Ripper’ to the woman who became the killer’s final victim. Lord Keith of Kinkel observed that, while police officers owe to the general public a duty to enforce the criminal law, it must be up to the police to decide how to deploy available resources in carrying out that duty.49 Importantly, Lord Keith of Kinkel also outlined a ‘public policy’ reason to afford police a more general immunity from liability in negligence, on the basis that such a liability could tend to cast its shadow over every decision and action taken by police in the conduct of their investigations, to the detriment of the community at large.50 47. No such immunity is presumed where police may stand accused of intentional torts such as assault or false imprisonment. But for present purposes, we will limit this analysis to the issue of liability in negligence only, excluding those situations in which a cause of action in intentional tort may also arise. 48. Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238. 49. Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 at 240–1. 50. Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 at 243–4.

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The Hill decision can be seen to draw from the barristers’ immunity in force at the time, and has been called into question since the House of Lords removed that protection from barristers.51 A generalised immunity for police in negligence was also questioned by the European Court of Human Rights, which held such immunity would amount to a breach of the European Convention on Human Rights.52 But, in recent times, the immunity recognised in Hill has been considerably strengthened in the case of Brooks v Metropolitan Police Commissioner,53 in which the House of Lords retreated somewhat from the broad application of a blanket immunity for police, but strongly reaffirmed the notion that police must be allowed to carry out their duties in the absence of a duty of care. Australian authorities Courts in Australia have tended to view favourably the principles established in Hill and reaffirmed in Brooks. However, in the Victorian case of Zalewski v Turcarolo,54 a significant exception was recorded. Hansen J recognised ‘specifically identified antecedent negligence’ in that the police officer who shot and wounded the plaintiff ‘did not act in accordance with his training and instructions’, thereby stepping outside the Hill immunity.55 However, the exception developed in Zalewski has not found favour in more recent Australian cases.Young CJ in Eq, in the case of New South Wales v Klein,56 cites Sullivan v Moody57 and Tame v New South Wales,58 as well as Brooks, as authority for his stated view that: One would not say that Zalewski was wrongly decided on its facts, but it would seem to me in the light of subsequent decisions of high authority both in this country and in England, it is of very limited precedent value in this 21st century.59

The High Court in Sullivan illuminated the issue of competing duties of public officials, including police. On the one hand, it is generally accepted that police owe a duty to the public at large to protect life and property and to preserve the peace. Ranged against that is the claimed duty of care to individuals necessarily established before any case for damages in negligence can be made. The court in Sullivan noted ‘[p]eople may be subject to a number of duties, at least provided 51. For example, Hall v Simon [2000] 3 WLR 543, but in Australia the barristers’ immunity remains intact. See D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; [2005] HCA 12. 52. Osman v United Kingdom (1999) 7 TLJ 40. 53. Brooks v Metropolitan Police Commissioner [2005] 2 All ER 489. 54. Zalewski v Turcarolo [1995] 2 VR 562. 55. Zalewski v Turcarolo [1995] 2 VR 562 at 567. 56. New South Wales v Klein [2006] NSWCA 295. 57. Sullivan v Moody (2001) 207 CLR 562. 58. Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449. 59. New South Wales v Klein [2006] NSWCA 295 at [25].

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they are not irreconcilable’.60 But it further noted that ‘if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists’.61 Similarly, in Tame, the High Court cited the inconsistency between the claimed duty of care and the police officer’s statutory duty as sufficient to deny a duty of care. Santow JA, in Cran v New South Wales, denied the existence of a duty of care, even in circumstances in which he acknowledged police had acted with ‘uncaring neglect’ towards the plaintiff.62 Finn J, in Rush v Commissioner of Police, favours: … avoiding any special rule applicable to police, while still acknowledging that the police function can have distinctive characteristics and purposes which in many settings may exclude the concurrent operation of a duty of care at common law.63

Mason P, in Thompson v Vincent, observes ‘[p]ublic law duties of police are not consonant with recognition of a private law duty of care toward a particular individual’.64 Duty of care can exist There are, however, circumstances in which a duty of care has been held to exist, in particular when police had expressly or impliedly assumed responsibility for the plaintiff, or when police had positively acted in a dangerous manner. Examples of the former include a failure by police to pass on to custodial authorities information that a prisoner was a suicide risk;65 a failure, in this case by the Crown Prosecution Service, to act on an explicit undertaking, resulting in the plaintiff ’s arrest and incarceration;66 a failure to preserve the confidentiality of an informant, exposing the informant to a substantial risk of harm;67 and the duty to road users of police taking control at an accident scene to supervise carefully.68 Examples of the latter include a dangerous high-speed car chase by police;69 and taking precipitate and dangerous action, contrary to approved procedures, resulting in the police shooting the plaintiff.70 60. Sullivan v Moody (2001) 207 CLR 562 at [60] (emphasis added). 61. Sullivan v Moody (2001) 207 CLR 562 at [60]. 62. Cran v New South Wales [2004] NSWCA 92 at [66]. 63. Rush v Commissioner of Police (2006) 150 FCR 165; 229 ALR 383 at [101]. 64. Thompson v Vincent [2005] NSWCA 219 at [5]. 65. Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283; [1990] 3 All ER 246; [1990] 2 WLR 987. 66. Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692. 67. Swinney v Chief Constable of the Northumbria Police [1996] 3 WLR 969. 68. Ansett Transport Industries (Operations) Pty Ltd v New South Wales (1998) 28 MVR 145 (NSWCA). 69. Schilling v Lenton (1988) 47 SASR 88. 70. Zalewski v Turcarolo [1995] 2 VR 562.

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Further, no immunity has been held to exist in circumstances where police have committed criminal acts such as fabricating evidence and conspiring to give false evidence,71 or where police have committed intentional torts such as assault in the conduct of a raid on premises.72 Statutory protection for police officers Even if a claim in negligence is successfully pursued against the police, protection from liability for individual officers is provided by statute:73 A member of the Police Service is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law with respect to the protection of persons from injury or death or property from damage.

The liability, where established, is instead assumed by the Police Service rather than the individual officer. This statutory protection may not be available to a police officer not acting ‘in good faith’ in the conduct of his or her duties. Unlike the equivalent Victorian statute, the New South Wales Act does not stipulate that a police officer is afforded immunity ‘in the exercise of his or her duty’.74 The New South Wales statute, therefore, is not specific as to the immunity status of police officers while off duty. By implication, it may be taken that the immunity afforded police officers in New South Wales relates to the functions they are performing, and not whether they are on or off duty at the time. This position is supported by Atkinson J, who held a police officer has a duty to the public that exists regardless of whether the officer is officially on duty,75 and accords also with the long-established common law position that police officers are not employees but rather are independent office holders exercising ‘original authority’.76 Summary In general terms, it is likely to prove difficult to establish that a duty of care is owed by police to an individual person. A considerable array of authorities, both binding and persuasive, tend to support the general notion of immunity for police from liability in negligence, on the basis of no duty of care. However, where it can be established that a special case exists, particularly in relation to a deliberate and dangerous act by police, or where it can be

71. Darker v Chief Constable of the West Midlands Police [2000] 3 WLR 747. 72. Victoria v Horvath (2002) 6 VR 326. 73. Police Service Act 1990 (NSW) s 213(1). 74. Police Regulation Act 1958 (Vic) s 123(1). 75. Peat v Lin [2005] 1 Qd R 40. 76. Attorney-General (NSW) v Perpetual Trustee Co Ltd (1955) 92 CLR 113.

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argued police have expressly or impliedly assumed responsibility for the person harmed, an action in negligence might well proceed. Regards, Alan Butorac

Tutorial 1.3: Climate change litigation Internal memorandum From: Guido Markewicz To: Trainee Date: 20/11/20XX Please prepare a discussion paper on the key tort-based issues involved in climate change litigation.

Tutorial 1.3: Student Example Answer prepared by: Paulette Neilsen, JD student, University of Canberra; reviewed by Kayt Hogan, LLB student, University of New England

Internal memorandum To: Guido Markewicz From: Paulette Neilsen Date: 20/11/20XX Discussion paper — climate change litigation Mr Markewicz, Please note the following discussion of tort law in climate change. The paper outlines opportunities for the development of cases on behalf of plaintiffs keen to pursue legal remedy for damage caused by carbon emissions. Scope Recently, the Queensland Land and Resources Tribunal (QLRT) rejected an application by the Queensland Conservation Council (QCC) which objected to the Xstrata Mining Company’s expansion of the Newlands Mine because it failed to adequately address the matter of increased carbon emissions arising from the expansion.77 Regardless of which party won, the tribunal hearing this 77. A Dauwalder, Hopgood Ganim Lawyers, Brisbane, Australia, ‘Re Xstrata Coal Queensland Pty Ltd & Ors [2007] QLRT 33’ (18 March 2007), available at (viewed 29 August 2018).

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case was likely to be appealed, such is the interest in tort law negligence in relation to climate change.78 Climate change — the next big thing After ‘asbestos and tobacco, litigators now predict that climate change litigation’ is the next area of novel case law.79 With an increasing number of substantive reports80 citing greenhouse gas emissions for the more extreme weather conditions being experienced around the world, governments and fossil-fuelbased companies are the key targets,81 with multi-million-dollar cases already being heard in the United States.82 High-profile companies, such as Xstrata, which have publicly taken an anticlimate change position, by this standpoint paint litigation targets on every application for new or expanded mining operations.83 The insurance industry is also exposed. A changing, less predictable climate84 may ultimately compromise the industry’s ability to pay claims and leave many hundreds of thousands of coastal household dwellings without coverage.85 Exactly who is liable, and to 78. H Luntz and D Hambly, Torts: Cases and Commentary, revised 5th ed, LexisNexis Butterworths, Sydney, 2006, p 133: ‘[T]he problem confronting us … is to determine when there is — and, what is today often more important, when there is not — such a duty.’ 79. ABC Radio, ‘Climate Change Costs Loom in Litigation’, AM, 31 October 2003, available at (viewed 29 August 2018): ‘A new report compiled by international law firm, Baker and McKenzie, warns people are now looking to lay blame’; D Mendelson, The New Law of Torts, Oxford University Press, Melbourne, 2007, Ch 10 ‘Negligence: Duty of Care’, p 249: ‘In negligence, the question is whether the defendant failed to take precautions to prevent a foreseeable risk of harm …’. 80. Stern Review, Economics of Climate Change, Summary of Conclusions: ‘The scientific evidence is now overwhelming: climate change is a serious global threat, and it demands an urgent global response’, p 1, available at (viewed 29 August 2018); Working Group II Contribution to the Intergovernmental Panel on Climate Change, Fourth Assessment Report, Climate Change 2007: Climate Change Impacts, Adaptation and Vulnerability, available at (viewed 29 August 2018). 81. ABC Radio, ‘Climate Change Costs Loom in Litigation’, note 79 above: ‘There’s no doubt extreme weather events are becoming more common, with floods, drought and fires multiplying over the last decade. Scientists agree global warming is a contributing factor.’ 82. M Skinner and J Pearce, Allens Arthur Robinson, Focus: Climate Change Litigation:‘United States Supreme Court Hands Down Important Climate Change Decision’, April 2007, available at (viewed 29 August 2018): ‘The decision in Massachusetts, et al, Petitioners v Environmental Protection Agency et al 549 US (2 April 2007) was an appeal to the United States Supreme Court from the DC Circuit Court of Appeals, which had held that the United States Environmental Protection Agency (the EPA) had properly exercised its discretion under the United States Clean Air Act by refusing to impose mandatory limits on greenhouse gas (GHG) emissions from new motor vehicles.’ 83. ABC Radio, ‘Climate Change Costs Loom in Litigation’, note 79 above. 84. S Marris, ‘Insurers Want a Map of the Future’, The Australian, Sydney, 13 April 2007, p 5. 85. Senator Bob Brown, media release, 7 April 2007, ‘711,000 Australian Homes and Priceless Coastal Ecosystems at Risk’, available at (viewed 29 August 2018); T Coleman, ‘The Impact of Climate Change on Insurance Against Catastrophes’, December 2002, pp 8, 9, available at (viewed 29 August 2018). 86. ABC Radio, ‘Climate Change Costs Loom in Litigation’, note 79 above. 87. Dauwalder, ‘Re Xstrata Coal Queensland Pty Ltd & Ors [2007] QLRT 33’, note 77 above. 88. Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33 at [1]. 89. Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33 at [8], [9], [10]. 90. Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33 at [21]. 91. Massachusetts, et al, Petitioners v Environmental Protection Agency et al 549 US (2 April 2007): see (viewed 29 August 2018). 92. Massachusetts, et al, Petitioners v Environmental Protection Agency et al 549 US (2 April 2007) at 1(c), ‘Given EPA’s failure to dispute the existence of a causal connection between man-made greenhouse gas

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of the United States Supreme Court would seem a more reliable indicator of likely judgments involving climate change evidence and is consistent with the judgment in Gray v Minister for Planning (No 2) (Anvil)93 in the New South Wales Land and Environment Court. Pain J rejected an environmental assessment of the proposal, a coal mine in New South Wales, on the basis that it failed to address the environmental impact of greenhouse gas emissions from the primary mining activity and the secondary processing of the coal.94 Emissions as a breach of duty of care In their submission in Xstrata, the QCC noted that this was the first of many objections they would lodge seeking to raise the issue of greenhouse gas emissions in relation to all coal mining lease applications ‘which do not propose effective measures to reduce, avoid or offset the emissions from the mining, transport and use of coal’.95 In effect, this was a ‘shot across the bow’ worthy of note by all greenhouse gas-emitting industries. As the Australian Conservation Foundation (ACF)96 has noted, tort law offers ‘fertile grounds for climate change litigation’ citing the shared aims of climate change litigation and common law, as ‘compensation, deterrence and prevention’.97 The decision of Pain J in Anvil considered that global warming attributed to carbon gas emissions was environmental damage, which needed to be considered in the conduct of an environmental assessment. The success of this case questions the long-held reliance on environmental assessments as a mechanism for meeting a duty of care by the regulator and proposal developer or sponsor. It also illustrates the struggle of the law to keep up with science. In Anvil, the plaintiff Peter Gray, an environmental activist, argued successfully that the regulator had to meet a duty of care owed under s 75F of the State Environmental Planning Policy (Major Projects) 2005 (NSW) and specifically by failing to consider the impact of emissions as serious environmental damage, this duty had been breached.98 emissions and global warming, its refusal to regulate such emissions, at a minimum, “contributes” to Massachusetts’ injuries’, note 91 above. 93. Gray v Minister for Planning (No 2) (Anvil) [2007] NSWLEC 91; BC200700985. 94. Gray v Minister for Planning [2006] NSWLEC 720; BC200609683 at [4] and [152]. 95. N Parratt, Queensland Conservation Council Affidavit to the Land and Resources Tribunal, 15 January 2007 at [17]: see http://envlaw.com.au/wp-content/uploads/newlands3.pdf> (viewed 9 November 2018). 96. M Kerr, Tort Based Climate Change Litigation in Australia, a discussion paper prepared for the Climate Change Litigation Forum, London, March 2002, p 4: ‘With respect to climate change litigation, a fundamental objective of such litigation would be to compensate those who have suffered loss or damage as a consequence of climate change.’ 97. For example, Working Group II Contribution to the Intergovernmental Panel on Climate Change, note 80 above. 98. ABC Television, ‘Climate Concerns Fuel Coal Mine Opposition Campaign’, The 7.30 Report, 11 November 2006; Gray v Minister for Planning [2006] NSWLEC 720; BC200609683 at [6], [7].

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As was noted in the judgment: The Applicant also raised the precautionary principle as one of the [ecologically sustainable development] principles not taken into account by the DirectorGeneral. As stated in Telstra v Hornsby (2006) 146 LGERA 10 at [150], the function of the precautionary principle is to require the decision-maker to assume that there is, or will be, a serious or irreversible threat of environmental damage and to take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat really exists or its extent.99

From Anvil, the application of the precautionary principle shifts the burden of proof such that where the possibility of environmental damage exists (and is less obvious than a hole in the ground), the proposal must ‘demonstrate that the threat does not exist or is negligible’.100 This is a complex argument in the climate change discourse. A tort-based action at common law based on an expanded duty of care created by Anvil will likely be one of the factors contributing to the view that climate change litigants may feel emboldened to pursue tort actions.101 In future Xstrata appeals, the court may be asked to grant the objection as a precaution against further damaging emissions, in part relying on the United States Supreme Court102 having accepted the causative and damaging relationship between carbon emissions and global warming. In the public interest In climate change litigation, ‘the main actions are either a government suing a government, or an individual or an environmental organisation suing a company’.103 Alternatively, governments or individuals may take a common law action against a regulatory authority, as in Anvil, for failing to deal with greenhouse gas emissions.104 Defendants may rely on the triple bottom line, asking courts to consider the economic losses caused if projects are limited or disallowed. It is reasonable to suggest that the public mood around climate change and the true economic consequences have been affected by increasingly devastating natural disasters.105 99. Gray v Minister for Planning [2006] NSWLEC 720; BC200609683 at [127]. 100. Gray v Minister for Planning [2006] NSWLEC 720; BC200609683 at [127]. 101. Skinner and Pearce, Focus: Climate Change Litigation, note 82 above. 102. Massachusetts, et al, Petitioners v Environmental Protection Agency et al 549 US (2 April 2007) at 1(c), note 92 above: ‘Given EPA’s failure to dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming, its refusal to regulate such emissions, at a minimum, “contributes” to Massachusetts’ injuries’. 103. ABC Radio, ‘Climate Change Costs Loom in Litigation’, note 79 above. 104. Massachusetts, et al, Petitioners v Environmental Protection Agency et al 549 US (2 April 2007); Gray v Minister for Planning (No 2) [2007] NSWLEC 91; BC200700985. 105. A Gore, An Inconvenient Truth, Paramount Classics, Participant Productions, 2006: see https://www. imdb.com/title/tt0497116/> (viewed 5 November 2018): ‘What changed in the US with Hurricane Katrina was a feeling that we had entered a period of consequences’, citing a similar warning from Winston Churchill in the 1930s.

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When the courts are assessing a proposal to expand a coal mine, it is inevitable that the impact on jobs and the local community would be submitted as part of assessing the public interest.106 But as climate change threatens the core business of the insurance industry, the public interest test is expanded by the threat to coastal homes and the operators of businesses connected with the ocean from rising sea levels. Such economic loss litigation may be specific, as in Perre v Apand Pty Ltd,107 or general, particularly as the causal relationship between human activity and global warming gains active acceptance by governments, corporations and the community. The Insurance Australia Group (IAG) considers that the risk (created by climate change to property) should be moderated by greater regulation and enforcement of building codes.108 As noted by relevant research: According to the Insurance Information Institute (2000), 70% of the losses associated with Hurricane Alicia and up to 40% of the losses associated with Hurricane Andrew were due to poor building code enforcement.109

Such overwhelming losses highlight the pressure on local governments to maintain an existing duty or provide sufficient regulation to reduce emissions110 as foreseeable risk;111 these are likely facts to be submitted particularly if the losses sustained by the owners of private dwellings are uninsurable because of their vulnerability to rising sea levels.112 People operating businesses ‘connected to the Great Barrier Reef ’113 who suffer economic loss as a consequence of coral bleaching are potential plaintiffs who could rely on the ‘IPCC prediction 106. Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33; ABC Radio, ‘Climate Change Costs Loom in Litigation’, note 79 above. 107. Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36 at [42]: ‘In my view, where a person knows or ought to know that his or her acts or omissions may cause the loss or impairment of legal rights possessed, enjoyed or exercised by another, whether as an individual or as a member of a class, and that that latter person is in no position to protect his or her own interests, there is a relationship such that the law should impose a duty of care on the former to take reasonable steps to avoid a foreseeable risk of economic loss resulting from the loss or impairment of those rights.’ 108. Coleman, ‘The Impact of Climate Change on Insurance Against Catastrophes’, note 85 above, p 1: ‘At its most basic, insurers underwrite weather-related catastrophes by calculating, pricing and spreading the risk and then meeting claims when they arise. A changing, less predictable climate has the potential to reduce our capacity to calculate, price and spread this weather-related risk.’ 109. Coleman, ‘The Impact of Climate Change on Insurance Against Catastrophes’, note 85 above, p 11. 110. Renewable Energy (Electricity) Act 2000 (Cth) s 3: ‘The objects of this Act are: (a) to encourage the additional generation of electricity from renewable sources; and (b) to reduce emissions of greenhouse gases; and (c) to ensure that renewable energy sources are ecologically sustainable.’ 111. Cardiff School of City and Regional Planning, Environmental Liability and the Common Law, 2004, p 9: ‘Since the decision of the House of Lords in Cambridge Water Co v Eastern Counties Leather [1994] 1 All ER 53 imposes a requirement of foreseeability of damage as an essential element of Rylands v Fletcher [1861–73] All E.R Rep 1, it might be thought that defences of act of God have been rendered redundant.’ 112. Senator Bob Brown, media release, 7 April 2007, ‘711,000 Australian Homes and Priceless Coastal Ecosystems at Risk’, note 85 above. 113. Kerr, Tort Based Climate Change Litigation in Australia, note 96 above, p 7.

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that climate change will increase the susceptibility of coral reefs to bleaching’ in evidence.114 In this context, climate change as an ‘act of God’ as a defence against liability is vulnerable, particularly given the comments of the House of Lords in Cambridge Water Co v Eastern Counties Leather plc115 that ‘there must be no interruption by the defendant to divert the natural hazards if the defence of act of God is to apply’.116 Conclusion Climate change litigation is not without risks for plaintiffs. Courts will be conscious of the implications of increased regulation on public amenity; perhaps the freedom to live by the sea may be a thing of the past. Such lifestyles may be hindered by limitations on access to land, expensive building regulations and difficulty obtaining property insurance.117 Though the ACF and others see great potential in climate change litigation, ‘liability law is never a means in itself and in the field of climate change it certainly does not provide the sole answer to a very complex problem’.118 Tort law is, however, the place to determine the extent to which the ‘right of the private landowner to affect the environment, sacrosanct at common law — at least until the rights of use and enjoyment of a neighbouring landowner’119 can no longer be protected. This is the opportunity in tort — arguing individual rights120 against the interests of the majority, whether that enjoyment is life itself121 or a duty to the Australian economy.122 Regards, Paulette Neilsen 114. Kerr, Tort Based Climate Change Litigation in Australia, note 96 above, p 7. 115. Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1994] 1 All ER 53; [1993] UKHL 12. 116. Cardiff School of City and Regional Planning, Environmental Liability and the Common Law, 2004, p 9. 117. Derrick v Cheung (2001) 181 ALR 301; [2001] HCA 48, where the Full Bench held that the standard of care of a motorist was to adhere to the speed limit and exercise reasonable care.To have held for the plaintiff would have resulted in a loss of public amenity in attempting to regulate for every possibility. 118. M Haritz, Department of International and European Law, Maastricht University, The Netherlands, The Application of the Precautionary Principle and Liability Law with Respect to Climate Change, p 1. 119. G Bates, Environmental Law in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2006, p 21; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36 at [42]. 120. P Vines, Law and Justice in Australia, 2nd ed, Oxford University Press, Melbourne, 2008, Ch 15 ‘Conclusion: The Importance of Law’. 121. Gore, An Inconvenient Truth, note 105 above: ‘our ability to live is what is at stake’. 122. Prime Minister John Howard, ‘Australia Rising’, Address to the Queensland Media Club, Sofitel Hotel, Brisbane, 23 April 2007, p 24:‘I will not subcontract our climate change policy to the European Union. Indeed, I worry a great deal about the consequences for Australian families, and the Australian economy, of Mr Rudd’s policy of cutting greenhouse gas emissions by 60 per cent from 1990 levels.’

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Related matters and further information which may be required include: •• We will need to confirm that a duty of care is owed at common law by a tour boat operator to paying customers or an analogous situation. •• We will need to examine maritime-related statutes to see if there has been a breach of a statutory duty. •• Each of the facts will need to be carefully checked with the client and/or by independent verification. For example, we should write to the company’s current general manager, CEO or equivalent and confirm the correct and up-to-date registered office address of the company. These matters can (and would normally) be confirmed by a company search. •• We should also be able to confirm ownership of the boat in question, via a registration of ownership system. •• It would be useful to prepare a formal statement (or proof of evidence) from each of the clients at this early stage while matters are fresh in their minds.

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Chapter 2

The Statutory Framework of Tort Law Legal practice skill: Sourcing statutes, and statutory analysis

Learning aims •

Appreciate that contemporary tort law practice involves a mixture of statutory analysis and common law principles

•

Ascertain the scope of the relevant statutes for the relevant jurisdiction and area of torts, given there are six states and two territories to consider

•

Understand that statute is informed by common law principles and historical development of the law

•

Appreciate the ongoing importance of the common law principles (discussed in the other chapters)

•

Ascertain the growing influence of statutory no-fault schemes in important practical areas of tort law such as motor vehicle accident claims and workers’ compensation

Background concepts 2.1

Statute provides the starting position nowadays for the legal analysis of a claim for loss or damages for a civil wrong. Since 2000 in particular, the reach of statute has increased, and it has expanded into many areas of tort law (and in particular negligence), which were previously the province of the common law. Take the following situation. A group of family and friends are attending a New Year’s Eve event at a restaurant. It is catered for with food and alcohol and these have been included in the ticket price. It is a licensed venue and able therefore to serve and sell alcohol. There are some security officers stationed on the door of the venue.Well into the night, and after midnight, a fight breaks out between patrons and is very quickly becomes serious in nature. A patron is stabbed in the stomach. He sues the nightclub in negligence, for breach of 65

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Torts: Principles, Skills and Application

statute (the relevant state Liquor Act), and contract (that it provided a service without sufficient care or skill). How would this case be decided today? The answer to this question is critically reliant upon when the event occurred, and upon the particular factual context of the alleged damage. It was a social event; it was not a work function. Hence, workers’ compensation is not relevant. It occurred in a restaurant, not in or as a result of a motor vehicle. Hence, motor vehicle legislation is not relevant. It may be that compensation for criminal injuries is claimed, but this is of a limited amount. The place and context in which the loss or damage occurred is a privately owned, for-profit venue to which the public were invited and able to attend. The patron was a paying guest and it was a general context situation. So, given these facts and this context: •• Does the common law apply? •• Can the plaintiff bring a claim in negligence for damages? •• How would the claim proceed and what is its legal basis? Let’s assume the event took place on New Year’s Eve, on 31 December 2002 and into 1 January 2003. The plaintiff ’s (patron) main argument was that the venue did not have sufficient security personnel for the event. If they had, he argued, the fight and melee would have been avoided altogether, or quelled more quickly; he would not have been stabbed.Was this reasonable conjecture or mere speculation? If it was reasonable conjecture, the plaintiff had a good chance of establishing negligence for a failure to take reasonable care on the part of the premises. Let’s now assume the above events took place in Sydney, New South Wales. This changes everything about how the claim in negligence proceeds.The Civil Liability Act 2002 (NSW) commenced on 20 March 2002, some nine months prior to the events on New Year’s Eve. So, there is no issue of retrospectivity. The Act was in force and relevantly applies to the events which took place. The Act both shapes and determines the plaintiff ’s claim in negligence. These facts and this scenario closely resemble those which the High Court finally got to determine in 2009, in the case that follows.

2.2

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009) Court: High Court of Australia Facts: The facts are as stated below in the joint judgment of all five justices of the High Court: 1.  FRENCH CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ. The appellant in each appeal (Adeels Palace Pty Ltd – “ Adeels Palace “) carried on a reception and restaurant business at premises in Punchbowl, New South Wales. The premises were

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2.2

The Statutory Framework of Tort Law

licensed under the  Liquor Act  1982  (NSW) (“the  Liquor Act”). An  “On-Licence (Restaurant)” licence permitted the service of alcohol on the premises on any day, between midday and 4.00 am on the day following. A  condition of the licence limited the seating capacity of the premises to restaurant seating for 295 persons. The local council authorised the use of the premises as a place of public entertainment between midday and 4.00 am on the next day but limited the capacity of the premises to 283 persons. At the times relevant to these matters, a director of Adeels Palace was the licensee. 2.  On 31 December 2002, Adeels Palace was open for business and many came to celebrate the New Year. The restaurant was full. Exactly how many were there was never proved. Admission to the premises, collected at the door, cost $60 per person which included food but not alcoholic drinks. There was a band; there were singers and entertainers; patrons could dance. Seating was at long tables. The bar was open. Waiters brought drinks to the tables. 3. At about 2.30 am on 1 January 2003, there was a dispute between some women dancing on the dance floor. One accused another of brushing her hand with a lighted cigarette. Words were exchanged. Relatives and friends intervened. Fighting erupted and onlookers joined in. Punches were thrown. Chairs, plates and bottles were thrown. One witness was later to agree that the disruption “got bigger and more ferocious very quickly”. As he said, there were “[a] lot of egos out there”. 4.  One man involved in the fight was hit in the face, drawing blood. He left the restaurant and returned soon after with a gun. Someone called out “Gun, gun, run away” and Mr Bou Najem (the respondent in the second appeal in this Court) did just that. He ran into the restaurant’s kitchen but slipped over. The gunman came in. As Mr Bou Najem tried to get up, the gunman pointed the gun at him. Mr Bou Najem pleaded with him not to shoot, but shoot he did, wounding Mr Bou Najem in the leg. 5.  The gunman left the kitchen and went back into the restaurant itself. There he found the man who had struck him in the face – Mr Moubarak (the respondent in the first appeal). The gunman shot Mr Moubarak in the stomach and then left the premises. 6.  The two men who were shot, Mr Bou Najem and Mr Moubarak, each brought proceedings in the District Court of New South Wales against Adeels Palace claiming damages for personal injury. Each alleged that they had suffered injury as a result of Adeels Palace ‘s negligence in not providing any or any sufficient security during the function on New Year’s Eve.

Legal principle: Similarly, the court set out the salient legal principles, and in particular the centrality of s 5 of the Civil Liability Act 2002 (NSW). The similar or equivalent provisions of other states and territories are discussed below at Table 2.2. The joint judgment found as follows (from [11]): 11. In considering each of the issues of duty, breach and causation, it is of the first importance to identify the proper starting point for the relevant inquiry. In this case there are two statutes which require particular consideration: the Civil Liability Act  2002  (NSW) (“the  Civil Liability Act”) and the  Liquor Act. If attention is not directed first to the Civil Liability Act, and then to the Liquor Act, there is serious risk that the inquiries about duty, breach and causation will miscarry.

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The Civil Liability Act 12. The Civil Liability Act is taken to have commenced on 20 March 2002. At the relevant times, s 5A of the Act provided that Pt 1A “applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise”. Part 1A of the Act included Div 2, entitled “Duty of care” (ss 5B and 5C), and Div 3, entitled “Causation” (ss 5D and 5E). 13. Although  ss 5B  and  5C  appear beneath the heading “Duty of care”, that heading is apt to mislead. The sections provided: “5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (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. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.” Both provisions are evidently directed to questions of breach of duty. 14. By contrast, Div 3 (ss 5D and 5E) is directed to the subject-matter described in the heading to the division – Causation. Those sections provided: “5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

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The Statutory Framework of Tort Law

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined 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. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.” 15. These provisions of the Civil Liability Act are central to the questions of breach of duty and causation.

The court’s decision (application of the legal principle to the facts): The court (at [11]) of the judgment (referred to above) made the point that consideration of the relevant statute had to come first in the analysis, and prior to considerations of the three core issues in a common law negligence claim — duty, breach and causation. To do otherwise would mean that ‘there is serious risk that the inquiries about duty, breach and causation will miscarry’ ([11] of the joint judgment). It found crucially (at [53]) that causation as set out in s 5D(1) of the Civil Liability Act 2002 (NSW): In the present case, in contrast, the “but for” test of factual causation was not established. It was not shown to be more probable than not that, but for the absence of security personnel (whether at the door or even on the floor of the restaurant), the shootings would not have taken place. That is, the absence of security personnel at  Adeels Palace  on the night the plaintiffs were shot was not a necessary condition of their being shot. Because the absence of security personnel was not a necessary condition of the occurrence of the harm to either plaintiff, s 5D(1) was not satisfied.

Significance of this case: The case confirmed the critical importance of statutory analysis as the primary step in addressing the case and similar cases. The relevant statute in this case was the Civil Liability Act 2002 (NSW) and the Liquor Act 1982 (NSW). The same approach would apply, subject to the relevant Acts, in each state and territory, depending on where the events took place. The case foregrounds the growing importance of statutory interpretation in tort law.

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Background and context: The background to the New South Wales Act, and those around Australia, was cogently that of the Ipp Review.1 It led to a great deal of legislative activity in various jurisdictions around Australia, and this legislative context is now central and critical to the examinations of tort law in Australia.

Adeels Palace case illustrates the hierarchical nature of the sources of law and its processes. This hierarchical orthodoxy occurs within court systems, and between statutory entities in a federation. That is, the junior courts must necessarily follow relevant precedents of the senior courts within the relevant system. In a federation, state and Commonwealth law may cover the same subject matters; s  109 resolves this overlap in favour of the Commonwealth. And the third fundamental hierarchy is between statute and the common law as regards the same subject matter.This sense of particularity gives the law its shape, consistency and coherence. Hence where statute deals with subject matter X, the common law must acknowledge this supremacy and vacate the particular matter covered. The Civil Liability Act and its variants is a prime example of statute now being the starting point for many investigations of cases of negligence.1

2.3 The

The main torts-based legislation 2.4

The statutory context is critical in terms of the analysis of a torts problem. The factual scenario giving rise to the claim may mean that several possibilities are relevant. It may be that: •• the main Civil Liability Act or its equivalent in each state and territory is critical and provides the first point of analysis, such as was the case in Adeels Palace Pty Ltd; •• particular no-fault legislation is applicable, for example in workers’ compensation claims; •• particular subject-matter legislation is relevant, for example the Liquor Act as referred to in Adeels Palace; •• the common law is relevant in terms of the claim as a primary consideration, for example in terms of intentional torts; or •• the common law is relevant in terms of providing particularity and meaning to a statutory provision.

The relevant civil liability legislation for each state and territory 2.5

The Acts in Table 2.1 are the headline or main pieces of legislation in respect to the provision of civil liability. Two of the Acts retain their original dates; the

1. Australia.Treasury. Law of Negligence Review Panel. and Ipp, D A, Review of the Law of Negligence: Final Report, Commonwealth of Australia, Canberra, 2002.

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others have dates reflecting the Ipp Final Report.2 All have been amended as a result of the Ipp Review.

Table 2.1 State or territory

Relevant Act

ACT

Civil Law (Wrongs) Act 2002

NSW

Civil Liability Act 2002

NT

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Civil Liability Act 2003

SA

Civil Liability Act 1936

Tas

Civil Liability Act 2002

Vic

Wrongs Act 1958

WA

Civil Liability Act 2002

These Acts need to be read in conjunction with particular contextual Acts within the relevant jurisdiction. These include Acts related to various subject matter including, for example, motor vehicle accidents, workers’ compensation claims and defamation. There may be other relevant legislation, depending on the particular jurisdiction and the facts and circumstances. For each of the tables, given the details and complexity of the provision and subsections, reference is made to the main sections, and these should be specifically referred to in each case. The scope and coverage of the civil liability legislative regime for each state and territory 2.6

Table 2.2 shows the relevant headline Act for civil liability in each state and territory. There are then seven categories for particular accident or claim contexts. For example, the two main contexts are injuries at work (workers’ compensation) or as a result of vehicle accidents and incidents (motor vehicle accidents). There are additional contexts as set out. The effect of these contexts is that many years of potential application of the headline Acts are excluded or modified within a given state or territory. This means, as a matter of statutory interpretation, that a potential claimant and their legal adviser, must locate the relevant statutory starting position for the particular factual scenario on which a claim may be based.

2. Australia.Treasury. Law of Negligence Review Panel. and Ipp, D A, Review of the Law of Negligence: Final Report, Commonwealth of Australia, Canberra, 2002.

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s 3B Civil Liability Act 2002

Excluded s 4 Personal Injuries (Liabilities and Damages) Act 2003

s 5 Civil Liability Act 2003

s 4 Civil Liability Act 1936

s 3B Civil Liability Act 2002

s 45 Wrongs Act 1958

s 3A Civil Liability Act 2002

NSW

NT

Qld

SA

Tas

72

Vic

WA

Excluded

Excluded

Partially excluded

Partially excluded

s 41(2) Civil Law (Wrongs) Act 2002

ACT

Motor accidents

Relevant section of Act

State or territory

Table 2.2

Excluded

Excluded

Excluded

Excluded

Excluded

Excluded

Excluded

Workplace claims

Excluded

Excluded

Excluded

Intentional acts

Excluded

Excluded

Excluded

Sexual assault or related misconduct

Excludes asbestos inhalation

Excluded

Excluded

Excluded

Excluded

Dust diseases

Excluded

Excluded

Excluded

Excluded

Excluded

Civil aviation claims are excluded

Smoking Other exclusions or tobacco product claims

2.6 Torts: Principles, Skills and Application

2.6

The Statutory Framework of Tort Law

An example from Table 2.2 for this issue is provided by the Queensland Act:

Civil Liability Act 2003 5 Civil liability excluded from Act (1) This Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes— (a) an injury for which compensation is payable under the WorkCover Queensland Act 1996 , other than an injury to which section 36 (1) (c) or 37 of that Act applies; or Example for paragraph (a)— A worker employed under a contract of service with a labour hire company is injured at the premises of a host employer while driving a defective machine. The worker pursues claims for damages for civil liability against the labour hire company, the host employer and the manufacturer of the machine. The worker suffers a number of injuries but only 1 of them is accepted as an injury under the WorkCover Queensland Act 1996 , section 34. This Act does not apply to any of the claims for damages. (b) an injury for which compensation is payable under the  Workers’ Compensation and Rehabilitation Act  2003  , other than an injury to which section 34 (1) (c) or 35 of that Act applies; or (c) an injury that is a dust-related condition; or (d) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

An example from the Table 2.2 above for this issue is provided by the New South Wales Act:

CIVIL LIABILITY ACT 2002 - SECT 3B Civil liability excluded from Act 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person–the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody), (b) civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust 73

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Torts: Principles, Skills and Application

Diseases Tribunal Act 1989 —the whole Act except sections 15A and 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (c) civil liability relating to an  award  of  personal injury damages  (within the meaning of Part 2) where the  injury  or death concerned resulted from smoking or other use of tobacco products—the whole Act except section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (d) civil liability relating to an  award  to which Part 6 of the  Motor Accidents Act  1988  applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e) civil liability relating to an  award  to which Chapter  5 of the  Motor Accidents Compensation Act  1999  applies (including an  award  to and in respect of which that Chapter  applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the  Transport  Administration Act  1988  )—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e1) civil liability relating to an award to which Part 4 of the Motor Accident Injuries Act 2017 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies—the whole Act, (g) civil liability for compensation under the  Workers Compensation Act  1987, the  Workers Compensation (Bush Fire, Emergency and Rescue  Services) Act  1987, the  Workers’ Compensation (Dust  Diseases) Act 1942 or the Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978 — the whole Act, (h) civil liability for financial assistance for economic loss under the  Victims Rights and Support Act 2013 — the whole Act. (2) The following provisions apply to motor accidents: (a) Divisions 1-4 and 8 of Part 1A (Negligence), (a1) section 15B (Damages for loss of capacity to provide domestic services), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies, (b) section 15C (Damages for loss of superannuation entitlements), except in relation to a motor accident to which the  Motor  Accident Injuries Act 2017 applies, (c) section 17A (Tariffs for damages for non-economic loss), (c1) section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (d) Division 7 (Structured settlements) of Part 2, (e) Part 3 (Mental harm), 74

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(f) section 49 (Effect of intoxication on duty and standard of care), (g) Part 7 (Self-defence and recovery by criminals), (h) Part 8 (Good samaritans). (3) The regulations may exclude a specified class or classes of civil liability (and  awards  of damages in those proceedings) from the operation of all or any specified provisions of this Act. Any such regulation may make transitional provision with respect to claims for acts or omissions before the commencement of the regulation.

The relevance of time limits for issuing proceedings 2.7

Legal advice must consider the time limits within which claims may be brought. These are critical threshold issues to consider on behalf of the plaintiff. States and territories each deal with this suite of issues in the legislation in Table 2.3.

Table 2.3 State or territory

Relevant Act

ACT

Limitation Act 1985

NSW

Limitation Act 1969

NT

Limitation Act 1956

Qld

Limitation of Actions Act 1974

SA

Limitation of Actions Act 1936

Tas

Limitation Act 1974

Vic

Limitation of Actions Act 1958

WA

Limitation Act 2005

The main practice areas of no-fault schemes Motor vehicle accidents: no-fault schemes 2.8

Each state and territory has its own legislative response to this area of the law (refer to Table 2.4). The practical complexities are such that there is not a uniform definition of the basic and important concept: what is a motor accident?

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Table 2.4 State or territory

Year of no-fault scheme

Relevant Act(s) now covering the area

ACT

2014

The Lifetime Care and Support (Catastrophic Injuries) Act

NSW

1999

Motor Accidents Compensation Amendment Act

2006

Motor Accidents (Lifetime Care and Support) Act

1979

Motor Accidents (Compensation) Act 1956

NT Qld

See note below

SA

2013

The Motor Vehicle Accidents (Lifetime Support Scheme) Act

Tas

1974

Motor Accidents (Liabilities and Compensation) Act 1973

Vic

1973

Transport Accident Act 1986

WA

2016

Motor Vehicle (Catastrophic Injuries) Bill 2016 

For Queensland, as referred to above: To successfully claim against another person for personal injury or property damage caused by a motor vehicle accident in Queensland, you must be able to show another person was at fault—it is not sufficient to show the other person was insured. Different laws apply in the other states. If an accident occurs in another state, the law applying in that state will govern your claim. If a person is convicted of a criminal offence as a result of a motor vehicle accident (e.g. driving under the influence of alcohol, driving without due care and attention), this can be used as evidence in a civil claim but is not necessarily proof of negligence. Can property damage and personal injuries be claimed separately? The nature and extent of any property damage caused by a motor vehicle accident is usually readily apparent and can be easily assessed and quantified. On the other hand, the extent and consequences of a person’s injuries may not be obvious for some time after the accident. It is possible to pursue separate claims for property damage and personal injuries. In all likelihood, the property damage insurer will not be the same entity as the CTP insurer. In any event, care needs to be taken to ensure a decision in the first case does not bind the parties in any subsequent case. For example, a badly injured claimant would not necessarily want a 50/50 apportionment of liability 76

2.9

The Statutory Framework of Tort Law

in a related property damage claim to automatically apply to their personal injuries claim. Consideration of these issues can be very complicated and should be referred to lawyers specialising in these types of claims.3

Workers’ compensation: no-fault schemes 2.9

Workers’ compensation is an example of no-fault schemes operating in each state and territory of Australia, and at the Commonwealth level. There are no fewer than 12 key pieces of legislation (see  Table 2.5), so the search for consistency, for national uniformity, is very elusive. The common law may still be relevant via claims in negligence, depending on the context. The legislation requires a person to: •• satisfy the test of being an employee; •• have suffered an injury, loss or disease which is dealt with in the relevant legislation; and •• show there is sufficient connectivity or nexus between the loss-inducing event and the status of employment.

Table 2.5 Jurisdiction: Commonwealth, state or territory

Relevant Act

Commonwealth

Safety, Rehabilitation and Compensation Act 1988 Military Rehabilitation and Compensation Act 2004 Seafarers Rehabilitation and Compensation Act 1992

ACT

Workers Compensation Act 1951

NSW

Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

NT

Return to Work Act 2015

Qld

Workers Compensation and Rehabilitation Act 2003

SA

Return to Work Act 2014

3. Caxton Legal Centre, Claiming Compensation After a Motor Vehicle Accident, Brisbane, 2016, (viewed 5 November 2018).

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Jurisdiction: Commonwealth, state or territory

Relevant Act

Tas

Workers Rehabilitation and Compensation Act 1988

Vic

Workplace Injury Rehabilitation and Compensation Act 2013

WA

Workers and Injury Management Act 1981

Criminal injuries legislation 2.10

The compensation funds set up by various government for victims of crime is a no-fault scheme, essentially which offers some monetary recompense to victims.This provides some measure of justice to victims and avoids the rigours and issues associated with suing in the tort law system. The relevant state and territory legislation is shown in Table 2.6.

Table 2.6 State or territory

Relevant Act

ACT

Victims of Crime (Financial Assistance) Act 2016

NSW

Victims Rights and Support Act 2013

NT

Victims of Crime Assistance Act 2006

Qld

Victims of Crime Assistance Act 2009

SA

Victims of Crime Assistance Act 1988

Tas

Victims of Crime Assistance Act 1976

Vic

Victims of Crime Assistance Act 1996

WA

Victims of Crime Assistance Act 2003

The NDIS (National Disability Insurance Scheme) 2.11

The NDIS has been a central political concern on both major parties in the last decade. There has been prolonged discussion of the funding and the adequacy of the funding by the federal government.

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The Statutory Framework of Tort Law

The relevant legislation is the National Disability Insurance Scheme Act 2013 (Cth). The Act contains 210 provisions and seven chapters. The objects of the Act are set out in Ch 1, Pt 2 at s 3, as follows: Part 2—Objects and principles 3 Objects of Act The objects of this Act are to: (a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and (b) provide for the National Disability Insurance Scheme in Australia; and (c) support the independence and social and economic participation of people with disability; and (d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and (e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and (f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and (g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community; and (h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and (i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to: (i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and (ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and (iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and (iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and (v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).

The Act goes on in s 3(2) to provide an overview of how the objects are to be achieved: (2) These objects are to be achieved by: (a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and 79

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(b) adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability. (3) In giving effect to the objects of the Act, regard is to be had to: (a) the progressive implementation of the National Disability Insurance Scheme; and (b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and (c) the broad context of disability reform provided for in: (i) the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and (ii) the Carer Recognition Act 2010; and (d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.

The national redress scheme for victims of child sexual abuse 2.12

The National Redress Scheme follows the Royal Commission into issues in relation to child sexual abuse. The relevant legislation is the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth). It contains seven chapters and 193 sections. The objects and outline of the Act are set out below. Division 2—Objects of this Act 3 Objects of this Act (1) The main objects of this Act are: (a) to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and (b) to provide justice for the survivors of that abuse. (2) For the purposes of achieving those objects, the objects of this Act are also: (a) to establish the National Redress Scheme for Institutional Child Sexual Abuse; and (b) to provide redress under the scheme which consists of: (i) a monetary payment to survivors as a tangible means of recognising the wrong survivors have suffered; and (ii) a counselling and psychological component which, depending on where the survivor lives, consists of access to counselling and psychological services or a monetary payment; and (iii) a direct personal response to survivors from the participating institutions responsible; and (c) to enable institutions responsible for abuse of survivors to participate in the scheme to provide that redress to those survivors; and (d) to implement the joint response of: (i) the Commonwealth Government; and 80

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The Statutory Framework of Tort Law

(ii) the government of each participating State; and (iii) the government of each participating Territory; to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to redress. Division 3—Simplified outline of this Act 4 Simplified outline of this Act This Act establishes the National Redress Scheme for Institutional Child Sexual Abuse to provide redress to survivors of past institutional child sexual abuse. Redress under the scheme is for abuse that is within the scope of the scheme. Abuse of a person is within the scope of the scheme if: (a) it occurred when the person was a child; and (b) it occurred before the scheme start day; and (c) it occurred inside a participating State, inside a Territory, or outside Australia (that is, it did not occur inside a State that is not participating in the scheme). Redress consists of 3 components: (a) a redress payment (of up to $150,000); and (b) a counselling and psychological component which, depending on where the person lives, consists of access to counselling and psychological services or a counselling and psychological services payment (of up to $5,000); and (c) a direct personal response from each participating institution responsible for the abuse. To be entitled to redress, a number of conditions need to be met. First, the person must make an application for redress. Then the person must meet the eligibility criteria. These are that: (a) the person was sexually abused; and (b) the abuse is within the scope of the scheme; and (c) the abuse is of a kind for which the maximum amount of redress payment worked out under the assessment framework would be more than nil; and (d) one or more participating institutions are responsible for the abuse; and (e) at the time of the application, the person is an Australian citizen or a permanent resident. A participating institution is responsible for abuse of a person if the abuse occurred in circumstances where the participating institution is primarily or equally responsible for the abuser having contact with the person. Various circumstances are relevant to determining that question (e.g. whether the abuser was an official of the institution). The participating institutions are: (a) all Commonwealth institutions; and (b) any State institution that is declared to be a participating institution; and

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Torts: Principles, Skills and Application

(c) any Territory institution that is declared to be a participating institution; and (d) any non‑government institution that is declared to be a participating institution. If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, the Operator must approve the application and make an offer of redress to the person. The person may accept or decline the offer. If the person accepts the offer, then the person becomes entitled to redress under the scheme. The person is required to release particular institutions and officials from all civil liability for the abuse. Those institutions and officials are the participating institutions determined by the Operator to be responsible for the abuse, their officials, their associates and the officials of their associates. The abuser is not released from liability. Once entitled, the person will be provided with redress under the scheme. If the person declines the offer, then the person is not entitled to redress under the scheme.The person is not required to release any institution or official from liability for the abuse. The Operator is responsible for the administration of the scheme. To ensure that the scheme is survivor‑focussed, the Operator (and other officers of the scheme) must take into account general guiding principles when taking action under the scheme. For example, one of the principles is that redress must be assessed and provided so as to avoid further harming or traumatising the person. Participating institutions that are determined by the Operator to be responsible for the abuse of a person are liable for the costs of providing redress to the person. Those institutions are also liable for contributing to the costs of the administration of the scheme. The Operator is responsible for recovering those costs from those institutions through funding contributions, which those institutions are required to pay on a quarterly basis.

Matters for the plaintiff to establish Reasonable foreseeability 2.13

This is a matter put by the plaintiff to establish a case in negligence.That is, damage to the plaintiff by the defendant was reasonably foreseeable. The suite of state and territory legislation, as shown in Table 2.7, deals with this issue, and typically retains reference to the concept which has been developed by the common law.

Table 2.7 State or territory

Section 

Relevant Act

ACT

ss 42–43

Civil Law (Wrongs) Act 2002

NSW

s 5B

Civil Liability Act 2002

82

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The Statutory Framework of Tort Law

State or territory

Section 

Relevant Act

NT

No mention

Law Reform (Miscellaneous Provisions) Act 1956

Qld

s9

Civil Liability Act 2003

SA

ss 31–32

Civil Liability Act 1936

Tas

s 11

Civil Liability Act 2002

Vic

s 48

Wrongs Act 1958

WA

s 5B

Civil Liability Act 2002

An example from Table 2.7 for this issue of reasonable foreseeability is provided by the New South Wales Act: CIVIL LIABILITY ACT 2002 - SECT 5B General principles 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

Precautions against risk — calculus of negligence 2.14

The term ‘calculus of negligence’ refers to the factors developed by the common law to determine if the defendant was in breach of the duty owed to the plaintiff. The various factors are referred to in the various Acts as shown in Table 2.8.

Table 2.8 State or territory

Section 

Relevant Act

ACT

ss 43–44

Civil Law (Wrongs) Act 2002

NSW

s 5B

Civil Liability Act 2002

NT

Not covered

Personal Injuries (Liabilities and Damages) Act 2003

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State or territory

Section 

Relevant Act

Qld

ss 9–10

Civil Liability Act 2003

SA

s 32

Civil Liability Act 1936

Tas

s 11

Civil Liability Act 2002

Vic

ss 48–50

Wrongs Act 1958

WA

s 5B

Civil Liability Act 2002

Section 5B(2) of the New South Wales Act refers to the four main calculus factors (which were developed historically by the common law cases): CIVIL LIABILITY ACT 2002 - SECT 5B General principles 5B General principles (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (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.

Obvious and inherent risks 2.15

The plaintiff is generally precluded from claiming damages arising from risks which were obvious or apparent.This type of limitation goes to the heart of the Ipp Review and the legislative response from the states and territories. These are matters which will be critical to the defendant’s defence and are discussed at 2.29 below. The relevant Acts deal with obvious and apparent risks in the sections referred to below in Table 2.9.

Table 2.9 State or territory

Section 

Relevant Act

ACT

Not covered

Civil Law (Wrongs) Act 2002

NSW

ss 5F–5H

Civil Liability Act 2002

NT

Not covered

Personal Injuries (Liabilities and Damages) Act 2003

84

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The Statutory Framework of Tort Law

State or territory

Section 

Relevant Act

State Qld or territory

Section  ss 13–16

Relevant ActAct 2003 Civil Liability

Qld SA

ss 13–16 36–39

Civil Liability Act 2003 Act 1936

SA Tas

ss 36–39 15–20

Civil Liability Act 1936 Act 2002

Tas Vic

ss 15–20 53–56

Civil Liability Act 2002 Wrongs Act 1958

Vic WA

ss s 553–56

Wrongs Act 1958 Civil Liability Act 2002

WA

s5

Civil Liability Act 2002

Likewise, the concept of ‘obvious risk’ has been developed by the courts prior to the definition provided, for example, in s  5 of the relevant New South Wales Act: CIVIL LIABILITY ACT 2002 - SECT 5F 5F Meaning of “obvious risk” (1) For the purposes of this Division, an“obvious risk”  to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

The courts and the legislation have grappled with the notion of personal responsibility. This type of approach is found in the following provision: CIVIL LIABILITY ACT 2002 - SECT 5G 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of 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. CIVIL LIABILITY ACT 2002 - SECT 5H 5H No proactive duty to warn of obvious risk (1) A person (“the defendant”) does not owe a duty of care to another person (“the plaintiff ”) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: 85

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(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 (c) the defendant  is a professional 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.

Causation 2.16

The plaintiff needs to show, just as they did at common law, that their loss, damage or injuries were caused by the defendant’s negligence. The issue of causation is dealt with in the following sections respectively (see Table 2.10).

Table 2.10 State or territory

Section 

Relevant Act

ACT

ss 45–46

Civil Law (Wrongs) Act 2002

NSW

ss 5D–5E

Civil Liability Act 2002

NT

Not covered

Personal Injuries (Liabilities and Damages) Act 2003

Qld

ss 11–12

Civil Liability Act 2003

SA

ss 34–35

Civil Liability Act 1936

Tas

ss 13–14

Civil Liability Act 2002

Vic

ss 51–52

Wrongs Act 1958

WA

s5

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 5D 5D General principles (1) A determination that  negligence  caused particular  harm  comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( “factual causation” ), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability” ). (2) In determining in an exceptional case, in accordance with established principles, whether  negligence  that cannot be established as a necessary 86

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condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the  harm  should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined 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. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. CIVIL LIABILITY ACT 2002 - SECT 5E 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Other matters depending on the facts, circumstances and context 2.17

There are other matters relevant to a negligence claim which are dependent on the particular context. Relevant issues are discussed below.

Professional standards 2.18

The defendant may be a qualified professional providing service or advice. Several of the various legislatures deal with this issue as referred to in the provisions below in Table 2.11.

Table 2.11 State State or or territory territory ACT ACT NSW NSW NT NT Qld Qld SA SA

Section  Section  Not Not covered covered Div 6, Div 6, s 5O s 5O

Relevant Relevant Act Act Civil Law (Wrongs) Civil Law (Wrongs) Act 2002 Act 2002

Not Not covered covered

Civil Civil Liability Liability Act 2002 Act 2002 Personal Personal Injuries Injuries (Liabilities (Liabilities and and Damages) Damages) Act 2003 Act 2003

ss ss 15, 15, 20–22 20–22 ss 40–41 ss 40–41

Civil Civil Liability Liability Act 2003 Act 2003 Civil Liability Act 1936 Civil Liability Act 1936

87

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State or territory

Section 

Relevant Act

Tas

ss 21–22

Civil Liability Act 2002

Vic

ss 57–60

Wrongs Act 1958

WA

s 5P

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 5O 5O Standard of care for professionals (1) A person practising a profession (“a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

Occupiers Occupier’s liability 2.19

Occupier’s liability of land and assets has long been a fascination of the common law, strongly aligned to property interests. Several of the various legislatures deal with this issue in the sections respectively referred to in Table 2.12.

Table 2.12 State or territory

Section 

Relevant Act

ACT

s 168

Civil Law (Wrongs) Act 2002

NSW

Not covered

Civil Liability Act 2002

NT

Not covered

Law Reform (Miscellaneous Provisions) Act 1956

Qld

Not covered

Civil Liability Act 2003

88

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The Statutory Framework of Tort Law

State or territory

Section 

Relevant Act

SA

ss 19–22

Civil Liability Act 1936

Tas

Not covered

Civil Liability Act 2002

Vic

s 14A–14E

Wrongs Act 1958

WA

s5

Occupier’s Liability Act 1985

The relevant Victorian provision is as follows: WRONGS ACT 1958 - SECT 14B Liability of occupiers WRONGS ACT 1958 - SECT 14B Liability of occupiers (1) The provisions of this Part apply in place of the rules of the common law which before the commencement of the  Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them. (2) Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises. (3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see  that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. (4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to— (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; S. 14B(4)(fa) inserted by No. 49/2002 s. 3. (fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication; S. 14B(4)(fb) inserted by No. 49/2002 s. 3. (fb) whether the person entering the premises is engaged in an illegal activity; 89

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(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. (5) Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.

Standard of care for occupiers 2.20

The standard of care goes to the question of whether the duty has been breached. It is dealt with by the various statutes as shown in Table 2.13.

Table 2.13 State or territory

Section

Relevant Act

ACT

s 168

Civil Law (Wrongs) Act 2002

NSW

Not covered

Civil Liability Act 2002

NT

s9

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Not covered

Civil Liability Act 2003

SA

ss 19–22

Civil Liability Act 1936

Tas

Not covered

Civil Liability Act 2002

Vic

s 14

Wrongs Act 1958

WA

s5

Occupier’s Liability Act 1985

The relevant Victorian provisions are as follows: WRONGS ACT 1958 - SECT 14A Definitions WRONGS ACT 1958 - SECT 14A Definitions In this Part— (a) a reference to the occupier of premises includes a reference to the landlord of premises let under a tenancy (including a statutory tenancy not amounting in law to a tenancy) who— (i) is under an obligation to the tenant to maintain or repair the premises; or (ii) is, or could have put himself in, a position to exercise a right to enter on the premises to carry out maintenance or repairs; and (b) a reference to premises includes a reference to any fixed or moveable structure, including any vessel, vehicle or aircraft.

90

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WRONGS ACT 1958 - SECT 14B Liability of occupiers WRONGS ACT 1958 - SECT 14B Liability of occupiers (1) The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them. (2) Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises. (3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. (4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to— (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication; (fb) whether the person entering the premises is engaged in an illegal activity; (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. (5) Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.

Occupier’s duty to trespassers 2.21

Historically, the status of the person on the premises, there lawfully or as a trespasser, had a material bearing on the standard of care owed by the occupier. For the most part, the legislation now provides generalised standards relevant to all visitors, rather than setting out standards relevant specifically to trespassers (as shown in Table 2.14).

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Table 2.14 State or territory

Section

Relevant Act

ACT

Not covered

Civil Law (Wrongs) Act 2002

NSW

Not covered

Civil Liability Act 2002

NT

ss 9–10

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Not covered

Civil Liability Act 2003

SA

s 20

Civil Liability Act 1936

Tas

Not covered

Civil Liability Act 2002

Vic

Not covered

Wrongs Act 1958

WA

s5

Occupiers Liability Act 1985

The relevant South Australian provision is as follows: CIVIL LIABILITY ACT 1936 - SECT 20 CIVIL LIABILITY ACT 1936 - SECT 20 20—Occupier’s duty of care (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence. (2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account— (a) the nature and extent of the premises; and (b) the nature and extent of the danger arising from the state or condition of the premises; and (c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and (d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and (e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of— (i) the danger; and (ii) the entry of persons onto the premises; and (f) the measures (if any) taken to eliminate, reduce or warn against the danger; and (g) the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and (h) any other matter that the court thinks relevant. 92

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(3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care. (4) Subject to any Act or law to the contrary, an occupier’s duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract. (5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care. (6) An occupier owes no duty of care to a trespasser unless— (a) the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and (b) the nature or extent of the danger was such that measures which were not in fact taken should have been taken for their protection.

The relevant Western Australian provision is as follows: OCCUPIERS’ LIABILITY ACT 1985 - SECT 5 OCCUPIERS’ LIABILITY ACT 1985 - SECT 5 5. Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. (2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property. (3) A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2). (4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to — (a) the gravity and likelihood of the probable injury; and (b) the circumstances of the entry onto the premises; and (c) the nature of the premises; and 93

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(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and (e) the age of the person entering the premises; and (f) the ability of the person entering the premises to appreciate the danger; and (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

Public authorities Breach of statutory duty by a public authority 2.22

A public authority is a reference to a body which is a so-called creature of statute and has its powers given to it by statute. Questions of liability are therefore determined by relevant statute. The states and the Australian Capital Territory address the matter in differing ways, and define a public authority in a subtly different way. It is a complex area because despite defining the term ‘public authority’ as the statutes do, it is not always clear. There are various ways of examining the issue in the scenarios which are not necessarily clear-cut. These include whether the defendant entity is private or public in character, whether the source of its powers is statutory, and the type of activities it undertakes.4 Public authorities are variously dealt with by the legislatures as set out below in Table 2.15.

Table 2.15 State or territory

Section 

Relevant Act

ACT

Ch 8

Civil Law (Wrongs) Act 2002

NSW

Part 5

Civil Liability Act 2002

Qld

Ch 2 Part 3

Civil Liability Act 2003

SA

Part 6, s 42 (only applies to Civil Liability Act 1936 road authorities — see below)

Tas

Part 9

Civil Liability Act 2002

Vic

Part XII

Wrongs Act 1958

Part 6

Roads Management Act 2004

Part 1C

Civil Liability Act 2002

WA

4. For a fuller discussion, see M Aronson, ‘Government Liability in Negligence’ [2008] 28 MULR 44–82.

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For example, the Tasmanian Act relevantly refers to a public authority as follows: CIVIL LIABILITY ACT 2002 - SECT 37 Interpretation CIVIL LIABILITY ACT 2002 - SECT 37 Interpretation In this Part – exercise a function includes perform a duty; function includes a power, authority or duty; public or other authority means – (a) the Crown (within the meaning of the Crown Proceedings Act 1993 ); or (b) a council; or (c) a single authority, controlling authority or joint authority established under Part 3 of the Local Government Act 1993 ; or (d) a statutory authority; or (e) a State-owned company; or (ea) a Regional Corporation, or a Common Services Corporation, within the meaning of the Water and Sewerage Corporations Act 2008 ; or (eb) a regulated entity within the meaning of the Water and Sewerage Industry Act 2008 ; or (f) a person or body prescribed (or of a class prescribed) by the regulations as an authority to which this Part applies (in respect of all or specified functions); or (g) any person or body undertaking the exercise of public or other functions of a class prescribed by the regulations for the purpose of this Part …

Similarly, for the Australian Capital Territory, s 109 of the relevant legislation in the Australian Capital Territory (referred to in Table 2.15 above) provides as follows: CIVIL LAW (WRONGS) ACT 2002 - SECT 109 Definitions—ch 8 CIVIL LAW (WRONGS) ACT 2002 - SECT 109 Definitions—ch 8 In this chapter: “duty of care” means a duty to take reasonable care or to exercise reasonable skill (or both). “public or other authority” means any of the following: (a) the Territory; (b) an administrative unit; (c) a territory authority; (d) an entity prescribed by regulation for this paragraph; (e) any entity so far as the entity exercises a function prescribed by regulation for this paragraph. 95

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Highway authorities 2.23

Highways covers all public vehicle-user roads, including motorways, local roads, city lanes, and what may indeed be remote gravel tracks. Given the size, scale, complexity and ubiquity of the road system in Australia, the various legislatures have generally addressed the issue. The state of repair of the roads — their condition for use — is inevitably a question of cost and targeted maintenance. Each state and territory deals with this in the following sections respectively as shown in Table 2.16.

Table 2.16 State or territory

Section 

Relevant Act

ACT

s 113

Civil Law (Wrongs) Act 2002

NSW

s 45

Civil Liability Act 2002

NT

-

Law Reform (Miscellaneous Provisions) Act 1956

Qld

ss 35–36

Civil Liability Act 2003

SA

s 42

Civil Liability Act 1936

Tas

s 42

Civil Liability Act 2002

Vic

ss 102–103

Road Management Act 2004

WA

s 52

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 45 Special non-feasance protection for roads authorities 45 Special non-feasance protection for roads authorities (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a  roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk.

96

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(3) In this section: “carry out road work” means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 . “roads authority” has the same meaning as in the Roads Act 1993.

Making a claim in statute A claim in statute 2.24

Making a claim in statute is a question of statutory interpretation. Does the statute support a claim? This will depend on the particular subject matter of the statute.The main Civil Liability Acts and their equivalents address the matter in differing ways. The starting point is relevantly as shown in Table 2.17.

Table 2.17 State or territory

Section 

Relevant Act

ACT

s4

Civil Law (Wrongs) Act 2002

NSW

s 5A

Civil Liability Act 2002

NT

s 4(1)

Personal Injuries (Liabilities and Damages) Act 2003

Qld

s4

Civil Liability Act 2003

SA

s3

Civil Liability Act 1936

Tas

s 10

Civil Liability Act 2002

Vic

s 44

Wrongs Act 1958

WA

s 5A

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 5A Application of Part 5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

Breach of statutory duty is discussed further in Chapter 16. 97

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Wrongful birth 2.25

This is a challenging concept with which the common law has had to grapple. For example, a medical procedure to prevent further pregnancies may have not worked and a child is born as a result. Increasingly, economists and others have worked out the expenses for raising a child. The issue of recompense for such situations has generally been curtailed by the various legislatures as shown in Table 2.18.

Table 2.18 State or territory

Section 

Relevant Act or common law

ACT

Common law

NSW

s 71

Civil Liability Act 2002

NT

Common law

Qld

s 49

Civil Liability Act 2003

SA

s 67

Civil Liability Act 1936

Tas

Common law

Vic

Common law

WA

Common law

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 71 Limitation of the award of damages for the birth of a child 71 Limitation of the award of damages for the birth of a child (1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or maintains the child. (2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

Wrongful death 2.26

Causes of action for wrongful death survive the death of the plaintiff. They  came about largely because of the issues caused by the unexpected deaths as the result of motor accidents. Children and family members would 98

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suddenly face real financial hardship as the result of the death of a family member who may have been the main wage earner in the family. The cause of action of the deceased person becomes part of their estate. Each state and territory deals with this in the following sections respectively, shown in Table 2.19.

Table 2.19 State or territory

Section 

Relevant Act

ACT

Pt 2.4

Civil Law (Wrongs) Act 2002

NSW

s2

Law Reform (Miscellaneous Provisions) Act 1965

s 12B

Dust Diseases Tribunal Act 1989

NT

Pt II

Law Reform (Miscellaneous Provisions) Act 1956

Qld

s 66

Succession Act 1981

SA

s2

Survival of Causes of Action Act 1940

Tas

s 27

Administration and Probate Act 1935

Vic

s 29

Administration and Probate Act 1958

WA

s4

Law Reform (Miscellaneous Provisions) Act 1941

The relevant South Australian provision is as follows: Survival of Causes of Action Act 1940 2—Survival of causes of action (1) Subject to this Act— (a) a cause of action vested in a person at the time of his or her death survives for the benefit of his or her estate; and (b) a cause of action existing against a person at the time of his or her death survives against his or her estate. (2) This section does not apply to a cause of action in defamation.

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3—Damages in actions which survive under this Act (1) 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; (b) shall not include any exemplary damages; (d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. (2) However, if a person commences an action for damages in respect of a dustrelated condition and dies as a result of that condition before the action is finally determined, damages for pain and suffering, bodily and mental harm, and curtailment of expectation of life, and exemplary damages, are recoverable for the benefit of the estate of the person. (3) In subsection (2)— dust-related condition means— (a) a disease specified in the Schedule; or (b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust.

The dependants’ action for wrongful death 2.27

Causes of action for wrongful death can be brought by the dependants in their own name. The relevant provisions are shown in Table 2.20.

Table 2.20 State State or or territory territory ACT ACT

Section  Section  Pt Pt 3.1 3.1

Relevant Relevant Act Act Civil Law (Wrongs) Civil Law (Wrongs) Act 2002 Act 2002

NSW NSW

3 ss 3

Compensation to to Relatives Relatives Compensation Act 1897 Act 1897

NT NT

ss 7 7

Compensation Compensation (Fatal (Fatal Injuries) Injuries) Act 1974 Act 1974

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State or territory

Section 

Relevant Act

Qld State or territory SA Qld

ss 62, 63 Section  Pt 62, 5, ss 23–30 ss 63

Civil Proceedings Relevant Act Act 2011 Civil Proceedings Liability Act 1936 Civil Act 2011

Tas SA Vic Tas

sPt27 5, ss 23–30 Pt III, ss 16–23AE s 27

Fatal Accidents Act 1934 Civil Liability Act 1936 Wrongs Act 1958 Fatal Accidents Act 1934

WA Vic

sPt4III, ss 16–23AE

Fatal Accidents Act 1959 Wrongs Act 1958

WA

s4

Fatal Accidents Act 1959

The relevant South Australian provision is as follows: CIVIL LIABILITY ACT 1936 - SECT 23 23—Liability for death caused wrongfully Whenever 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, shall be 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 an indictable offence.  CIVIL LIABILITY ACT 1936 - SECT 24 24—How to bring action etc (1) Every such action shall be for the benefit of the spouse, domestic partner, parent, brother,  sister  and  child  of the person whose death has been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased. (2) In every such action, the court may, subject to this Act, give such damages as it thinks proportioned to the harm resulting from the death to the parties respectively for whom and for whose benefit the action is brought. (2a) In any such action in respect of the death of any person after the passing of the Wrongs Act Amendment Act 1939 damages may be awarded in respect of any  medical expenses  incurred as a result of the  injury  causing the death and the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought. (2aa) In assessing damages under this section in any action based on a death occurring after the passing of the Wrongs Act Amendment Act 1956 there shall not be taken into account— (a) any sum paid or payable on the death of the deceased under any contract of assurance or insurance, whether made before or after the passing of the said Act; (b) any sum paid or payable consequent on the death of the deceased person as a gratuity to any person for whose benefit the action is brought;

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(3)

(4) (5)

(6)

(7)

(c) any superannuation payments or benefits consequent upon the death of the deceased person;  (d) any sum paid or payable consequent upon the death of the deceased person under any contributory medical hospital death or funeral benefit scheme;  (e) any sum paid or payable as a social service benefit or pension by the Governments of the Commonwealth of Australia, or the United Kingdom, or the State of South Australia to or in respect of any person for whose benefit the action is brought;  (f) any sum recovered or recoverable for the benefit of the estate of the deceased under section 3(2) of the Survival of Causes of Action Act 1940 (which permits the recovery of damages for certain kinds of non-economic loss where the deceased dies of a dust-related condition).  The amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the court finds and directs.  Where a deceased person is survived by a spouse and a domestic partner, the action shall, subject to this section, be brought for the benefit of both.  An action need not be brought under this section for the benefit of a person who has, by notice in writing served upon the executor or administrator of the deceased, renounced the benefit of this section.  Where the court considers it appropriate that any person for whose benefit an action lies under this section should present an independent claim for the benefit of an action under this section, it may permit or require that person to appear or be represented in the proceedings in all respects as if he were a separate party to the proceedings.  No action lies against the executor or administrator for failing to bring an action for the benefit of a domestic partner if he brings the action without notice of the claim of the domestic partner under this section, but the interest of any such domestic partner in the action shall be recognised by the court if application for recognition is made to the court before the proceedings are finally determined. 

Defences Defences — apportionment of liability between the plaintiff and defendant — contributory negligence 2.28

Defences are matters put by the defendant to rebut or disprove the plaintiff ’s case. Defences are formally pleaded in litigation by the defendant in response to the plaintiff ’s statement of claim.They are matters which may be put and argued in negotiations and other alternative dispute resolution (ADR) processes.The two main defences put by the defendant are that the plaintiff voluntarily assumed the risk, and that the plaintiff contributed to their own harm, loss or damage, either partially or fully. If the latter defence of contributory negligence is made 102

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out, the court has to determine relative fault and responsibility to a figure effectively of 100 per cent. That is, there may be contributory negligence of 10 per cent, leaving the defendant 90 per cent to blame, or 50 per cent leaving the defendant 50 per cent to blame. The practical effect of finding the plaintiff liable in terms of contributing to their own loss is to reduce their quantum of damages by that amount. The issues of contributory negligence are dealt with by the headline Acts as follows in Table 2.21.

Table 2.21 State or territory

Section 

Relevant Act

ACT

s 102

Civil Law (Wrongs) Act 2002

NSW

s9

Law Reform (Miscellaneous Provisions) Act 1965

NT

s 16

Law Reform (Miscellaneous Provisions) Act 1956

Qld

s 10

Law Reform Act 1995

SA

s7

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001

Tas

s4

Wrongs Act 1954

Vic

s 26(1), 26(1A)

Wrongs Act 1958

WA

s4

Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947

The relevant Victorian provision is as follows: WRONGS ACT 1958 - SECT 26 Liability for contributory negligence[6] Liability for contributory negligence[6] S. 26(1) substituted by No. 75/2000 s. 5. (1) If a person (the  claimant) suffers damage as the result partly of the claimant’s failure to take reasonable care (contributory negligence) and partly of the wrong of any other person or persons— S. 26(1)(a) amended by No. 102/2003 s. 7(1). (a) except as provided in section 63, a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant; and

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(b) the damages recoverable in respect of the wrong must be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. S. 26(1A) inserted by No. 75/2000 s. 5. (1A) Subsection (1) does not operate to defeat any defence arising under a contract. S. 26(1B) inserted by No. 75/2000 s. 5. (1B) If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable. S. 26(1C) inserted by No. 75/2000 s. 5. (1C) If a claim is brought in a  court  of limited jurisdiction, the  court  may award damages up to the limit of its jurisdiction even though the amount of damages has first been reduced under subsection (1) or (1B). S. 26(2) amended by No. 75/2000 s. 6(1)(a)–(c). (2) Where damages are recoverable by any person by virtue of subsection (1) subject to such reduction as is therein mentioned, the court shall find and record the total damages which, apart from any limitation referred to in subsections (1B) and (1C), would have been awarded, if the claimant had not been guilty of contributory negligence. S. 26(3) repealed by No. 10227 s. 8(d)(i). * * * * * S. 26(4) substituted by No. 9856 s. 6, amended by No. 75/2000 s. 6(2)(a)(b). (4) Where any person dies as a result partly of his or her failure to take reasonable care (contributory  negligence) and partly of the wrong of any other person or persons an action brought by the dependants of the first-mentioned person under Part III of this Act shall not be defeated nor shall any  damages  recoverable by those  dependants  under that  action  be reduced by reason of that first-mentioned person’s contributory negligence. S. 26(5) amended by Nos 10227 s. 8(d)(ii), 75/2000 s. 6(3). (5) Where, in any case to which subsection (1) of this section applies, one of the persons responsible for the damage avoids liability to any other such person or his personal representative by pleading any enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages from that other person or representative by virtue of the said subsection. S. 26(6) amended by No. 75/2000 s. 6(4). (6) Where any case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages which would have been recoverable if the claimant had not been guilty of contributory negligence and the extent to which those damages are to be reduced. 104

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Defences and intoxication in different contexts 2.29

If the plaintiff is found to have been intoxicated, the contributory negligence provisions (see  Table 2.21 above) will need to be considered in each state and territory as part of the overall analysis of liability and fault. Intoxication is therefore a relevant consideration in the assessment of claims under the headline Civil Liability Acts in each state and territory, as shown in Table 2.22.

Table 2.22 State or territory

Section 

Relevant Act

ACT

ss 95–96

Civil Law (Wrongs) Act 2002

NSW

ss 49–50

Civil Liability Act 2002

s 138

Motor Accidents Compensation Act 1999

NT

s 17

Law Reform (Miscellaneous Provisions) Act 1956

Qld

ss 46–49

Civil Liability Act 2003

SA

ss 46–47

Civil Liability Act 1936

Tas

s5

Civil Liability Act 2002

Vic

ss 14B, 14G

Wrongs Act 1958

WA

s 5L

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 49 Effect of intoxication on duty and standard of care 49 Effect of intoxication on duty and standard of care (1) The following principles apply in connection with the effect that a person’s intoxication has on the duty and standard of care that the person is owed: (a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to  exercise  reasonable care and skill is impaired as a result of being intoxicated, (b) a person is not owed a duty of care merely because the person is intoxicated, (c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.

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(2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision. CIVIL LIABILITY ACT 2002 - SECT 50 No recovery where person intoxicated 50 No recovery where person intoxicated (1) This section 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. (2) 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. (3) If the court is 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, it is to be presumed that the  person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory  negligence  are to be reduced on account of contributory  negligence  by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

Protection of ‘Good Samaritans’ from liability 2.30

Protection of ‘Good Samaritans’ from liability refers to people who act altruistically towards others. They act out of kindness, or compassion, especially given an emergency situation. They do not intervene for payment (whether as employee or independent contractor), or for reward. Each state and territory deals with this in the following sections respectively, shown in Table 2.23.

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Table 2.23 State or territory

Section 

Relevant Act

ACT

s5

Civil Law (Wrongs) Act 2002

NSW

ss 56–58

Civil Liability Act 2002

NT

s8

Personal Injuries (Liabilities and Damages) Act 2003

Qld

s 16

Law Reform Act 1995

SA

s 74

Supreme Court Act 1935

Tas

s 35

Civil Liability Act 2002

Vic

s 31

Wrongs Act 1958

WA

s5

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 56 Who is a good samaritan 56 Who is a good samaritan For the purposes of this Part, a “good samaritan” is 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 - SECT 57 Protection of good samaritans 57 Protection of good samaritans (1) 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. (2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan. CIVIL LIABILITY ACT 2002 - SECT 58 Exclusion from protection 58 Exclusion from protection (1) The protection from personal liability conferred by this Part does not apply if it is the good samaritan’s intentional or negligent act or omission that caused the injury or risk of injury in respect of which the good samaritan first comes to the assistance of the person.

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(2) The protection from personal liability conferred by this Part in respect of an act or omission does not apply if: (a) the ability of the good samaritan to exercise reasonable care and skill was significantly impaired by reason of the good samaritan being under the influence of alcohol or a drug voluntarily consumed (whether or not it was consumed for medication), and (b) the good samaritan failed to  exercise  reasonable care and skill in connection with the act or omission. (3) This Part does not confer protection from personal liability on a person in respect of any act or omission done or made while the person is impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance.

Obvious risks and the defence of the voluntary assumption of risk (volenti non fit injuria) 2.31

Voluntary assumption of risk is a common law defence (and the second of the historical common law defences after contributory negligence). If deployed, it needs to be pleaded by the defendant, and they must establish it on the balance of probabilities; that is, as more likely than not. If the defendant pleads volenti, their defence document in response to the plaintiff ’s statement of claim will allege three particulars: that the plaintiff knew of the risk, appreciated it, but nonetheless went ahead with their action and thereby accepted it. If successfully established, it can defeat the plaintiff ’s claim, so it is high stakes. Perhaps because of this, the defence has proved problematic for the defendant in an industrialised post-war society, and has been seen as somewhat anachronistic, and more suited to a less just bygone age. As such, there have been few cases successfully deploying the defence. The common law obstacles to successful reliance on the defence by defendants (and the correlative protections afforded to plaintiffs) have been altered by the statutory provisions in the main Civil Liability Acts of the various states and territories, which refer to ‘obvious risks’ of which the plaintiff is presumed to be aware, and therefore needs to look out for themselves. This is the clearest indication of the counterbalance in the headline statutes, and the assertion by legislatures of the need for increased personal responsibility by plaintiffs. The Ipp Review was, after all, called to find ways of reducing what was perceived as the unsustainable growth of negligence claims and related litigation. Other statutes have also abolished the use of the defence in certain contexts. For example in New South Wales, the common law defence of voluntary assumption of risk (volenti non fit injuria — in its Latin guise) is not available

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in motor vehicle cases (subject to some limited exceptions — see s 140 Motor Accidents Compensation Act 1999 (NSW)), or in industrial accidents where workers and others are injured (s 151O of the Workers Compensation Act 1987 (NSW)).These modifications accord with modern notions of fairness to plaintiffs. 2.32

The area of obvious risks was also covered at 2.15 above. From the defendant’s perspective, it is a crucial factor to address. The states and territories provide reference to the concept, as shown in Table 2.24.

Table 2.24 State or territory

Section 

Relevant Act

ACT

ss 43–44 covers general principles

Civil Law (Wrongs) Act 2002

NSW

ss 5F–5H

Civil Liability Act 2002

NT

Not mentioned

Personal Injuries (Liabilities and Damages) Act 2003

Qld

ss 13–15

Civil Liability Act 2003

SA

ss 36–38

Supreme Court Act 1935

Tas

ss 15–17

Civil Liability Act 2002

Vic

ss 53–54

Wrongs Act 1958

WA

ss 5M–5O

Civil Liability Act 2002

The relevant New South Wales provisions are as follows: CIVIL LIABILITY ACT 2002 - SECT 5F Meaning of “obvious risk” 5F Meaning of “obvious risk” (1) For the purposes of this Division, an “obvious risk”  to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks  include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an  obvious risk  even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 109

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CIVIL LIABILITY ACT 2002 - SECT 5G Injured persons presumed to be aware of obvious risks 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of 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.

The relevant Victorian provisions are as follows: WRONGS ACT 1958 - SECT 53 Meaning of obvious risk WRONGS ACT 1958 - SECT 53 Meaning of obvious risk (1) For the purposes of section 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. (5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. WRONGS ACT 1958 - SECT 54 Voluntary assumption of risk WRONGS ACT 1958 - SECT 54 Voluntary assumption of risk (1) If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of the risk. (2) Subsection (1) does not apply to— (a) a proceeding on a claim for damages relating to the provision of or the failure to provide a professional service or health service; or

110

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(b) a proceeding on a claim for damages in respect of risks associated with work done by one person for another. (3) Without limiting section 47, the common law continues to apply, unaffected by subsection (1), to a proceeding referred to in subsection (2).

Statutory defences for a public authority 2.33

Given that public authorities can be sued in negligence, so they can defend such claims; their powers to do so are derived from statute, shown in Table 2.25.

Table 2.25 State or territory

Section 

Relevant Act

ACT

ss 111–112

Civil Law (Wrongs) Act 2002

NSW

ss 43–44

Civil Liability Act 2002

Qld

ss 35–36

Civil Liability Act 2003

SA

s 42

Civil Liability Act 1936

Tas

ss 38–41

Civil Liability Act 2002

Vic

ss 83–85

Wrongs Act 1958

WA

ss 5W–5Y

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 43 Proceedings against public or other authorities based on breach of statutory duty 43 Proceedings against public or other authorities based on breach of statutory duty (1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority. (2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions. (3) In the case of a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44. 111

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CIVIL LIABILITY ACT 2002 - SECT 44 When public or other authority not liable for failure to exercise regulatory functions 44 When  public or other authority  not liable for failure to exercise regulatory functions (1) A  public or other authority  is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to  exercise  the  function  in proceedings instituted by the plaintiff. (2) Without limiting what constitutes a  function  to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function  to regulate the activity.

Contributory negligence — wrongful death 2.34

Just as a plaintiff, in the ordinary course of an accident or loss-making event, can be found liable of contributory negligence (see 2.26 above), so too can a deceased plaintiff.This means that any award of damages will be reduced by the percentage the plaintiff contributed to their own harm or loss. Theoretically, it could be a 100% reduction.The award of damages for a deceased plaintiff forms part of the deceased’s estate for distribution to beneficiaries. The matter is dealt with by the various legislatures as shown in Table 2.26.

Table 2.26 State or territory

Section 

Relevant Act

ACT

Pt 7.3 ss 27, 47

Civil Law (Wrongs) Act 2002

NSW

Pt 3

Law Reform (Miscellaneous Provisions) Act 1965

Pt 1A Div 8 s 5T

Civil Liability Act 2002

NT

Pt V

Law Reform (Miscellaneous Provisions) Act 1956

Qld

Pt 3 Div 3

Law Reform Act 1995

Ch 2 Pt 1 Div 6

Civil Liability Act 2003

112

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The Statutory Framework of Tort Law

State or territory

Section 

Relevant Act

SA

s7

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001

Tas

s4

Wrongs Act 1954

Div 7

Civil Liability Act 2002

Vic

ss 25, 26 and 62

Wrongs Act 1958

WA

s4

Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947

Pt 1A Div 5

Civil Liability Act 2002

The relevant Tasmanian provision is as follows: WRONGS ACT 1954 — SECT 4 Apportionment of liability in case of contributory negligence (1) Where a person suffers damage as the result partly of that person’s wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage is not defeated by reason of the wrongful act of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage; but– (a) this subsection does not operate to defeat a defence arising under a contract; and (b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable. (2) Where damages are recoverable by a person by virtue of subsection (1) of this section subject to such a reduction as is mentioned in that subsection, the court shall find and record the total damages that would have been recoverable if there had been no wrongful act by the claimant. (3) Section  three applies in any case where two or more persons are liable or would, if they had all been sued by the person by whom the damage was suffered at the time when the cause of action arose, have been liable by virtue of subsection (1) of this section in respect of the damage suffered by any person. (4) Where a person dies as a result partly of that person’s wrongful act and partly of the wrongful act of any other person, and accordingly if an action were brought for the benefit of the estate under the Administration and Probate Act 1935 the damages recoverable would be reduced under subsection (1) of this section, any damages recoverable in an action brought for the benefit 113

2.34

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of the dependants of the person under the Fatal Accidents Act 1934 shall be reduced to a proportionate extent. (5) Where, in a case to which section three or subsection (1) of this section applies, one of the persons who committed a wrongful act or his personal representative avoids liability to another person or his personal representative by pleading any enactment limiting the time within which proceedings may be taken, he is not entitled to recover damages or contribution from that other person or personal representative. (6) Where a case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages that, apart from any limitation of liability provided by any contract or prescribed by any enactment or any limitation of the jurisdiction of the court, would have been recoverable if there had been no wrongful act by the claimant and the extent to which those damages are to be reduced. (7) A reference in this section to the wrongful act of a person shall be construed as including a reference to a wrongful act for which that person is vicariously liable. (8) This section has effect notwithstanding anything contained in any enactment passed before the commencement of this Act whereby a person is debarred from recovering damages or from taking an action for the recovery of damages in respect of any damage or injury that he caused, or to which he contributed, by his own negligence.

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 5T Contributory negligence—claims under the Compensation to Relatives Act 1897 5T Contributory  negligence—claims under the Compensation to Relatives Act 1897 (1) In a claim for damages brought under the Compensation to Relatives Act 1897 , the court is entitled to have regard to the contributory negligence of the deceased person. (2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.

Damages Non-pecuniary loss — quantum 2.35

Non-pecuniary losses do not arise from the expenditure of money or the outlay of expense by the plaintiff. As such, they cannot be precisely determined or quantified. Predictably, given their indeterminacy, the various legislatures have taken different approaches to essentially capping them, as seen in Table 2.27. 114

Relevant statute, or the common law applies

Civil Liability Act 2002

Personal Injuries (Civil Claims) Act 2003

NSW

NT

Civil Liability Act 2003

Civil Liability Act 1936

Civil Liability Act 2002

Wrongs Act 1958

Civil Liability Act 2002

Qld

SA

Tas

Vic

WA

Personal Injuries (Liabilities and Damages) Act 2003

Common law applies

ACT

Commonwealth Competition and Consumer Act 2010

State or territory

Table 2.27

115 About $4,000

Impaired for 7 days and costs of about $3,000

None, but minimum award of about $1,200

15% of the most extreme case

None

15% of the most extreme case

Threshold or eligibility to receive

ss 4, 9, 10 and 10A

About $12,000

s 28G, Has to be significant ss 28H–28HA injury — 5% physical injury or 10% psychiatric

ss 27 and 28

ss 52 and 56

ss 61–62

ss 24–28

ss 16 and 17

s 87

Section 

Maximum limit or cap; 100% claim

Restrictions apply

None

Cap of $577,050

None

Cap of $300,000 indexed

Yes, up to gravest conceivable kind

Restrictions apply

Caps depend on injuries over the year statewide

$350,000

Yes, up to gravest conceivable kind

Yes, up to most extreme cases

None

About $250,000 for % measured against of the most most extreme cases extreme case

Sliding scale

The Statutory Framework of Tort Law

2.35

2.35

Torts: Principles, Skills and Application

The relevant South Australian definition of ‘non-economic loss’ and its operative provisions are as follows: CIVIL LIABILITY ACT 1936 - SECT 3 3—Interpretation  (1) In this Act, unless the contrary intention appears—  non-economic loss means— (a) pain and suffering; or (b) loss of amenities of life; or (c) loss of expectation of life; or (d) disfigurement;  CIVIL LIABILITY ACT 1936 - SECT 52 52—Damages for non-economic loss (1) Damages may only be awarded for non-economic loss if— (a) the injured person’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or (b) medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury. (2) If damages are to be awarded for non-economic loss, other than in relation to personal injury arising from an MVA motor accident, they must be assessed as follows: (a) the injured person’s total non-economic loss is to be assigned a numerical value (the “scale value”) on a scale running from 0 to 60 (the scale reflecting 60 equal gradations of non-economic loss, from a case in which the non-economic loss is not severe enough to justify any award of damages to a case in which the injured person suffers non-economic loss of the gravest conceivable kind); (b) the damages for non-economic loss are to be calculated in relation to an injury arising from an accident that occurred during 2002 by multiplying the scale value by $1 710; (c) the damages for non-economic loss are to be calculated in relation to an injury arising from an accident that occurred during 2003 as follows: (i) if the scale value is 10 or less—by multiplying the scale value by $1 150; (ii) if the scale value is 20 or less but more than 10—by adding to $11 500 an amount calculated by multiplying the number by which the scale value exceeds 10 by $2 300; (iii) if the scale value is 30 or less but more than 20—by adding to $34 500 an amount calculated by multiplying the number by which the scale value exceeds 20 by $3 450; (iv) if the scale value is 40 or less but more than 30—by adding to $69 000 an amount calculated by multiplying the number by which the scale value exceeds 30 by $4 600; 116

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(v) if the scale value is 50 or less but more than 40—by adding to $115 000 an amount calculated by multiplying the number by which the scale value exceeds 40 by $5 750; (vi) if the scale value is 60 or less but more than 50—by adding to $172 500 an amount calculated by multiplying the number by which the scale value exceeds 50 by $6 900; (d) the damages for non-economic loss in relation to an injury arising from an accident that occurred in a subsequent calendar year are to be calculated in accordance with paragraph (c) but the amount arrived at is to be adjusted (to the nearest multiple of $10) by multiplying it by a proportion obtained by dividing the Consumer Price Index for the September quarter of the previous calendar year by the Consumer Price Index for the September quarter 2002. Example— Suppose that A is injured in an accident that occurred in 2003 and claims damages for personal injury. The case is one in which the criteria under which damages for non-economic loss may be awarded are satisfied. In assessing those damages, A’s total non-economic loss is assigned by the court a scale value of  23. The damages for non-economic loss will, therefore, be $44 850, calculated as follows: $34500+(3×$3450)=$44850 (3) Subject to subsection (4), if damages are to be awarded for non-economic loss in relation to personal injury arising from an MVA motor accident, they must be assessed as follows: (a) the injured person’s total non-economic loss is to be assigned a numerical value (an “injury scale value”) on a scale running from 0 to 100; (b) in assessing the  injury scale value, the court must apply any rules prescribed by the regulations; (c) the damages for non-economic loss are to be calculated as follows: (i) if the injury scale value is assessed as 31 or less but more than 10 (see  subsection  (4))—by adding to $2  000 (indexed) an amount calculated by multiplying the number by which the  injury scale value exceeds 10 by $1 000 (indexed); (ii) if the  injury scale value  is assessed as 45 or less but more than 31—by adding to $23  000 (indexed) an amount calculated by multiplying the number by which the injury scale value exceeds 31 by $3 000 (indexed); (iii)if the  injury scale value  is assessed as 66 or less but more than 45—by adding to $65  000 (indexed) an amount calculated by multiplying the number by which the injury scale value exceeds 45 by $5 000 (indexed); (iv) if the injury scale value is assessed as 78 or less but more than 66—by adding to $170 000 (indexed) an amount calculated by multiplying the number by which the injury scale value exceeds 66 by $10 000 (indexed); (v) if the injury scale value is assessed as 79 or more—$300 000 (indexed). 117

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(4) A person who suffers  personal injury  arising from an  MVA motor accident  may only be awarded damages  for  non-economic loss  if the injury scale value that applies under subsection (3)(a) in relation to the injury exceeds 10. (5) However, a court may award damages for non-economic loss in a case that would otherwise be excluded by operation of subsection  (4) if satisfied— (a) that the consequences of the  personal injury  with respect to  noneconomic loss are exceptional when judged by comparison with other cases involving the same injury; and (b) that the application of the threshold set by that subsection would, in the circumstances of the particular case, be harsh and unjust. (6) An assessment of damages for non-economic loss under subsection (5) must be based on an  injury scale value  that should rarely be more than 25% higher than the  injury  scale value  that applies under subsection  (3)(a) in relation to the injury. (7) An amount applying under subsection  (3) (and followed by the word “(indexed)”) is to be adjusted on 1  July of each year, beginning on 1 July 2014, by multiplying the stated amount by a proportion obtained by dividing the Consumer Price Index for the March quarter of that year by the Consumer Price Index for the March quarter 2013 (with the amount so adjusted being calculated to the nearest multiple of $10). (8) In connection with the operation of subsection  (7), the amount to be applied with respect to a particular  injury  is the amount applying under subsection (3) at the time of occurrence of that injury. CIVIL LIABILITY ACT 1936 - SECT 56 56—Exclusion of interest on  damages  compensating  non-economic loss or future loss Interest is not to be awarded on  damages  compensating non-economic or future loss. 

The relevant Queensland provisions, including definitions, are as follows: Civil Liability Act 2003 51 Definitions for ch 3 In this chapter— general damages means damages for— (a) pain and suffering; or (b) loss of amenities of life; or (c) loss of expectation of life; or (d) disfigurement. injury means personal injury.

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61Assessment by court of injury scale (1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows— (a) the injured person’s total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100; (b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind; (c) in assessing the injury scale value, the court must— (i) assess the injury scale value under any rules provided under a regulation; and (ii) have regard to the injury scale values given to similar injuries in previous proceedings. (2) If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1) (c), the court must state the factors on which the assessment is based that justify the assessed injury scale value. 62 Calculation of general damages (1) For an injury arising after 1 December 2002, general damages must be calculated by reference to the general damages calculation provisions applying to the period within which the injury arose. (2) In this section— general damages calculation provisions, applying to a period, means the provisions prescribed for the period under a regulation.

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 16 Determination of damages for non-economic loss 16 Determination of damages for non-economic loss (1) No 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. (2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case. (3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table:

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Table Severity of the non-economic loss (as a proportion of a most extreme case)

Damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss)

15%

1%

16%

1.5%

17%

2%

18%

2.5%

19%

3%

20%

3.5%

21%

4%

22%

4.5%

23%

5%

24%

5.5%

25%

6.5%

26%

8%

27%

10%

28%

14%

29%

18%

30%

23%

31%

26%

32%

30%

33%

33%

34%-100%

34%-100% respectively

(4) An amount determined in accordance with subsection (3) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up). The following are the steps required in the assessment of non-economic loss in accordance with this section: Step 1: Determine the severity of the  claimant’s non-economic loss as a proportion of a most extreme case. The proportion should be expressed as a percentage. Step 2: Confirm the maximum amount that may be awarded under this section for non-economic loss in a most extreme case. This amount is indexed each year under section 17. Step 3: Use the Table to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under this section for 120

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The Statutory Framework of Tort Law

non-economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table. Where the proportion of a most extreme case is greater than 33%, the amount payable will be the same proportion of the maximum amount.

The relevant Victorian provisions are as follows: WRONGS ACT 1958 - SECT 28G 28G—Fixing damages for non-economic loss The maximum amount of damages that may be awarded to a claimant for noneconomic loss is $577 050.  WRONGS ACT 1958 - SECT 28HA Tariffs for damages for noneconomic loss Tariffs for damages for non-economic loss (1) In determining  damages  for  non-economic  loss, a  court  may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. (2) For that purpose, the parties to the proceedings or their counsel may bring the court’s attention to awards for damages for non-economic loss in those earlier proceedings. (3) This section does not alter the rules for the determination of other damages.

Non-pecuniary losses — methods of assessing the loss by the court 2.36

The state and territory Civil Liability Acts or equivalent have each dealt with a set of issues concerning how courts determined damages awards. Three approaches are deployed. First, some states provide for comparisons with other cases; second, some deploy a sliding scale typically from 0 for a very minor issue to 100 at the extreme end of the scale; and third, the Northern Territory refer to the percentage of permanent disability suffered. Refer to Table 2.28.

Table 2.28 State or territory

Relevant Act

Court can compare other cases to assess damages

ACT

Civil Law (Wrongs) Act 2002

s 99(1)

121

Use of a scale from slightest to gravest cases

Percentage degree of permanent disability — common law abolished

2.36

Torts: Principles, Skills and Application

State or territory

Relevant Act

Court can compare other cases to assess damages

Use of a scale from slightest to gravest cases

NSW

Civil Liability Act 2002

s 17A

s 16

NT

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Civil Liability Act 2003

ss 61–62

SA

Civil Liability Act 1936

s 52

Tas

Civil Liability Act 2002

s 28(1)

Vic

Wrongs Act 1958

s 28HA(1)

WA

Civil Liability Act 2002

s 10A(1)

Percentage degree of permanent disability — common law abolished

ss 24, 27

The relevant New South Wales provisions are as follows: CIVIL LIABILITY ACT 2002 - SECT 17 Indexation of maximum amount relating to non-economic loss 17 Indexation of maximum amount relating to non-economic loss (1) The Minister is, on or before 1 October 2002 and on or before 1 October in each succeeding year, to declare, by order published on the NSW legislation website, the amount that is to apply, as from the date specified in the order, for the purposes of section 16 (2). (2) The amount declared is to be the amount applicable under section 16 (2) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in New South Wales  over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available. (3) An amount declared for the time being under this section applies to the exclusion of the amount under section 16 (2).

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(4) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (2), the amount declared is to be determined in accordance with the regulations. (5) In adjusting an amount to be declared for the purposes of section 16 (2), the amount determined in accordance with subsection (2) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up). (6) A declaration made or published on the NSW legislation website after 1 October in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date. CIVIL LIABILITY ACT 2002 - SECT 17A Tariffs for damages for non-economic loss 17A Tariffs for damages for non-economic loss (1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. (2) For that purpose, the parties to the proceedings or their Australian legal practitioner may bring the court’s attention to awards of damages for noneconomic loss in those earlier decisions. (3) This section does not alter the rules for the determination of other damages.

Mental harm 2.37

Mental harm may also be referred to as ‘psychiatric damage’. It is cerebral, psychological and brain-based, rather than physical in terms of bodily function.The law has always grappled with the division between the different types of damage.The physical damage to a body is more easily adduced in evidence than psychological damage.The same is true of built structure damage compared with economic loss; the first is evidence-based and relatively simple; the latter more speculative, and hence the common law has grappled with finding clear justification for the latter. In terms of the civil liability headline Acts, where the Acts apply to the particular factual scenario and loss-inducing context, then mental harm may be relevant, and is dealt with in the following areas of the respective Acts (see Table 2.29).

Table 2.29 State or territory

Section 

Relevant Act

ACT

Pt 3.2

Civil Law (Wrongs) Act 2002

NSW

Pt 3, ss 27–33

Civil Liability Act 2002

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State or territory

Section 

Relevant Act

NT

ss 24, 25

Law Reform (Miscellaneous Provisions) Act 1956

Qld

-

Reliant on the common law

SA

s 33

Civil Liability Act 1936

Tas

Pt 8

Civil Liability Act 2002

Vic

Pt XI

Wrongs Act 1958

WA

Pt 1B

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 29 Personal injury arising from mental or nervous shock 29 Personal injury arising from mental or nervous shock In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the  personal injury  arose wholly or in part from mental or nervous shock.

Damages in the form of pecuniary loss 2.38

Damages in the form of pecuniary loss refers most particularly to loss of earning capacity. Each state and territory deals with this in the following sections respectively, shown in Table 2.30.

Table 2.30 State or territory

Section 

Relevant Act

Commonwealth

s 87U

Competition and Consumer Act 2010

ACT

s 98(2)

Civil Law (Wrongs) Act 2002

NSW

s 12

Civil Liability Act 2002

NT

s 20

Personal Injuries (Civil Claims) Act 2003 Personal Injuries (Liabilities and Damages) Act 2003

Qld

s 54(2)

Civil Liability Act 2003

SA

s 54

Civil Liability Act 1936

Tas

s 26

Civil Liability Act 2002

Vic

s 28F(2)

Wrongs Act 1958

WA

s 11(1)

Civil Liability Act 2002

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The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 12 Damages for past or future economic loss–maximum for loss of earnings etc 12 Damages for past or future economic loss–maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or (c) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) 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. (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales  for the most recent quarter occurring before the date of the  award  for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

Hospital, medical and care expenses 2.39

Nursing and care services provided for and to the plaintiff These services include nursing and personal care types of services as awarded per Griffiths v Kerkemeyer.5 These were services the plaintiff would require on a day-to-day basis specifically as a result of the accident. They could be administered by various people, including family members and loved ones, on a voluntary basis, or provided on a paid basis by a third party such as a service provider. It was their provision and their cost equivalent that was awarded; as such, it was not dependent on whether they were provided on a paid or in-kind basis. Clearly, the legislative approach was to view the court’s decision as too generous, too open-ended and lacking in certainty. As a result, all legislatures,

5. Griffiths v Kerkemeyer (1977) 139 CLR 161.

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except the Australian Capital Territory, responded by limiting and proscribing these types of damages. The restrictions in the various legislatures are as set out in Table 2.31 below. The Australian Capital Territory is the only jurisdiction which does not restrict their award.

Table 2.31 State or The services territory are needed or only provided as a result of the injury

The services are provided by a person in a close pre-existing relationship

Limited to six hours per week for six months; capped by reference to average weekly wage

ACT

Relevant Act

No restrictions

NSW

s 15(2)

s 12

Civil Liability Act 2002

NT

s 23(1)

s 23(2)

Personal Injuries (Liabilities and Damages) Act 2003

Qld

s 59(1)(a)

SA

Civil Liability Act 2003 s 58(1)(a)

*Tas *Vic WA

s 28IA(1) s 12(1)

s 58(2), (3)

Civil Liability Act 1936

s 28B(2), (3)

Civil Liability Act 2002

s 28IA(2)

Wrongs Act 1958

s 12(5)–(7)

Civil Liability Act 2002

*Tasmania and Victoria do not allow these damages to be awarded for motor vehicle accidents.

The question remains: is this a workable or fair patchwork response? It makes these damages very different, depending on where and in what context the

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The Statutory Framework of Tort Law

loss occurs. For plaintiffs, these damages go to the issue of basic human dignity: being able to be fed, changed, bathed, use the bathroom etc. Questions of human dignity and access to a just system become problematic given such a myriad of variable provisions. The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 15 Damages for gratuitous attendant care services: general 15 Damages for gratuitous attendant care services: general (1) In this section: “attendant care services” means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. “gratuitous attendant care services” means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be  awarded  to a  claimant  for  gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. 2.40

Nursing and care services provided by the plaintiff to someone else These services included nursing and personal care types of services as awarded per CSR Ltd v Eddy.6 In Eddy, the High Court ruled on a unanimous basis that care services the plaintiff himself provided to his disabled wife could not be awarded. The plaintiff under Griffiths v  Kerkemeyer7 principles was able to receive a damages amount for services they needed; this did not extend to services they themselves provided to others. This may appear logical in one sense, without being just or humanistic in another sense. It forces, for example, the family to pay for a sudden new expense which has arisen as a result of the accident. It is a cost intimately linked to the plaintiff, if not the plaintiff himself. The court thought these matters should be addressed by legislatures, as the Australian Capital Territory had already conferred such rights on plaintiffs. The response from the various state and territory legislatures is interesting. Rather than ensuring this issue would not be re-litigated, the issue was responded to in a patchwork way. Clearly from some legislatures’ perspective,

6. CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1. 7. Griffiths v Kerkemeyer (1977) 139 CLR 161.

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the legislative approach was to view the court’s decision as largely correct and to almost shut the gate on the matter. As a result, some legislatures, including the Australian Capital Territory, responded by limiting and proscribing these types of damages.The restrictions in the various legislatures which did respond to the decision are as set out in Table 2.32.

Table 2.32 Relevant Act

State or territory

The services are provided by the injured person to another person

Details of to whom the plaintiff provides the services

ACT

s 100

Allows recovery by plaintiff for Civil Law domestic or care services for a (Wrongs) Act 2002 member of the household

NSW

s 15B

Allows recovery by plaintiff for Civil Liability domestic or care services for a Act 2002 member of the household

NT

Personal Injuries (Liabilities and Damages) Act 2003

Qld

ss 59A–59D

SA

s 58(1)(a)

Provides for some gratuitous services to be provided

Civil Liability Act 1936

Tas Vic

Civil Liability Act 2003

Civil Liability Act 2002 ss 28ID, 28IE

Pre-Eddy legislation; disallowed such services

WA

Wrongs Act 1958 Civil Liability Act 2002

Gratuitous services 2.41

This is a more specialised form or head of damages which was recognised by the common law. Each state and territory deals with this in the following sections respectively, shown in Table 2.33.

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Table 2.33 State or territory

Section 

Relevant Act

Commonwealth

s 87W

Competition and Consumer Act 2010

ACT

No cap

Civil Law (Wrongs) Act 2002

NSW

s 15

Civil Liability Act 2002

NT

Personal Injuries (Civil Claims) Act 2003 Personal Injuries (Liabilities and Damages) Act 2003

s 23 Qld

s 59

Civil Liability Act 2003

SA

s 58

Civil Liability Act 1936

Tas

s 28

Civil Liability Act 2002

Vic

s 28

Wrongs Act 1958

WA

s 12

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 15 Damages for gratuitous attendant care services: general 15 Damages for gratuitous attendant care services: general (1) In this section: “attendant care services” means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. “gratuitous attendant care services” means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be  awarded  to a  claimant  for  gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury.

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(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. (4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be  awarded  for  gratuitous attendant care services must not exceed: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for: (i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or (ii) in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or (b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed. (5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires. (6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

Discount rate 2.42

The discount rate refers to the fact that at common law, a lump sum awarded provides the plaintiff with the ability to invest it at advantageous terms and grow the quantum at a supposedly preferred rate, rather than receiving it as periodic payments. This approach led to a discount rate — typically 5% — being applied to the lump sum. Discount rates are referred  to in the headline Acts on the basis of this common law legacy (see Table 2.34).

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The Statutory Framework of Tort Law

Table 2.34 State or territory

Section 

Relevant Act

Commonwealth

s 87W

Competition and Consumer Act 2010

ACT

-

Common law applies

NSW

s 14

Civil Liability Act 2002

NT

s 23

Personal Injuries (Civil Claims) Act 2003 Personal Injuries (Liabilities and Damages) Act 2003

Qld

s 59

Civil Liability Act 2003

SA

s 58

Civil Liability Act 1936

Tas

s 28

Civil Liability Act 2002

Vic

s 28

Wrongs Act 1958

WA

s 12

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 14 Damages for future economic loss—discount rate 14 Damages for future economic loss—discount rate (1) If an award of damages is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by adopting the prescribed discount rate. (2) The “prescribed discount rate” is: (a) a discount rate of the percentage prescribed by the regulations, or (b) if no percentage is so prescribed—a discount rate of 5%. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages.

Aggravated damages 2.43

Aggravated damages award the plaintiff for mental distress falling short of psychiatric illness.They are compensatory in nature and reflect that the plaintiff has been personally affronted, as well as suffered loss. Their feelings have been hurt, giving rise to an extra element of loss. By their nature, these cases have been relatively rare, and rely on particular evidence being adduced by the plaintiff to reflect the type of loss or damage relied on. Each state and territory deals with this in the following sections respectively, shown in Table 2.35. 131

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Table 2.35 State or territory

Section 

Relevant Act

Commonwealth

s 87

Common law applies

ACT

-

Common law applies

NSW

s 21

Civil Liability Act 2002

NT

s 23

Personal Injuries (Civil Claims) Act 2003 Personal Injuries (Liabilities and Damages) Act 2003

Qld

s 52

Civil Liability Act 2003

SA

s 52

Common law applies

Tas

s 27

Common law applies

Vic

s 28

None for transport accidents (s 93 Transport Accident Act 1986 (Vic)) or workplace accidents

WA

ss 4, 9, 10

Common law applies

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 21 Limitation on exemplary, punitive and aggravated damages 21 Limitation on exemplary, punitive and aggravated damages In an action for the  award  of  personal injury damages  where the act or omission that caused the  injury or death was  negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.

Exemplary/punitive damages 2.44

Exemplary damages are awarded to reflect an element of punishment of the defendant by the court. It is a deterrent effect; these quasi-criminal elements make it an unusual head of damages, and therefore not often awarded. Its award will depend on the particular facts and circumstances of the case.The threshold behaviour by the defendant appears to be an element of ‘conscious wrongdoing’. Whether it can be awarded depends on the relevant context; for example, most states and territories restrict  their potential use in motor vehicle, workers’ compensation and defamation contexts. In terms of particular references in the main civil liability equivalent Acts for the states and territories, the situation is as shown in Table 2.36. 132

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Table 2.36 State or territory

Section 

Relevant Act

ACT

Common law applies

NSW

s 21

Civil Liability Act 2002

NT

s 19

Personal Injuries (Liabilities and Damages) Act 2003

Qld

s 52

Civil Liability Act 2003

SA

Common law applies

Tas

Common law applies

Vic

s 93(7)

Transport Accident Act 1986

s 134AB(22)(c)

Accident Compensation Act 1985

WA

Common law applies

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 21 Limitation on exemplary, punitive and aggravated damages 21 Limitation on exemplary, punitive and aggravated damages In an action for the  award  of  personal injury damages  where the act or omission that caused the  injury or death was  negligence, a court cannot  award  exemplary or punitive damages or damages in the nature of aggravated damages.

Intoxicated plaintiff — damages 2.45

The question of whether the plaintiff was intoxicated at the time of the alleged incident will be relevant to assessing the merits of their case. The states and territories legislatures generally deal with this issue as a presumption of contributory negligence on the part of the plaintiff, or in Victoria as a relevant consideration. Refer to Table 2.37.

Table 2.37 State or territory

Section 

Relevant Act

ACT

ss 95–96

Civil Law (Wrongs) Act 2002

NSW

s 50

Civil Liability Act 2002

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State or territory

Section 

Relevant Act

NT

ss 14–15

Personal Injuries (Liabilities and Damages) Act 2003

Qld

ss 47–48

Civil Liability Act 2003

SA

ss 46–48

Supreme Court Act 1935

Tas

s5

Civil Liability Act 2002

Vic

s 14G

Wrongs Act 1958

WA

s5

Civil Liability Act 2002

The relevant New South Wales provision is as follows: CIVIL LIABILITY ACT 2002 - SECT 50 No recovery where person intoxicated 50 No recovery where person intoxicated (1) This section 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. (2) 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. (3) If the court is 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, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

The relevant Victorian provision is as follows: WRONGS ACT 1958 - SECT 14G Consideration of intoxication and illegal activity WRONGS ACT 1958 - SECT 14G 134

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Consideration of intoxication and illegal activity (1) This section applies to a claim for  damages  in respect of death or personal injury brought by a person ( the plaintiff ) against another person ( the defendant ) alleging negligence. (2) In determining whether the plaintiff has established a breach of the duty of care owed by the defendant, the court must consider, among other things— (a) whether the plaintiff was intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication; (b) whether the plaintiff was engaged in an illegal activity.

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Review In this chapter we have examined some of key features of the legislation relevant to bringing claims in tort law. There are varying state and territory statutory provisions, which today form the underlying basis of inquiry and investigation. Statutory analysis and interpretation are therefore central and critical to contemporary practice and the application of tort law principles.

Reading H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 3 M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 3

Key Case Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009)

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Negligence Legal practice skill: Working with judgments

Learning aims •

Familiarise with the main elements of a negligence claim

•

Appreciate contemporary contextual issues in Australian tort law generally and negligence particularly

•

Analyse judgments dealing with negligence

Background concepts First principles 3.1

In this chapter we consider the three main elements of a negligence claim. These are duty of care, breach and damage. There are a number of other elements which need to be satisfied in a negligence action. These will be discussed throughout the book.

The basic elements of a negligence claim 3.2

There are three basic elements of negligence that are essential to a successful claim being brought by the plaintiff. They provide the essential framework to a negligence action in a fault-based system. They can be stated as principles or as questions, as follows.

1. Duty of care •• Statement format: The particular defendant must owe a duty of care to the plaintiff. •• Question format: Does the defendant owe a duty of care to the plaintiff? This is the threshold issue that a court needs to decide before it can go on to make a finding on whether there has been negligence. 137

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2. Breach of duty of care •• Statement format: The plaintiff must establish that the defendant breached the duty of care owed to the plaintiff. •• Question format: Has the duty of care been breached by the defendant as regards the plaintiff in the particular circumstances of the alleged incident? This facet involves a thorough examination of the alleged facts and circumstances. 3. Damage (loss, injury) •• Statement format: The breach of the duty (referred to above) must result in some compensable damage or loss to the plaintiff. •• Question format: Did the breach of the duty result in compensable damage? Or, alternatively, did the breach of duty by the defendant cause the damage to the plaintiff? These basic issues can be represented in tabular form as shown in Table 3.1.

Table 3.1 Element of a negligence claim

Statement format

Question format

Pratical issues

Torts: Principles, Skills and Application chapter

Duty of care

the particular defendant must owe a duty of care to the plaintiff

Does the defendant owe a duty of care to the plaintiff?

A threshold requirement. Not usually problematic (that is, most cases fall within established categories)

Chapters 4

Breach of duty (that is fault by the defendant)

The plaintiff must establish that the defendant breached the duty of care owed to the plaintiff

Has the duty of care being breached? by the defendant as regards the plaintiff in the particular circumstances of the alleged incident?

Requires an examination of the defendant’s conduct

Chapter 5

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Element of a negligence claim

Statement format

Question format

Pratical issues

Torts: Principles, Skills and Application chapter

Damage (loss, injury)

The breach of the duty must result in some compensable damage or loss to the plaintiff

Did the breach of the duty result in compensable damage? Or alternatively state, did the breach of duty by the defendant cause the damage to the plaintiff? That is, is there a link between the behaviour, on the one hand, and the loss, on the other?

The nature of the alleged loss or damage will depend on the facts and circumstance of the case

Chapter 3

Duty of care 3.3

Duty of care is a concept most of us have at least heard of. It fundamentally relates to whether or not there is a legal relationship between a plaintiff and a defendant. In most potential negligence cases finding a duty of care will be uncontentious. These relationships are referred to as established categories of cases. Relationships where a duty of care is clearly owed from a defendant to a plaintiff include as follows: •• •• •• •• ••

doctor/patient; solicitor/client; accountant/client; teacher/student; and driver/passenger.

Determining whether or not a duty of care exists becomes fundamentally more difficult when the relationship or situation is more novel or ambiguous. In this event, it is necessary to analyse additional factors to see if there is enough to establish a duty of care. 139

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Relationships where finding a duty of care is not straightforward include: •• the possible liability of statutory authority (ie councils); •• liability when the damage relates to pure economic loss; and •• liability of police and corrective services. Determining whether or not there is a duty of care owed in novel situations is not clear-cut. In fact, the courts themselves have not reconciled what the definitive test for finding a duty of care is. Instead the High Court of Australia went through a period where they were considering both incrementalism and salient features in order to find a duty of care in novel situations.

Incrementalism and salient features 3.4

Traditionally, the courts favoured a two-step approach to finding a duty of care. The two tests which were relied on were reasonable foreseeability and proximity. In other words: •• Was/or ought the harm or damage to the plaintiff to be reasonably foreseeable to the defendant? •• Was there a degree of proximity (ie closeness) to the relationship between the plaintiff and the defendant? In the 1990s, proximity was rejected as a test for finding a duty of care. Instead the search was on for a new set of tests for duty of care.

Incrementalism 3.5

The incremental approach was favoured by Brennan J (as he then was) in cases such as Sutherland Shire Council v Heyman where he noted:1 It is preferable … that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of 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 persons to whom it is owed”.

In effect, the incremental approach advocates developing new categories of case slowly or by analogy. This is similar to how the law developed before Donoghue v Stevenson.2 The fundamental argument for following this path is that it allows the courts to have more control over the development and expansion of negligence liability. This approach has not found favour in recent times in terms of finding a duty of care in novel cases.

1. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481; 60 ALR 1. 2. Donoghue v Stevenson [1932] AC 562; [1932] SC (HL) 31; [1932] All ER Rep 1. See, for example, Heaven v Pender (1883) 11 QBD 503, 516 (CA).

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Salient features 3.6

The approach, which has found more favour by the High Court in recent years, is the salient features method. Essentially what the salient features approach aims to do is guide the courts on whether the legal relationship should give rise to a duty of care. There is no definitive list of salient features. There are, however, a number of features that are common to each of the cases which are used to determine whether or not a duty of care is owed. Some of the salient features which have been relied on include: •• •• •• ••

Was the damage/harm reasonably foreseeable to the defendant? Will indeterminate liability be imposed? Will there be any issues relating to stifling the autonomy of the defendant? Was there any vulnerability in the relationship? In this context, vulnerability relates to whether or not a plaintiff could have avoided the harm or helped themselves in some way. •• Did the defendants have knowledge that their conduct could cause harm to the plaintiff/s? •• Did the defendant have the power to protect a specific class that the plaintiff belonged to? •• Are there policy reasons for denying a duty of care?

Duty of care — concluding remarks 3.7

Finding a duty of care in established categories of cases is relatively straightforward. In contrast, trying to find a duty of care when there is a novel category of case is more involved and complex. In the vast majority of cases, it will not be difficult to find that a duty of care is owed.

Breach of duty of care Factual breach 3.8

The factual breach relates to the action the defendant has incurred which led to the injury, loss or damage. This may include as follows: •• •• •• •• ••

driving through a red light; failure to warn in medical situations; failure to protect a specific class of plaintiff; failure to adequately supervise school students; and failure to provide adequate financial or legal advice to clients.

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Legal breach 3.9

In order to determine whether or not a legal breach has eventuated, it is necessary to look at the relevant statutory provisions. In New South Wales, s 5B of the Civil Liability Act NSW (2002) helps determine whether or not there has been a legal breach. Section 5B prescribes the following tests for finding a breach of the duty of care.There is a presumption against negligence unless: •• The risk was foreseeable.3 •• The risk was not insignificant.4 •• In the circumstances, a reasonable person would have taken the precautions.5 In order to determine whether or not a reasonable person would have taken those precautions, it is necessary to consider the following:6 •• •• •• ••

the probability that the harm would occur;7 the likely seriousness of the harm;8 the burden of taking precautions to avoid the harm;9 and the social utility that creates the risk of harm.10

As many of you will know, these s 5B factors are very similar to the common law tests which were evident before the inception of statutory reforms. This is handy, as many of the cases which were relied on to determine these factors can still be used as authority. Damage 3.10

The third main element of negligence is damage. Damage relates to the type of harm or damage which the plaintiff/s has incurred. Types of damage can include as follows: •• •• •• •• ••

personal injury; property damage; economic loss; psychiatric injury; and wrongful death.

These types of damage, examples and related issues are shown in Table 3.2. 3. Civil Liability Act 2002 (NSW) s 5B(1)(a). 4. Civil Liability Act 2002 (NSW) s 5B(1)(b). 5. Civil Liability Act 2002 (NSW) s 5B(1)(c). 6. Civil Liability Act 2002 (NSW) s 5B(2). 7. Civil Liability Act 2002 (NSW) s 5B(2)(a). 8. Civil Liability Act 2002 (NSW) s 5B(2)(b). 9. Civil Liability Act 2002 (NSW) s 5B(2)(c). 10. Civil Liability Act 2002 (NSW) s 5B(2)(d).

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Table 3.2 Type of damage

Example 

Practical issues

1. Personal injury

Broken leg

Usually based on medical evidence

2. Property damage

Roof damage

Usually based on insurance assessment

3. Consequential economic loss

Loss of profits as a result of roof damage that shuts down a shop

Such losses are a direct consequence of the property damage, that is, they flow from damage which was sustained at an earlier time

4. Pure economic loss

Loss of profits without any prior property damage, for example, an inaccurate financial report that leads to the purchase of shares at an inflated price

How do the courts draw a line as to what is recoverable and deal with problems of indeterminacy?

5. Psychiatric injury

Post-traumatic stress disorder (PTSD)

This type of damage has traditionally been looked at with suspicion by the courts. Now there are strict requirements on when a plaintiff can claim for this type of loss

6. Psychiatric damage

How do the courts deal with Witnessing an horrific indeterminacy? event: see, for example, the High Court case Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22

Note that damage and damages should be distinguished in a negligence action. While damage refers to the type or kind of harm or damage the plaintiff has incurred, damages relates to the remedy. In other words, the quantum of damages enquiry generally refers to the monetary award the plaintiff will gain as a result of a successful negligence action. 143

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Torts: Principles, Skills and Application

Other elements in a negligence action 3.11

Aside from duty, breach and damage, there are several other elements in a negligence action. The other elements include: •• Standard of care: This relates to the level of care the defendant owes to the plaintiff. Generally, the standard of care relates to the reasonable person or entity. In some circumstances the standard of care can be increased or lowered. •• Causation: This element relates to whether or not the defendant caused the harm to the defendant. The traditional test for finding causation is the ‘but for’ test. That is ‘but for’ the defendant driving through a red light, the plaintiff would not have been injured. For example, in New South Wales under s 5D of the Civil Liability Act 2002 (NSW), the key test for causation is the ‘necessary condition’ test. In other words, is the defendant’s negligence a necessary condition of the plaintiff ’s harm? •• Scope of liability: This element relates to three main considerations: i) ‘Ought the defendant’ be liable for the harm or damage?; ii) Has there been a novus actus interveniens or a break in the chain of causation?; and iii) Is the damage too remote? This relates to whether or not the type of damage was reasonably foreseeable. •• Defences: This element relates to whether or not there are mitigating factors the defendant can argue to reduce or counteract liability? Defences include contributory negligence, voluntary assumption of risk and obvious risks.

Quantum of damages issues in personal injury cases 3.12

If the elements of negligence are satisfied, the plaintiff may be awarded damages. Damages are assessed in terms of both pecuniary and non-pecuniary damages and general and special damages. Pecuniary damages relate to damages that are quantifiable in terms of money. They can include medical expenses and loss of earning capacity. Non-pecuniary damages relate to damages that are more difficult to quantify in terms of monetary loss. They include heads of damages such as pain and suffering, loss of enjoyment of life and loss of expectation of life. General damages relate to damages that are required for the plaintiff ’s life after a verdict. Special damages relate to those damages which are assessed between injury and verdict. This is summarised in Table 3.3.

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Table 3.3 The broad classifications Period of time to which of damages they relate

Main items or ‘heads’ of damage

1. ‘Special’ damages

From the date of accident/ event up to the date of the trial/ settlement.

Actual medical expenses. Actual lost wages/salary.

2. ‘General’ damages

Future loss of earning From the date of the capacity. Future settlement of the claim or the date of the judgment onwards. medical expenses.

Generally, the damages are one-off, lump sum awards to plaintiffs.

Hypothetical case study: the aims of torts damages Facts scenario 3.13

Veronica Reilly, a brilliant 17-year-old student, has just completed her final year of high school. She has been accepted into a university medical course. Unfortunately, last month she was involved in a very serious motor vehicle accident leaving her paralysed and in a wheelchair for the rest of her life. She will not be able to work and will require 24-hour care.The accident was not her fault.

The hypothetical: questions and answers 3.14

How would torts damages work in this case? Each motor vehicle licence holder pays compulsory third-party insurance. It covers personal injuries sustained in motor vehicle accidents as the result of someone else’s fault. Veronica would bring a claim against the other driver and her damages would be allocated from of the pool of premiums paid by registered car owners. She would hope that the matter could be settled before trial. Whenever the case is settled, the basis of damages will be the same: to put Veronica back in her pre-accident position by way of a monetary payment.

How can money equate to the tragedy of this accident?

The fact is, it cannot. This is a conundrum of negligence law. Damages awards in negligence necessarily work by approximation and by a degree of informed speculation regarding someone’s future. The paradox is that the courts look to the future to put plaintiffs in their pre-accident positions. 145

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Torts: Principles, Skills and Application

How would the award of damages operate?

Veronica would be awarded money for two distinct periods: the period leading up to the settlement and the period beyond the settlement. This would cover actual expenses and losses and projected expenses, for example, the nursing care she will require. The awarding of damages in such cases can only ever be approximate. For example, what would a judge award for ‘future loss of earnings’ to a 17-year-old about to embark on a university course?

Compensation issues and insurance factors 3.15

The key insurance concepts are those of: •• loss shifting, that is, shifting the loss from the plaintiff to the defendant; and •• loss spreading, that is, spreading the losses among a large pool of people who have contributed premiums to an insurance fund. It is unrealistic to consider negligence claims without also referring to the insurance aspects, which are increasingly pervasive. Those parameters depend on the particular context of loss as set out below.

Motor vehicle accidents 3.16

The damage type is usually personal injury and property damage. The road traffic legislation provides for compulsory third-party cover for personal injury. That is, the driver at fault is the first party.The insurance company is the second party.The injured person is the third party.This system operates by reference to ‘loss spreading’. In other words, a large pool of premiums has been contributed by many drivers or payers.

Property damage 3.17

In the motor vehicle context, car owners decide on their insurance needs; this is not compulsory. The basic difference between third-party property cover and comprehensive insurance is that third-party covers only damage to other vehicles, whereas comprehensive covers the driver’s vehicle as well as other vehicles and also any other property damaged, for example, fences or buildings damaged in the crash.

Workers’ compensation issues 3.18

Workers’ compensation premiums are supposed to be compulsory on the part of the employer. The legislation provides for a no-fault scheme as regards the workers’ compensation entitlements and provides for a statutory formula of 146

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Negligence

weekly payments with a maximum entitlement. There is the possibility of an injured worker making a common law claim as well but, as we will see in Chapter 6, this is becoming more difficult in light of legislative changes.

Insurance and strategy issues 3.19

As we can see, insurance ramifications are critical. The questions: (a) who is the defendant? (b) is the defendant backed by an insurance policy? become critical strategic points in the quest for compensation.

Case analysis and problem solving: an approach 3.20

As we discussed in the introduction to this book, using sources of law to solve or discuss problems is a central legal skill. The way you go about it may well be unique — there are no model answers or blueprints in law or universally agreed ways of going about these tasks, but it is fair to say that a checklist approach can be useful. Some of the points for such a problem-solving checklist might include the following: •• Analyse the facts at hand. •• Closely analyse the most appropriate case. •• Identify the similarities and differences between the present facts and the best precedent case; that is, how closely is there a fit? •• Proceed via a process of analogy: how alike are the facts to the precedent case? (‘Analogy’ means agreement or similarity, especially in a certain limited number of features or details: Collins English Dictionary.) •• How different are the facts to the precedent case? •• Are those differences critical? •• How can we progress the matter given the above parameters?

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Review This chapter has introduced you to the three fundamental elements of a negligence action: duty, breach and damage. In addition, the chapter has mentioned the other elements of negligence which include causation, scope of liability and defences. Finally, an introduction to quantum of damages issues was undertaken.

Reading H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 1 M Davies & I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Chs 1 and 2 Review books on legal research and legal problem solving such as: B Bott & R Talbot-Stokes, Nemes and Coss’ Effective Legal Research, 6th ed, LexisNexis Butterworths, Sydney, 2015 P Keyzer, Legal Problem Solving: A Guide for Law Students, 2nd ed, LexisNexis Butterworths, Sydney, 2003

Chapter 3 Review Questions 1. How is a duty of care determined in an established category of case in a negligence action? 2. How is a duty of care determined in a novel case in a negligence action? 3. Is finding a breach of the duty of care now a statutory based or case law inquiry? 4. Is the common law calculus of negligence factors still relevant to determining breach in a negligence action? 5. List four types of damage that may be evident in a negligence action? 6. What is the difference between damage and damages?

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Tutorial 3: Client advice — motor vehicle accident

Internal memorandum From: Antonia Johnson To: Trainee Date: 11/09/20XX Re: Lucy, motor vehicle accident Lucy was driving and failed to stop at an intersection with a stop sign. Lucy’s act of failing to stop caused an accident, which resulted in the personal injury of Jake.The accident involved Lucy and Jake directly; however, a cyclist, Brodie, was also injured during the collision. I would like you to consider the case that will be brought forward on behalf of the plaintiffs. This will allow us to consider the options for our client, Lucy (the defendant). Please make preliminary notes for our meeting today. Kind regards, Antonia Johnson

Tutorial 3: Answer Guide Preliminary comments and approach 1. Background issues — preparation approach Analyse closely the nature of your tasks.You are going to a meeting.The partner wants you to produce a useful checklist and outline of the plaintiffs’ arguments. You are one of the key participants at the meeting. Think practically and strategically. What will the plaintiffs argue? How can you begin to counter this approach? How can you begin to develop a longer term strategy for the matter? In every legal context, strategy is critical: •• What is the critical path analysis? •• Think of both the bigger picture and the details. •• Predict the steps ahead — the pitfalls and options — and the possible outcomes for your client. These factors should inform your role as a legal adviser. 2. Broad approaches and strategies to problem solving in torts There are two models or approaches: •• The ‘checklist’ model 149

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This is thorough and appropriate to our approach in the early stages. Go through each discrete heading and try to ascertain each issue as you go. It allows you to demonstrate your understanding at each step along the way. •• The ‘relevance’ model This approach focuses on the key issues, the difficulties, the particular problems of the case or set of facts etc. It is a more sophisticated approach. You can develop this as you become more skilled. It will be useful to bear this approach in mind in answering problem questions, as there will likely be many issues within one problem that will require particular attention and analysis. This model is getting you to think about the nub of the case: what is the heart of the matter? This approach teaches you to remember that long and complex cases are often decided on particular issues.You need to develop an approach which appreciates that there may be certain threshold questions/issues that are simply critical to a successful outcome for your client. Ideally, you should combine both models in a way that suits you. 3. Use of cases You should aim to develop your legal analysis by reading cases.You will find in answering problem questions (and in practice) that a few key cases are decisive in a given instance. Analysing such cases in depth (and developing a ‘deeper’ approach) will assist with the application of the law. It is useful to employ cases that show a contrast of different approaches in establishing a deep understanding of the concepts. 4. Practical use of precedents A set of facts like this may not give rise to a similar precedent. Obviously, a more similar precedent case will be more useful to your arguments with respect to the facts. If there is no case you can locate, then you may need to construct an argument via a process of analogy. For example, you may need to extrapolate principles established in driver–passenger cases to that of a driver–other road user case. 5. Dealing with the facts •• What facts are critical? •• What further facts are required? •• You have been asked to make a checklist and outline of the plaintiffs’ possible argument for your meeting; you can add to this during the meeting. 6. Getting a complete and accurate picture A file note is a very common legal practice step at this stage. It allows you to organise your instructions into a logical piece of legal analysis. It is best to do this while events are still recent and fresh in your client’s memory. The file note may then form the basis of a proof of evidence for potential litigation. Remember, a trial could be several years away. 150

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It should also be a useful document to assist with negotiations out of court and other alternative dispute resolution (ADR) techniques. A file note is also a useful form of protection from, for example, later changes in your client’s story, and so on. 7. Maintaining a flexible approach You need, as a legal adviser, to maintain a flexible approach until you have a complete picture of the facts and circumstances. Timing then becomes important. For example, when do you deny liability, write to the other side, issue legal proceedings, and so on?

Tutorial 3: Student Example Answer prepared by: Isabella Post, Law, UNE (2018)11 To: Antonia Johnson From: Isabella Post (trainee) Re: Lucy I refer to the task you set concerning Lucy’s legal position in relation to the action for compensation being brought by Jake and Brodie based on the principles of negligence, arising out of the motor vehicle accident discussed in the facts. Focus will be placed on the High Court decision in relevant cases and the policy issues considered relevant in each. Key facts Lucy was the driver of a motor vehicle that was involved in an accident with Jake, from which Jake and Brodie are bringing negligence claims. The law provides, in general, that Lucy, as the driver of a motor vehicle, owes an established duty of care to other road users according to Imbree v McNeilly.12 Jake and Brodie have suffered extensive personal injuries as a result of the accident. What is the standard of the duty of care owed? Jake and Brodie will be discussed together here, as the standard of care is the same for both parties. Jake and Brodie were reasonable road users. Under the common law of negligence, the relationship between the parties as road users generally gives rise to an established duty situation of driver and other road user.13 At common law, the driver owes a general duty of care to other road users with the standard being to drive with care and skill that is to be expected of a 11. Originally prepared by Todd Street (2014). 12. Imbree v McNeilly [2008] HCA 40. 13. Imbree v McNeilly [2008] HCA 40.

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competent and reasonable driver.14 In Imbree v McNeilly,15 the High Court held that drivers owe a duty to take ‘reasonable care in operating the vehicle’.16 The question of whether Lucy owed an enforceable duty of care to Jake and Brodie in the context of this unlawful activity is of importance in providing legal advice to Lucy. When considering Jake, the injuries he sustained occurred as a direct result of the negligence of Lucy meaning Lucy owed a standard of care as a reasonable and competent driver. Chapman v Hearse17 will be applied to consider Brodie. In Chapman v Hearse,18 it was held that the plaintiff did not need to ‘show that the manner his injuries were sustained was reasonably foreseeable, rather if injury to a class of persons of which he was one might reasonably have been foreseen as a consequence’.19 Considering this, Lucy owes Brodie an established duty of care as the injuries he sustained were reasonably foreseen as a consequence of her negligent driving. Did Lucy breach her duty of care? In the absence of further evidence, it appears Lucy owes Jake and Brodie an objective duty of the experienced and competent driver.20 As Lucy drove negligently, breach of her duty of care will be considered below with the application of the Civil Liability Act 2002 (NSW)21 and relevant cases. Jake v Lucy The alleged wrongful conduct is that Lucy failed to stop at a ‘stop’ sign before crossing an intersection. To ascertain whether Lucy’s failure to stop constitutes a breach of her duty of care requires consideration of the Civil Liability Act s 5B.22 Applying to s 5B(1)(a),23 the risk of injury as a result of Lucy’s negligent driving was foreseeable, therefore satisfying this section. Section 5B(1)(b) and (c)24 discusses whether the risk was significant and a reasonable person in this position would have taken precautions.25 There is a high standard for drivers, and road rules are to be followed to prevent harm to road users and pedestrians.

14. This was confirmed in the United Kingdom by Nettleship v Weston [1971] 2 QB 691, and recently the High Court adopted the same approach in Imbree v McNeilly [2008] HCA 40. 15. Imbree v McNeilly [2008] HCA 40. 16. Imbree v McNeilly [2008] HCA 40 at [72] per Gummow, Hayne and Kiefel JJ. 17. Chapman v Hearse (1961) 106 CLA 112. 18. Chapman v Hearse (1961) 106 CLA 112. 19. Chapman v Hearse (1961) 106 CLA 112. 20. Imbree v McNeilly [2008] HCA 40 at [72]. 21. Civil Liability Act 2002 (NSW). 22. Civil Liability Act 2002 (NSW) s 5B. 23. Civil Liability Act 2002 (NSW) s 5B(1)(a). 24. Civil Liability Act 2002 (NSW) s 5B(1)(b) and (c). 25. Civil Liability Act 2002 (NSW) s 5B(1)(b).

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In Drinkwater v Howarth,26 Hodgson JA concluded if a different test were applied, the result would remain the same, that harm would be not insignificant.27 To consider s 5B(1)(c),28 the calculus of negligence factors in s 5B(2)29 need to be applied to determine whether a reasonable person would have followed these rules and taken precautions so the risk of harm would be lowered. Applying s 5B(2)(a),30 the probability for the cause of harm would be very high had care not be taken, as shown in this case by Lucy’s negligent driving. In contrast, the risk was considered low in Bolton v Stone,31 where Lord Reid focused on fact and degree establishing the club was not negligent. In RTA v  Dederer,32 Callinan J highlighted that there was the risk of injury; however, it was unlikely to occur. The probability that the harm would occur if care were not taken in this scenario is very high. In s 5B(2)(b),33 the likely seriousness of the harm is demonstrated through Jake’s extensive injuries. Paris v Stepney Borough Council34 concluded that the likely seriousness varies depending on existing injuries and the knowledge of these. Contrasting to this, the likely seriousness would be very high despite any previous injuries. There would have been no burden for Lucy to exercise the standard precautions for reasonable road users considering s 5B(2)(c).35 Taking this precaution would have cost only a few seconds, and would have resulted in a lower risk for harm occurring. This contrasts to Graham Barclay Oysters v Ryan36 as being high. The burden for Graham Barclay Oysters was difficult, inconvenient and expensive,37 whereas the burden for Lucy to take precautions would be very low. Section 5B(2)(d)38 of social utility does not apply to this scenario, as no facts suggest that social utility should be considered. Having considered the calculus of negligence factors, a conclusion can be made on s 5B(1)(c).39 A reasonable person would have been able to foresee the risks and consequences of negligent driving. It is likely it would be found that Lucy did breach her duty of care. 26. Drinkwater v Howarth [2002] NSWCA 222. 27. Drinkwater v Howarth [2002] NSWCA 222. 28. Civil Liability Act 2002 (NSW) s 5B(1)(c). 29. Civil Liability Act 2002 (NSW) s 5B(2). 30. Civil Liability Act 2002 (NSW) s 5B(2)(a). 31. Bolton v Stone [1951] AC 850. 32. RTA v Dederer (2007) 234 CLA 330. 33. Civil Liability Act 2002 (NSW) s 5B(2)(b). 34. Paris v Stepney Borough Council [1951] AC 367. 35. Civil Liability Act 2002 (NSW) s 5B(2)(c). 36. Graham Barclay Oysters v Ryan (2002) 211 CLR 540. 37. Graham Barclay Oysters v Ryan (2002) 211 CLR 540. 38. Civil Liability Act 2002 (NSW) s 5B(2)(d). 39. Civil Liability Act 2002 (NSW) s 5B(1)(c).

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Brodie v Lucy The alleged wrongful conduct is Lucy’s negligent driving leading to Brodie suffering severe personal harm. The Civil Liability Act40 will be applied to the facts of the case to determine whether Lucy did breach her duty of care. Applying s 5B(1)(a),41 in Wyong Shire Council v Shirt42 Mason J suggested foreseeability of injury is different to questioning the probability.43 The risk of Brodie being injured is foreseeable. Considering s 5B(1)(b),44 the risk in this case is not insignificant. The New South Wales Court of Appeal in Drinkwater v Howarth45 noted a risk that is more fanciful might not differ materially from one that is not insignificant.46 Considering this, the risk is more ‘fanciful’; however, it does not differ substantially from a risk that is not insignificant.This is consistent with Drinkwater v Howarth.47 Considering s 5B(2)(a),48 the probability of the harm occurring would be problematic as to demonstrate harm occurring as a result of collateral damage at a collision may be difficult. The probability is high, as the key point is the probability of the risk occurring as a result of the negligent driving. According to s 5B(2)(b),49 the likely seriousness can be demonstrated in RTA v Dederer50 and Wyong Shire Council v Shirt51 as the plaintiffs were rendered paraplegic and quadriplegic respectively and similar damage could result here. As discussed in Jake v Lucy, the likely seriousness of the harm would be very high. Applying s 5B(2)(c),52 there are precautions that could have been taken to avoid the risk of harm, the burden of which would have been medium. This contrasts to the high burden in Romeo v Conservation Commission of the Northern Territory.53 It is difficult to determine the burden in this case with the absence of information on the circumstances of how Brodie was injured. Brodie could not have known that the collision would take place, much less avoid the collateral

40. Civil Liability Act 2002 (NSW). 41. Civil Liability Act 2002 (NSW) s 5B(1)(a). 42. Wyong Shire Council v Shirt (1980) 146 CLR 40. 43. Wyong Shire Council v Shirt (1980) 146 CLR 40. 44. Civil Liability Act 2002 (NSW) s 5B(1)(b). 45. Drinkwater v Howarth [2002] NSWCA 222. 46. Drinkwater v Howarth [2002] NSWCA 222. 47. Drinkwater v Howarth [2002] NSWCA 222. 48. Civil Liability Act 2002 (NSW) s 5B(2)(a). 49. Civil Liability Act 2002 (NSW) s 5B(2)(b). 50. RTA v Dederer (2007) 234 CLA 330. 51. Wyong Shire Council v Shirt (1980) 146 CLR 40. 52. Civil Liability Act 2002 (NSW) s 5B(2)(c). 53. Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431.

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damage. It should not be assumed Brodie could have taken precautions without considering the particular circumstances that are not presented. Having considered the calculus of negligence factors, s 5B(1)(c)54 can be applied, as a reasonable person in Lucy’s position would have foreseen the risks and possible consequences of negligent driving. Applying s 5B(2)(d),55 social utility can be considered by contrasting to Watt v Hertfordshire County Council.56 Denning LJ stated, ‘The risk must be balanced with the end to be achieved’.57 The risk of Brodie being injured was not balanced with Lucy’s negligence. After applying the law to the facts, there was a breach of a duty of care. Are there any defences available? In the absence of further evidence, it is unlikely there will be any defences available to Lucy. In order to consider whether there are any defences available, there would need to be further information and evidence provided. The onus would be on the defendant (Lucy) to produce further evidence. Next steps The next steps for the client would involve determining: (a) whether the conduct would be considered serious enough to persuade the court that the duty relationship between Lucy and Jake, and Lucy and Brodie, cannot be defined. If the duty is held as established, Lucy will owe a duty to Jake and Brodie and, therefore, Lucy will be liable to compensate Jake and Brodie for their injuries; (b) whether Lucy could argue any defences on further evidence. It would seem, on the facts at hand, that Lucy owes Jake and Brodie an established duty of care and, hence, is likely to be liable in negligence for the harm caused to Jake and Brodie. The application of the Civil Liability Act58 shows that Lucy did breach the duty she owed Jake and Brodie. It is therefore likely that Lucy would be liable to compensate Jake and Brodie for their personal injuries. Yours sincerely, Isabella Post (Trainee)

54. Civil Liability Act 2002 (NSW) s 5B(1)(c). 55. Civil Liability Act 2002 (NSW) s 5B(2)(d). 56. Watt v Hertfordshire County Council [1954] 1 WLR 835. 57. Watt v Hertfordshire County Council [1954] 1 WLR 835. 58. Civil Liability Act 2002 (NSW) s 5D(1)(a).

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Chapter 4

Duty of Care Legal practice skill: Preparing a common law case

Learning aims •

Familiarise with the concept of a duty of care being a threshold issue in Australian negligence law

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Realise that the traditional standard ingredients of duty are the neighbour principle proximity and reasonable foreseeability

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Note the High Court’s retreat from proximity in recent times

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Appreciate the rapid changes in this area

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Appreciate the current state of flux in the High Court as regards the test for the existence of a duty in the marginal cases

Background concepts First principles 4.1

Duty of care is, arguably, the most challenging issue in understanding the contemporary principles of negligence. Why is this? There are several reasons that can be put forward, including: •• Duty is the threshold issue; without a duty finding, there can be no possibility of loss shifting. •• The concept of duty of care presents the courts, and particularly the High Court, with ‘policy’ as well as legal decisions. •• Duty increasingly focuses on technical issues. The focus of these broad issues is seeking to balance two competing interests: •• notions of just and moral rights, that is, a ‘recovery’ focus for wronged plaintiffs; and •• the concept of ‘indeterminacy’ or inherent uncertainty, that is, an unknowable series of claims that cannot be controlled in terms of time, dollar amounts or the number of people involved. 157

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The broad issues referred to above also give rise to several particular issues such as: •• When should a plaintiff recover? •• What will be the ramifications of the plaintiff recovering? •• Will there be a flood of applications to the court if a ‘favourable’ result is given, or perceived to be given? •• What message will the court be sending to stakeholders in the litigation process, including junior courts, the legal profession, potential litigants and so forth?

The history of the duty of care concept 4.2

In order to understand the context of negligence, we need to appreciate that negligence law: •• is not a static construct but an ongoing process (in both the United Kingdom and Australia); and •• is influenced by economic, social, technical and other considerations. In light of these factors, it is useful to briefly examine the lead-up to the Donoghue1 decision.

Pre-Donoghue v Stevenson: an incremental (or developmental) approach 4.3

An understanding of United Kingdom torts history is essential to being able to understand the Australian developments because Australian common law  has  adopted the principles from seminal cases such as Donoghue. Nineteenth-century tort law in the United Kingdom was characterised by three related factors: 1. Little help was offered to plaintiffs; there was no legal aid. 2. Litigation was expensive and slow (even more so than today). 3. The bias of the law was towards property-based rights, rather than being concerned with personal rights. This bias was reflected in the courts favouring the interests of property owners (see, for example, the 19th-century laws of trespass) and of the ‘ruling classes’ (over the workers or proletariat). Early cases focused on existing relationships between parties. So, for example: •• actions against doctors brought by patients; and •• actions against blacksmiths for laming horses. Eventually, actions were also recognised in cases where a person was run over. The focus was very much on a failure to control a lethal force.

1. Donoghue v Stevenson [1932] AC 562.

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4.4

Mitchel v Alestree (1676) 83 ER 504 Court: Kings Bench Division Facts: The defendants took a pair of horses to Lincoln’s Inn Fields (a popular place of business) to break in the horses. The plaintiff was injured when the horses escaped. The court’s decision (application of the legal principle to the facts): The defendants were held liable in damages to him. Significance of this case: The defendant’s liability centred on the unsuitability of the location chosen to try to tame wild animals.

Cases leading to Donoghue v Stevenson 4.5

4.6

Prior to Donoghue v Stevenson, there were a number of cases in which liability for failure to take care had been established.

Blyth v Birmingham Waterworks (1856) 156 ER 1047 Court: Exchequer Court Facts: The defendants laid pipes to supply the city of Birmingham with water. Part of that process involved the installation of a safety valve near the plaintiff’s premises. During a severe frost, the plug malfunctioned. Water escaped onto the plaintiff’s house causing damage. At first instance, the plaintiff succeeded. The defendant appealed. The court’s decision (application of the legal principle to the facts): The first instance decision was upheld. Alderson B: The case turns on whether the facts (show) that the defendants were guilty of negligence. 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 do something which a prudent and reasonable man would not do. The defendants might have been liable for negligence if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a reasonable person taking reasonable precautions would not have done. A reasonable man would act by reference to the average circumstances of the temperatures in ordinary years. The defendants had provided against such frosts as would have led men, acting prudently, to provide against, and they are not guilty of negligence, because their precautions proved insufficient against the effect of the severity of the frosts of 1855, which penetrated to a greater depth than any which ordinarily occurs south of the polar regions. Such a state of circumstances constitutes a contingency against which no reasonable man can provide. The result was an accident, which the defendants cannot be held liable.

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Heaven v Pender (1883) 11 QBD 503 Court: Court of Appeal Facts: A ship was in dry dock for repairs. A painter was injured when ropes gave way. It turned out that the ropes were scorched (and, as a result, weakened) before the defendant used them. Legal principle: Was the owner of the dry dock liable in negligence to the injured worker? The court’s decision (application of the legal principle to the facts): The majority (two of the three judges) held that there was liability based on ‘traditional’ occupier’s liability principles. The worker was classified as an invitee on the site and, as a result, a higher standard of care was owed to him (this reflects the historic ‘hierarchy of duties’ approach adopted by English courts which resulted, for example, in a lesser standard of care being owed to a trespasser). Justice Brett, the Master of the Rolls, dissented and flagged, on the other hand, a general test for a duty of care. He said that if circumstances were recognised such that there is danger of injury to the person or property of the other, then a duty arises to use ‘ordinary care and skill to avoid such danger’. This phrase can be seen to have potentially broad application well beyond the particulars of the case at hand. Significance of this case: Brett MR had put in play a principle of law, which, while not successful on this occasion, could be adopted by subsequent appellate courts at a later time. His opinion was bound to be influential, given his status as the Master of the Rolls or leader of the Court of Appeal.

4.8

Derry v Peek (1889) 14 App Cas 337 Court: House of Lords Facts: This case involved false statements made in a prospectus and whether the promoters of the company were liable to investors. Legal principle: Did Brett MR’s obiter dictum comments from Heaven v Pender in 1883 (above), concerning the danger of injury to people or property, extend to a situation of financial loss caused by careless misstatement? The court’s decision (application of the legal principle to the facts): In Derry v  Peek, Brett MR’s broad statement of potential liability was not adopted, but the court was well aware of its impact and stated that to extend liability to such

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situations was to be regarded as a matter for the legislature, that is, it was up to Parliament to enact a statute specifically dealing with the subject if it so wished. Background and context: Note that there was certainly no formally recognised concept of ‘judicial creativity’ then as there is now, so the court took a conservative approach in line with a separation of powers model (that is, where the judiciary leaves law making to the legislature).

4.9

Le Lievre v Gould [1893] 1 QB 491 Court: Court of Appeal Facts: The mortgagee under a building agreement advanced money to the builder from time to time on the basis of progress certificates provided by a surveyor. The surveyor was not appointed by the mortgagee and there was no contract between the surveyor and mortgagee. The surveyor’s certificates were wrong; this was not due to fraud, but negligence. Legal principle: Could the mortgagee sue the surveyor in negligence? The court’s decision (application of the legal principle to the facts): Essentially, the court held there was no duty of care where there was no relationship of contract between the parties. The court held in line with Heaven v Pender (above), that it took particular circumstances for a person to owe a duty of care to another, where there is no contract between them. Such circumstances included physical danger, but not careless misstatement (as was also the case in Derry v Peek, above).

Reflections on the four cases 4.10

On the basis of the four cases referred to above, we are getting close, piece by piece, to a general duty of care being formulated by the English courts of the late 19th century. This is against a backdrop of the Industrial Revolution and the increasing mechanisation of the workplace.

A United States influence pre-Donoghue v Stevenson 4.11

The next case is a United States one showing that the influence of comparative law approaches between countries was alive and well more than 70 years ago.

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Palsgraf v Long Island Railroad Co 248 NY 339 (1928) Court: New York Court of Appeals Facts: A packet of fireworks was dropped by a passenger who was boarding a train. A set of weighing scales located down the platform fell as a result; the scales injured the plaintiff. Legal principle: Could the injured woman recover damages? The court’s decision (application of the legal principle to the facts): The answer was no because she was too far away from the actual cause of her injuries, that is, the fireworks. The court said that to award damages to her would result in ‘negligence in the air’ or negligence for all comers. The likelihood of her being injured was so slight that it was not ‘foreseeable’. This became known as the ‘unforeseeable plaintiff’ theory. Significance of this case: This is a United States case; it pre-dates Donoghue v  Stevenson. It was an influential case, however, for the judges in Donoghue. Palsgraf was regarded as an interesting piece of comparative US–Anglo jurisprudence. The key judgment in Palsgraf is that of Cardozo CJ, a very famous judge. Cardozo CJ’s judgment in Palsgraf maps out concepts such as proximity and remoteness, which, as we shall see, later became the basic ingredients of the duty of care principle in Donoghue v Stevenson.

Donoghue v Stevenson 4.13

4.14

The next case established a broad-based duty of care.

Donoghue v Stevenson [1932] AC 562 Court: House of Lords Facts: A friend of the plaintiff bought her a ginger beer at a café. The ginger beer bottle was opaque (could not been readily seen into). The bottle contained the decomposed remains of a snail. The plaintiff became ill. that she suffered from shock and severe gastro-enteritis. Legal principle: Was a duty of care owed? The court’s decision (application of the legal principle to the facts): The House of Lord held that a duty of care was owed. Lord Atkin: In the present case we are not concerned with the breach of the duty; if a duty exists, that would be a question of fact which is sufficiently averred and for present purposes must be assumed. We are solely concerned with the question whether, as a matter of law in the circumstances alleged, the defender owed any duty to the pursuer to take care. It is remarkable how difficult it is to find in the English

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authorities statements of general application defining the relations between parties that give rise to the duty. The Courts are concerned with the particular relations which come before them in actual litigation, and it is sufficient to say whether the duty exists in those circumstances. The result is that the Courts have been engaged upon an elaborate classification of duties as they exist in respect of property, whether real or personal, with further divisions as to ownership, occupation or control, and distinctions based on the particular relations of the one side or the other, whether manufacturer, salesman or landlord, customer, tenant, stranger, and so on. In this way it can be ascertained at any time whether the law recognizes a duty, but only where the case can be referred to some particular species which has been examined and classified. And yet the duty which is common to all the cases where liability is established must logically be based upon some element common to the cases where it is found to exist. To seek a complete logical definition of the general principle is probably to go beyond the function of the judge, for the more general the definition the more likely it is to omit essentials or to introduce non-essentials. The attempt was made by Brett M.R. in Heaven v. Pender, in a definition to which I will later refer. As framed, it was demonstrably too wide, though it appears to me, if properly limited, to be capable of affording a valuable practical guide. At present I content myself with pointing out 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, whether you style it such or treat it as in other systems as a species of “culpa,” 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. This appears to me to be the doctrine of Heaven v. Pender as laid down by Lord Esher (then Brett M.R.) when it is limited by the notion of proximity introduced by Lord Esher himself and A. L. Smith L.J. in Le Lievre v. Gould. Lord Esher says: “That case established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.” So A. L. Smith L.J.: “The decision of Heaven v. Pender [61] was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.” I think that this sufficiently states the truth if proximity be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person whom

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the person alleged to be bound to take care would know would be directly affected by his careless act. That this is the sense in which nearness of “proximity” was intended by Lord Esher is obvious from his own illustration in Heaven v. Pender [62] of the application of his doctrine to the sale of goods. “This” (i.e., the rule he has just formulated) “includes the case of goods, etc., supplied to be used immediately by a particular person or persons, or one of a class of persons, where it would be obvious to the person supplying, if he thought, that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it.”

Reflection on and review of Donoghue v Stevenson 4.15

The United Kingdom cases together with the United States case Palsgraf laid the foundation stones for the statement of a general formula for the existence of a duty of care.The unifying thread was finally delivered by Lord Atkin of the House of Lords in Donoghue v Stevenson2 in 1932. The underlying rationale for Lord Atkin’s judgment — essentially to ‘love thy neighbour’ — is biblical in origin. The neighbour principle: ‘Who are my neighbours in law?’ has two issues: 1. ‘Persons so closely and directly affected by my acts’ — this is the idea of proximity. 2. ‘I ought reasonably have them in contemplation as being affected’ — this is the idea of reasonable foreseeability. Leaving aside, for the moment, the concept of proximity (a controversial question in law) — what is reasonable foreseeability in terms of duty of care?

The meaning of ‘reasonably foreseeable’ 4.16

4.17

Chapman v Hearse is often referred to as the key case to illustrate this concept.

Chapman v Hearse (1961) 106 CLR 112 Court: High Court of Australia Facts: Dr Cherry was killed in a car accident in Adelaide in 1958. It wasn’t a simple car accident. There were two collisions. The order of events was as follows:

2. Donoghue v Stevenson [1932] AC 562.

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• •

•

• • •

The first collision was negligently caused by Chapman. As a result of that accident, Chapman was thrown out of his car and lay injured on the road. Dr Cherry arrived on the scene shortly afterwards and went to Chapman’s assistance. (Lawyers might talk of this as a classic ‘good Samaritan’ act by a qualified doctor.) The second accident then took place. Another driver, Hearse, negligently collided with Dr Cherry as he was treating Chapman. The impact killed Dr Cherry. Dr Cherry was, therefore, involved as a victim/pedestrian in the second of the two accidents. Dr Cherry’s estate brought a claim against Hearse. That claim succeeded. Hearse brought a claim against Chapman for contribution to the damages he was required to pay to Dr Cherry’s estate.

Legal principle: Did driver 1, Chapman, owe a duty of care to the victim of crash 2, Cherry? Chapman argued that it was not reasonably foreseeable that, as a result of his negligent driving, someone such as Dr Cherry would be killed. If it was not reasonably foreseeable, he argued, he owed no duty of care to Dr Cherry. Chapman argued that what had unfolded that evening had not been predictable and that he should not be legally responsible. The court’s decision (application of the legal principle to the facts): A joint judgment was delivered by Dixon CJ, Kitto, Taylor and Windeyer JJ. (Menzies J did not deliver a judgment.) They found that Chapman did owe a duty of care to Dr Cherry. It was reasonably foreseeable that his poor driving could lead to an incident such as the tragedy that ensued. The exact nature of what took place did not need to be predicted, but events of a general nature could be taken as being within a broader ambit of the events that might unfold. It was the general nature of outcomes rather than specific events that the court focused on. The following extract from the joint judgment (at CLR 121) illustrates the court’s approach: In the unusual circumstances of the case the point which calls first for attention is the position which Dr Cherry occupied vis-à-vis Chapman. At the time when Dr Cherry was run down he was standing — or stooping — near the centre of the road. It was dark and wet and there seems no doubt that visibility was poor. As a consequence the task of attending to the injured man, with no one present to warn oncoming traffic, involved Dr Cherry in a situation of some danger. But, says the appellant, this was quite fortuitous and not a situation reasonably foreseeable by Chapman at the time when, as the result of his negligence, his vehicle collided with that of Emery. Then to emphasise the contention that Chapman owed no duty of care to Dr Cherry the appellant enlarged upon the sequence of events which led to the final result. None of these events, it was said, was reasonably foreseeable. It was not reasonably foreseeable that Chapman would be precipitated on to the roadway, that Dr Cherry should at that moment be in the immediate vicinity, that he, as a doctor, should be first on the scene and proceed to render aid to Chapman with no other person present to warn oncoming traffic or, finally, that within a

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few minutes Dr Cherry should be run down by a negligent driver. But this argument assumes as the test of the existence of a duty of care with respect to Dr Cherry the reasonable foreseeability of the precise sequence of events which led to his death and it was rejected, and rightly rejected, by the Full Court. 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 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 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 156. (See also Hyett v Great Western Railway Co [1948] 1 KB 345 and Carmarthenshire County Council v Lewis [1955] AC 549.) Whether characterisation 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. But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. The test as we have stated it has been assumed in a multitude of cases both here and in England and is generally in accordance with the view entertained in the United States of America (cf, Marshall v Nugent (1955) 58 Am LR 2d 251; 222 Fed 2d 604 and Boyd v Terminal Railroad Association of St Louis (1956) 58 Am LR 2d 1222).

Significance of this case: The approach of the High Court was far more general and far less precise than the defendant had argued. The conclusion that the court reached, therefore, was that there was a duty owed by Chapman to Dr Cherry. We can see that because the reasonable foreseeability question is phrased in this far more general sense, it is much easier to answer in the affirmative and for liability to fall on the defendant given the particular facts and circumstances of the case. This means, given the general and easily satisfied requirements of reasonable foreseeability, that it was not seen by the High Court as all that useful in determining duty issues. The High Court turned instead to proximity. Background and context: For more details on these concepts, see Luntz et al, Chs 2.5 and 5.3.

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Why is Donoghue v Stevenson such a significant case? 4.18

Donoghue v Stevenson was significant for the following reasons: •• It set out, for the first time, a general test for when a defendant owes a plaintiff a duty of care. •• It has been a growth device for future directions of tort law, including professional liability. •• It provides a general test for duty of care with its ‘ingredients’ of reasonable foreseeability and proximity.

Why is duty of care so important a concept? 4.19

Duty of care is a control mechanism. It limits the range of potential plaintiffs and the damage for which the defendant is liable.

4.20

Courts have traditionally been wary of creating too high an expectation in potential new categories of plaintiffs. They have controlled this by reference to ‘indeterminacy’ and have used phrases such as not allowing ‘the floodgates’ of litigation to open too widely. (A ‘floodgate’ is defined as a gate in a sluice that is used to control the flow of water; a control or barrier against an outpouring or flow: Collins English Dictionary.) The notion of indeterminacy was in the minds of the House of Lords in Donoghue because only a year before, Benjamin Cardozo, the New York judge, referred to it at length in the famous case below.

4.21

Ultramares Corp v Touche, Niven and Co 174 NE 441 (1931) Court: New York Court of Appeals Legal principle: This case is famous for Cardozo CJ’s encapsulation of indeterminate liability. He spoke of defendants being potentially liable for ‘a liability in an indeterminate amount for an indeterminate time to an indeterminate class’ (at 444). This came to be known as the theory of indeterminacy. Indeterminacy has three related elements: 1. the class of claimant, that is, the number of plaintiffs; 2. the amount of losses; and 3. the time period over which those losses might arise. Significance of this case: The spectre of indeterminacy has been with appellate courts ever since.

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A constant theme in the development of tort law generally, and negligence liability in particular, has been the competing dynamic between: • •

increasing the categories or scope of liability; versus the need for certainty (that is, keeping liability to a minimum and keeping indeterminacy issues in check).

Does a duty of care exist? 4.22

Despite the existence of a ‘broad-based’ duty of care as established in Donoghue v Stevenson, courts have struggled to apply that test to determine whether, in any particular fact situation, a duty of care arises. Over time, the approach of the courts has changed and developed. Understanding this growth and development is not just a matter of history. It is important in understanding the concept of duty of care.

Existing duties of care 4.23

4.24

Just as it was prior to Donoghue v Stevenson, the law recognises that certain undertakings or callings give rise to a duty of care.

Rogers v Whitaker [1992] HCA 58 Court: High Court of Australia Facts: Mrs Whitaker had injured her eye as a child. She consulted the defendant surgeon who indicated he could not only improve the sight in the injured eye, but also its appearance. The surgeon did not mention the possibility (estimated at 1 in 14,000) that a condition called sympathetic opthalmia might develop. Mrs Whitaker had the surgery; sympathetic opthalmia developed. Legal principle: Did the surgeon owe a duty to advise of a material risk? The court’s decision (application of the legal principle to the facts): A doctor owes a single duty of care which encompasses diagnosis, advice and treatment.

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4.25

Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79 Court: High Court of Australia Facts: Gummow, Kirby and Hayne JJ3 1.  At about 4.15 am on 7 October 2000 the respondent was struck and injured by a tow truck driven by the appellant. When he was struck, the respondent was lying down on the carriageway of Middleton Beach Road, Albany, near the intersection with Vine Street. 2. By his own account the respondent had drunk 12 stubbies of beer in the preceding eight hours. He had no recollection of how he came to be on the roadway. At about 4.00 am he had set out to walk home with a housemate, Mr Cameron Turner. The route home took them along Middleton Beach Road. 3. At the trial in the District Court of Western Australia of the respondent’s claim for damages, the appellant gave the only account of what happened when the respondent was struck. As noted earlier, the respondent had no memory of what had happened immediately before he was struck. Mr Turner was not called as a witness. He had, it seems, moved interstate before the respondent’s action came to be tried. 4.  At trial, and on appeal to the Full Court, reference was made to the absence of evidence from Mr Turner, it being submitted by the defendant in the action (the appellant in this Court) that Mr Turner’s absence weakened the plaintiff’s case. In the appeal to this Court, however, nothing turns on Mr Turner’s not having given evidence. The appellant in this  Court did not submit that the Full Court acted upon erroneous findings of fact. 5.  The appellant said, in the evidence he gave at the trial, that he was driving along Middleton Beach Road when he saw a man standing on the side of the road. (It has always been accepted that the man the appellant saw was Mr Turner.) Because the man that the appellant saw was ‘moving around a fair bit like he had been drinking’, the appellant kept his eye on him. The appellant did not slow down; he maintained his speed of about 55 to 60 kilometres per hour. Rather, the appellant started to veer to the centre of the road. When he looked back at the roadway ahead of his truck, he saw something lying on the road. He said he ‘went to brake … thought I shouldn’t brake, so I lifted my foot … and then I felt that I ran over something’. 6.  Upon the trial of the respondent’s action, the trial judge, O’Sullivan DCJ, held that the appellant was not negligent. The reasoning which led to that conclusion was expressed in the following terms: In my view as the defendant [the present appellant] drove his vehicle along Middleton [Beach] Road towards the scene of the accident his attention would naturally have been drawn to the figure of Cameron Turner standing on the side

3

3. Footnotes have been omitted.

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of the road near the junction with Vine Street. There is no evidence to justify the conclusion that at that time the defendant was not keeping a proper lookout. While it seems that the lighting at the scene was adequate, whether or not the street light near the Gull Service Station was burning, the plaintiff [the present respondent] was wearing dark clothing and his presence on the road could hardly have been expected nor easily perceived in the conditions which prevailed. There is no evidence of excessive speed on the part of the defendant nor of any failure by him to handle his vehicle in a reasonable manner. In all the circumstances I am not satisfied that the defendant was negligent in the respects pleaded or at all. The respondent’s claim was therefore dismissed.

7.  On appeal to the Full Court of the Supreme Court of Western Australia (Steytler, E M Heenan and Le Miere JJ) the appeal was allowed, the judgment entered at trial was set aside, judgment was entered for the plaintiff in the District Court (the respondent to the present appeal) and an order made that the defendant (the appellant in this Court) pay the plaintiff 30% of his damages to be assessed. From that order the appellant now appeals. The appeal should be dismissed. No error is shown in the reasoning of the Full Court. 8.  The statutory provisions that govern the task that was to be undertaken by the Full Court in deciding the appeal to that Court are set out in the reasons of Callinan J in Commissioner of Main Roads v Jones [(2005) 79 ALJR 1104 at [71]–[75]]. As Callinan J recorded in Jones, the principles governing the appeal to the Full Court were stated by this Court in Fox v Percy [(2003) 214 CLR 118 at 126–7]. It is unnecessary to repeat what is said in either Jones or Fox v Percy. 9.  The principal reasons of the Full Court in relation to the issue of negligence were given by Le Miere J. The steps in that reasoning were as follows: (a) the trial judge made no express finding about when the respondent moved onto the road; (b) because movement attracts attention, and the appellant did not see the respondent move onto the road, it should be inferred that the respondent was already on the roadway when the appellant saw Mr Turner standing on the side of the road; (c) the appellant having continued to drive at the same speed, changing the direction of his vehicle while taking his eyes off the road, and having taken his eyes off the road for some two to three seconds, the appellant failed to take reasonable care in breach of his duty to other road users who might, however unexpectedly, happen to be on the road.

10.  In this Court, the appellant did not contend that the Full Court had failed to apply proper principles of appellate review. That is, the appellant did not contend that the Full Court had failed to ‘conduct the appeal by way of rehearing’ and ‘give the judgment which in its opinion ought to have been given in the first instance’ having regard to its power to draw inferences of fact. And, as noted earlier, the appellant did not contend that the factual bases underpinning the reasoning of Le Miere J were flawed. In particular, the appellant did not contest the findings

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that he had continued to drive his vehicle at the same speed, changing direction by veering to the centre of the road, while taking his eyes off the road for some two to three seconds. Rather, the appellant contended that it had not been open to the Full Court to conclude from those facts that the appellant had failed to take reasonable care. 11. No doubt the appellant’s attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path. 12.  It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But 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. 13.  When driving at night, the driver must take account of how well the road is illuminated: both by the vehicle’s lights and by any street or other lighting. In the present case, there was a street light close to where the respondent lay on the road. Its light illuminated the area where the respondent was. Of course, it is important to remember that the respondent was wearing dark clothing and lying down, generally parallel with the direction the appellant’s truck was travelling. The contour of the road gave the appellant an uninterrupted view of the road ahead for a distance considerably greater than the light cast by his low beam headlights. The light cast by those headlights extended about 60 metres ahead of his vehicle. The respondent, even clad in dark clothing and lying parallel to the direction of travel, could have been seen as some form of obstruction to be avoided at least by the time the headlight beams illuminated where he was. But the appellant did not see him. For two to three seconds the appellant continued to look to the side of the road rather than to the roadway over which his vehicle would travel and he maintained his vehicle’s speed while veering towards the centre of the road. 14.  It was well open to the Full Court to conclude, as it did, that the appellant had failed to exercise reasonable care. In this appeal, this Court’s function is to correct any error that has been shown in the decision and hence the resulting orders of the Full Court. It is not, as such, to exercise for itself the powers of the Full Court, absent demonstrated error. The very large discount that the Full Court allowed for contributory negligence on the respondent’s part was not challenged in this Court. 15.  The appeal should be dismissed with costs.

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Other categories of established duties of care include employer and employee (Paris v Stepney Borough Council),4 and occupier and entrant (Strong v Woolworths).5 It may readily be appreciated that an injured plaintiff might seek to argue by analogy with an established category. So, for example, a person injured by a moving train might seek to say that the principle in Manley v Alexander (which applies to cars and road users) should be extended to include trains and train passengers. No duty of care exists 4.26

4.27

Similarly, there are circumstances where, for policy reasons, courts have established that no duty exists.

Stuart v Kirkland-Veenstra (2009) 237 CLR 215 Court: High Court of Australia Facts: The following facts are summarised in the judgment of French CJ: 1. Between mid-morning and 2.30 pm on 22 August 1999, Ronald Hendrik Veenstra committed suicide at his home in Somerville, Victoria by sitting in his car with the engine running. A hose connected the exhaust pipe to the interior of the vehicle. 2. Earlier that day, at about 5.40 am, two police officers had observed Mr Veenstra in his vehicle in a car park on the Mornington Peninsula with a hose leading from the exhaust pipe to the interior of his vehicle. The engine was not running. Upon being questioned, Mr Veenstra persuaded the officers that although he had been about to do something stupid he had changed his mind and was going home to talk to his wife. He sounded rational and was responsive to their questions. He declined their various offers of assistance. He removed the hose from the exhaust. The officers let him proceed from the car park. 3. Mr Veenstra’s widow, Mrs Kirkland-Veenstra, sued the officers and the State of Victoria before a judge and jury in the County Court alleging that the officers had breached their duty of care towards her husband and herself by failing, inter alia, to apprehend him under s 10 of the Mental Health Act 1986 (Vic) (‘the 1986 Act’). At the close of the evidence the trial judge ruled that there was no duty of care and gave judgment for the defendants. Mrs Kirkland-Veenstra appealed to the Court of Appeal which, by majority, allowed the appeal, set aside the trial judge’s decision and remitted the matter for retrial. The officers were granted special leave to appeal to this Court.

Legal principle: The principle at stake was whether the Victorian police officers owed a common law duty of care to Mr Veenstra, and his family, to prevent him from self-harm. In order to do this, the court had to analyse the relevant statutory scheme, which was s 10 of the Mental Health Act 1986 (Vic). The High Court was

4. Paris v Stepney Borough Council [1951] AC 357. 5. Strong v Woolworths [2012] HCA 5.

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unanimous in finding that the police did not owe a common law duty of care in this case in relation to the statutory scheme. Three separate judgments were delivered by French CJ, a joint judgment by Gummow, Hayne and Heydon JJ, and a joint judgment by Crennan and Kiefel JJ. Significance of this case: Section 10 of the Mental Health Act provides that a member of the police force may apprehend a person who appears to be mentally ill. French CJ decided there was no duty of care owed on the basis that the police officers did not believe Mr Veenstra was mentally ill. French CJ said: 62. The judgments of both the Chief Justice and the President turned upon the availability to the officers of the power to apprehend persons under s 10. On the unchallenged fact as found by the trial judge, that they believed that Mr Veenstra was not mentally ill, the power to apprehend him was never enlivened. And on the facts they did not believe, when they decided to let him drive home, that he would be likely, shortly afterwards, to attempt to take his own life. Absent that belief, the power could not be enlivened. 63. The duty of care which the majority in the Court of Appeal found to exist could not have existed because the critical statutory power conferred by s 10, which was in the end the foundation of the duty of care in the circumstances of the case, did not exist.

At [150] of the judgment, Crennan and Kiefel JJ agreed with this finding. Gummow, Hayne and Heydon JJ agreed and made reference to the salient features test as follows: 113. Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant. 114. In the present matter, as in a number of cases about the exercise of statutory power, it is the factor of control that is of critical significance. It was not the officers who controlled the source of the risk of harm to Mr Veenstra; it was Mr Veenstra alone who was the source of that risk. For the reasons that have been expressed in connection with consideration of the value of personal autonomy, this factor is of predominant importance.

4.28

Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 Court: House of Lords Facts: This case involved the hunt for the Yorkshire ripper, Peter Sutcliffe. The last victim was a 20-year-old student, Miss Hill. Her family sued police on behalf of her estate alleging police negligence, namely, that they had failed to discover his identity and capture Sutcliffe before he committed the offence. Sutcliffe had, in fact, been interviewed by the police on more than one occasion.

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Legal principle: Could the police, as a public agency, be liable in negligence for failing to capture Sutcliffe in time? The court’s decision (application of the legal principle to the facts): The police were not liable in negligence. The court referred to Home Office v Dorset Yacht Co Ltd,6 in which the Home Office was found liable in negligence for the escape of some youths in custody who went on to damage property at the yacht club nearby. The characteristics in that case that led to liability were that: • • •

The Borstal youths were in custody at the time of the alleged negligence by the Home Office. The negligent act was allowing them to escape. Property damage to yachts occurred. Both the nature of the damage and those who suffered it (the yacht owners) could be identified as a finite group.

The House of Lords found that vital characteristics in Dorset were lacking in Hill’s case. They referred to four of them: 1. Sutcliffe was never in the custody of the police, that is, he had not been arrested at the time of the alleged negligence. 2. Miss Hill was one of a vast number of women in the general public. 3. She was at no special or distinctive risk from his activities. 4. The identity of the criminal was unknown. Issues from this case: The following comments help to illustrate this case: • • •

The police in the United Kingdom are treated similarly to public authorities and the police in Australia (see the Annetts case7). There is implicit recognition of the financial restraints under which they operate and their need to make spending priorities. In times of ‘moral panic’, such as that engendered across the United Kingdom at the time of Sutcliffe’s atrocities, it may be that the courts are prepared to be more lenient in terms of the standards expected.

In litigation such as the Hill case, the spectre of the floodgates looms large so that the courts are particularly mindful of limiting potential claims in the future.67 It has been held that an advocate owes no duty of care to a client in respect of ‘in court’ work (see Attwells v Jackson Lalic Lawyers Pty Ltd8), although it is clear that a solicitor does owe a duty of care to his or her clients (Hill v Van Erp9). 6. Home Office v Dorset Yacht Co Ltd [1970] AC 1004. 7. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35. 8. Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16. 9. Hill v Van Erp (1997) 188 CLR 159.

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A doctor does not owe a duty of care to a child born with severe disabilities, such that the child could sue the doctor for ‘wrongful life’ (ie where the child sues for damages claiming he or she would rather have not been born — Harriton v Stephens, Waller v James10). By contrast, a doctor does owe a duty of care to the parents of a child, and damages are payable to the parents if the failure of a sterilisation procedure results in the birth of a child, or a negligent failure to diagnose a severely disabled foetus denies the parents a chance to lawfully terminate an unborn child (Cattanach v Melchior11). What though of the situation of novel claims? How does the court determine whether or not a duty of care exists? The answer has varied over time. The particular areas which has troubled the courts include ‘pure economic loss’ (ie where claimants have suffered monetary loss without first suffering physical or psychiatric harm), as well as liability to subsequent purchasers in respect of defective buildings. Courts have also struggled to deal with the liability of occupiers for assaults occurring on their premises, and the liability of servers of alcohol. Difficulties occasioned by pure psychiatric harm (referred to in the cases as ‘nervous shock’) have also troubled the courts, and are the subject of a special case study at the end of this chapter. First development — a two-stage approach 4.29

4.30

English courts formulated a two-stage approach to determining whether or not a duty of care exists. This happened in the case below.

Anns v Merton Borough Council [1979] AC 728 Court: House of Lords Facts: In 1962, the defendant council approved building plans for the erection of a block of maisonettes. The plans specified that concrete foundations of the block were to be ‘three feet or deeper’. The building was finished in 1962. The owner builder signed long leases of the maisonettes, the last of which was signed in 1965. In 1970, structural movements occurred resulting in damage to the building. In 1972, the plaintiff lessees sued the builder and the defendants. The allegation was that, contrary to plans, the depth of the foundation was only 2 foot 6 inches.

10. Harriton v Stephens,Waller v James [2006] HCA 15. 11. Cattanach v Melchior [2003] HCA 38.

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The plaintiffs claimed damages in negligence against the council for approving the foundations and/or in failing to inspect the foundations. Legal principle: Did the defendants owe a duty of care? The court’s decision (application of the legal principle to the facts): Yes, the defendants owed a duty of car, which they had breached. Lord Wilberforce: Through the trilogy of cases in this House - Donoghue v. Stevenson [1932] AC 562, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, and Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. 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 or the damages to which a breach of it may give rise.

A distinctive Australian approach — the rise of proximity 4.31

4.32

Australia rejected the two-stage approach, opting initially for a test where a concept called ‘proximity’ became the touchstone of liability.

Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 Court: High Court of Australia Facts: The plaintiff’s husband was involved in a car accident which was due to negligent driving by the defendant. The plaintiff suffered a psychiatric injury (‘nervous shock’) as a result of seeing the aftermath of the road accident. Legal principle: Did the defendant owe the plaintiff a duty of care? The court’s decision (application of the legal principle to the facts): Deane J: Lord Atkin did not seek to identify the precise content of the requirement of the relationship of “proximity” which he identified as a limitation upon the test of reasonable foreseeability. It was left as a broad and flexible touchstone of the circumstances in which the common law would admit the existence of a relevant duty of care to avoid reasonably foreseeable injury to another. It is directed to the

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relationship between the parties in so far as it is relevant to the allegedly negligent act of one person and the resulting injury sustained by the other. It 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 ... The identity and relative importance of the considerations relevant to an issue of proximity will obviously vary in different classes of case and the question whether the relationship is “so” close “that” the common law should recognize a duty of care in a new area or class of case is, as Lord Atkin foresaw, likely to be “difficult” of resolution in that it may involve value judgements on matters of policy and degree. Significance of this case: The case established a uniquely Australian approach to defining when a duty of care would exist — when both reasonable foreseeability and proximity were satisfied.

A new English approach 4.33

4.34

In the case below, the English courts abandoned the two-stage approach of Anns, substituting a three-stage approach.

Caparo v Dickman [1990] 2 AC 605 Court: House of Lords Facts: The plaintiff were engaged in a takeover of a company. They progressively acquired shares in the third-party company, after relying upon accounts of that company prepared by the defendant accountants. Having acquired the company, the plaintiffs discovered its financial position was much worse than that reported by the defendants. The plaintiff sued the defendants in negligence. Legal principle: Did the defendants owe the acquiring company a duty of care? The court’s decision (application of the legal principle to the facts): In the circumstances, no duty of care was owed. The House of Lords endorsed a test put forward by the Court of Appeal in the case, covering when a duty of care would be owed. The House of Lords, following the Court of Appeal, set out a ‘three-fold test’. In order for a duty of care to arise in negligence: • • •

harm must be reasonably foreseeable as a result of the defendant’s conduct; the parties must be in a relationship of proximity; and it must be fair, just and reasonable to impose liability.

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The latest Australian approach 4.35

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The latest Australian approach is outlined below.

Perre v Apand (1999) 198 CLR 180 Court: High Court of Australia Facts: Apand was a manufacturer of potato chips. Apand supplied experimental potato seeds to Sparnon in the Berri  region of South Australia. Sparnon and his potato-growing neighbours (who included Perre) sold potatoes to Western Australia. Seeds Apand supplied to Sparnon were infected with bacterial wilt and Sparnon’s potatoes became infected. Western Australian regulations prohibited the import of infected potatoes and the import of potatoes from farms within a 20-kilometre radius surrounding an infected farm. Perre’s farm was within a 20-kilometre radius of Sparnon’s farm. Perre was prohibited from exporting potatoes to Western Australia. Perre sued Apand for the economic loss they had suffered as a result of the loss of access to the Western Australian market. Legal principle: Did Apand owe Perre a duty of care? The court’s decision (application of the legal principle to the facts): A duty of care to avoid the imposition of purely economic loss did lie. McHugh J noted: Upon the facts of this case, whether or not Apand [the defendant] owed a duty of care depends on the answers to the following questions: 1. Was the loss suffered by the Perres [the plaintiffs] or members of the group reasonably foreseeable? 2. If yes to question 1, would the imposition of a duty of care impose indeterminate liability on Apand? 3. If no to question 2, would the imposition of a duty of care impose an unreasonable burden on the autonomy of Apand? 4. If no to question 3, were the Perres or some of them vulnerable to loss from the conduct of Apand? 5. Did Apand know that its conduct could cause harm to individuals such as the Perres? 134 I do not think that any other factors are relevant in determining whether Apand owed a duty of care …

Other judges in the case took differing approaches to determining whether a duty of care exists. The findings in Perre v Apand are summarised in Table 4.1.

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Table 4.1 Judge

Approach to the duty of care issue

Finding on liability

Gleeson CJ

• Salient features that give rise to liability • The features depend on the facts of any one case

Duty owed to all plaintiffs

Gaudron J

• The power of the defendant and the vulnerability of the plaintiff • Adopts this test. Talks of legal rights enjoyed by the defendant and no protection (ie vulnerability) for the plaintiff

Duty owed to all plaintiffs

Gummow J

• Salient features that give rise to liability

Duty owed to all plaintiffs

Kirby J

• The Caparo three-stage test, that is, reasonable foreseeability, proximity, what is fair, just and reasonable

Duty owed to all plaintiffs

Hayne J

• Indeterminate liability • Refers to the need to prevent this • Placing an undue burden on the defendant • Questions whether imposing liability will unduly impinge on the defendant’s business

Duty owed to some plaintiffs

Callinan J

• The power of the defendant and the vulnerability of the plaintiff • Refers to the defendant’s dominance and awareness of the plaintiff’s vulnerability • Placing an undue burden on the defendant • Says that liability would not unduly burden the defendant • Statute as being determinative of the outcome • Statute limits the number of potential claimants and, as such, provides a check on indeterminacy

Duty owed to all plaintiffs

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Another High Court case dealing with economic loss is Graham Barclay Oysters Pty Ltd v Ryan,12 in which Kirby J noted: 211. One day this Court may express a universal principle to be applied in determining such cases. Even if a settled principle cannot be fashioned, it would certainly be desirable for the Court to identify a universal methodology or approach, to guide the countless judges, legal practitioners, litigants, insurance companies and ordinary citizens in resolving contested issues about the existence or absence of a duty of care, the breach of which will give rise to a cause of action enforceable under the common law tort of negligence. Courts such as this should recall the prayer of Ajax … It is a supplication that must have occurred to many who have considered recent decisions on the subject of the duty of care: ‘[S]ave us from this fog and give us a clear sky, so that we can use our eyes’. 212.The differing approaches to the duty of care issue adopted in Perre v Apand Pty Ltd, a case of economic loss, have been described as an instance of ‘doctrinal chaos’. Such differences concerning claims in negligence against public authorities impose special burdens in finding, understanding and applying the law. These burdens are intolerable. This fact is illustrated by the present case. The unfortunate judges of the Federal Court (including Wilcox J, the primary judge) were obliged to spend many hours (and many pages of their reasons) demonstrating their consideration of the differing approaches adopted in this Court to the questions that had to be solved. Anyone in doubt about these propositions can read the Federal Court’s reasons.

The High Court also visited this area of the law in 2003.

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Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139; [2003] HCA 51 Court: High Court of Australia Facts: Gleeson CJ 1. The principal issue in this appeal concerns a challenge to a finding of negligence on the part of a producer and distributor of canola seed. The finding was made by Wilcox J in the Federal Court, and upheld by a majority in the Full Court of the Federal Court (Branson and Gyles JJ, Finkelstein J dissenting). 2. In Graham Barclay Oysters Pty Ltd v Ryan [(2002) 211 CLR 540; 194 ALR 337; [2002] HCA 54] I set out my views on the approach this Court should take where there are concurrent findings of negligence (or absence of negligence) at a trial and in an intermediate court of appeal. It is unnecessary to repeat what was said

12. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337; [2002] HCA 54.

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there. The problem that arises in the present case (coincidentally also involving a decision of the same trial judge and a division of opinion in the intermediate court of appeal) is of a similar nature. 3. The facts of the case, and the issues that arose at trial and on appeal, appear from the reasons for judgment of other members of the Court. I agree that the appellant should not be permitted to resile from its concession as to duty of care. I will confine my attention to the challenge to the finding of a breach of duty. 4. The case presented an unusual problem. The canola seed distributed by the appellant was not sold as being free of weeds. It was sold as of ‘minimum 99% purity’. It conformed to that description. There is nothing unusual about such a product containing small quantities of weed seeds. This canola seed contained small quantities of three kinds of plant, cleavers, redshank and field madder. As Gyles J pointed out, they ‘occur naturally and are not poisonous, noxious or diseased in themselves, and do not transmit disease or noxious qualities to stock or humans or even to the canola seed either as part of the seed mix or in the ground’. His Honour also pointed out that ‘seeds and weeds are the subject of a comprehensive system of international, national and state regulation’, and there was no prohibition on the importation or sale in any part of Australia, including Western Australia, of canola seed containing weeds of the type, and in the quantity, in question. No actual harm to the crop, or the land, of the growers who bought and sowed the seed was shown to have occurred. Their financial loss resulted from the fact that, after they bought and planted the seed, the Western Australian agricultural authorities became concerned about possible harm, and declared the weeds as prohibited species. Those declarations required the growers to take certain precautionary measures. Subsequently, the declarations were cancelled. In the meantime, the farmers suffered financial loss and expense which they sued to recover. 5. The appellant’s case was that, when it imported and distributed the canola seed, there was nothing in the complex and comprehensive regulatory schemes operating throughout Australia that prohibited the importation or distribution of seed containing weeds of the kind, and in the quantity, which it sold. As a reasonable seed merchant, it relied upon the regulatory system. It was unreasonable to require it to foresee what it said was an excessive and temporary response on the part of the Western Australian authorities. Accepting that it owed a duty to take reasonable care to avoid risk of economic loss to farmers who bought the seed, it did nothing wrong. Its conduct was reasonable. 6. After the event, officers and associates of the appellant apologised to the growers. An analysis of the reasons of the Full Court shows that those apologies, and the admissions they were said to contain, were decisive of the outcome in that Court. It will be necessary to return to them. 7. The findings of Wilcox J on the issue of negligence were expressed in the following form. First, having previously dealt with some of the background history,

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he referred to the evidence as to ‘contentious matters’. The problem in Western Australia arose as a result of some press reports that caused alarm to farmers and that called for action on the part of the authorities to prevent contamination of local agriculture. There had evidently been some difference of opinion within the Western Australian authorities. It was argued that they over-reacted. Wilcox J concluded that the authorities did not over-react. That, however, is not to say that it was reasonably foreseeable that they would behave as they did. Secondly, Wilcox J recited the particulars of negligence relied on in the written submissions filed on behalf of the growers. Finally, adding reasons, he expressed agreement with certain of those submissions. 8. The submissions with which Wilcox J agreed criticised the appellant for failing to do either or both of two things: failing to check specifically with the Western Australian authorities as to what their reaction to the sale of canola seed with the particular weeds in question was likely to be; and failing (by labelling or otherwise) to inform growers (and, through them, the authorities) of the exact contents of what they were buying. For reasons that will appear, it is the second that became the most important. Those grounds of negligence necessarily involve a rejection of the contention that the appellant was entitled to rely upon the regulatory regimes, and upon the absence of any prohibition of the goods it sold. Wilcox J identified as ‘the question’ whether reliance on the governmental agencies was a sufficient discharge of the appellant’s duty of care. He answered that question in the negative. 9. In the Full Court, Branson J did not deal specifically with the finding that the appellant was negligent in failing to check with the Western Australian authorities. However, she attached importance to the apologetic communications from the appellant. She recognised that an apology might merely indicate regret that an incident has occurred, but saw in the terms of the appellant’s communications an admission that, but for the commercial pressures under which it operated, the appellant ‘would have done something differently after seed production from that which it did do. That something, about which no evidence was given, could only have been greater efforts to clean the seed or greater efforts to inquire and, if necessary, warn about the weed seeds.’ Her Honour thought the latter was the more likely explanation. This supported the second basis on which Wilcox J found negligence. 10. Finkelstein J dealt in detail with the trial judge’s findings of negligence, and disagreed with them. His Honour’s reasons are referred to by Hayne and Callinan JJ. 11. As to the first basis of negligence, Finkelstein J said: There is, in any event, an air of unreality about the suggestion that Dovuro should have made inquiries of relevant government departments to ascertain whether there would be any problem if it imported canola seed that contained a small quantity of cleaver, redshank or field madder. If it were required to make such inquiries, on the facts of the case those inquiries would have been directed to five separate departments, one in the Commonwealth and four in the States. I suppose there to be no difficulty in formulating the question to be put to each department. But it is far from clear what Dovuro’s obligation would have been had its inquiry yielded any

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of the following types of response, each of which was a possible response: ‘We will let you know, but it may take some time’; ‘It will be necessary to look into the matter and perhaps conduct tests to provide an answer’. Was Dovuro obliged to await a response? If so, for how long? What if the response was uninformative, such as ‘We do not know whether the weeds are a problem’? It is plain enough, in my view, that the suggestion that Dovuro should make inquiries of relevant government departments proceeded on the assumption that Dovuro would be informed that the canola seed mixed with the weed seeds should not be brought into some areas where it may be sown. However, that assumption has no foundation.

12. The concluding sentence in that paragraph is inconsistent with the reasoning, and findings, of Wilcox J, especially in pars [63] to [72] of his reasons. It is also inconsistent with what is implied in the reasoning of Branson J and Gyles J. However, there is force in the observation, in the earlier part of the paragraph, that a direct enquiry by a supplier to a government authority, on a matter that possibly could have political implications (in the widest sense), could not necessarily be expected to receive a prompt, direct and unequivocal response. 13. As to the second basis of negligence, Finkelstein J rejected the conclusion that the appellant acted negligently by failing to warn of the presence of the weed seeds. He said: It is practically impossible for crop seed to be completely free of contamination by other seeds, including weed seeds. All growers are aware of this. According to the evidence the accepted practice in the seed industry (a practice which was later codified for members of the trade organisation, the Seed Industry Association of Australia Ltd) was that seed merchants informed purchasers of the presence and species of seed in a lot, if that seed was present by mass of one per cent or more in lawn or turf seed, or five per cent or more in other seed. Each bag of canola seed was labelled ‘certified seed, first generation’ and on the back of each label was printed ‘minimum 99% purity, minimum 85% germination’. The label alerted growers to the fact that the bag did not contain pure canola seed. In the absence of actual knowledge that the weed seeds were a risk to growers, Dovuro was not obliged to add further information to the label. The label was in accordance with industry practice and there are no facts from which it could be concluded that Dovuro acted unreasonably by confining itself to that practice.

14. Finkelstein J also found that it was not reasonably foreseeable that the Western Australian authorities would react as they did. 15. Subject to one critical qualification, Gyles J agreed with Finkelstein J. In particular, in considering the issue of duty of care (which he would have allowed the appellant to re-open) he expressed the view that it was not reasonably foreseeable that the Western Australian authorities would act as they did. He pointed out that they had received certificates of analysis of the seed before it was released for sale, and did not attempt to prevent its release. The critical qualification related to ‘the apologies and admissions made on behalf of Dovuro’. He said: They were not precise as to the defect, or as to the remedy, and were given in circumstances where an apology can be explained by commercial considerations. It would have been well open to the trial judge not to accept the [growers’] reliance

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upon them. However, the trial judge had the opportunity of seeing the authors give evidence, and of considering the admissions made against the backdrop of the other evidence. It also needs to be borne in mind that in case of doubt, labelling the goods with the actual MAF analyses was a precaution which was relatively simple and cheap.

16. Gyles J concluded this part of his judgment by saying: Thus, whilst the analysis of this issue by Finkelstein J would persuade me as a judge of fact to reject the [growers’] case, in my view the decision below was open to the trial judge and should not be disturbed.

17. In the result, therefore, in the Full Court, Finkelstein J, having analysed the facts, rejected the claims of negligence. Gyles J would have done the same ‘as a judge of fact’ but he considered the trial judge’s finding was ‘open … and should not be disturbed’ because of the apologies and admissions. Branson J upheld the second finding of negligence on the basis of the apologies and admissions. 18. Since the outcome in the Full Court turned upon the admissions, it becomes important to consider exactly what they amounted to. Two were quoted by Branson J, and referred to by Gyles J. 19. The first was a media release: We apologise to canola growers and industry personnel. This situation should not have occurred but due to strong interest in Karoo the unusual step was made of undertaking contract seed production in New Zealand to assist rapid multiplication; whilst the urgency to process and distribute the seed of Karoo in time for planting caused additional time pressures.

20. The second was a letter: I’d like to stress at this stage that this does not excuse Dovuro in failing in its duty of care to inform growers as to the presence of these weed seeds. We got it wrong in this case, and new varieties will not be brought on the market again in this manner. Dovuro will not be producing seed in New Zealand again. The company will continue in bulking up its varieties (as it does every year) in Western Australia.

21. Those communications were regarded as supporting, by admission, at least the second basis upon which Wilcox J found negligence, that is to say, that the appellant should have informed growers (and, perhaps, through them, the authorities) that the canola seed contained the weed seeds in question. 22. The proposition that the appellant (by labelling or otherwise) should have informed the growers of the presence of the three weeds in question, and that failure to do so involved negligence, depends upon the premise that such information would have been of concern to the growers. In another part of his reasoning, Gyles J pointed out that there was no evidence, from any local agronomist or seed merchant, that, at the time of sale, there was concern about cleavers, redshank or field madder of such a kind as would have led growers to do anything. To an extent, that undermines the reliance he placed on the admissions, as does his opinion, expressed in the context of duty of care, as to

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the foreseeability of the reaction of the Western Australian authorities. However, the evidence showed that at least some officers of the Western Australian governmental authority were very concerned about the introduction of some of the weeds in question. It is correct, as Gyles J pointed out, that it would have been easy and inexpensive to tell the growers of the weeds; and presumably the appellant had good cause to regret not having done so. But in the absence of a finding that, if the growers had been told, they would have been concerned about it, that proposition does not establish actionable negligence. 23. However, while it is correct to say that there was no such evidence from any local agronomist or seed merchant, as to concern in the industry, there was evidence, referred to by Wilcox J in the context of damage, that went some distance towards establishing the fact. The quality of the evidence is less than completely compelling, but it is there. It was discussed by Wilcox J as follows: Mr Wilkins said in his affidavit: ‘Had I been warned that the Karoo canola seed available to fill my orders in 1996 may have contained weeds which were not known to broad acre farming in the State of Western Australia, I would have refused to accept that seed in satisfaction of my orders because it was not worth all the hassle.’ Mr Wilkins was not challenged in relation to that statement. In cross-examination, he conceded he knew there would always be some impurities in bags of seeds purchased from dealers, but he added ‘most of them were listed on the bag’. However, Mr Wilkins agreed he knew in April 1996 that impurities were not always listed; so that, in buying seeds, he would ‘buy weeds from time to time as well’. Evidence was also given by Bruce Leslie Piper. Mr Piper conducts a farming operation in partnership with five other members of his family at ‘Woolandoon’, Bindi Bindi. The partnership purchased and sowed Karoo canola seed imported by Dovuro from New  Zealand in early 1996. Mr Piper said, without challenge, that he would not have used the Karoo canola seed if he had known of the possibility of its contamination with weeds not known in Western Australia. Mr Piper also gave evidence of losses and expenses sustained in following the recommendations set out in the information package. I need not go into detail. Bearing in mind the number of people in each of the two partnerships (Wilkins and Piper), I am satisfied at least seven persons suffered damage as a result of sowing the Karoo canola seed, the amount of which has yet to be quantified.

24. The reference to ‘all the hassle’ appears to be to the sensitivity of the agricultural authorities to the introduction of certain kinds of weed, and the possibility that they would respond, to the cost of growers, as they did in this case. It was an (unchallenged) assertion by Mr Wilkins that he would have foreseen the kind of thing that actually occurred. 25. I agree with what is said by Gummow J as to the care that needs to be taken in identifying the precise significance of admissions, especially when made by someone who has a private or commercial reason to seek to retain the goodwill of the person or persons to whom the admissions are made. Common sense may dictate that they be used with caution by a fact-finder. And it is always necessary

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for the fact-finder to consider precisely what it is that is being admitted. If the driver of a motor vehicle says to an injured passenger: ‘I am sorry, I let you down’, that may not mean much, or anything. If the driver says: ‘I am sorry, I was going too fast’, that may be very significant. The statement that the appellant ‘[failed] in its duty of care to inform growers as to the presence of these weed seeds’ cannot be an admission of law, and it is not useful as an admission of failure to comply with a legal standard of conduct. There is no evidence that the author of the statement knew the legal standard. But there were important factual questions on which there was other evidence, that is to say, whether telling the growers of the presence of the weeds would have served any useful purpose, or had any practical effect in avoiding the harm they suffered, and whether the presence of such seeds would have been a matter of concern to them. Those were facts to be decided in the light of the commercial and regulatory context in Western Australia at the time. The author of the letter, Mr Rath, was the manager of the appellant’s Western Region. The statement by Mr Rath that there was no excuse for the appellant’s failure to inform growers of the presence of the weed seeds was significant, because it enabled Wilcox J, in evaluating the evidence of officers of the agricultural authorities, and of growers, more readily to reach the conclusion that the presence of the weeds would have been of concern to those people. 26. In the result, as in the case of Graham Barclay Oysters Pty Ltd v Ryan, while I accept the force of the dissenting opinion in the Full Court, I am not satisfied that the majority view involved clear error or injustice, and I would not disturb the concurrent findings of negligence. 27. The appeal should be dismissed with costs. McHugh J 28. In the view that I take of this case, the issue for determination is whether the appellant, Dovuro Pty Ltd (‘Dovuro’), breached the duty of care that at the trial it conceded it owed to the first respondents (‘the Wilkins interests’). 29. Dovuro also seeks to raise an issue as to whether it did owe any duty of care to the Wilkins interests. I would not permit it to raise that issue. 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. As the facts in other judgments demonstrate, Dovuro’s position was identical in principle with that of such a manufacturer. Because that is so, the only issue for determination at the trial — as the concession of Dovuro acknowledged — was whether it had breached that duty. This was not a case where there was any basis for contending that the losses suffered by the consumers might fall outside the ordinary duty owed by a manufacturer to a consumer. It was not a case where the Wilkins interests could succeed only on proof of a special duty to prevent economic loss to them. 30. A manufacturer breaches its duty of care if, by exercising reasonable care, it should have foreseen and avoided the loss. Like Gummow, Hayne and Callinan JJ,

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I find that Dovuro did not breach the duty of care that it owed. Accordingly, I agree with their Honours that the appeal should be allowed. 31. The facts and issues in this case are set out in other judgments. The case for the Wilkins interests depended upon obtaining a finding that Dovuro ought to have known that selling Karoo seed in Western Australia gave rise to a reasonably foreseeable risk that purchasers of the seed would suffer damage by reason of three plants, the seeds of which were mixed with the Karoo seed, becoming declared plants. In my opinion, that risk was not reasonably foreseeable.

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4.40

In the following case, concerning liability for defective structures, McHugh J usefully summarises and applies the various tests for determining whether a duty of care is owed.13

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515; 205 ALR 522; 78 ALJR 628 Court: High Court of Australia Facts: Gleeson CJ, Gummow, Hayne and Heydon JJ13 The issue 1.  In 1987, the first respondent, a company carrying on the business of consulting engineers, designed foundations for a warehouse and offices in Townsville. The land on which this building (referred to in the pleadings as “the Complex”) was to be built was owned by the trustee of a property trust. Some years after the building was finished it was sold by the then trustee of the property trust to the appellant. The contract for the sale of the land did not include any warranty that the building was free from defect and there was no assignment by the vendor of any rights that the vendor may have had against others in respect of any such defects. 2.  More than a year after the appellant bought the land, it became apparent that the building was suffering substantial structural distress. It is agreed that the distress was and is due to the settlement of the foundations of the building, or the material below the foundations, or both. The appellant alleges that the first respondent and its employee, the second respondent, each owed it a duty to take reasonable care in designing the foundations for the building. The respondents deny that they owed the appellant any duty of care; they deny that they acted in breach of any such duty; they say that despite advising the then owner of the land to allow them to obtain soil tests, the then owner instructed them to proceed without soil tests and to use structural footing sizes provided by the builder. Did the respondents owe the appellant a duty of care?’

13. Footnotes have been omitted.

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Legal principle: Should the principles of negligence for pure economic loss relevant to home builders (set out in Bryan v Maloney14) be extended to commercial property? The court’s decision (application of the legal principle to the facts): The court answered this in the negative. McHugh J provided the following summary of relevant principles: The indicia of a duty to prevent pure economic loss as the result of constructing commercial premises 74. In Perre v Apand Pty Ltd [(1999) 198 CLR 180 at 220], I listed five principles that I thought were “relevant in determining whether a duty exists in all cases of liability for pure economic loss”. They were principles concerned with: • • • • •

reasonable foreseeability of loss, indeterminacy of liability, autonomy of the individual, vulnerability to risk, and knowledge of the risk and its magnitude.

75.  I went on to say that, in particular cases, other policies and principles may guide and even determine the outcome of the case, but the principles concerning these five categories must always be considered. Accordingly, I turn to consider them and other relevant matters in the context of this case. Reasonable foreseeability 76. The loss that Woolcock suffered in the present case was clearly foreseeable by the respondents. Consulting engineers like the respondents would clearly have foreseen that, if the foundations for the complex were liable to subsidence, the current owner of the building would be put to expense in repairing the damage caused by the subsidence. Courts have long held that engineers engaged in connection with the design of a building have a duty to examine the site to see whether the nature of the sub-soil is adequate for the proposed building. Reasonable foreseeability of damage, however, is a necessary but not sufficient condition of a cause of action in negligence. Indeterminacy of liability 77.  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.

14

14. Bryan v Maloney [1995] 182 CLR 609.

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Autonomy of the individual 78. In Hill v Van Erp [(1997) 188 CLR 159 at 211], I pointed out that “AngloAustralian law has never accepted the proposition that a person owes a duty of care to another person merely because the first person knows that his or her careless act may cause economic loss to the latter person”. Speaking generally, a person owes no duty to prevent economic loss to another person even though the first person intends to cause economic loss to that other person. This particular immunity from liability reflects the common law’s concern with the autonomy of the individual and its desire to give effect to the choices of the individual by not burdening his or her freedom of action. Thus, as long as a person is legitimately protecting or pursuing his or her commercial interests, the common law does not require that person to be concerned with the effect of his or her conduct on the economic interests of other persons. 79.  Questions concerning the autonomy of individuals do not seem relevant in the context of claims for damages for pure economic loss arising out of the defective design or construction of a building. Those involved in the building are already under a duty to the first owner to avoid physical injury to the owner’s person and property. Consequently, imposing a duty to avoid economic loss to the first or a subsequent owner is not inconsistent with the pursuit of the legitimate interests of those who design or construct the building. Vulnerability to risk 80. Whether or not the plaintiff was vulnerable to the risk of injury from the defendant’s conduct is a key issue in determining whether the defendant owed a duty of care to the plaintiff. Indeed, the issue of the purchaser’s vulnerability to economic loss is the critical issue in determining whether those involved in the construction of commercial premises owe a duty of care to the purchaser. In this context, vulnerability to risk means not that the plaintiff was exposed to risk but 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. 81. Subject to the express terms of the contract, the first owner or purchaser has extensive contractual remedies open to him or her in respect of the negligent construction of the building. The ordinary building contract contains an implied term that the work will be done in accordance with the contractual stipulation, with proper materials, in a workmanlike manner and that the building will be reasonably fit for its purpose. Similar terms will be implied in the contracts made with other persons who are involved in the design or construction of the building. These contractual remedies will lie against those involved even in cases where sub-contractors have carried out the work or services. Such remedies usually provide sufficient protection against the problems that are likely to be encountered during the first few years of the building’s life. 82.  But extensive as contractual protection may be — it is unlikely to be narrower than in tort — it suffers from one shortcoming. A cause of action in contract arises upon breach. In the case of a defective building, the breach will frequently occur before the loss-causing defect manifests itself. Hence, the first owner of a commercial building may find that his or her claim in contract is outside the relevant limitation period and statute barred. Nevertheless, by insisting that the construction contract be made under seal, the first owner can ordinarily protect him or herself against most problems concerning a defective building that were reasonably foreseeable.

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83.  Still, even when the contract is under seal, the first owner may be left with a remedy that is unenforceable. When the defect does not manifest itself for some time, the first owner may find that the builder is insolvent or in liquidation, or has gone out of business. If, as is often the case, the defect in the premises results from a sub-contractor’s negligence, holding that there is no duty in tort to guard against economic loss arising from the negligent design or construction of a building deprives the first owner of a valuable remedy against the sub-contractor. No doubt it may be possible in some cases for the first owner to enter into contractual indemnities or warranties with the sub-contractor. In other cases, the first owner may be able to sue the sub-contractor on any warranty given by the sub-contractor to the builder. 84.  The present case proceeded by way of Case Stated. There is no agreed fact as to whether it is a common practice for builders and their sub-contractors to agree to obligations concerning the condition of premises that might be enforced by the first owner of the premises. Leading writers on Australian construction law suggest a prudent principal should enter into a collateral contract with sub-contractors that contains appropriate warranties. In Australia, professional institutions have endorsed particular contractual warranties whose purpose is to make the subcontractor liable to the principal. 85.  A subsequent purchaser of a commercial building also has means of protecting him or herself against economic loss arising from the condition of the building. That person can obtain warranties from the vendor. The subsequent purchaser can also have the building examined by relevant experts. But even expert examination may not reveal the presence of latent defects. Moreover, some areas of concern — such as the stability of the foundations of the building — may be examined and tested only at considerable expense. 86.  Although the first and subsequent owners may take steps to protect themselves contractually, it is clear that in some cases contractual remedies may not be sufficient to protect an owner against pure economic loss. In these cases, the owner will be compensated for economic loss only if the law of torts provides a cause of action. The defendant’s knowledge of the risk and its magnitude 87.  The case for imposing a duty is always strengthened if the defendant actually knew of the risk. It is strengthened further if the defendant knew the magnitude of the risk. The significance of the defendant’s knowledge of the risk of loss and its magnitude will depend on the facts of each case. However, it would be a rare case where those involved in the construction of commercial premises would not be aware of the risks arising from particular defects and their potential magnitude. In the present case, the respondents were fully aware of the risk — they asked for the site to be tested for the purpose of determining whether there were risks of subsidence. And the inference is irresistible that, as consulting engineers, they were well aware of the magnitude of the damage that the owner of the building would suffer if the risk should eventuate. Other policy factors 88. In addition to the factors that I referred to in Perre v Apand Pty Ltd as relevant, other factors are also relevant in determining whether a duty of care is owed in respect of the negligent design or construction of commercial premises. They include:

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Responsibility to control third parties 89.  The common law has always been reluctant to impose a duty to control others. In the area of defective building work, the issue of controlling third parties usually arises in respect of sub-contractors. In D & F Estates Ltd [[1989] AC 177], for example, it was on this ground that the House of Lords refused to hold a builder liable for the negligence of a plasterer who was a sub-contractor. But if, as is usually the case, there is a contract between the owner and builder, the builder will already be under a practical, if not legal, obligation to supervise the work of any employed sub-contractors. Clause 9.5 of the Australian Standard General Conditions of Contract AS 4000-1997 makes the contractor liable to the principal “for the acts, defaults and omissions of subcontractors” unless the contract otherwise provides. Despite the decision in D & F Estates Ltd, issues concerning the control of third parties do not seem significant in the present context in Australia. Outflanking the law of contract 90. Until the decision of the House of Lords in Hedley Byrne [[1964] AC 465], the received wisdom was that pure economic loss cases belonged to the law of contract, not tort. Even as late as 1986, the Judicial Committee of the Privy Council and the House of Lords appeared to assume that the contract and not tort was ordinarily the source of the remedy for the recovery of negligently caused economic loss. Indeed, one reason that the House of Lords gave for denying the owner’s claim in D & F Estates Ltd was that it would outflank the operation of the law of contract. Lord Bridge of Harwich said that to require the builder to owe a duty to a subsequent purchaser “would be to impose upon him for the benefit of those with whom he had no contractual relationship the obligation of one who warranted the quality of the plaster as regards materials, workmanship and fitness for purpose”. 91.  But since Hedley Byrne, the argument that economic loss falls within the domain of contract rather than tort cannot be sustained in Australia and probably cannot be sustained even in England. Nor since the decision of the House of Lords in Donoghue v Stevenson [[1932] AC 562] is it possible to argue that the law of negligence should not be permitted to outflank fundamental contractual doctrines such as consideration and privity. Until the decision of the House of Lords in White v Jones [[1995] 2 AC 207] and the decision of this Court in Hill v Van Erp [(1997) 188 CLR 159], it was possible to argue that the law of negligence should not be concerned with the loss of expectancies. But those decisions put an end to that argument. They held that a person could bring an action in tort against a solicitor in respect of the loss of an expectancy under a will. In White v Jones, Lord Goff of Chieveley said [at 269] that he did not consider that “damages for loss of an expectation are excluded in cases of negligence”. 92. The decisions in Hedley Byrne, Donoghue, White and Hill, therefore, make it difficult to argue that claims in negligence for pure economic loss should be excluded merely because such claims may outflank or undermine fundamental doctrines of the law of contract. In Bryan v Maloney [(1995) 182 CLR 609 at 624], this Court rejected the notion that in Australia contract and tort were so neatly compartmentalised that it would be an error to give a remedy in tort for economic loss. So far as the builder and first owner were concerned, Mason CJ, Deane and Gaudron JJ said [at 624]: … as a matter of policy, the sanctity of contract or the compartmentalization of the law dictates that liability under the ordinary principles of negligence … must be excluded as between parties in a contractual relationship

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notwithstanding the absence of any actual agreement between the parties to that effect. 93. Once the courts rejected the traditional view that professional persons such as solicitors and architects could only be sued in contract, it became likely that, in building cases, tortious remedies would extend to third parties affected by the performance of the contract. 94.  The better view in all cases — not merely building cases — is that the capacity of a person to protect him or herself from damage by means of contractual obligations is merely one — although often a decisive — reason for rejecting the existence of a duty of care in tort in cases of pure economic loss. 95.  Whether the securing of an alternative remedy in contract was really open to a plaintiff who has suffered economic loss depends upon current market conditions and conveyancing practices. In Henderson v Merrett Syndicates Ltd [[1995] 2 AC 145], the House of Lords held that the existence of various contractual arrangements between the plaintiffs and certain managing agents and underwriters did not prevent the plaintiffs from suing in tort. The market conditions were such that the plaintiffs could not bargain for protection against the risks of the agents and others being careless. Similarly, in Smith v Eric S Bush [[1990] 1 AC 831], the House of Lords held that a purchaser of a house could sue a careless valuer in tort because, having regard to market conditions, the purchaser was not able to protect herself against the valuer’s negligence. Likewise in Bryan v Maloney, the inability of an ordinary purchaser of a dwelling house to realistically protect him or herself against the builder’s negligence influenced this Court to allow the purchaser to sue the builder in tort. 96.  As I have pointed out, the Case Stated does not reveal the extent to which, if at all, it is open to the first owner or subsequent purchaser, as a matter of commerce or conveyancing practice, to protect him or herself by contractual remedies against those involved in the negligent design or construction of commercial premises. However, it would be surprising if they could not do so. The first owners and subsequent purchasers of commercial premises are usually sophisticated and often wealthy investors who are advised by competent solicitors, accountants, architects, engineers and valuers. In the absence of evidence, this Court must assume that the first owner of commercial premises is able to bargain for contractual remedies against the builder. It must also assume that a subsequent purchaser is able to bargain for contractual warranties from the vendor of such premises. The floodgates argument 97.  In determining whether the common law should recognise a duty of care, the possibility that its recognition might lead to a flood of claims is a ground for rejecting the existence of the duty. However, New Zealand and Canada have long recognised tort claims for economic loss arising out of defective premises without apparently being flooded with litigation. Similarly, the decision of this Court in Bryan v Maloney does not appear to have caused the lists of Australian courts to be flooded with claims that could not have been brought but for that decision. Disproportionate liability 98. In some cases concerned with pure economic loss, it may be necessary in determining whether a defendant should owe a duty of care to consider whether any potential liability of the defendant would be disproportionate to its fault. Claims against auditors by investors or creditors are examples of cases where

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disproportionate liability has played a role in rejecting plaintiffs’ claims that the auditors owed them a duty of care. 99.  However, it is difficult to see how issues of disproportionate liability can be a factor in defective building cases concerned with pure economic loss. First, the loss in value or the cost of repairs to the defective work is likely to bear a proportionate relationship to the contract price for doing or advising in respect of the building work. Second, if the defective building causes physical injury or injury to other property, those involved in the construction will be liable even though the damages payable far exceed the contract price. Lack of a measurable standard of care 100.  One objection to the law of torts creating a general duty of care to prevent pure economic loss in relation to “defective” premises is that the question of defectiveness cannot be divorced from the contract price payable for the building work. This problem is not confined to commercial premises but extends to the design and construction of all premises. The first owner or purchaser may have been influenced to build or buy by the low price of the building, but that price may reflect the use of inferior quality materials and workmanship. In most cases, the purpose for which the building is to be used will also have a significant effect on both price and materials and the standard of workmanship. What is regarded as sufficient for a barn is unlikely to be sufficient for a dwelling house. And what is suitable for a horse barn may not be suitable for a barn that is used to store hay. Indeed, price and purpose can seldom be separated. As Brooking J pointed out in Minchillo v Ford Motor Company of Australia Ltd [[1995] 2 VR 594 at 598] in dealing with a claim of economic loss with respect to a truck: One man’s meat is another man’s poison. The scribbling block bought for a few cents at the supermarket might serve very well for the correspondence of the artisan, but it would not have done for the Duke. Price is an important consideration: generally speaking, as the saying goes, you get what you pay for. 101. The problem of measuring what constitutes defective quality in building cases for the purpose of the law of tort is a real one. But it is not so great that it automatically requires the common law to hold that no tortious duty of care is ever owed in respect of “defective” premises. Courts have long had to deal with similar problems under the Sale of Goods Acts with respect to such terms as fitness for purpose, merchantable quality and so on. They should be able to formulate reasonable standards for determining whether, having regard to the price and purpose of the premises and relevant market and industry standards, the particular premises were or were not designed or constructed negligently. Circumventing the policy of limitation legislation 102.  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. Accordingly, it is always relevant in determining whether to create, extend or formulate a duty in tort to consider whether it is consistent with other legal doctrines, principles and policies. 103. The now accepted doctrine is that, in the case of defective premises, damage does not occur until the defect manifests itself. No cause of action arises in tort until the plaintiff suffers damage. Consequently, those concerned with the design and construction of a building may be required to defend themselves against an action in

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tort many years after completing the task that now gives rise to the claims against them. On the other hand, a cause of action in contract arises when the contract is breached. Time runs from the breach, not the sustaining of damage. This creates the paradox that those involved in the design or construction of a building may be sued in tort years after the time has expired for suing on the contract that gave rise to the duty. Of course, since Donoghue v Stevenson, a similar anomaly arises in the case of goods and chattels. But in that area, the time lag between breach of contract and sustaining damage will ordinarily not be as long as in the case of defective buildings. Goods and chattels are usually consumed or used before the expiration of the contractual limitation period. 104. Moreover, imposing duties in respect of pure economic loss in building cases creates other problems. As I pointed out in Brisbane South Regional Health Authority v  Taylor [(1996) 186 CLR 541 at 551], the policy of the law for nearly 400 years has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. These time limitations have been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. In Taylor, I went on to say [at 552–3]: 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. As  the New South Wales Law Reform Commission has pointed out: ‘The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.’ 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. In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. 105.  To allow an action in tort to be brought more than six or even twelve years after the negligent act has occurred when it could not have been brought in contract flies in the face of these rationales of the statutes of limitation.

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The respondents owed no duty to Woolcock to protect it from pure economic loss 106.  Whether and in what circumstances the law of torts ought to impose on the builder or other persons involved in designing or constructing commercial premises a duty of care to purchasers to prevent economic loss from defects in the premises are difficult questions. The varying reasons and conclusions of ultimate appellate courts throughout the common law world show that this is unequivocally so. Undoubtedly, the availability of a remedy in tort in respect of such losses strengthens claims by first owners and purchasers for compensation for losses arising from lack of care by those responsible for building defects. Hence, the availability of a remedy in tort would advance the cause of corrective justice, one of the rationales of the law of negligence. Moreover, for the reasons that I have given, the existence of a contractual remedy may not always be a sufficient protection for the first owners and purchasers of commercial premises who suffer economic loss as a result of defective premises. Consequently, the availability of a remedy in tort gives greater protection to the owners and purchasers of commercial premises. 107.  But other factors point against a remedy in tort. Many defects will not manifest themselves for many years after the erection of the building. Given the now accepted doctrine that damage does not occur until the defect manifests itself, those involved in the construction of the building may be required to defend themselves many years after the event. Claims that might have been defended if brought within the normal periods imposed by the statute of limitations may become indefensible in practice. Records may have been destroyed or disappeared; key workers may be untraceable; memories may have long faded. Hence, the capacity of the courts to do justice may be impaired, if not defeated, by the passage of the years. And the capacity of the courts to do justice is impaired rather than improved by the problems to which I have referred in determining an appropriate standard of care. 108.  A further consequence of the doctrine that damage does not occur until the defect manifests itself is that those involved in the construction of a building and their insurers may have to wait many years before they can be sure that they are free of potential claims. As one of the rationales of statutes of limitation indicates, this is an undesirable and unsatisfactory result for any commercial enterprise. To overcome the problems caused by the potential delay in bringing actions, builders in particular may be forced or at all events induced to adopt inefficient commercial practices such as using a series of shell companies to make one-off building contracts for each construction project. 109.  The likelihood that imposing a duty in respect of building premises will have unsatisfactory consequences for the administration of justice and the efficiency of commerce is a powerful reason for not recognising the duty which Woolcock propounds. 110. But the most powerful reason for rejecting the proposed duty is that the first  owners and purchasers of commercial buildings are ordinarily in a position to protect themselves from most losses that are likely to occur from defects in the construction of such buildings. Occasionally, a commercial building may be built or bought for an emotional rather than an economic reason. But in the overwhelming number of cases, commercial buildings are constructed or bought to make money. A commercial building is constructed or bought because it is perceived to be a suitable vehicle for investment. The prudent first owner or purchaser of such a

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building will compare the likely return on the capital investment with the potential risks including falls in the value of the building that may result from various factors, economic, social and physical. And no prudent purchaser would contemplate buying a building without determining whether it has existing or potential construction defects. Knowledge of its defects, actual or potential, is central to any evaluation of its worth as an investment. In so far as risks are uncertain or unknown, the prudent purchaser will factor the risk into the price or obtain contractual protections or, if necessary, walk away from the negotiations. 111.  There are many means of protection open to first owners and purchasers of commercial buildings to cover the risk that the building may have latent defects. The first  owner can enter into contractual arrangements with those involved in the construction. Those arrangements can include warranties concerning the fitness of the building for the purpose for which it was constructed. The first owner can supplement the contractual arrangements with those directly involved by obtaining similar warranties from directors and other persons connected with the construction of the building. The first owner can employ other professionals to check the work of those directly involved in the project. Subsequent purchasers can protect themselves by entering into similar arrangements with their vendor. They can take an assignment of the vendor’s rights (if any) against the builders and others. They can minimise the risks of loss from physical defects by obtaining expert investigations of the building. 112. Of course, for the reasons that I have given, contractual protections and expert investigations may turn out to be inadequate. In that event, a remedy in tort — particularly a remedy against secondary parties such as architects, engineers and sub-contractors — would be desirable. But cases where contractual protection will be found deficient are likely to be the exception rather than the rule. Whether exceptional or not, the ultimate question is whether the residual advantages that an action in tort would give are great enough to overcome the disadvantages to which I have referred. This involves a value judgment, and the data that might permit that judgment to be made, if the data exists at all, is not before us. Because that is so, the better view is that this Court should not take the step of extending the principle of Bryan v Maloney to commercial premises. That is, this Court should hold that, in the absence of a contract between the owner of commercial premises and a person involved in the design or construction of those premises, the latter does not owe a duty to the current owner to prevent pure economic loss. Where a contract exists, however, the concepts of assumption of responsibility and reliance may create a duty of care in tort as well as obligations in contract. 113. In Perre v Apand Pty Ltd [(1999) 198 CLR 180 at 225], I said: 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. The respondents did not owe the duty pleaded 114. Various steps are open to the purchasers of commercial buildings such as Woolcock to protect themselves against pure economic loss that is consequent on the discovery of defects in the construction of those buildings. It is true that

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Woolcock made no investigation or inquiries concerning defects or potential defects in the building that it bought and obtained no warranties in respect of them. But its failure to take reasonable steps that were open to it is not a ground for holding that the respondents owed it a duty to take care in respect of pure economic losses arising from the defects in the foundations of the building. No doubt if Woolcock had insisted on contractual protection from its vendor, it may have had to pay a higher price for the building. But that only shows that, in this area, contract rather than tort is a better, more just and probably more efficient way of dealing with the problem of pure economic losses arising from defective construction. The price of a commercial building almost invariably reflects the inherent and other risks — including the risk of latent defects — of buying the building. 115.  In my opinion, the law of negligence is best served by leaving it to the market and the law of contract to determine who should bear the economic loss that arises as the result of a fall in the value of a commercial building consequent upon the discovery of latent defects in the building. 116.  Nothing in this judgment is intended to suggest that Bryan v Maloney would now be decided differently. Whether a different decision would now be reached under current doctrine almost certainly depends on whether evidence would reveal that the purchasers of dwelling houses are as vulnerable as the Court assumed in that case. Order 117.  The appeal should be dismissed with costs.

This modern, factors or salient features approach is the current approach favoured by the High Court. The difficulty with it as an approach is that different judges consider different factors to be important in the same case. It goes without saying that as the factual matrix of cases changes, so does the list of factors which needs to be considered. Barker, Cane,Trindade and Lunney have helpfully summarised the propositions which emerge from a review of the salient feature cases: •• a duty of care to avoid economic loss will not be owed to a person who could and should have taken steps to protect themselves from such loss and who, in this sense, is not vulnerable; •• a duty of care will not be imposed on a person who had insufficient control over the situation out of which the harm arose; •• a duty of care will not be imposed if this would create the potential for indeterminate liability; and •• a duty of care will not be imposed if it would potentially conflict with some other more important duty or with narrower or different rules of liability in some other area of law or with relevant statutory provision.15 15. K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia, 5th ed, Oxford University Press, Sydney, 2011, 460.

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Other Australian cases concerning liability for defective structures 4.41

4.42

There are other cases which concern liability for defective structures.These are discussed below.

Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1 Court: High Court of Australia Facts: A house was constructed on a steep block in the late 1960s. The land was in the Sutherland Shire and the council had certain duties in relation to overseeing the building of the house under the Local Government Act 1919 (NSW). Some eight years and several owners later, cracks developed. Legal principle: Was the council liable to the new owner? The court’s decision (application of the legal principle to the facts): No, principally because there was an absence of proximity between the council and the new owner. Although proximity has now been abandoned as the touchstone of liability, the ratio of the case will continue to be applied.

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The last case was about councils’ liability for building cracks; the next, Bryan  v  Maloney, is about builders’ liability for building cracks.16 Bryan v Moloney, it will be recalled, was considered by the High Court in Woolcock Street Investments. Brennan J in Bryan v Moloney outlined his case-by-case approach to novel duty situations. The Brennan approach in Sutherland Shire was that ‘the law should develop novel categories incrementally and by analogy with established categories’ rather than via ‘an Anns’s style leap of principle’.17

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Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 Court: High Court of Australia Facts: As with Sutherland Shire Council v Heyman, this case involved a subsequent owner suing in relation to a negligently constructed dwelling. The defendant, in this case, was the builder. Legal principle: Was the builder liable for the new owner’s economic loss? The court’s decision (application of the legal principle to the facts): The judgment of the High Court was that, unlike the council, the relationship between

16. See also Chapter 11. 17. D Howarth, Textbook on Tort, Butterworths, London, 1995, p 31.

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the builder and a subsequent owner possessed the requisite degree of proximity to give rise to a duty, on the part of the builder, to take reasonable care to avoid the kind of economic loss sustained by the new owner. The principal judgment was delivered by Mason CJ, Deane and Gaudron JJ. Proximity issues from this case: On proximity, the majority judgment looked at various relationships including those between: • •

the builder and the original owner, Mrs Manion; and the builder and the subsequent owner, Mrs Maloney.

They concluded that the similarities between the relationships are ‘of much greater significance than the differences’ (at ALR 172). Both relationships are characterised to a comparable extent by two facets: • •

an assumption of responsibility on the part of the builder; and the likely reliance on the part of the owner.

Brennan J dissented. This was not surprising given that 10 years before in Sutherland Shire he set out a piecemeal approach (which, as we have noted, the House of Lords adopted by overruling Anns in Murphy v Brentwood District Council18 in 1990). 18

The outcomes from Bryan v Maloney have been mixed and there has been criticism of the High Court arising from the case.19 We can comment as follows on Sutherland Shire and Bryan v Maloney: •• As with the Voli case,20 which deals with the liability of an architect, a builder is assumed to have a level of expertise.When building, they are expected by the High Court to take a ‘hands-on’ approach to construction and to be positively involved as an active participant and not merely adopt a supervisory role. •• As with the Romeo case,21 the budgetary constraints are of particular importance when dealing with public authorities as defendants; spending must be prioritised. •• Court decisions have clear budgetary implications for defendant public authorities.22 The distinction between policy and operational decisions of public authorities is an important point within this discussion; the theory is that substantive policy decisions are not reviewable by the courts. 18. Murphy v Brentwood District Council [1991] 1 AC 398; [1990] 2 All ER 908. 19. See, for example, the Hon Justice R Brooking, ‘Bryan v Maloney — Its Scope and Future’ in N Mullany and The Hon Justice A Linden (eds), Torts Tomorrow: A Tribute to John Fleming, LBC, Sydney, 1998, pp 57–68. 20. Voli v Inglewood Shire Council (1963) 110 CLR 7. 21. Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263. 22. See, for example, the Hon Justice M Kirby, ‘Conservatism, Realism and the Economic Factor — Fleming’s Legacies’ in Torts Tomorrow: A Tribute to John Fleming, note 19 above, pp 1–12.

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Cases dealing with whether a duty of care exists are (typically) novel or unusual and raise new potentially significant legal relationships for assessment of their scope and the roles, responsibilities and rights of the parties. Most cases involving the duty of care issue are settled; the cases going to the High Court for determination as to whether a duty exists are outlier cases which push the common law into previously unexplored realms.

The implications of finding a duty of care exists 4.45

The potential consequences that flow from a finding that a duty of care exists can be enormous.There can be major economic and social repercussions based on the High Court’s deliberations. The implications can be divided into three broad categories, as set out in Table 4.2.

Table 4.2 Does a duty of care exist?

Broad approach of the courts

Particular issues/questions for the courts

1. Theoretical issues

The courts since Donoghue v Stevenson23 have proceeded on the theoretical basis, at least, that they had a general test as to when a duty of care exists

Can the courts actually rely on a general test or is it, in practice, restricted to gradual development on a case-by-case basis?

2. Policy issues

What are the appropriate standards (economic, social etc) that a defendant should meet in contemporary society?

Will the courts be flooded with litigation? (This is the floodgates argument.) Does justice demand a result here? (This is the justice argument.)

3. Traditional sub-issues

Ingredients of the duty of care: • reasonable foreseeability; and • proximity

These two ingredients needed to be satisfied before a duty of care could be established. The court asked itself: are these ingredients satisfied in this case? The latter is no longer relevant

23. Donoghue v Stevenson [1932] AC 562.

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Summary 4.46

This leads us to placing the approach of the current High Court against the backdrop of three other phases of development: 1. the Mason–Deane proximity approach; 2. the Brennan incremental approach; and 3. the House of Lords three-stage Caparo test. These developments can be seen in context as follows in Table 4.3.

Table 4.3 Does a duty of care exist?

Mason CJ High Court (1987–1995)

Brennan CJ approach (1995–1998)

House of Lords UK

Gleeson CJ, French CJ and Kiefel CJ High Court (1998 to the present)

Tests applied with respect to answering the question: does a duty of care exist?

Ingredients of duty: • reasonable foreseeability; and • proximity

Incremental approach

First, the twostage test of Anns, which was then replaced with the three-stage test of Caparo

No specific test, but courts will weigh up the different factors (salient features)

The approach or emphasis of the High Court

Concentrated on the concept of proximity, as opposed to reasonable foreseeability

Argued that a duty can exist by analogy to established cases

Key judgments illustrating this approach

Deane J, Mason CJ Sutherland Shire v Heyman24

Caparo Brennan J (and, later, CJ) v Dickman25 Sutherland Shire v Heyman

• P erre v  Apand26 • Rimmins v Stevedoring Industry Financing Committee27

24252627

24. Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1. 25. Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568. 26. Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36. 27. Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1.

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House of Lords UK

Does a duty of care exist?

Mason CJ High Court (1987–1995)

Brennan CJ approach (1995–1998)

Current status of this approach

Largely redundant

Of influence Adopted by in the current House of High Court Lords and favoured by some current justices of the High Court

Gleeson CJ, French CJ and Kiefel CJ High Court (1998 to the present) In the process of being developed

Predicting the future of duty of care 4.47

The above summary illustrates the moveable feast of the duty of care and the search for principle. So where does this leave you as a torts student wanting to get to grips with: •• current thinking on the issue of duty of care; and •• future developments in the area? It means that you need to be familiar with the concepts underpinning each of the various phases of the ‘duty journey’ of the last couple of decades. As the saying goes, ‘What goes around comes around’. That is, just because proximity appears to be dormant, this does not mean that it will not make a comeback. As Davies says, using the metaphor of tastes in fashion going full circle: Like watching ‘Dallas’, wearing legwarmers, spandex pants and dozens of bracelets, or rolling up the sleeves of a silk suit jacket. Obviously, I could go on. Readers who were there in the 1980s will know what I mean.Those who were not will want me to go on. Readers who were there a decade before may care to reflect that some of the fashions of the early 1970s that seemed surely never to return, like flared jeans and platform shoes, have made a triumphant return in recent years. In fashion, at least, plus ca change, plus c’est la meme chose [The more things change, the more they stay the same]. Who knows what the future holds for proximity?28

28. M Davies, ‘Common law liability of statutory authorities: Crimmins v Stevedoring Industry Finance Committee’, (2000) 8 Torts Law Journal 133 at 135, fn 18.

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Non-pure economic loss and non-building liability cases Claims against a statutory authority 4.48

4.49

There may be claims in negligence made against a statutory authority. These claims are considered below.

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; [1999] HCA 59 Court: High Court of Australia Facts: This case involved a waterside worker who, in the 1960s, was exposed to asbestos dust, which led to the onset of mesothelioma. The claim was brought not against the person in the position of employer, but rather against the statutory authority, Stevedoring Industry Finance Committee (SIFC), that had broad control of the dock site. Legal principle: Was SIFC liable? The court’s decision (application of the legal principle to the facts): By a 5:2 majority (Gummow and Hayne JJ dissenting), the High Court held that SIFC owed a duty of care. Gaudron J at [44] held: In the present case, Mr Crimmins was not only vulnerable to injury by reason of the hazardous nature of his employment but he was less able than employees in most other industries to protect his own interests. The casual nature of his employment precluded the development of any longstanding employer–employee relationship in which he might usefully seek to secure his own health and welfare … And his relative powerlessness in that regard was magnified by the Authority’s directions as to when and where he was to work in circumstances in which he was at risk of having his registration as a waterside worker cancelled or suspended if he did not obey.

Significance of this case: See M Davies’s critique referred to in 8.3.

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The High Court revisited this area of the law in 2006 in Coote v Forestry Tasmania.29 Gummow J agreed with the majority but for different reasons: 51. Blow J found that the respondent owed to the appellant a duty to take reasonable care for his safety in its supervision, management and control of the timber harvesting operations in which he was engaged. His Honour, relying on Crimmins v Stevedoring Industry Finance Committee, founded this duty upon the circumstance that the respondent had or should have had knowledge of the special risks to which workers in the timber industry were subject and was in a position to exercise its statutory powers so as to minimise those risks. Officers of the respondent were well aware that harvesting operations were

29. Coote v Forestry Tasmania (2006) 227 ALR 481; [2006] HCA 26.

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being undertaken in the area of forest in which the appellant was injured. The risk of injuries being caused when severed branches later fall from trees was known and was reasonably foreseeable, as was the risk of injury from falling trees. The Full Court rejected a challenge to the correctness of these findings and no further challenge is made in this Court.

Landlords and criminal assault 4.51

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In what circumstances is a landlord liable for criminal assaults which occur on his or her premises?

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61 Court: High Court of Australia Facts: Anzil sued the owner of an Adelaide suburban shopping centre in tort for damages for personal injury. The injuries were inflicted by three unknown men, one armed with a baseball bat. Anzil worked at a video shop. They criminally assaulted Anzil in the car park at about 10.30 pm on a Sunday night in July 1993. The shopping centre was sued on the basis that it was the occupier of the car park. The lights in the car park were off; the failure to leave the lights on was argued to be negligent. Legal principle: Was the owner/occupier of the shopping centre liable? The court’s decision (application of the legal principle to the facts): There was no liability by the owner/occupier. There was no duty owed in the particular context. As Gleeson CJ said (at [36]), the owner was entitled to succeed in the appeal ‘upon the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first respondent [the injured plaintiff] resulting from the criminal behaviour of third parties on that land’. Significance of this case: This case is interesting because we need to bear in mind that most cases in the law of torts are going to arise out of a given or established duty of care. Gleeson CJ said at [13]: 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. References to duty of care, breach of duty, and causation provide convenient sub-headings for a judgment, but in many cases the concepts require no further analysis. We need to bear in mind that where duty of care is problematic, it will be in relation to the ‘boundary’ cases. For the most part, duty of care is established. We need to also remember that the High Court is not above criticism.

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Background and context: The following table illustrates, by way of very basic summary, the approach in the High Court in terms of tests giving rise to the establishment of duty.

High Court judge

General approach to the establishment of a duty of care

Gleeson CJ

Salient features approach

Gaudron J

Power relationship between plaintiff and defendant

McHugh J

Incrementalism/factorial approach

Gummow J

Salient features/factorial approach

Kirby J

Adopts the Caparo 3-stage test

Hayne J

Control mechanisms

Callinan J

Factorial approach

High Court cases after Modbury 4.53

The plaintiff in Modbury was attacked in a shopping centre car park at night. The lights in the car park were switched off. As the court held in regard to Modbury in Adeel’s case (at [23]) set out below: … a majority of the Court held that the shopping centre did not owe the plaintiff a duty to take reasonable care to prevent injury to the plaintiff resulting from the criminal behaviour of third persons on the shopping centre’s land.

Adeel’s case made it clear that the scope of the Modbury decision was limited to: … the defendant’s position as occupier of the land controlling the physical state of the land (there the level of its illumination). What is said in Modbury must be understood as responding to those arguments. No complaint was made that the defendant should have controlled, but did not control, access by the assailants to the land it occupied.

Adeel’s case deals, on the other hand, with the issue of the landlord’s control over access to the premises in the context of a New Year’s celebration which got out of control. Adeel’s case, as it relates to, and differs from Modbury’s case, is a good example of the High Court moving incrementally in developing the issues relevant to the existence, and breach, of a relevant duty of care.

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Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 Court: High Court of Australia Facts: The High Court delivered a joint judgment in which the facts were outlined as follows: French CJ, Gummow, Hayne, Heydon and Crennan JJ 1.  The appellant in each appeal (Adeels Palace Pty Ltd — ‘Adeels Palace’) carried on a reception and restaurant business at premises in Punchbowl, New South Wales. The premises were licensed under the Liquor Act 1982 (NSW) (‘the Liquor Act’). An ‘On-Licence (Restaurant)’ licence permitted the service of alcohol on the premises on any day, between midday and 4.00 am on the day following. A  condition of the licence limited the seating capacity of the premises to restaurant seating for 295 persons. The local council authorised the use of the premises as a place of public entertainment between midday and 4.00 am on the next day but limited the capacity of the premises to 283 persons. At the times relevant to these matters, a director of Adeels Palace was the licensee. 2.  On 31 December 2002, Adeels Palace was open for business and many came to celebrate the New Year. The restaurant was full. Exactly how many were there was never proved. Admission to the premises, collected at the door, cost $60 per person which included food but not alcoholic drinks. There was a band; there were singers and entertainers; patrons could dance. Seating was at long tables. The bar was open. Waiters brought drinks to the tables. 3.  At about 2.30 am on 1 January 2003, there was a dispute between some women dancing on the dance floor. One accused another of brushing her hand with a lighted cigarette. Words were exchanged. Relatives and friends intervened. Fighting erupted and onlookers joined in. Punches were thrown. Chairs, plates and bottles were thrown. One witness was later to agree that the disruption ‘got bigger and more ferocious very quickly’. As he said, there were ‘[a] lot of egos out there’. 4.  One man involved in the fight was hit in the face, drawing blood. He left the restaurant and returned soon after with a gun. Someone called out ‘Gun, gun, run away’ and Mr Bou Najem (the respondent in the second appeal in this Court) did just that. He ran into the restaurant’s kitchen but slipped over. The gunman came in. As Mr Bou Najem tried to get up, the gunman pointed the gun at him. Mr Bou Najem pleaded with him not to shoot, but shoot he did, wounding Mr Bou Najem in the leg. 5.  The gunman left the kitchen and went back into the restaurant itself. There he found the man who had struck him in the face — Mr Moubarak (the respondent in the first appeal). The gunman shot Mr Moubarak in the stomach and then left the premises. 6.  The two men who were shot, Mr Bou Najem and Mr Moubarak, each brought proceedings in the District Court of New South Wales against Adeels Palace claiming damages for personal injury. Each alleged that they had suffered injury as a result of Adeels Palace’s negligence in not providing any or any sufficient security during the function on New Year’s Eve. 7. In the District Court, the two actions were heard together, and each plaintiff obtained judgment for damages. Adeels Palace appealed to the Court of Appeal

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of New South Wales and that Court (Beazley, Giles and Campbell JJA) dismissed each appeal. By special leave, Adeels Palace appeals to this Court. Each appeal should be allowed. Consequential orders should be made entering judgment in each proceeding for Adeels Palace.

Legal principle: The High Court set out the differences with the prior Modbury case; this set of differences formed the basis of the emergent legal principles. The issues 8.  There was no dispute in these matters that both Mr Bou Najem and Mr Moubarak had suffered serious personal injury. The live issues in the case of each, at trial, on appeal to the Court of Appeal, and in this Court, were, however, whether Adeels Palace owed each a duty of care to prevent harm of the kind suffered, whether that duty had been breached, and whether the breach was a cause of the damage suffered. In Mr Moubarak’s case, quantum of damages was a live issue at trial but not on appeal. 9.  In this Court, Adeels Palace submitted that it owed no duty to those attending its premises to prevent criminal conduct by third parties. It submitted that so much is established by this Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil [(2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61]. It submitted further that, if it did owe some relevant duty of care to its patrons, it was not shown that the reasonable response to the risk of violent behaviour at the function would have been to employ licensed security personnel. Finally, it submitted that it was not shown that the want of licensed security personnel was a cause of the shooting of either plaintiff. 10. Each plaintiff raised further issues in this Court, by notice of contention. Each submitted that he had entered the restaurant under a contract, and that accordingly, by operation of s 74 of the Trade Practices Act 1974 (Cth) (‘the Trade Practices Act’), Adeels Palace impliedly warranted that the services it provided would be provided with due care and skill (including, in this case, by provision of suitable security services). As  these reasons will later demonstrate, it will not be necessary to consider this contention in any detail. Mr Moubarak further sought to contend (by an amendment of his notice of contention first proposed at the hearing of the appeal to this Court) that causation was established in this case by demonstrating no more than that the failure of Adeels Palace to engage competent security staff ‘resulted in a material increase in an existing risk of injury to [him] from violent acts of other patrons and so materially contributed to the injuries suffered by him’. 11. In considering each of the issues of duty, breach and causation, it is of the first importance to identify the proper starting point for the relevant inquiry. In this case there are two statutes which require particular consideration: the Civil Liability Act  2002 (NSW) (‘the Civil Liability Act’) and the Liquor Act. If attention is not directed first to the Civil Liability Act, and then to the Liquor Act, there is serious risk that the inquiries about duty, breach and causation will miscarry.

The court’s decision (application of the legal principles to the facts): The High Court held that a duty of care was owed in the Adeel situation to control the entrance to the social event, and in respect of the responsible service of alcohol to those in attendance. The court held that on the facts there was no breach of the relevant duty of care.

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The joint judgment of all five judges held as follows in this regard: Duty of care? 23.  Contrary to the submissions on behalf of Adeels Palace, this Court’s decision in Modbury does not dictate the conclusion that Adeels Palace owed no relevant duty of care to the plaintiffs in the present cases. Like the claims now under consideration, the claim that was made in Modbury was for damages for personal injury suffered as a result of a criminal assault. The injured plaintiff in Modbury had been attacked in a shopping centre car park at night when the lights in the car park were off. He alleged that the shopping centre proprietor was negligent in not leaving the car park lights on. A majority of the Court held that the shopping centre did not owe the plaintiff a duty to take reasonable care to prevent injury to the plaintiff resulting from the criminal behaviour of third persons on the shopping centre’s land. It is important to recognise, however, that the duty alleged in Modbury was said to be founded only on the defendant’s position as occupier of the land controlling the physical state of the land (there the level of its illumination). What is said in Modbury must be understood as responding to those arguments. No complaint was made that the defendant should have controlled, but did not control, access by the assailants to the land it occupied. 24. It is, of course, important to recognise that the decision in Modbury forms part of a line of cases in which consideration has been given to whether and when one person owes another a duty to take reasonable care to control the conduct of a third person. And the fact that the conduct in question is criminal conduct is of great importance in deciding not only what, if any, duty is owed to prevent its commission, but also questions of breach and causation. 25.  Several considerations set the present case apart from Modbury and point to the conclusion that Adeels Palace owed each plaintiff a relevant duty of care. First, the complaint that was made in these cases was that the occupier of premises failed to control access to, or continued presence on, its premises. Secondly, the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, ‘harm [arise] from violence and other antisocial behaviour’. And thirdly, the particular duty said to have rested on the occupier of the premises (who was the operator of the business that was conducted on the premises) is a duty to take reasonable care to prevent or hinder the occurrence of events which, under the Liquor Act, the licensee was bound to prevent occurring — violent, quarrelsome or disorderly conduct. (And although variously expressed in the legislation of other Australian jurisdictions, the evident scheme of all liquor licensing laws in Australia is to minimise anti-social conduct both on and off licensed premises associated with consumption of alcohol.) 26. In the circumstances reasonably to be contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is 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’. 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

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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.

Significance of this case: Adeel’s case can be read alongside Modbury as providing a distinguishing set of facts. Modbury dealt with the state of the relevant premises — a car park. Adeel’s case deals with a licensed premises and the issue of access to those premises. In Modbury, there was no relevant duty of care; in Adeel’s case there were duties, but no breach of such duties. The joint judgment of all five justices found as follows: Breach of duty? 27.  The question of breach of duty must be considered by reference to the relevant provisions of the Civil Liability Act — in particular s 5B. 28.  It may be accepted, for the purposes of argument, that there was a risk, of which Adeels Palace knew or ought to have known, that there would be violent, quarrelsome or disorderly conduct in the restaurant. It may also be accepted that this risk ‘was not insignificant’. The question then becomes whether a reasonable person in the position of Adeels Palace would have taken the precautions that the plaintiffs alleged should have been taken. Those precautions were the provision of licensed security personnel who would act as crowd controllers or bouncers. 29. Just how many security personnel the plaintiffs alleged should have been provided was not always made clear in argument. The plaintiffs pleaded their cases on the basis that there should have been not only security personnel controlling the entrance to the premises but also sufficient security personnel to intervene in any dispute that broke out within the restaurant. Because the restaurant was on the second floor of a building it seems to have been accepted that to supervise what was happening inside the restaurant would have required personnel who were different from those who controlled access to the premises. Some evidence led at trial suggested that as many as six or eight persons would have been necessary to supervise both the interior of, and the entrance to, the restaurant. 30.  Whether any, and how many, security personnel should have been provided to satisfy the duty of Adeels Palace to take reasonable care depended upon the considerations identified in s 5B(2) of the Civil Liability Act: the probability that the harm would occur, the likely seriousness of the harm, the burden of taking precautions to avoid the risk, and the social utility of the activity that created the risk. No doubt the chief focus of those inquiries in these cases would fall upon the first three of those considerations.

The court added later in its judgment as follows: 55. At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation. It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised that the ‘but for’ test was not always a sufficient test of causation. But as s 5D(1) shows, the ‘but for’ test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s 5D(2).

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56.  Even if the presence of security personnel at the door of the restaurant might have deterred or prevented the person who shot the plaintiffs from returning to the restaurant, and even if security personnel on the floor of the restaurant might have been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither is reason enough to conclude that this is an ‘exceptional case’ where responsibility for the harm suffered by the plaintiffs should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles. 57.  It may be that s 5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd [[2003] 1 AC 32] where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now. The present cases are very different. No analogy can be drawn with cases like Fairchild. Rather, it would be contrary to established principles to hold Adeels Palace responsible in negligence if not providing security was not a necessary condition of the occurrence of the harm but providing security might have deterred or prevented its occurrence, or might have resulted in harm being suffered by someone other than, or in addition to, the plaintiffs. As in Modbury, the event which caused the plaintiffs’ injuries was deliberate criminal wrongdoing, and the wrongdoing occurred despite society devoting its resources to deterring and preventing it through the work of police forces and the punishment of those offenders who are caught. That being so, it should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person’s criminal wrongdoing was a cause of that injury. Accordingly, the submission that the plaintiffs’ injuries in these cases were caused by the failure of Adeels Palace to take steps that might have made their occurrence less likely, should be rejected.

Duty issues regarding the service of alcohol 4.55

4.56

The next case, CAL No 14, develops the line of legal reasoning relevant to the duty of care, and scope of the duty, owed by publicans to those people to whom they serve alcohol. In particular, the case examines whether a landlord owes a duty to third parties, for example the spouse of a hotel patron who dies on the way home from a bar.

CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47 Court: High Court of Australia Facts: The High Court decided the case on a 5:0 basis with two judgments. The following extract is from the joint judgment of Gummow, Heydon and Crennan JJ: 2.  At or shortly after 8.30 pm on 24 January 2002, Shane Scott left the Tandara Motor Inn, Triabunna, Tasmania (‘the Hotel’). His home was about seven kilometers away. He planned to travel there on his wife’s motorcycle. He ran off the road about

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700 metres from home and suffered fatal injuries. It was common ground that the accident resulted from his ingestion of alcohol. His blood alcohol reading was 0.253 g per 100 ml of blood. He had drunk seven or eight cans of Jack Daniels and cola at the Hotel from 5.15 pm onwards. … The facts 7.  Mr Scott worked for the Glamorgan-Spring Bay Council as a backhoe operator. The Council’s depot was adjacent to the Hotel. At lunchtime on 24 January 2002, Mr Scott agreed to meet a workmate, Mr Rex Kube, for a drink at the Hotel after work. After drinking a stubby of beer at the Council’s depot at about 5.00  pm, Mr Scott arrived at the public bar of the Hotel at 5.15 pm, where he met Mr Kube. Mr Scott had been a regular purchaser of liquor from the Hotel’s bottle shop for consumption at home, but was not a regular patron of the public bar. Mr Scott began to drink cans of Jack Daniels and cola, while Mr Kube drank eight ounce glasses of full strength beer. At least initially, they made purchases from the Licensee’s wife. She ceased work between 5.30 and 6.00 pm. The Licensee then took over. He was responsible for all areas of the Hotel: the public bar, the bottle shop, the area in which ‘Keno’ gambling could take place, and the lounge. 8.  The ‘arrangement’. Between 6.00 and 6.30 pm, a rumour circulated that there was a police breathalyser or speed camera near Orford, where Mr Scott lived. Mr Kube suggested to Mr Scott that he place his wife’s motorcycle in a lockable room known as the storeroom or plant room. Mr Scott agreed. Mr Kube asked the Licensee whether the motorcycle could be secured in that way. It was the Licensee’s understanding that Mrs Scott would pick up her husband later that night and that he would collect the motorcycle the next day. Mr Scott and Mr Kube, aided by the Licensee, put the motorcycle in the storeroom a little later. The Licensee then placed the keys to the motorcycle in the petty cash tin, which was the normal receptacle for keys handed over by customers. 9.  At about 7.00 pm Mrs Helen Kube arrived. She offered Mr Scott a lift home two or three times, but he refused, and said on the last occasion that he would call his wife to come and get him. Mrs Kube did not detect signs of intoxication in Mr Scott. She said that he ‘seemed okay’ and ‘was talking okay’; that he did not seem to be uncoordinated, clumsy, fumbling, unsteady, slurred in speech, or agitated; and that he did not lack focus. She did not support suggestions that he was smelling of alcohol and had glazed eyes. Mr and Mrs Kube left between 7.45 and 8.15 pm. 10.  Mr Scott refuses the Licensee permission to ring Mrs Scott. After the Kubes had left, a significant incident took place. Mrs Patricia Thirlway and her 10 year old daughter entered the public bar in order to watch tennis on television. Mrs Thirlway had a conversation with Mr Scott about her brother, who also worked for the Council. Mr Scott appeared ‘friendly and normal’. Mr Scott then left the public bar. He returned 10 or 15 minutes later and placed his head on his hands on the bar. The Licensee came into the bar, told Mr Scott he had had enough, said it was time to go home, and asked for Mrs Scott’s telephone number so that she could be contacted to come and get him. According to Mrs Thirlway, Mr Scott said: ‘If I want my wife I’ll fucken ring her myself’. According to the Licensee, after he had asked Mr Scott whether he wanted him to ring Mrs Scott, Mr Scott became agitated and said: ‘If I want you to ring my fuckin’ wife, I’d  fuckin’ ask ya.’ The Licensee responded: ‘Whoo hang

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on, whoo, whoo, whoo, this is not, you know, don’t go crook at me, this is not the arrangement that was made.’ Mrs Thirlway told Mr Scott that the Licensee was only trying to do the right thing. Mr Scott then directed to Mrs Thirlway ‘a bit of a rant about the local council’ — ‘a bit of a hate session about the local council and the local community’. Mrs Thirlway said he had changed ‘very quickly’, he ‘fired up all of a sudden’, he became agitated, angry, stroppy and sufficiently strange and unpleasant for her not to want to talk to him again. Mrs Thirlway did not want to be involved in a confrontation and tried to ignore Mr Scott. Mr Scott put his head back on the bar and went quiet. Mrs Thirlway and her daughter then left. Like Mrs Kube, Mrs Thirlway did not notice any signs of intoxication in Mr Scott, either before he left the public bar or after he returned. 11.  Mr Scott’s departure. Mr Scott went outside for a couple of minutes and upon his return asked the Licensee for the motorcycle and its keys. The Licensee asked three times whether Mr Scott was ‘right to ride’ and each time Mr Scott answered: ‘Yes, I’m fine’. The Licensee then said he would grab the motorcycle keys and the keys to the plant room. He unlocked the plant room. Mr Scott jumped on the motorcycle, backed it out on his own without any apparent trouble, adjusted his helmet straps and drove off. The failure of the Licensee to insist that he call Mrs Scott to collect her husband constitutes the only alleged breach of duty which remained a live issue in this Court. 12.  Mrs Scott’s alarm. On the evening in question Mrs Scott had planned not to return home until 8.00 pm, since she had to run an errand after work. She thought this may have been a reason for Mr Scott staying at the Hotel instead of going home. She reached home at 8.00 pm. By 8.30 pm she began to feel worried because her husband had not returned. She drove past his place of work to see if he was working late. She also drove past the Hotel but did not see the motorcycle and returned home. The fatal accident took place around 8.30 pm.

Legal principle: Their Honours held as follows: The outcome of the appeal 13.  The Proprietor and the Licensee must succeed for each of three independent reasons. First, even if there was a duty of care, and even if it was breached, it has not been shown that the breach caused the death. Secondly, even if there was a duty of care, it was not breached. Thirdly, there was no duty of care.

The court’s decision (application of the legal principles to the facts): In this regard, their Honours held as follows: Duty of care: the specific allegation in this case 31.  The duty found by the Full Court majority. There is no doubt that the Proprietor and the Licensee 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. As indicated above, the duty relied on by the Full Court majority was a duty to take reasonable care to prevent Mr Scott from riding the motorcycle while so affected by alcohol as to have a reduced capacity to ride it safely. It was not a duty to restrict service of alcohol to Mr Scott. 32.  The duty advocated by counsel. In this Court counsel defended a somewhat narrower version of the duty relied on by the Full Court majority. The duty was said

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to be a duty to take the reasonable care selected prospectively by Mr Scott and the Licensee as the means by which Mr Scott’s interests in not facing the risks of driving the motorcycle while intoxicated could be protected. The relevant means of taking care was to ring Mrs Scott so that she could collect Mr Scott. Counsel for the Board and Mrs Scott defended the Full Court majority’s finding that the duty — or at least that more qualified version of it — existed by referring to Mr Scott’s vulnerability and to the capacity of the Proprietor and the Licensee to influence events. They also referred to the central features of the relationship between the Proprietor and the Licensee, on the one hand, and Mr Scott, on the other. Those features were said to be as follows. Conformably with the commercial self-interest of the Proprietor and the Licensee, it was repeatedly stressed, intoxicating drinks were being served to Mr Scott. Mr Scott was known to have arrived on the motorcycle. The Licensee understood that the drinks had the capacity to impair, and had probably already affected, Mr Scott’s capacity to ride the motorcycle home safely. The rumoured deployment of a breathalyser check led to the Licensee and Mr Scott arranging for the motorcycle to be locked away because it was likely that Mr Scott would break the law if he were to ride it away. The arrangement permitted the Licensee to continue serving intoxicating drinks to Mr Scott, if Mr Scott so chose, because he would not be trying to ride away drunk on the motorcycle. The contemplated impairment of Mr Scott’s capacity to ride safely included a diminished capacity to make sensible judgments. The solution reached by the arrangement was for Mrs Scott to be contacted when Mr Scott was ready to go home. Eventually, the Licensee decided, reasonably, that Mr Scott had had enough to drink. Mr Scott then announced his changed judgment, such as it was, that he would try to ride home. Duty of care: the specific allegation rejected 33.  Was Mr Scott vulnerable? So far as this defence of the Full Court majority reasoning depends on the view that Mr Scott was ‘vulnerable’ or afflicted by a reduction in his capacity to make sensible judgments, it must be rejected. He was a man of 41. He was an experienced drinker — ‘moderate to heavy’, according to Mrs Scott. Neither Mrs Kube nor Mrs Thirlway noticed any of the conventional signs of drunkenness in him. The Licensee did refuse Mr Scott service, but he was likely to be conscious of his own capacity under the influence of drinking. He assured the Licensee three times that he was fit to drive. He drove the motorcycle out of the storeroom without alerting the Licensee to any incapacity to drive. He knew the short route home very well. 34.  Commercial conduct. As to the commercial aspect of the parties’ dealings, counsel did not suggest that the Licensee was pressing drinks on Mr Scott, and accepted that the Licensee may not even have supplied Mr Scott with any more drinks after the arrangement was made. 35.  No duty. Even if there can sometimes be a duty of care on a publican to take reasonable care in relation to the future service of alcohol or the consequences of having served it in the past, no duty can arise in the present circumstances. 36.  Nature of the arrangement. The first reason why that is so turns on the nature of the arrangement. In some respects it was mischaracterised in the arguments of counsel for the Board and Mrs Scott. The arrangement was no more than an informal arrangement instigated by Mr Kube to meet Mr Scott’s convenience. The goal was to store the motorcycle in order to avoid Mr Scott being breathalysed, not in order to avoid him being physically injured or killed. It was Mr Kube, not Mr Scott,

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who requested that the motorcycle be locked up. The arrangement gave no authority over the motorcycle to the Licensee. The arrangement did not deprive Mr Scott of his right of immediate possession of the motorcycle. The arrangement imposed no duty on the Licensee to ring Mrs Scott: it merely assumed that Mrs Scott would come in response to a call from Mr Scott or Mr Kube. The arrangement left it open to Mr Scott to terminate it if he wished: the sub-bailment of the keys and the motorcycle was both gratuitous and at will. 37.  Narrow formulation of duty. The second reason for rejecting the duty of care found by the Full Court majority, or any qualified version of it, lies in the following circumstances. The formulation of the duty of care propounded on behalf of the Board and Mrs Scott is narrow. It selects a particular chain of circumstances leading towards Mr Scott’s death and contends that there was a duty to take care to prevent that chain of circumstances from occurring by preventing Mr Scott from riding the motorcycle. The formulation obscures difficulties in recognising the duty. 38.  Mr Scott’s autonomy. One of those difficulties is that the duty conflicts with Mr Scott’s autonomy. The duty on the Licensee would have prevented Mr Scott from acting in accordance with his desire to ride his wife’s motorcycle home. This conflict does not arise where for some supervening or overriding reason a person who is owed the putative duty is not autonomous, or fully autonomous — because, for example, some control must be exercised by the defendant over another person who either was vulnerable before the control was first exercised, or has become vulnerable by reason of the control having begun to be exercised. That is so for pupils in relation to their teachers, wards in relation to their guardians, prisoners in relation to the risk of fire caused by the negligence of gaolers, prisoners in relation to the risk of harm from other prisoners not properly restrained by gaolers, patients in relation to hospitals, crowds in relation to those charged with the duty to control them, and employees in relation to their employers. But the relationship between Mr Scott, on the one hand, and the Proprietor and the Licensee, on the other, did not impair Mr Scott’s autonomy, and neither did the informal arrangement devised by Mr Kube. 39.  Lack of coherence with other torts. Another difficulty obscured by the narrow formulation of the duty of care in the light of the particular eventuality which came to pass is that of legal incoherence. If the duty claimed to rest on the Licensee existed, it would be incompatible with other duties owed by the Licensee. If the claimed duty extended to a duty to threaten or to use physical force to prevent Mr Scott from obtaining the keys to the motorcycle, for example, it clashed with the Licensee’s duty not to commit the torts of assault and battery, and not to commit corresponding crimes. There are justifications which may be relied on as defences to those torts, but the significance of those torts in preventing violence — abuse of police power against subjects and disorders between subjects — means that the torts should not be narrowed by recognising new justifications as the result of a side wind blowing from the law of negligence. They are torts which ought not to receive significant reduction in scope unless the legislature sees fit. 40.  Lack of coherence with law of bailment. The claimed duty also clashes with the Licensee’s duty as sub-bailee to hand over the keys and the motorcycle to Mr Scott, bailee for his wife. The postulated duty on the Licensee would further clash with s 45 of the Criminal Code (Tas) which gave Mr Scott the right to use force to obtain the keys and the motorcycle. It is true that the Licensee was entitled to use reasonable force to protect the keys and the motorcycle from being taken by a trespasser. But Mr Scott was not a trespasser. In addition to these clashes with the

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common law of Australia and the enacted law of Tasmania, if the claimed duty extended to a duty to prevent Mr Scott leaving the premises on the motorcycle to the possession of which he was entitled and which he had requested, it clashed with the Licensee’s duty not to commit the tort of false imprisonment. 41.  Lack of coherence with legislative regimes in relation to alcohol. Further, even though the claimed duty did not clash directly with the schemes appearing in the enacted law of Tasmania for controlling excessive drinking in hotels, it did not sit well with them. The Licensee had a statutory duty to refuse Mr Scott service and not to supply him with liquor if he appeared to be drunk, to require him to leave the Hotel, and to take reasonable steps to prevent the commission of an offence — but only on licensed premises. A police officer had power to arrest Mr  Scott if that officer had reasonable grounds to suspect that Mr Scott had committed an offence by driving a vehicle under the influence of liquor to the extent that he was incapable of having proper control of a vehicle. A police officer had power to forbid Mr Scott to drive the motorcycle if that officer was of the opinion that he was incapable of having proper control of it, to direct him to deliver up the keys of the motorcycle, and to take such steps as may have been necessary to render the motorcycle immobile or to remove it to a place of safety. As Crawford CJ pointed out, the legislation did not give power of this kind to citizens who were not police officers. The failure to comply with a direction so given or the doing of an act so forbidden is a criminal offence, provided the police officer had reasonable grounds for believing that, in all the circumstances of the case, the direction or prohibition was necessary in the interests of Mr Scott, or of any other person, or of the public. The legislation contains further detailed safeguards for those persons subjected to the prohibitions, directions, and other conduct of police officers pursuant to its terms. These provisions leave no room for the suggestion that the law relating to the tort of negligence gave the Licensee, without regard to the careful statutory safeguards against abuse of police power, a  power to arrest Mr Scott or control his freedom to use property — the motorcycle and its keys  — to which he had a right of possession. Perhaps recognising this, counsel for the Board and Mrs Scott contended at trial that the Licensee had a duty to call the police so that they could exercise their statutory powers, but the trial judge rejected the view that this would have prevented the accident. That rejection was accepted by Evans J, and the contention was not put to this Court. Further, the assumption underlying the general criminal law of Tasmania and the Liquor and Accommodation Act 1990 (Tas) is that licensed premises are to be conducted in such a way as to minimise the risk of antagonism and violence. The conduct which the claimed duty was said to require of the Licensee — paltering with Mr Scott, deceiving him, repeating suggestions about ringing Mrs Scott which had upset him, refusing his lawful requests for his wife’s property — was liable to stimulate antagonism and violence, not minimise it. As this case is dealing with the common law of negligence across Australia, not just in Tasmania, it should be noted that all jurisdictions have legislation raising similar problems of legal coherence to those which are raised by the Tasmanian legislation. 42.  Conclusion on legal coherence. In the words of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody [(2001) 207 CLR 562 at 576], to conclude that the law of negligence creates a duty in the present circumstances ‘would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms’.

Significance of this case: This case can be argued to turn on its particular facts and circumstances; in this regard, its precedent value is somewhat limited. The

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court found no duty of care was owed to the deceased in this particular case. It also found no duty of care was owed to the deceased’s spouse in her capacity as a dependent third party. In this regard, the majority (Gummow, Heydon and Crennan JJ) held as follows: Duty of care of publicans to persons other than their customers 57.  The conclusion that, save in exceptional circumstances, publicans owe no duty of care to their customers in relation to how much alcohol is served and the consequences of serving it says nothing about whether publicans owe a duty to third parties who may be damaged by reason of the intoxication of those customers. Defendants owe duties of care not to the world, but to particular plaintiffs. Some of the arguments against imposing a duty of care on publicans to their customers may have less application where the plaintiff is a third party injured by the customer. The Supreme Court of Canada has recognised, in statements not necessary to the decision, that there is a duty of care to a third party. The Supreme Court regarded this as a logical step from the conclusion that there is a duty to the customer. In this country, since there is generally no duty to the customer, the step cannot be taken on that ground. Whether it is open on some other ground must be left to a case raising the issue. The Civil Liability Act 2002 (Tas) 58.  Mr Scott died on 24 January 2002. The Civil Liability Act 2002 (Tas) contains some provisions relevant, in cases involving intoxication, to contributory negligence and breach of duty. But since the legislation was only enacted on 19 December 2002 and came into force thereafter prospectively, it is irrelevant to the issues in these appeals.

Cases reflecting the influence of statute 4.57

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Statute can, of course, impact on the question of the existence of duty.

Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562; 183 ALR 404; [2001] HCA 59 Court: High Court of Australia Facts: In this case, the court heard two appeals concurrently, which is an established High Court practice. The court considered two sets of facts. The plaintiffs in both cases were fathers of young children. The Sullivan facts concerned allegations of sexual abuse by a father in relation to his daughter. A doctor concluded the girl had suffered sexual abuse. The medical examination was negligent. The  man’s wife left him. Family Court proceedings were resolved in his favour. The father suffered psychiatric and financial loss. He sued the doctor, hospital and a state agency (the Department of Community Welfare) for negligence. The Thompson facts involved allegations of sexual abuse against the father of three young boys. The father was charged with sexual abuse by the police after medical examinations and intervention by the Department of Community Welfare. The charges were later dropped. The father suffered psychiatric and financial loss.

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Legal principle: Whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse owe a duty of care to suspects. The court’s decision (application of the legal principle to the facts): The court held that no duty of care was owed. Significance of this case: In Sullivan, the six-judge joint judgment established the following issues: •

•

•

•

•

The court rejected the Caparo three-stage test (proximity, reasonable foreseeability and just and equitable circumstances). Kirby J was not on the court for this judgment. The court rejected proximity. In fact, it gave proximity short shrift. The court said that its ‘utility is limited’ and that ‘it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established’: at [48]. It agreed with Professor John Fleming (an academic torts specialist who was an Australian-born academic based in the United States and the author of the renowned Fleming’s The Law of Torts) that there is no ‘precise formula’ or comprehensive test for determining whether a duty exists. ‘Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying the unifying principles that would allow ready solution of novel problems’: at [53]. Indeterminacy of liability was a critical aspect of the decision. The court said that in the case of a doctor, ‘the range of people who might foreseeably … suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive’: at [61].

Background and context: The court said that ‘the statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount’: at [62]. This statement is crucial — it meant that, in weighing up the interests of the child, the interests of others such as wrongly accused parents might come a distant second. The case is useful as a guide to what has been rejected as helpful in determining duty issues. The issue left unresolved, however, is the emergent test for duty in Australia. This may become a matter of legislation if the current debate concerning public liability is any gauge.

Duty in the context of psychiatric damage 4.59

We need to distinguish, first, between relational psychiatric harm and ‘pure psychiatric’ harm. Relational psychiatric harm is where a person suffers physical and mental harm as a result of a negligent act done to him or her. The case is covered by normal 217

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negligence principles and the key question is whether the psychiatric harm was reasonably foreseeable. Pure psychiatric harm (or ‘nervous shock’) is where a person has suffered no physical injury but has been left solely with mental or psychiatric problems as a result of the defendant’s negligence. What test should then apply? Think, too, about those who might wish to claim for negligently inflicted pure psychiatric harm. The law distinguishes between primary victims and secondary victims. A primary victim is one who is the subject, or potential subject, of a negligent act. He or she fears for his or her own safety. A secondary victim experiences a psychiatric injury out of fear for the safety of others. He or she is a ‘bystander’. When you think about it, a person who has had some negligent action or omission done to him or her, or to someone the person is close to, is likely to get upset. Grief, upset or unhappiness are common. Should the law compensate for such feelings?

What is psychiatric harm? 4.60

Think for a moment about the different types of mental illness. Depression, neuroses and anxiety disorders are some you may have heard of. Is psychiatric harm the same as mental illness? WEB MD (an online medical resource30 ) gives the following examples of mental illnesses: •• Anxiety disorders: People with anxiety disorders respond to certain objects or situations with fear and dread, as well as with physical signs of anxiety or panic, such as a rapid heartbeat and sweating. An anxiety disorder is diagnosed if the person’s response is not appropriate for the situation, if the person cannot control the response, or if the anxiety interferes with normal functioning. Anxiety disorders include generalized anxiety disorder, panic disorder, social anxiety disorder, and specific phobias. •• Mood disorders: These disorders, also called affective disorders, involve persistent feelings of sadness or periods of feeling overly happy, or fluctuations from extreme happiness to extreme sadness.The most common mood disorders are depression, bipolar disorder and cyclothymic disorder. •• Psychotic disorders: Psychotic disorders involve distorted awareness and thinking. Two of the most common symptoms of psychotic disorders are hallucinations — the experience of images or sounds that are not real, such as hearing voices — and delusions, which are false beliefs that the ill person accepts as true, despite evidence to the contrary. Schizophrenia is an example of a psychotic disorder. •• Eating disorders: Eating disorders involve extreme emotions, attitudes and behaviors involving weight and food. Anorexia nervosa, bulimia nervosa, and binge eating disorder are the most common eating disorders.

30. Go to (accessed October 2018).

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•• Impulse control and addiction disorders: People with impulse control disorders are unable to resist urges, or impulses, to perform acts that could be harmful to themselves or others. Pyromania (starting fires), kleptomania (stealing), and compulsive gambling are examples of impulse control disorders. Alcohol and drugs are common objects of addictions. Often, people with these disorders become so involved with the objects of their addiction that they begin to ignore responsibilities and relationships. •• Personality disorders: People with personality disorders have extreme and inflexible personality traits that are distressing to the person and/or cause problems in work, school, or social relationships. In addition, the person’s patterns of thinking and behavior significantly differ from the expectations of society and are so rigid that they interfere with the person’s normal functioning. Examples include antisocial personality disorder, obsessive-compulsive personality disorder, and paranoid personality disorder. •• Obsessive-compulsive disorder (OCD): People with OCD are plagued by constant thoughts or fears that cause them to perform certain rituals or routines.The disturbing thoughts are called obsessions, and the rituals are called compulsions. An example is a person with an unreasonable fear of germs who constantly washes his or her hands. •• Post-traumatic stress disorder (PTSD): PTSD is a condition that can develop following a traumatic and/or terrifying event, such as a sexual or physical assault, the unexpected death of a loved one, or a natural disaster. People with PTSD often have lasting and frightening thoughts and memories of the event, and tend to be emotionally numb. Other, less common types of mental illnesses include: •• Stress response syndromes (formerly called adjustment disorders): Stress response syndromes occur when a person develops emotional or behavioral symptoms in response to a stressful event or situation. The stressors may include natural disasters, such as an earthquake or tornado; events or crises, such as a car accident or the diagnosis of a major illness; or interpersonal problems, such as a divorce, death of a loved one, loss of a job, or a problem with substance abuse. Stress response syndromes usually begin within three months of the event or situation and ends within six months after the stressor stops or is eliminated. •• Dissociative disorders: People with these disorders suffer severe disturbances or changes in memory, consciousness, identity, and general awareness of themselves and their surroundings.These disorders usually are associated with overwhelming stress, which may be the result of traumatic events, accidents or disasters that may be experienced or witnessed by the individual. Dissociative identity disorder, formerly called multiple personality disorder, or ‘split personality’, and depersonalization disorder are examples of dissociative disorders. •• Factitious disorders: Factitious disorders are conditions in which physical and/or emotional symptoms are experienced in order to place the individual in the role of a patient or a person in need of help. •• Sexual and gender disorders: These include disorders that affect sexual desire, performance and behavior. Sexual dysfunction, gender identity disorder and the paraphilias are examples of sexual and gender disorders. 219

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•• Somatic symptom disorders: A person with a somatic symptom disorder, formerly known as a psychosomatic disorder or somatoform disorder, experiences physical symptoms of an illness or of pain with an excessive and disproportionate level of distress, regardless of whether or not even though a doctor can find a medical cause for the symptoms. •• Tic disorders: People with tic disorders make sounds or display nonpurposeful body movements that are repeated, quick, sudden and/or uncontrollable. (Sounds that are made involuntarily are called vocal tics.) Tourette’s syndrome is an example of a tic disorder.

Even reviewing the above, one is left to muse on what is a mental illness, and what is not.There is, for example, considerable dispute as to whether anti-social personality disorders are mental illnesses, similarly with dissociative disorders. 4.61

The Australian Government’s Department of Health and Ageing ‘Response Ability’ website31 notes that mental illness may be more prevalent than we realise: About 20% of adult Australians, or one in five people, will experience a mental illness at some stage in their lives. Many will live with more than one mental illness at a time, such as anxiety and depression, which commonly occur together.

Each year a further 20,000 Australians are found to have a mental illness. In summary: •• 3,000,000 Australians will experience a major depressive illness during their lifetime; •• 5 per cent of Australians experience anxiety so crippling that it affects every aspect of their lives; •• almost 1 in 100 Australians will experience schizophrenia during their lifetime; and •• about 3 per cent of Australians will experience a psychotic illness such as schizophrenia during their lifetime. Given the above, it might be thought strange that the law has traditionally taken a restrictive approach to compensating people who suffer a mental illness as a result of someone else’s negligence. The reason lies in history. 4.62

You will note that the cases involving psychiatric harm use the term ‘nervous shock’ and not mental illness. What is the difference, and what impact does the difference make?

Nervous shock 4.63

Page, in 1883,32 described ‘nervous shock’ as a bodily illness brought on by fear and alarm as the consequence of an accident.

31. Go to (accessed October 2018). 32. H W Page, Injuries of the Spine and Spinal Cord Without Apparent Mechanical Lesion and Nervous Shock in their Surgical and Medical Aspects, Churchill, London, 1883, p 148.

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This idea, that the injury was a physical manifestation of a sudden shock, has persisted in the law, even after modern psychiatry progressed to a clearer understanding of the workings of the mind. The apparent disconnect between psychiatry and law is not limited to the tort area. Remnants of it are also to be found in the understanding of insanity as a defence to criminal conduct. Though the law uses the McNaghten Rules — which state that a defendant is not liable due to insanity if, at the time, the defendant was incapable of knowing the nature or quality of his or her actions or, if he or she knew the nature and quality of his or her actions, he or she did not know that what he or she was doing was wrong — psychiatry has a more sophisticated appreciation of the working of the mind. Reasons for limiting liability for nervous shock 4.64

Courts have been very wary of permitting liability for pure psychiatric harm. Barker and Hinchy33 argue the reasons are sixfold: 1. The fear that plaintiffs may bring ‘imaginary’ or ‘fabricated’ claims: see, for example, Victorian Railways Commissioners v Coultas34 per Sir Richard Couch. 2. Difficulties of proof. 3. Lack of medical understanding regarding cause. A historical view (largely discredited today) was that psychiatric illness was caused solely by personal mental weakness. 4. The view that psychiatric damage is simply less serious than physical damage. 5. The idea that allowing a plaintiff to litigate such a claim might detrimentally affect his or her recovery by inducing ‘compensation neurosis’: White v Chief Constable of South Yorkshire Police.35 6. The fear of the ‘floodgates’ of liability opening: Tame v New South Wales.36 (See contra Ashby v White.37) Note that this argument has at least two dimensions — a concern about ‘clogging the courts’ with claims and a concern about overburdening defendants with excessive volumes of liability.

What is meant by difficulties of proof? Nervous shock — Australian definition 4.65 In

Jaensch v Coffey,38 Brennan J said that nervous shock was: … the sudden sensory perception — that is, by seeing, hearing or touching — of a person, thing or event, which is so distressing that the perception of the

33. K Barker and R Hinchy, LAWS 1002 Learning Guide, University of Queensland, Brisbane, 2007. 34. Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, which is discussed below at 4.67. 35. White v Chief Constable of SouthYorkshire Police [1999] 2 AC 455; [1999] 1 All ER 1 (HL) per Lord Steyn. 36. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 at [244] per Hayne J; at [192] per Gummow and Kirby JJ. 37. Ashby v White (1703) 2 Ld Ray 938 at 955 per Holt CJ. 38. Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 at 430.

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phenomenon affronts or insults the plaintiff ’s mind and causes a recognisable psychiatric illness.

How does this definition compare with the general understanding of mental illness? How is it more restrictive? It will be seen that the law imposed severe restrictions. While Brennan J’s definition was accurate at the time, over time many of these restrictions have been lifted. Recent legislative reforms, however, have started to swing the pendulum back the other way. This chapter will review selected cases which explain the limitations. The limitations fall into the following classes: •• •• •• ••

the physical impact requirement; the requirement of direct sensory perception or immediate zone; the sudden shock requirement; and the ordinary fortitude requirement.

In addition to the above, we will briefly discuss the recognised psychiatric condition requirement. Physical Impact Requirement 4.66

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The earliest cases of nervous shock denied liability to a person where the traumatic incident did not involve a physical impact.

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 Court: Privy Council Facts: The plaintiffs were driving home in a horse-drawn carriage. They came near to a level crossing where the gates were closed. A gatekeeper employed by the defendants opened the gates and ushered them through. They had passed one set of tracks, when a train whizzed by them. Mrs Coultas fainted, suffered a miscarriage and was ill for some months. Legal principle: Were damages for nervous shock recoverable? The court’s decision (application of the legal principle to the facts): Recovery was denied on the basis that the nervous shock was not accompanied by physical impact, and was thus too remote. The Privy Council was concerned about the possibility of fraudulent claims which were difficult to prove or disprove. Significance of this case: This early case placed significant restrictions on the class of people able to successfully claim for nervous shock.

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Later cases were more progressive. Recovery was permitted where, although there was no physical impact, the plaintiff was caused to fear for her own safety39 or for the safety of her children.40 Direct sensory perception requirement 4.68

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The next major hurdle to be overcome was the requirement that there be some direct sensory perception of the traumatic incident by the person claiming to have suffered nervous shock.41

Chester v Waverley Municipal Council (1940) 62 CLR 1 Court: High Court of Australia Facts: A mother suffered a psychiatric illness after seeing her seven-year-old son’s body lifted out of a trench. The trench had been negligently left open by the defendants, with inadequate fencing to prevent people falling into the trench. Legal principle: Could Mrs Chester recover damages for nervous shock, although she did not witness the death of her son, merely its aftermath? The court’s decision (application of the legal principle to the facts): The plaintiff was not able to sue for nervous shock. She did not have ‘a direct sensory perception’ of the actual incident which caused death or injury, or threatened grave injury. Significance of this case: The case was significant because it placed a serious restriction on the breadth of nervous shock claims. To similar effect was the restriction that the plaintiff must be within the area of impact of the accident when the shock was suffered; see, for example, Bourhill v Young.41

Sensory perception and area of impact were reconsidered in the next case.

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Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Court: High Court of Australia Facts: The plaintiff rescued two co-workers who were severely burnt in an industrial accident. The plaintiff was neither a witness to the incident nor, in advance of the incident, did he know either of the workers who were injured.

39. Dulieu v White & Sons [1901] 2 KB 669. 40. Hambrook v Stokes Brothers [1925] 1 KB 141. 41. Bourhill v Young [1943] AC 92.

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Legal principle: Is a rescuer, who neither witnesses the traumatic incident nor has a previous relationship with the victims, able to sue for nervous shock? The court’s decision (application of the legal principle to the facts): A rescuer could claim damages for nervous shock. In the context of an employer’s duty to provide a safe place of work, the plaintiff’s actions in trying to rescue the other workers, with the possibility of mental illness resulting, was reasonably foreseeable, and not too remote. Significance of this case: The case is important, because it recognises an exception to the requirement for direct sensory perception and area of impact.

Sudden shock and normal fortitude requirement 4.71

Reference has already been made to the requirement for nervous shock to have arisen in response to ‘a sudden shock’. In other words, slow-burning grief reactions were excluded from the ambit of nervous shock cases. Similarly excluded were people who were not of ‘normal fortitude’. That is to say, they were unusually susceptible to nervous shock, in a way that a reasonable person was not. The death knell for the direct sensory perception requirement was Jaensch v Coffey. The case was important also for reinforcing the necessity for a sudden shock, and that the plaintiff be a person of normal fortitude.

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Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 Court: High Court of Australia Facts: The plaintiff was at home when her husband was severely injured in a motor vehicle accident. She arrived at the hospital at the time when her husband had just received treatment for his injuries. She sued for nervous shock. Legal principle: Could someone who had not witnessed a traumatic event sue for nervous shock? The court’s decision (application of the legal principle to the facts): Damages are recoverable for nervous shock occasioned as a result of the death or injury of a loved one, even if the plaintiff was not present at the scene of the accident, provided the plaintiff experienced the immediate aftermath with his or her own unaided senses. As Deane J indicated, the aftermath of an accident extends quite a way: The facts constituting a road accident and its aftermath are not, however, necessarily confined to the immediate point of impact. They may extend to wherever sound may

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carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment. It would, in my view, be both arbitrary and out of accord with common sense to draw the borderline between liability and no liability according to whether the plaintiff encountered the aftermath of the accident at the actual scene or at the hospital to which the injured person had been quickly taken. Indeed, as has been mentioned, in some cases the true impact of the facts of the accident itself can only occur subsequently at the hospital where they are known.42

Defendants were also liable to rescuers who suffered nervous shock provided the person suffering nervous shock was ‘in a close and intimate relationship’ with the person injured. Bystanders or onlookers who were strangers to the victim were excluded from being able to claim. Brennan J spoke in terms of a need for a sudden sensory perception, for example by seeing or hearing the events which constitute the distressing accident and its aftermath. His Honour also noted: A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness.43

Injury for nervous shock is not recoverable unless an ordinary person of normal fortitude would also have suffered some shock. Significance of this case: This case opened up liability for secondary victims much wider than had previously been the case. At the same time, the case reinforced previously stated restrictions such as the sudden shock requirement and the reference to normal fortitude.

Ordinary fortitude requirement

4243

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The last great step in the common law came in 2002. Sudden shock and normal fortitude were done away with — at least as separate requirements.

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 Court: High Court of Australia Facts: These two separate appeals were heard together. In the first case, the plaintiff, Mrs Tame, sued the state of New South Wales following a motor vehicle

42. Jaensch v Coffey (1984) 155 CLR; 54 ALR 417 at 462–3. 43. Jaensch v Coffey (1984) 155 CLR; 54 ALR 417 at 429.

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accident. She claimed that she had suffered a depressive illness, not as a result of the collision, but as a result of a police officer transposing her blood alcohol concentration for that of another driver. In the second case, the Annetts, the parents of a teenager, sued the owner of a station for whom their son worked; the station owner had assured them that their son would be well looked after and, in particular, that he would be under constant supervision. He was not, and died after the vehicle in which he was travelling became bogged in a very remote area. Legal principle: What limitations are placed on claims for nervous shock? The court’s decision (application of the legal principle to the facts): The court did not allow Mrs Tame to recover, but permitted the Annetts’s claim. In so doing, the High Court redefined certain key concepts in nervous shock. The fundamental test for nervous shock, the High Court said, is reasonable foreseeability. The High Court confirmed the importance that the person who suffers nervous shock must be a person of ‘normal fortitude’. This was not, however, an independent test. Rather, it was simply a ‘relevant consideration’. The same was true of the ‘sudden shock’ and ‘direct perception’ ideas. Neither was a necessary precondition. Gleeson CJ noted at [18] that they are relevant to: … the question whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another and to take reasonable care to guard against such injury. In particular, they may be relevant to the nature of the relationship between plaintiff and defendant, and to the making of a judgment as to whether the relationship is such as to import such a requirement.44

44

In Gifford v Strang Patrick Stevedoring Pty Ltd,45 the High Court confirmed its earlier expressed view that neither ‘normal fortitude’, nor ‘sudden shock’ nor ‘direct perception’ are preconditions to liability (at common law) for nervous shock.

Recognisable psychiatric condition 4.75

The Ipp Report recommended that a panel be formed to compile a definitive list of the recognised psychiatric illnesses. That recommendation has not been acted upon.The test at common law is not that a ‘recognised’ psychiatric illness has occurred, but that a ‘recognisable’ psychiatric illness has occurred.

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All that can be said is that the law does not compensate for sorrow or grief. Windeyer J in Mount Isa Mines Ltd v Pusey46 said the following: Sorrow does not sound in damages. A plaintiff in an action for negligence cannot recover damages for a ‘shock’, however grievous, which was no more

44. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 at [18]. 45. Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. 46. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394–5.

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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.

Or more recently, the High Court reiterated this rule. Gummow and Kirby JJ point out the rationale for the rule in Tame and Annetts:47 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. Emotional harm of that nature may be evanescent or trivial.

As Barker and Hinchy point out,48 this means ‘that in assessing damages in a psychiatric damage case, the court could have to go through what has been described as the “artificial exercise” of separating the compensable and noncompensable elements of the plaintiff ’s condition. Miles CJ undertook this exercise in De Franceschi v Storrier’.49

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Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 Court: Supreme Court of South Australia Facts: The plaintiffs were husband and wife. Mr Plenty was ‘disfellowshipped’ from the defendant church. Mr and Mrs Plenty alleged that, by expelling Mr Plenty, the church had breached a contract they had with him, breached a duty of care they owed to him and caused the couple compensable mental distress. They claimed that the procedure to remove Mr Plenty from the church was made without according Mr Plenty natural justice. Legal principle: Could a grief reaction amount to a recognised psychiatric condition? The court’s decision (application of the legal principle to the facts): There was only a social contract between Mr Plenty and the church. Accordingly, no action in breach of contract could be maintained. Mr Plenty was, however, entitled to natural justice and removing him without according him natural justice meant the decision was null and void. As a result of the foregoing conclusions, the judge dismissed the claim in contract. The judge rejected the claim in tort, finding that the Port Pirie church did not owe a relevant duty of care to Mr and Mrs Plenty — that is, a duty not to cause them emotional distress. The judge concluded that in order for a duty of care to

47. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 at [193]. 48. Barker and Hinchy, LAWS 1002 Learning Guide, note 33 above. 49. De Franceschi v Storrier (1988) Aust Torts Reports ¶80-176.

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arise, it was necessary, as a first step, for Mr and Mrs Plenty to establish that the suffering of a recognisable psychiatric illness was reasonably foreseeable. The court accepted that both Mr and Mrs Plenty had suffered distress as a result of being disfellowshipped by the Port Pirie church. However, the court concluded that it had not been proved that either of them suffered from a recognised psychiatric illness. The judge concluded that damages for distress, anxiety and disappointment were not recoverable. Significance of this case: In order to be compensable, damage suffered must transcend emotional distress and amount to a psychiatric illness.

Another example of a case where the courts accepted the plaintiff did suffer a psychiatric illness is outlined below.

4.78

O’Donnell v Ainslie Football and Social Club Ltd [2013] ACTSC 18 Court: Supreme Court of the Australian Capital Territory Facts: The plaintiff went to a social club intending to have dinner with her husband and two children. She stopped at the sign-in point of the club to renew her membership. Her family sat nearby. She asked her husband to bring over her driver’s licence. The plaintiff’s daughter came over with the licence and was electrocuted when she touched a defectively wired light under the counter. The plaintiff subsequently experienced crying and anxiety. She became fearful of electrical items, and would not use automatic teller machines because they ran on electricity. She sold her car because it produced a static discharge when she exited the car. She became hyper-vigilant, easily startled to the point of pain, depressed and experienced post-traumatic stress disorder. Legal principle: Were the damages suffered by the plaintiff recoverable in negligence? The court’s decision (application of the legal principle to the facts): The plaintiff’s symptoms indicated she had experienced more than a grief or anxiety reaction. She was suffering from a recognised psychiatric illness. She was able to recover in negligence.

As Luntz et al point out,50 there has been a tendency of late for defendants to argue that, if the psychiatric illness the plaintiff claims he or she is suffering does not fall within the definitions in the Diagnostic and Statistical Manual of Mental

50. H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, p 475.

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Disorders (DSM: published by the American Psychiatric Association), then the mental illness is not compensable. Such an argument has been given short shrift: Whayman v Motor Accidents Insurance Board.51 Limitations as to the use of the DSM have been identified: Commonwealth v Smith.52 Statutory reforms 4.79

Six jurisdictions have now codified the requirements for nervous shock claims. Queensland law remains that of the common law outlined above. The Northern Territory law also remains unchanged from its previous position (that jurisdiction has its own special provisions governing the issue). The Civil Liability Acts and Wrongs Acts in all other states adopt the reasonable foreseeability requirement from Tame and Annetts but have restored the ‘normal fortitude’ requirement.

4.80

Section 32 of the Civil Liability Act 2002 (NSW) provides: 32 Mental harm—duty of care (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff ’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

The term ‘normal fortitude’ is not defined and, therefore, presumably takes its meaning from the case. The circumstances of the case are, however, defined. Section 32(2) of the Civil Liability Act 2002 (NSW) states that the circumstances of the case include: (a) whether or not the mental harm was suffered as a 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, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

Legislative changes in all states have resulted in what Gibson and Blay have described as ‘a lack of uniformity across the jurisdictions as to who can recover for mental harm’.53 4.81

In New South Wales,Victoria and Tasmania, in the absence of a family relationship, there is now a requirement that the plaintiff must witness the death or danger to

51. Whayman v Motor Accidents Insurance Board [2003] TASSC 149. 52. Commonwealth v Smith [2005] NSWCA 478. 53. The changes across the states are explored at pp 194–7 of S Blay, R Gibson and B Richards, Torts Law: In Principle, 4th ed, Law Book Co, Sydney, 2005.

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a victim. This requirement has, in the past, been strictly enforced: Burke v New South Wales;54 and Sheehan v State Rail Authority of New South Wales.55 A change in approach seems to have been heralded by the High Court in the case below.

4.82

Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 Court: High Court of Australia Facts: Police officers were dispatched to the scene of a railway accident. Many people died in the accident, others were seriously injured. The police officers removed some injured to a place of safety and made others as comfortable as possible. The police officers claimed damages for psychiatric harm. At first instance, and on appeal, the defendant successfully defended the action on the basis that the plaintiffs had not witnessed the death or danger to a victim. Legal principle: Is there a ‘direct perception’ requirement before a nervous shock claim can succeed in New South Wales, Victoria and Tasmania? The court’s decision (application of the legal principle to the facts): The High Court took the view that the evidence suggested that, although the train crash had taken place prior to the police officers’ arrival, some train passengers continued to suffer physical or mental injury after the train crash. On this view, the police officers had ‘directly observed’ death or danger to a victim. Significance of this case: The High Court’s decision in Wicks suggests a more flexible approach to the interpretation of the New South Wales law on nervous shock.

Intentional infliction of psychiatric harm 4.83

4.84

The law has long permitted recovery for intentionally inflicted nervous shock. This area of law is often referred to as the principle in Wilkinson v Downton after the leading case in the area.

Wilkinson v Downton [1897] 2 QB 57 Court: High Court of England Facts: The defendant, as a practical joke, told the plaintiff that her husband had been badly injured in an accident. This was untrue. Mrs Wilkinson suffered nervous shock. The defendant admitted that he meant to cause a shock, though not to cause damage.

54. Burke v New South Wales [2004] NSWSC 725. 55. Sheehan v State Rail Authority of New South Wales [2007] NSWSC 1346.

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Legal principle: What prerequisites are required for the recovery of damages in the case of intentionally inflicted nervous shock? The court’s decision (application of the legal principle to the facts): An action in damages was maintainable, provided the plaintiff could prove two things. First, that the defendant made a statement intended to cause shock to the plaintiff. Second, that the plaintiff suffered damage. Significance of this case: The case established the prerequisites for liability for intentionally inflicted nervous shock.

Think about the following question. Suppose someone in a casual conversation threatens to cause harm to someone. A person who is outside hears the conversation and suffers nervous shock. Can that person sue? 4.85

What about the situation in New York in the 1930s when Orson Welles’s production of The War of the Worlds was broadcast on radio, and people, believing that the earth was really being invaded by Martians, panicked. Could any of these people sue? What are the different legal issues arising? There would seem to be two: 1. Must the statement that causes nervous shock be said to, or in the presence of, the plaintiff? 2. What does ‘intended to cause shock’ actually mean? Those questions were answered by the High Court, in the case below.

4.86

Bunyan v Jordan (1937) 57 CLR 1 Court: High Court of Australia Facts: The plaintiff overheard her employer saying to another that he intended to shoot himself or another. Her employer went to another building, returned, and tore up money saying that he would not live until the morning. She suffered nervous shock and sued. Legal principle: Does a plaintiff have to prove that the statements made, which caused nervous shock, were directed at him or her or made in his or her presence? The court’s decision (application of the legal principle to the facts): Intention to cause distress was of itself insufficient to sound in damages. The words must be either said to the plaintiff, or in his or her presence. As this had not happened in this case, the action failed. Significance of this case: The case outlines an important limitation on the action.

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In a Queensland case, Carrier v Bonham,56 the President of the Court of Appeal, McMurdo P, held that the words ‘acts calculated to cause harm’ should be interpreted so as to mean ‘likely to have that effect’, rather than intending to cause harm. 4.87

In New South Wales, in Nationwide News Pty Ltd v Naidu,57 Spigelman CJ said the following: This issue has not been determined authoritatively. It does appear that an actual subjective intention is not required. Indeed, the formulation in Wilkinson v Downton … refers to ‘an imputed intention’. … It may be that it is sufficient if the result satisfied a test of ‘substantial certainty’… However, a test of reckless indifference to a result will, in this context, satisfy the requirement of intention.

In Victoria, the Court of Appeal in Carter v Walker58 stated that ‘calculated to cause harm’ is not the same as intention. 4.88

The limits of the rule in Wilkinson v Downton were explored in Giller v Procopets.59 In that case, Neave JA, while deciding the case on other grounds, expressed the view that the rule in Wilkinson v Downton would not extend to negligently inflicted emotional distress — it was limited to negligently inflicted psychiatric or physical injury. Ashley JA also thought that negligently inflicted emotional distress would be insufficient to bring the claim within Wilkinson v Downton. Maxwell P dissented.

Trends In High Court torts-related litigation 4.89

An analysis of some trends of tort litigation in the High Court is revealed by a survey of recent cases. Some of the trends include: •• cases with a complexity of issues; •• multi-party litigation; •• pleadings not necessarily being optimally resolved in the courts below; •• a focus on statutory interpretation as the key role of the court in determining the decision; •• the diminishing of the common law as a critical element for resolving the case; •• a reversal, in practice, of the Mason CJ statement that the law of negligence was largely pristine common law; •• the importance of the court’s oversight of a nationally consistent approach to statutory interpretation by the various state and territory courts; •• the critical centrality of the Civil Liability Act 2002 (NSW); and

56. Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA 234 at [12]. 57. Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 at [79]–[80]. 58. Carter v Walker [2010] VSCA 340. 59. Giller v Procopets (2008) VR 1.

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•• the correlative importance of the New South Wales Court of Appeal as the most influential litigation centre beneath the High Court. (The New South Wales Court of Appeal is also at the apex of the busiest state system of courts and where most international disputes are litigated. Decisions of this court are greatly influential in other states. A case which particularly illustrates this point is Newcrest Mining Ltd v Thornton60.) The difference between the task of statutory interpretation and the development of the common law is now clear and explicit. See Newcrest Mining Ltd v Thornton (at [70]) where Crennan and Kiefel JJ held as follows: The Court’s task on this appeal is to construe a provision in a statute, not to develop the common law. Application of the canons of statutory construction will involve the identification of the purpose of a statute, or a provision, which purpose may be stated expressly or inferred from the terms of the statute or provision, and may be elucidated by appropriate reference to extrinsic materials. Historical considerations or extrinsic materials should not displace the clear meaning of statutory text, the language of which is the surest guide to what is called, metaphorically, the “intention” of the legislature. However, the meaning of a provision may require consideration of the context, which can include the history and evident policy of a provision, particularly where a statute alters the common law. The complexity of litigation in the new age of statute (and statute’s exponential growth) and the vital interplay with techniques of statutory interpretation.

An analysis of the High Court’s role reveals that it is moving from developing the Australian common law of negligence to overseeing a matrix or patchwork of consistent statutory interpretation by state and territory courts. As such, the court is evolving a new juristic approach to the oversight and development of tort law in the clear age and epoch of statute, as opposed to common law. Two cases which particularly illustrate these points are from late 2012: Newcrest Mining Ltd v Thornton61 (mentioned above) and Barclay v Penberthy62 (discussed in Chapter 11), and both emanating from Western Australia.

Legal practice and negligence 4.90

There are a number of considerations, which are discussed below.

Legal knowledge 4.91 • Advising

clients: the lawyer’s role is to advise clients on the law and to present the case in the best light. •• Clients assume that lawyers know the law.

60. Newcrest Mining Ltd v Thornton [2012] HCA 60 at [13], [64] and [69]. 61. Newcrest Mining Ltd v Thornton [2012] HCA 60. 62. Barclay v Penberthy [2012] HCA 40.

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Working in the legal system 4.92 • The

negligence system in Australia is a fault-based one. •• Litigation is adversarial rather than conciliatory. It may well be that there are other means of exploring a settlement. •• How can legal costs be controlled? •• What is best for this client in this case?

Being client-focused 4.93 • Acting

for a litigant will vary on a number of bases: are you acting for the plaintiff or defendant, or for a private party or for a public corporation? Is insurance involved? •• The solicitor’s role includes ‘absorbing’ the client’s stress; that is, taking on the technical aspects of the case and its attendant uncertainty.

Skills and competencies 4.94 • Displaying relevant legal skills, that is, not just knowing the law, but advising

on appropriate settlement and other strategic options. •• Being timely with advice and returning calls to clients — most complaints against solicitors stem from delay, and from a lack of communication.

The parties to a basic negligence action 4.95

The two principal players are the plaintiff and the defendant.There are different strategies and demands in those roles. For example: Plaintiffs — acting for them: •• Generally, as the solicitor for the plaintiff, you need to take the initiative with the file and its progress; that is, you need to proceed with the client’s claim as quickly as you reasonably can and you need to be proactive so that the defendant’s solicitor is required to produce responses and documents at various points in the dispute resolution process. •• Dealing with client fatigue or ‘psychological overlay’ — this phenomenon affects people whose claims take a long time (and a high cost) to settle, and they feel the odds are against them. Defendants — acting for them: •• Generally, your role is to minimise the claim. This may mean settling the claim for a modest dollar amount, denying the claim, or defending the litigation process and so on through to the trial. •• If you act for an insurer, you will have many files and will be charged with reducing the claims portfolio and liability of your client. 234

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•• You will assess each claim on its merits. •• Some claims you will ‘vigorously defend’ on your client’s behalf.

Some basic potential negligence scenarios and how they are dealt with in practice 4.96

As we saw above, the types of cases being dealt with in the negligence context cover a wide range of facts and relationships. In broad terms, however, we can divide them between ‘general’ and ‘professional’ scenarios, as detailed below.

General negligence scenarios 4.97

The major categories of general negligence cases are workers’ compensation, motor vehicle accident and ‘slip and trip’ cases.The genesis of these scenarios is Donoghue v Stevenson.63 Some of the situations in which negligence may arise, as outlined in Table 4.4, include: •• drivers in relation to passengers, pedestrians and other road users; •• employer–employee; •• builder–homebuyer; •• child–child/parents; •• local authority–homebuyer; and •• local authority–pedestrian.

Table 4.4 Usual plaintiff

Usual defendant

Example fact scenarios

Key case

Driver 1

Driver 2

• Rear end collision

Imbree v McNeilly [2008] HCA 40

• Failure to give way or obey other traffic regulations • Excessive speed for road conditions

63. Donoghue v Stevenson [1932] AC 562. See 1.5.

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Usual plaintiff

Usual defendant

Passenger

Driver

Example fact scenarios

Key case

• Careless driving • Excessive speed for road conditions

Pedestrian

Driver

Employee 1

Employee 2/ Employer

• Failure to keep a proper watch • Excessive speed • Lack of safe system, safety equipment, safe place of work or competent fellow workers

Stevens v Brodribb (1986) 160 CLR 16; 63 ALR 513

• The employer is vicariously liable for the negligence of employee 2 Employee

Employer

• Lack of safe system, safety equipment, safe place of work

Stevens v Brodribb

• The employer has a direct, non-delegable duty to the employee in relation to these matters Contractor/3rd party

Employer

• Failure to provide a safe system

Stevens v Brodribb

Home buyer

Builder

• Cracks in walls

Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163

• Poor foundations Home buyer

Local council

• Failure to check the building process • Passing a structure that is poorly built or does not meet the local government regulations/by-laws

Sutherland Shire v Heyman (1985) 157 CLR 424; 60 ALR 1

Visitor

Local or other public/ statutory authority

• Road or other public place not (adequately) fenced or sign-posted

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263

Child 1

Child 2/ Parents of child 2

• Child 2 was careless

McHale v Watson (1966) 115 CLR 199, Smith v Leurs (1945) 70 CLR 256

• Parents of child 2 did not supervise child 2 adequately

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Professional/specialist skills scenarios 4.98

There is an increasing range of professional negligence scenarios. The genesis of these scenarios is first, Donoghue, in terms of general principles, and second, Hedley Byrne v Heller,64 in terms of the professional paradigm. Typically, they are underpinned by the defendant possessing some expertise, qualification or particular experience which is then relied on by the plaintiff. Some of the contexts in which professional negligence may arise, as shown in Table 4.5, include: •• doctor–patient; •• solicitor–client; •• auditor–shareholder; and •• architect–occupier or user of the building.

Table 4.5 Usual plaintiff

Usual defendant

Typical fact scenario

Chapter of this book/Key case

Patient

Doctor

• Wrong diagnosis

Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625

• Poorly performed treatment • Failure to warn of possible adverse outcomes •  Wrong prognosis Client

Solicitor

•  Wrong advice • Delay • Incompetence

Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687

Client

Barrister

Giannarelli v Wraith •  Incompetence prior to trial (1988) 165 CLR 543; 81 ALR 417

Shareholder

Company director

• Lack of care at common law or under the Corporations Act regarding management of the company

Shareholder

Accountant

• Lack of care in terms of preparing accounts

•  Wrong advice

64. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] 1 AC 465; [1963] 2 All ER 575.

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The litigation process 4.99

By the term ‘litigation process’, we are referring to the time period between two key dates, namely: 1. the date of the accident or tortious event; and 2. the eventual date of settlement (whether settlement is achieved by negotiation, litigation or some other means). Only a small percentage of negligence cases go all the way to a formally contested trial. The great majority of disputes are settled at some point before trial (with many settling, quite literally, on the steps of the courthouse on the morning of the trial).

The main phases of a negligence claim 4.100

There are several formal steps in the settlement process of a claim. Before we look at them in detail below, it is useful to bear in mind the four main phases to the process. They are as follows in Table 4.6.

Table 4.6 1. The event 2. Investigation/ assessment phase The tortious event giving rise to the alleged loss

A critical issue to investigate is whether fault is established. Investigation includes ascertaining the extent of loss, that is, personal injuries, financial losses, property damage, and so on. Quantifying the claim.

3. The process of determining the claim

4. Finality

Is it possible to settle the claim or use some form of alternative dispute resolution (see 4.97)? Or is formal legal action necessary?

Resolution of the claim. This may involve agreement of the parties or a judgment imposed by the court. Does it provide closure or will there be an appeal?

Alternative dispute resolution 4.101

As the third phase in the table above indicates, there are, in broad terms, two choices for determining the outcome of a claim: 1. alternative dispute resolution (ADR); and 2. litigation. We shall look at each of these options in turn. 238

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Background issues with ADR 4.102

ADR has become a central legal tool. It is regarded as an example of ‘creative lawyering’ and problem solving that is potentially more beneficial to the community than traditional adversarial litigation. Australian lawyers are now being encouraged by organisations such as the Australian Law Reform Commission to adopt ADR as an integral part of their skills base and professional value system. In broad terms, the Australian legal profession is being encouraged to move from a model that might be characterised as ‘adversarial’ to one far more reliant on ‘case management and creative dispute resolution’. What is the future for ADR? If current trends are maintained, it will mean that ADR will grow in importance and will be promoted to the status of a legal ‘value’, as opposed to a mere legal skill. That is, ADR will become a problemsolving attribute promoted as a core activity of the legal profession. Australian lawyers can obtain a qualification in ADR — ‘LEADR’ — which stands for lawyers engaged in ADR.

The ADR options 4.103

In broad terms, ADR involves avoiding the formal court process. The main options are: •• negotiation; •• arbitration; and •• mediation. Arbitration and mediation are more likely in complex engineering or building disputes, for example where there is a dispute in relation to a commercial building. Negotiation is more likely in a personal injuries case, for example, as between the insurer and the injured worker and his or her legal representative. The relevant factors in choosing ADR as a resolution method will depend on the particular circumstances of each case. Some of the factors relevant to choosing ADR will be: •• •• •• ••

It is generally consensual; that is, parties choose ADR. It may be cheaper than litigation. It may prove less adversarial and protracted than litigation. It may be possibly less formal than litigation, for example the rules of evidence may be varied. •• It may be quicker than a trial if it does not involve all the pleadings stages. •• Someone with industry-specific experience and expertise may be nominated as the arbitrator, for example an engineer in a dispute concerning mining equipment. 239

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•• Usually ADR is final and the decision is binding, so there is no appeal through the court system. This may be a high-stakes option for the parties. Despite the potential advantages, do the parties still want their day in court?65 We will now turn to a brief review of litigation as a means of dispute resolution.

Negligence litigation Assessing the merits of litigation 4.104

Depending on the putative defendant’s response (or that of his or her legal advisers) to the plaintiff solicitor’s initial letter of action, the plaintiff will need to consider the merits of litigation. For example, if the defendant has informed you as the plaintiff ’s solicitor that he or she will vigorously defend any proceedings that may be issued, you can assume you are in for a potentially long and drawnout litigation process that may go all the way to trial. So, to reiterate, the plaintiff ’s solicitor needs to carefully assess in the first instance that a theoretical case has at least been made out; that is, is there a prima facie case of negligence based on the instructions obtained from the plaintiff at the initial interview(s)? As a matter of professional conduct, once a lawyer is acting for the defendant, the plaintiff ’s lawyer will communicate with the solicitor. It would be unethical for either lawyer to communicate directly with the other party involved. The next case, Puttick, demonstrates the importance of considering the issue of jurisdiction before commencing the case. This can take on international or interstate significance, depending on the facts, and on issues such as the place of business of commercial/corporate litigants, the alleged place of breach and so forth.

4.105

Puttick v Tenon Ltd (formerly Fletcher Challenge Forests Ltd) [2008] HCA 54 Court: High Court of Australia Facts: Two joint judgments were delivered. Heydon and Crennan JJ agreed with the majority joint judgment, but for different reasons. The majority of French CJ, Gummow, Hayne and Kiefel JJ delivered a joint judgment in which they summarised the facts as follows: 1. The appellant (Mrs Puttick) appeals against orders of the Court of Appeal of the Supreme Court of Victoria dismissing her appeal against orders of a single judge of the Supreme Court permanently staying her action as brought in a clearly inappropriate forum. Much of the argument of the appeal in this Court proceeded on the footing that an important, even a determinative, issue in deciding whether

65. For further information on ADR see, for example, T Sourdin, Alternative Dispute Resolution, 2nd ed, Lawbook Co, Sydney, 2005.

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Victoria was a clearly inappropriate forum is what law governs the appellant’s claim for damages. Is it, as the respondent alleged, the law of New Zealand, or is it, as the appellant alleged, some other law or laws? 2. These reasons will show that the Court of Appeal (and the primary judge) erred in deciding that the material available in this matter was sufficient to decide what law (or laws) govern the rights and duties of the parties. Rather, each should have held only that it was arguable that the law of New Zealand was the law that governed the determination of those rights and duties. Each should have further held, that assuming, without deciding, that the respondent was right to say that the parties’ rights and duties are governed by the law of New Zealand, the respondent did not establish that Victoria is a clearly inappropriate forum. 3. Mrs Puttick’s late husband, of whose estate she is executor, was employed by Tasman Pulp and Paper Company Limited (‘Tasman’) as a marketing assistant, export assistant, and export manager, between about 1981 and 1989. She alleges that her husband contracted malignant mesothelioma and other asbestos-related injuries as a result of his being exposed to asbestos during that time. This exposure is said to have occurred during visits Mr Puttick made to factories in Belgium and Malaysia in the course of his employment by Tasman. 4. Mrs Puttick is now the plaintiff (in substitution for her late husband) in proceedings instituted in the Supreme Court of Victoria claiming damages for the personal injuries suffered by Mr Puttick. The defendant to those proceedings is the present respondent — Tenon Limited (‘Tenon’) referred to in the courts below by its former name of Fletcher Challenge Forests Ltd or ‘Fletcher Challenge’. 5.  Initially the proceedings alleged that Mr Puttick had been employed by Tenon, but it soon emerged that this seemed not to have been the case. As the proceedings are now framed, it is accepted that between about 1981 and 1989 Mr Puttick was employed by Tasman, not Tenon. It is alleged, however, that Tenon owed Mr Puttick a duty of care and that it breached that duty. It is pleaded that the duty was owed ‘[b]y reason of the direction, management and control exercised by [Tenon], its servants and agents, over Tasman and over the work of its employees’ including Mr Puttick. And it is alleged that: Throughout the Tasman employment, Tasman was: (a) a subsidiary of [Tenon]; (b) subject to the direction, management and control of [Tenon], its servants or agents; (c) directed, managed and controlled by [Tenon], its servants or agents; (d) a corporation with no effective independent direction, management and control other than that exercised by [Tenon], its servants or agents.’ 6.  Mrs Puttick brings the action against Tenon pursuant to s 29 of the Administration and Probate Act 1958 (Vic) as administrator of her late husband’s estate for the benefit of the estate, and pursuant to Pt III of the Wrongs Act 1958 (Vic) on her own behalf and on behalf of their children as dependants of the deceased. 7. Tenon is registered as a foreign company in Australia. It was served with the proceedings at its Australian registered office. Tenon entered a conditional appearance and sought either an order permanently staying the proceedings, or

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an order dismissing the proceedings summarily. Tenon contended that the tort of negligence alleged in the proceedings had occurred in New Zealand, that the law to be applied in determining the claim was the law of New Zealand, and that the statute law of New Zealand providing for a no-fault compensation scheme barred the common law claim made in the proceedings. In support of its application, Tenon filed affidavit evidence deposing to matters alleged to bear upon those issues. 8.  The primary judge (Harper J) held that the proceedings should be permanently stayed ‘on forum non conveniens grounds’. It was therefore not necessary to decide Tenon’s application for summary judgment. Accordingly, the primary judge declined to express an opinion about the effect of the New Zealand no-fault compensation scheme on Mrs Puttick’s claim.

Legal principle: Was the case brought in the correct jurisdiction? Was Victoria the proper locus of the case or somewhere else? The court’s decision (application of the legal principles to the facts): The joint judgment of French CJ, Gummow, Hayne and Kiefel JJ provided as follows: 22. Because the material bearing upon where the alleged tort occurred took the exiguous form it did, the present matter differed from the New South Wales decisions upon which Maxwell P relied. In James Hardie & Co Pty Ltd v Hall [(1998) 43 NSWLR 554], it was found on appeal, after trial of the action, that the lex causae was New Zealand. In James Hardie Industries Pty Ltd v Grigor [(1998) 45 NSWLR 20] most of the negligent acts alleged by the plaintiff occurred in New Zealand and the Court of Appeal of New South Wales considered the question of forum non conveniens on the footing that because the negligent conduct occurred there, the place of the tort was New Zealand. But unlike the present case, the material available to the Court in Grigor showed where critical events occurred. Likewise, in Amaca Pty Ltd v Frost [(2006) 67 NSWLR 635], the third decision relied on by Maxwell P, the case proceeded on agreed facts which were understood as showing that the tort occurred in New Zealand. 23. None of these three cases provided a sufficient footing for any conclusion about what law should be held to govern the rights and duties of the parties in the present matter. Rather, as Spigelman CJ rightly said in Frost, each case in which it is necessary to decide where a tort occurred ‘turns on its facts and it will rarely be appropriate to try to reason on the basis of factual analogies’. 24. The Court of Appeal (and the primary judge) therefore erred in concluding that it was possible in this case to make a finding (even a provisional finding) about where the alleged tort occurred. And it follows that it was not possible, on the material available, to decide what the lex causae is, or is likely to be. Rather, all that the courts below could decide was that it was arguable that the lex causae is the law of New Zealand. … 32.  The Court of Appeal should have held that the primary judge erred in ordering a permanent stay. The primary judge’s error lay in attributing determinative weight to a finding (not open on the material then available) that the lex causae was the law of New  Zealand. For the reasons given earlier, the majority in the Court of Appeal also erred in deciding that the lex causae was shown to be the law of New Zealand. Rather, the Court of Appeal should have held that it was not possible to decide what would be the lex causae. And the Court of Appeal should then have

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held that even if the lex causae was later shown to be the law of New Zealand, that circumstance, coupled with the fact that most evidence relating to the issues in the case would be found in New Zealand, did not demonstrate that the Supreme Court of Victoria was a clearly inappropriate forum. 33.  The appeal to this Court should be allowed with costs. The order of the Court of Appeal granting leave to appeal to that Court should not be disturbed. Paragraphs 2 and 3 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 27 November 2007 should be set aside and in their place there should be orders: (a) appeal allowed with costs; (b) set aside the orders of Justice Harper made on 13 October 2006 and in their place order that the defendant’s summons filed on 6 March 2006 be dismissed with costs.

Significance of this case: It is important to consider where the case is commenced and that there is sufficient nexus with the jurisdiction. It is difficult to conclusively demonstrate the negative concept; that is, that a case commenced with some connection to the alleged tortious circumstances is not inappropriate. This is the case of analysing a double negative, which is often part of the relevant legal analysis. For the litigator, this case represents an important contemporary interpretation of the common law principles governing the appropriate choice of forum.

‘Prognosis’ of the case’s merits by the plaintiff’s solicitor 4.106

In effect, the plaintiff ’s solicitor is making a prediction or prognosis about the case. That task varies according to when it is made: Day 1: The prognosis at this stage is identifying whether the claim has merit. Does it meet the tests for negligence? Day 1,000: Does the case warrant being taken all the way to a contested trial, or is there a realistic possibility of settlement?

Preliminary evidential issues Burden and onus of proof 4.107

The plaintiff bears the burden of proof in a negligence claim. The plaintiff must establish each of the elements of his or her case on the balance of probabilities.

Balance of probabilities 4.108

The ‘balance of probabilities’ is the civil burden of proof, as negligence is classified as civil law. (The criminal burden is ‘beyond reasonable doubt’.)

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Evidence generally 4.109

Issues include: •• Is the plaintiff credible? Will he or she make a good witness? •• Are there any witnesses to the incident? What is the credibility of the witness(es)? •• Will experts be required?

The main litigation steps 4.110

The main steps involved in the litigation process are as follows: •• assessment of the claim: – analysis of the relevant statute which may apply and whether there are jurisdictional issues; – is it state or federal legislation? Does it apply to these facts and these parties? and – identification of the key witnesses and the relevant evidence; •• prima facie, the elements of negligence are made out; •• writing of the letter of demand; •• issuing of the writ and statement of claim; •• issuing of the defence; •• discovery of documents; •• issuing of interrogatories; •• pre-trial conference; •• the trial: – the process of eliciting relevant evidence through examination-in-chief and cross-examination; – the verdict; – enforcement of the judgment; and – appealing the decision. These are dealt with more fully below. The following case highlights the importance of the plaintiff calling evidence at trial which goes to proving the relevant issues. Without this foundation, the case may be irreparable on appeal.

4.111

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Court: High Court of Australia French CJ and Gummow J 1. On 19 November 1999 the appellant (“Mr Kuhl”) suffered injuries in the course of his employment with Transfield Construction Pty Ltd (“Transfield”). Pursuant to

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Duty of Care s 93E of the Workers’ Compensation and Rehabilitation Act 1981 (WA), Mr Kuhl was barred from bringing a claim in negligence against Transfield. In the District Court of Western Australia, Mr  Kuhl brought an action in negligence against WOMA (Australia) Pty Ltd (“WOMA”) and Hydrosweep Pty Ltd (“Hydrosweep”), amongst other parties. Both companies were deregistered after Mr Kuhl’s injury but before he commenced proceedings. Pursuant to s  601AG of the Corporations Act  2001 (Cth), in the place of WOMA and Hydrosweep stand their respective insurers, the first and second respondents. 2. Mr Kuhl was unsuccessful in his action against both insurers before the District Court (Wisbey DCJ) and on appeal to the Court of Appeal of the Supreme Court of Western Australia (Martin CJ and Newnes JA; Wheeler JA dissenting). For the reasons given below, there was insufficient evidence to be satisfied on the balance of probabilities that there existed the relevant duty, breach or causation for Mr Kuhl to be successful in his action in negligence, and the appeal to this court should be dismissed. The facts 3.  Mr Kuhl commenced employment with Transfield in September 1999. He cleaned reactor grid floors at a plant owned and operated by BHP Billiton in Port Hedland, Western Australia. The reactors cooked “fines”, small pieces of iron ore, which changed the composition of the fines into hot briquetted iron (HBI). Mr Kuhl had the task of entering the reactors, breaking up any solidified waste material with a jackhammer or sledge hammer and then removing the accumulated fines and other waste using a vacuum. Those who undertook these tasks were colloquially known as “reactor rats”. 4. The evidence accepted by the trial judge as to the relationship between Transfield, WOMA and Hydrosweep was as follows: (a) By November 1999, Transfield was solely responsible for cleaning out the reactors, including using the vacuum hose. A Transfield employee, known as the “hole watcher”, would look through a window into the reactor whilst it was being cleaned to monitor the “reactor rats” and test gas levels. Transfield also had supervisors on site and those supervisors would allocate the work to each employee and conduct meetings to discuss, amongst other things, safety prior to each shift. (b) WOMA provided a vacuum truck, the vacuum hose and other equipment relevant to the vacuuming system. WOMA would set up the equipment and supply two operators for the system; one to operate the truck, the other to check and maintain the line. WOMA would also assist in clearing any obstructions in the vacuum hose when Transfield employees were unable to do so. (c) For a period in November 1999, Hydrosweep supplied a vacuum truck and two operators to WOMA for use at WOMA’s direction. 5.  The vacuum hose used at the time of the accident was flexible, but awkward to use. It was attached to a stand pipe, or manifold, running up the side of the 128 metre tall building, which was in turn connected by hose to a vacuum truck positioned at ground level. The vertical distance from the truck to the manifold connection for the reactor in which Mr Kuhl was injured was some 32 metres. The horizontal distance from the manifold connection to that reactor’s entry point is unclear, but was probably between 20–30 metres. The accident 6.  At about 4.30 am on 19 November 1999, whilst Mr Kuhl was vacuuming the relevant reactor, a blockage occurred in the hose. Mr Kuhl left the reactor so as to try to free the blockage. The evidence at trial was that blockages frequently

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occurred in the hose, sometimes up to 20 times per night. Some blockages were cleared by Transfield employees shaking the hose, hitting the blockage with a shovel or using other similar measures. Blockages that could not be fixed were then dealt with by WOMA employees or people provided for the use of WOMA, sometimes by cutting the hose and then taping it back together, or by reversing the suction. Except when the hose was cut or the suction reversed, the vacuum truck would remain on during the process of attempting to clear the blockage. This was done to assist with the unblocking and to enable one to know whether the hose had successfully been unblocked. 7. On this occasion Mr Kuhl was unsuccessful in unblocking the hose and Mr Kelleher then attempted to do so. Mr Kelleher was an employee of Hydrosweep but was provided for the use of WOMA under WOMA’s direction. On this night the vacuum truck in use was provided by WOMA, and Mr Kelleher was operating the truck and attending to blockages. After attending to the blockage, Mr Kelleher made a gesture to Mr Kuhl that was interpreted by Mr Kuhl as indicating that the hose had been unblocked. The blockage had not actually been removed but that is not relevant to the issues in this appeal. Mr Kelleher then passed the hose back to Mr Kuhl when, some indeterminate but proximate time after, Mr Kuhl’s arm was sucked into the hose. Both Mr Kuhl and Mr Kelleher struggled to free Mr Kuhl’s arm, and were eventually successful in doing so. 8. An important point for this appeal, which will become evident later in these reasons, is that there was very limited evidence as to what happened. Mr Kuhl’s evidence in examination-in-chief was as follows: What happened when the hose was handed back towards you? — My arm was caught in it, in the end, opening of it, whatever you want to call it. If you could just describe in your own words to the court, how was the hose passed back towards you? — Passed direct — What was the physical action? — Just passed directly back to me. I moved it a bit to the side to grab it as it was the only way to do it and the next thing my arm was gone. Which arm? — Left, sucked in. And how far was your left arm sucked into the hose? — Up to my shoulder. Mr Kuhl was not cross-examined and there is no other evidence as to how his arm came to be caught in the hose. 9. The only other person who could have witnessed what happened was Mr Kelleher. His evidence, in examination-in-chief, was as follows: Would it be fair to say that you passed it directly back towards him? — No, in front. Okay. Did you see how his hand came to be caught in the hose? — No. Later in cross-examination, Mr Kelleher gave the following evidence: The way you described it to his Honour a moment ago … was [that] you passed the hose sideways to [Mr Kuhl]. Was that right? — Yeah. Out in front. Out in front, so that when you passed the hose to Mr Kuhl, the open end

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of the hose which had the suction at it, was facing away from Mr Kuhl? — Yeah, yeah. And in front of him? — Yeah. That’s as I remember. 10.  The trial judge accepted Mr Kelleher’s evidence that the suction inlet of the hose was directed away from Mr Kuhl as the hose was passed to him. That finding was not challenged in this court and Mr Kuhl at no stage pleaded that Mr Kelleher was negligent in the manner in which he passed the hose. 11.  A notable aspect of the evidence in this case was that the defendants called no witnesses and challenged little of the evidence given in Mr Kuhl’s case. As plaintiff it was for him to lead evidence of facts sufficient to prove, directly or by inference, on the balance of probabilities that WOMA owed to him a duty of care, that the duty was breached, and that the breach of the duty caused his injuries.

The litigation steps explained Initial assessment of the claim by the plaintiff’s lawyer 4.112

The plaintiff ’s lawyer has basic issues to consider, including: •• The onus of proof rests with the plaintiff on each element of negligence. Is there proof and, if so, what does it consist of? Oral testimony, documents, expert evidence? •• The burden of proof will be the balance of probabilities; that is, is the plaintiff ’s version of events more likely than not? Is the case flimsy and without merit? Is it frivolous or substantial? •• Weighing up the evidence is critical. What is the credibility of your client? What is the credibility of witnesses to the event or experts? How would your client perform in the witness stand?

The letter of demand 4.113

The first of the steps taken by the plaintiff ’s solicitor is, invariably, the initial letter of demand (written on the plaintiff ’s behalf) by the plaintiff ’s solicitor to the potential defendant. The purpose of the letter of demand is: •• to outline the plaintiff ’s case; •• to set out the alleged facts and the version of events giving rise to a cause of action in negligence and compensable loss; and •• to seek the response of the defendant to the claim.

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The letter of demand will have been carefully considered by the lawyer before being written. In particular, is there a case in law based on the plaintiff ’s version of events? Obviously, it would be ideal for a plaintiff lawyer if every letter of demand was met with a response to the effect, ‘How much do I write your client’s cheque out for?’. Usually, however, the response will be to the effect that any proceedings will be vigorously defended and that the matter has been passed on (typically to insurers).

The defendant’s counter-assessment 4.114

Put yourself in the shoes of the defendant client. You have received a letter of demand giving you a deadline to make a response, failing which, proceedings for compensation for a breach based on negligence principles will be issued. You contact a lawyer, or your insurance company, in an agitated state. The defendant’s lawyer then needs to respond to the letter of demand on your behalf. There are two main choices. Those choices are, broadly: 1. to ‘vigorously defend’ the claim; or 2. to settle the claim. If so, when and how can this best be achieved? If the view is taken that the claim should be defended, the defendant’s lawyer will (usually) reply and wait for proceedings to be issued.

The writ and statement of claim 4.115

These are the formal court documents that commence the litigation process. The writ is a précis of the claim; the statement is a more fully rendered version of the claim. These are the first pleadings. They need to disclose a cause of action — in this case, in negligence. They may also disclose other causes of action, such as breach of statute or breach of contract; that is, causes of action may be pleaded in the alternative.

The defence document 4.116

The defence document is filed and served by the defendant in response to the plaintiff ’s writ and/or statement of claim. It will refute, in whole or in part, the claim by the plaintiff. The defendant may opt as follows: •• admit the claim or elements of it; •• make a counterclaim, that is, an allegation of negligence by the plaintiff that has caused the defendant losses;

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•• claim a defence such as contributory negligence, which reduces the plaintiff ’s claim; or •• issue a third-party notice, which will have the effect of bringing a third party in as second defendant.

Settlement issues 4.117

Is a quick settlement possible or will the matter be vigorously defended? Can ADR strategies be deployed or is litigation the only possibility?

Discovery of documents 4.118

Each party discloses relevant documents that establish their version of events.

Interrogatories 4.119

These are questions that each side can ask seeking elucidation of the pleadings (formal court documents) to date.

Pre-trial conference 4.120

This provides an opportunity to settle the matter prior to the formal trial.

The trial, the verdict and enforcement 4.121

Having won, the judgment needs to be enforced.

Appealing the decision 4.122

Is there a question of law that can be appealed (as opposed to an issue of fact)? Other issues include: •• What are the chances of success? •• What is the client’s attitude? •• Who will bear the costs? Your client may have had a costs order against him or her, that is, an order to pay the winner’s costs from trial, and so may be very reluctant to pursue an appeal. The next case, Lujans, demonstrates the importance of key legislative terms in respect of the rights of appellants. The case before the High Court focused on the concept of whether the New South Wales Court of Appeal provided a ‘rehearing’ as was required by s 75A(5) of the Supreme Court Act 1970 (NSW).

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Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51 Court: High Court of Australia Facts: The court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) provided a single joint judgment in which the facts were set out as follows: 1. After a 29 day trial before the Supreme Court of New South Wales (Cooper AJ sitting without a jury), Matina Luise Laima Lujans (‘the plaintiff’) obtained a verdict for $8,759,510.55 against Yarrabee Coal Company Pty Ltd (‘the first defendant’) and Jalgrid Pty Ltd (‘the second defendant’). The defendants had a right of appeal to the Court of Appeal of the Supreme Court of New South Wales. They exercised it, and the Court of  Appeal (Ipp and McColl JJA and Handley AJA) allowed the appeal. Section  75A(5) of the Supreme Court Act 1970 (NSW) provides that an appeal of that kind shall be by way of rehearing. In her application for special leave to appeal to this Court, the plaintiff complains that although the oral hearing in the Court of Appeal lasted for more than two days, the Court of Appeal in truth failed to conduct a rehearing. 2. Counsel for the plaintiff made the following criticisms of the Court of Appeal. It did not consider substantial bodies of evidence. It did not refer to the trial judge’s assimilation of that evidence into his judgment. It misunderstood evidence and proceeded on wrong factual bases. It wrongly relied on its own interpretations of photographs over those which the trial judge had arrived at in the light of what experienced witnesses said about them and about the areas recorded in the photographs. Counsel contended that the Court of Appeal had failed to fulfil the duty of an intermediate appeal court “to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons”. 3. The oral hearing of the special leave application was adjourned into the Court as presently constituted. Argument was heard as if on an appeal. While not every argument of the plaintiff need be considered or accepted, the plaintiff’s complaint should be upheld. Special leave should be granted, the appeal should be allowed, and the proceedings should be remitted to the Court of Appeal. 4. In view of this outcome, it is not intended in the following statement of reasons to say anything about the controversial questions between the parties which might hamstring the conduct of the rehearing. The accident 5. On Friday 18 September 1998 at about 6.20 am the plaintiff, then 28 years old, was driving to her place of employment. She was driving along a haul road about 35 kilometres long from the Capricorn Highway in Central Queensland. It ran north to various mines, at one of which the plaintiff worked. The first defendant was one of the mining companies and controlled the road. The second defendant maintained and repaired the road. The plaintiff was driving a Toyota HiLux vehicle without passengers. Soon after leaving the Capricorn Highway she passed a coal truck on the haul road driven by Mr Geoffrey Allen Routledge. Mr Baxter Ian Smith followed her past the truck. Five kilometres further on, about 5.9 kilometres from the Capricorn Highway, at a point in the road where she was out of sight of Mr Baxter Ian Smith and Mr Routledge, the left-side wheels of her vehicle gradually entered the shoulder of the road from the hard running surface at the start of the sweeping right-hand bend. The vehicle then swung sharply to the right, travelled

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across the road, and rolled over, causing the plaintiff injuries which resulted in quadriplegia. There were no eyewitnesses to the accident except for the plaintiff. The edge of the road on each side was called by the witnesses a ‘rill’ — a type of windrow or ridge of soil left after grading operations. In the immediate area of the accident the width of the road from rill to rill including the hard running surface and the shoulders varied from 10.8 metres at the point where the plaintiff left the road to the left to 11.2 metres at the point where she came back to the right onto the hard running surface. The shoulder was about 1.5 metres wide. This variation in road width occurred over 33.3 metres.

Legal principle: Did the New South Wales Court of Appeal ‘rehear’ the matter as it was required to do so by s 75A(5) of the Supreme Court Act 1970 (NSW)? In this regard the court held as follows: 7. Although the trial judge accepted these parts of the plaintiff’s case, he reduced the damages he would otherwise have awarded by 20% on the ground of contributory negligence. The contributory negligence lay, in the trial judge’s view, in her failure to stay on the eight-metre-wide hard compacted centre of the road. The Court of Appeal’s reasoning 8. The Court of Appeal differed from the trial judge’s view of events immediately before the accident in two ways. First, it said that the reduction in speed took place immediately after the plaintiff passed Mr Routledge’s coal truck five kilometres before she left the road, not just before she left the road. Secondly, it considered that her movement before turning to the right was straight, not arcing. 9. The primary reason why the Court of Appeal reversed the trial judge was that it viewed the sole cause of the accident as being driver error. That error lay in the plaintiff’s failure to remain in the central part of the road and failure to keep away from the left shoulder. The Court of Appeal said that she was not keeping a proper lookout. Thus what the trial judge saw as a factor properly reflected in a finding of 20% contributory negligence was seen by the Court of Appeal as a complete bar to recovery. The plaintiff attacked the merits of endeavouring to examine which of several potential causes actually caused the accident — and counsel for the defendants did say that, as with all accidents, this accident had several causes — by purporting to investigate the role of only one possible cause and not others. That criticism may be put on one side. The significance of the Court of Appeal’s approach is that it did not see it as necessary to consider two challenges which the defendants made to the trial judge’s reasoning — that he erred in finding that the appearance of the road was deceptive, and also erred in finding that the shoulder was soft. However, after the Court of Appeal had decided the appeal on the driver error point, it went on to say that the appearance of the road was not deceptive and, apparently, that although gravel and dust existed on the shoulder, the shoulder was not so soft as to contribute to the accident. While these latter remarks were obiter dicta, the Court of Appeal did discuss some of the evidence going to the latter two questions while examining the question whether the sole cause of the accident was the plaintiff’s failure to keep a proper lookout.

The court’s decision (application of the legal principles to the facts): The High Court held that the New South Wales Court of Appeal did not rehear the matter as required by s 75A(5) of the Supreme Court Act 1970 (NSW). In this regard it held:

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Torts: Principles, Skills and Application Conclusion 31. The criticisms advanced by the plaintiff should, in the respects outlined above, be accepted. The primary difficulty with the reasons for judgment of the Court of Appeal is not that analysis reveals that the conclusions stated in them are necessarily wrong. It is that important steps in the Court’s reasoning are shown not to be valid. In that sense the Court of Appeal has not reheard the matter as it should. 32. Counsel for the plaintiff’s preferred position was that this Court should not remit the matter to the Court of Appeal, but perform the function which the Court of Appeal did not perform and decide for itself whether the trial judge’s orders should stand or not. That preferred position was reflected in various factual arguments not summarised above directed to showing errors in the Court of Appeal’s reasoning, which, even if they were errors, could not be said to reveal a failure to give a rehearing. On an appeal to this Court, in the normal case, its primary duty is to make the order the intermediate appellate court ought to have made. Ordinarily errors of the kinds discussed above are taken into account in deciding what order the intermediate appellate court ought to have made. But to make the order which the Court of Appeal ought to have made is, in the circumstances of this case at least, something which this Court should not do until the Court of Appeal has complied with s 75A(5) of the Supreme Court Act and conducted a rehearing. While it is possible for parties dissatisfied with the results of trials to seek special leave to appeal directly to this Court, and while this course was not uncommonly employed about 40 years ago, the standard practice now is for a rehearing to take place in an intermediate court of appeal first. To adopt the plaintiff’s preferred course would in substance be to entertain an application for special leave to appeal directly from the trial judge’s orders. It is better to give all parties in this case the opportunity to have the benefits of a rehearing in the Court of Appeal — benefits which they have not yet received. That is particularly so in factual circumstances illustrated by this case. There are grave difficulties in assessing the causes of car accidents which took place without eyewitnesses, save for plaintiffs inevitably open to influence by self-interest and understandably having limited recollection. They are difficulties which it would be hard for this Court to grapple with in the absence of reasons for judgment from an intermediate appellate court generated by a rehearing directed to overcoming those difficulties. 33. A question arises as to costs. Counsel for the plaintiff did not submit that the defendants were responsible for the Court of Appeal’s failure to conduct a rehearing. On the other hand, the defendants strongly resisted both the special leave application and the appeal in this Court. An order that the defendants pay the costs of the plaintiff is thus not unjust. The Court of Appeal’s orders, including its order as to the costs before it, must be set aside. The appropriate order for the costs of the hearing in the Court of Appeal must abide the decision of the Court of Appeal which rehears the matter in future, for the outcome of that future rehearing on the merits would be a central factor on the costs issue. Orders 34. The following orders should be made. 1. Special leave to appeal against the orders of the Court of Appeal of the Supreme Court of New South Wales made on 4 December 2007 is granted, the appeal is treated as having been heard instanter, and the appeal is allowed. 2. The orders made by the Court of Appeal are set aside. 3. The matter is remitted to the Court of Appeal for a rehearing of the respondents’ appeal to that Court.

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4. The respondents are to pay the costs of the applicant in the special leave application and the appeal to this Court. 5. The costs of the appeal to the Court of Appeal which led to the orders of 4 December 2007 be in the discretion of the Court of Appeal on the rehearing.

Significance of this case: This case provides valuable lessons for appellate jurisdictions, and for litigators at an advanced stage of the litigation process. The plaintiff was able to demonstrate that a substantive rehearing had not taken place at the New South Wales Court of Appeal; as such, the plaintiff had not been given her right under the New South Wales statute. This case provides clarification regarding key provisions in the New South Wales statutory framework. As such, it will be of persuasive value to other state and territory jurisdictions.

An overview of the litigation steps 4.124

The litigation steps referred to above can be further illustrated as follows in Table 4.7.

Table 4.7 Other issues/ background context

Step

Taken by

What the step typically involves

1. Assessment of the claim

Plaintiff

Assessment of the merits of the claim and the viability of taking action

2. Writing of the letter of demand

Plaintiff

First formal contact with the other side

Usually any documents are passed on to a solicitor. Ethically, solicitors cannot then communicate directly with each other’s clients

3. File and serve the writ/ statement of claim

Plaintiff

Lodgment of the first court document(s)

Must disclose a cause of action in negligence. Often discloses several causes of action, for example tort and contract, common law and statute

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Step

Taken by

What the step typically involves

4. File and serve the statement of claim (3. and 4. may occur at the same time)

Plaintiff

The plaintiff’s full and formal version of the claim

5.The defence is filed and served

Defendant

The formal response to the plaintiff’s claim

6. Discovery of relevant documents

The relevant By both the documents plaintiff and the defendant other than legally privileged documents

7. Issuing of interrogatories

By both plaintiff and defendant

Further elucidation of the issues

8. Pre-trial conference

A formal opportunity to resolve the issues

9. The trial

Judgment/verdict/ decision

10. Execution of the judgment

The winner

11. Appealing the The loser trial judge’s decision

Other issues/ background context

Execute the judgment. The cause of action is terminated by its merger in the judgment

Can involve a series of measures, depending on the circumstances

Questions of law

As opposed to questions of fact

Conclusion 4.125

The aim of this chapter has been to give you a broad idea of how the court has dealt with critical foundation issues relevant to negligence law. Duty of care issues particularly underpin both economic loss and psychiatric illness cases. 254

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If we go back to basics, the court in each case is being asked: should the loss shift from the plaintiff to the defendant? A multiplicity of factors go to answering this question, including: •• the relative conduct of the plaintiff and defendant within the matrix of the relevant facts and circumstances; •• the factual context of the loss; •• the moral and behavioural stances of the parties; and •• the capacities of the parties to look out for themselves.

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Review Reading M Davies & I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Chs 6, 11 and 12 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 2

Key Cases Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 Anns v Merton Borough Council [1979] AC 728 Blyth v Birmingham Waterworks (1856) 156 ER 1047 Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 Bunyan v Jordan (1937) 57 CLR 1 CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47 Caparo v Dickman [1990] 2 AC 605 Chapman v Hearse (1961) 106 CLR 112 Chester v Waverley Municipal Council (1940) 62 CLR 1 Derry v Peek (1889) 14 App Cas 337 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; [1999] HCA 59 Donoghue v Stevenson [1932] AC 562 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139; [2003] HCA 51 Heaven v Pender (1883) 11 QBD 503 Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 Le Lievre v Gould [1893] 1 QB 491 Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51 Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79 Mitchel v Alestree (1676) 83 ER 504 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 256

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ALR 411; [2000] HCA 61 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 O’Donnell v Ainslie Football and Social Club Ltd [2013] ACTSC 18 Palsgraf v Long Island Railroad Co 248 NY 339 (1928) Perre v Apand (1999) 198 CLR 180; 164 ALR 606 Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 Puttick v Tenon Ltd (formerly Fletcher Challenge Forests Ltd) [2008] HCA 54 Rogers v Whitaker [1992] HCA 58 Stuart v Kirkland-Veenstra (2009) 237 CLR 215 Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562; 183 ALR 404; [2001] HCA 59 Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 Ultramares Corp v Touche, Niven and Co 174 NE 441 (1931) Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 Wilkinson v Downton [1897] 2 QB 57 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515; 205 ALR 522; 78 ALJR 628

Chapter 4 Review Questions 1. What are the two elements vital to establishing that a duty of care is owed in any particular context? 2. Which of the two ingredients has occupied more of the High Court’s attention in the last decade? 3. What are the three types of proximity identified by Deane J in Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1? 4. What is meant by the phrase ‘indeterminate liability’? 5. What is the current test for determining the existence of a duty of care in novel situations?

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Tutorial 4: Claims for psychiatric harm In 2007, the Redland Eagles are hotly tipped to win the Australian National American Football League. Their star quarterback, Francisco Francisco (a man so nice, they named him twice), is an import from California. With a record 497 ‘first downs’, he is a hard man to beat. Francisco’s Australian-born wife, Petrina, has found it hard to get excited about American football. She tries to be as supportive as she can, but, generally speaking, she watches her husband’s football matches on TV, rather than attend in person. Jack, Francisco and Petrina’s eldest son, is a football fanatic. He loves attending the games. Jerome, the second son, sometimes attends the games though it depends if the games clash with ice hockey — Jerome’s other passion. The game on 3 August is a particularly harrowing one. The Redland Eagles are ‘up against’ their old rivals, the Blueland Plainsmen. Roger Scram is an offensive linebacker for the Plainsmen and plays to good effect, blocking a number of plays and interfering with others. By half time, the Redland Eagles are ‘carrying’ a number of injuries, though, mercifully, Francisco is not among them. As the teams retire to their dressing rooms, there is an earth-rendering ‘crack’ sound, and the Eagles’ dressing room collapses. Jack, who is hovering outside the dressing room hoping to speak with his father, watches as a girder slams down, pinning Francisco to the ground. He is unable to see further as dust fills the air. He immediately rushes to the aid of the players (especially his father) and, with others, successfully extracts a bloodied and screaming Francisco from the wreckage. Petrina, who witnesses the collapse of the dressing room on TV, immediately rings her sons to see if they know what is going on. She is unable to raise Jack, but speaks with Jerome who is at a hockey match. She asks him to go to the hospital, but does not explain more as Jerome’s mobile phone battery abruptly dies. Jerome is not too worried. His father is regularly taken to hospital suffering from football-related injuries and, as Petrina does not drive, inevitably he or Jack has to pick up Francisco from hospital. Jerome leaves the hockey match and takes a leisurely drive to hospital. He arrives just in time to see his father writhing in agony, blood everywhere, screaming in pain. The scene at the hospital is chaos. Jerome tries to follow but is ushered away by hospital staff.

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Francisco has suffered severe internal injuries, a broken back and broken ribs. His legs are crushed beyond repair. Despite frantic efforts on the part of hospital staff, he dies shortly after. Jack and Jerome suffer psychiatric disorders as a result of what they saw. Petrina, devastated at the loss of her husband, suffers grief and sorrow. The collapse of the stadium was due to the administered negligence of Dodgy Maintenance Pty Ltd. Jack, Jerome and Petrina wish to sue for nervous shock. Advise them.



Tutorial 4: Example Answer Jack, Jerome and Petrina should be advised that the law has traditionally taken a restrictive approach to nervous shock claims. It is unclear from the facts where the collapse of the dressing room took place. Queensland still follows the common law; in all other jurisdictions, the Civil Liability Act or Wrongs Act governs the issue. Broadly speaking, nervous shock is the reasonably foreseeable occurrence of a recognised psychiatric illness. At common law (that is, in Queensland), in assessing whether the psychiatric illness is reasonably foreseeable, the court will take into account whether the person suffering the psychiatric illness was of reasonable fortitude, whether he or she suffered the illness in response to a sudden shock, and how the person came to perceive the incident giving rise to the illness. These are factors only, and are not separate requirements: see Tame and Annetts.66 Under the Civil Liability Acts and Wrongs Acts (all other jurisdictions), it is important that Jack demonstrate that he is of normal fortitude since this is an explicit requirement under the Acts. Additionally, in assessing whether, in the circumstances, psychiatric harm was reasonably foreseeable, the court is required to consider: (a) whether the mental harm was suffered as a result of a sudden shock; (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; (c) the nature of the relationship between the plaintiff and any person killed, injured or put in danger; and (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

66. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35.

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Re: Petrina It is a requirement, both at common law and under the various Civil Liability Acts and Wrongs Acts, that a claimant for nervous shock must have suffered a recognised psychiatric illness. As the High Court stated in Tame and Annetts, grief and sorrow are among the ‘ordinary and inevitable incidents of life’,67 and recovery for these is not provided for in a nervous shock claim. It follows that, as Petrina has suffered a normal grief reaction, she cannot claim for nervous shock. Re: Jack It is reasonably foreseeable that a person coming to the aid of a person in an emergency would suffer a psychiatric illness.68 In Mt Isa Mines v Pusey,69 there was no pre-existing relationship between the rescuer and the direct victims of the negligence, yet the court allowed the claim for nervous shock. Here, where Jack is the son of the direct victim of negligence, the case is even stronger.Though not a separate requirement, one of the factors the court might additionally consider at common law as to whether psychiatric injury was reasonably foreseeable is whether the illness was the result of a sudden shock (it was). How the plaintiff came to view the incident (direct viewing) and whether Jack is a person of ordinary fortitude may also be relevant. At common law, then, Jack would be successful in his claim. If Jack’s claim fell to be considered in a non-common law jurisdiction (that is, anywhere other than Queensland), it is important that Jack demonstrate that he is of normal fortitude since this is an explicit requirement under the Acts. Additionally, in assessing whether, in the circumstances, psychiatric harm was reasonably foreseeable, the court is required to consider: •• whether the mental harm was suffered as a result of a sudden shock; •• whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; •• the nature of the relationship between the plaintiff and any person killed, injured or put in danger; and •• whether there was a pre-existing relationship between the plaintiff and the defendant.

67. Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 at [193]. 68. Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383. 69. Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383.

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As discussed above, the first three factors are clearly satisfied in Jack’s case, though the last is not. This one factor is not fatal to Jack’s claim — it is only a factor to be considered and is not determinative. It is likely that Jack would be successful in a claim for nervous shock. Re: Jerome Again, the key question is reasonable foreseeability of psychiatric harm. Jerome’s circumstances are similar to the circumstances of the plaintiff in Jaensch v Coffey,70 where a claim for nervous shock was allowed. At common law, though not separate requirements, some of the factors the court might additionally consider when deciding whether psychiatric injury was reasonably foreseeable include whether the illness was the result of a sudden shock (it was) and how the plaintiff came to view the incident (direct viewing of the aftermath). Whether Jerome is a person of ordinary fortitude may also be relevant.71 If Jerome’s claim fell to be considered in a non-common law jurisdiction (that is, anywhere other than Queensland), it is important that Jerome demonstrate that he is of normal fortitude since this is an explicit requirement under the Acts. Additionally, in assessing whether, in the circumstances, psychiatric harm was reasonably foreseeable, the court is required to consider: •• whether the mental harm was suffered as a result of a sudden shock; •• whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; •• the nature of the relationship between the plaintiff and any person killed, injured or put in danger; and •• whether there was a pre-existing relationship between the plaintiff and the defendant. Jerome’s situation would satisfy all but the second and last factors. Dependent upon the weight attached to the various factors, this may not be fatal to his claim. Jerome will likely be successful in his claim for nervous shock.

70. Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417. 71. See Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35.

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Breach of the Duty of Care Legal practice skill: Acting for children

Learning aims •

Know the test for finding the appropriate standard of care

•

Understand the difference between a legal breach and a factual breach

•

Learn the common law and statutory tests for finding a breach of a duty of care

Background concepts First principles 5.1

As we saw in Chapter 4, a threshold issue in determining liability is that the defendant owes a duty of care to the plaintiff.The follow-up inquiry is whether there has been a breach of duty by the defendant in relation to the plaintiff. In order to determine whether or not there has been a breach of the duty of care, a number of factors need to be considered. First, it is necessary to identify what the factual breach is. Just because a defendant has arguably done something careless or without due care does not mean that they have instantly breached their duty. Instead, it is necessary to analyse the relevant case law and statutory provisions to determine if there has been a legal breach.

Standard of care 5.2

Before looking at whether or not a defendant has breached his or her duty of care, it is necessary to determine what the standard of care is; that is, the level of care the defendant owes to the plaintiff.

How is the defendant’s standard of care determined? 5.3

There is a basic choice for the courts. They can treat defendants alike or they can treat each defendant on the basis of his or her own circumstances and 263

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characteristics. The treatment of a defendant’s behaviour by the courts can be divided into two basic models: •• An ‘objective’ approach (where people or classes of people are treated the same): The practical effect for the court system is that this might cut down on the work for the court, but it might also produce skewed results where particularities are ignored. •• A ‘subjective’ approach where people’s differences and ‘idiosyncrasies’ are taken into account: The practical effect for the court system is that this would increase the workload for the courts because all sorts of personal circumstances would need to be judged by the courts.

The objective and subjective approaches in practice 5.4

As a general rule, the defendant’s standard of care is determined objectively. For example, the standard of care of all drivers of motor vehicles will be determined objectively. In the alternative, subjective elements may come into play in the standard of care inquiry in terms of the age of the defendant or the level of skills that a defendant may profess to have.

The objective model: the ‘reasonable person’ test for defendants 5.5

The reasonable person test is used when determining what the standard of care should be in a particular case. Obviously, what is reasonable to one person is not necessarily reasonable to another. Instead the test refers to an idealised, model person with ‘every person’ attributes invented by the courts. In that sense, the reasonable person is a construct or legal fiction. The term ‘reasonable person’: •• is a convenient ‘word formula’ for the courts to adopt; •• needs to be applied in context to be made sense of; •• has historically been expressed in male terms. The classic United Kingdom term to represent the reasonable person was the ‘man on the Clapham omnibus’. This  is dated in terms of both its gendered language and the quaint reference to what we would today call a ‘bus’; •• in Australian terms, has been referred to by Deane J as the ‘hypothetical person on a hypothetical Bondi tram’;1 •• has an objective theoretical basis; and •• in terms of cases, however, is usually applied via at least some of the characteristics of the particular defendant, so that its application is a mix of the subjective and objective.

1. Papatonakas v Australian Telecommunications Commission (1985) 156 CLR 7 at 36 per Deane J.

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Particular contexts of the reasonable person test Drivers in general 5.6

The following case establishes what the duty and standard of care is of a driver to another road user is.

5.7

Imbree v McNeilly [2008] HCA 40 Court: High Court of Australia Facts: An unqualified driver injured his passengers. The passenger was, in the particular context of the accident, regarded as akin to a driving instructor. Legal principle: The court found that the decision in Cook v Cook2 should be overturned. It determined that an objective standard should be applied to the test of driver ability: the test was that the driver was to be regarded as the reasonable driver. Why? Because if a general standard was not imposed, there would be uncertainty. As the court in Imbree found (at [72]): The principle adopted in Cook v Cook departed from fundamental principle and achieved no useful result. It is necessary, of course, to recognise that it is a decision that has stood for more than 20 years. Although it seems that there are few if any decided cases in which it has been applied to deny liability, it must be assumed that its application may have affected the terms on which cases have been compromised and the apportionments of responsibility that have been made by courts and parties. Yet despite these considerations, it is better that the departure from principle is now recognised. The plaintiff who was supervising the learner driver, the plaintiff who was another passenger in the vehicle, the plaintiff who was another road user are all entitled to expect that the learner driver will take reasonable care in operating the vehicle. The care that the learner should take is that of the reasonable driver.

Children

2

Children as defendants 5.8

When children are defendants in a negligence claim, should they be judged in accordance with the reasonable person test? The following case sets out the standard of care which is relevant to a defendant who is a child.

2. Cook v Cook (1986) 162 CLR 376; 68 ALR 353.

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McHale v Watson (1966) 115 CLR 199 Court: High Court of Australia Facts: A boy aged 12 was playing with a dart. He threw it at a post. It missed the post and hit a girl aged nine in the eye. Legal principle: What was the boy’s culpability? The court’s decision (application of the legal principle to the facts): Is the standard objective or subjective? In this case, the standard appears to have been applied subjectively. The standard was held to be that of the reasonable 12-year-old child. The High Court held there was no breach of the duty owed by the boy to the girl. The various tests/standards used by the judges in McHale v Watson in relation to a child defendant can be summarised as follows.

Judge in McHale v Watson

Test of liability for a child defendant

Comment on the test

1. McTiernan ACJ

Decision

12-year-old defendant not liable

2. Kitto J

‘an ordinary child of comparable age’

A mix of the subjective and objective

As above: not liable

3. Owen J

‘a child of the same age, intelligence and experience’

This is the most subjective of the tests in that it takes into account a number of particular attributes of the defendant

Not liable

4. Menzies J ‘ordinary (dissented) reasonable man’

This is an objective standard of care

The defendant is liable. Menzies J (dissenting) effectively judges the 12-year-old defendant as an adult

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Children as plaintiffs 5.10

5.11

A related issue is how the courts treat child plaintiffs and to what extent they will be held responsible for their own injuries (this involves examining the contributory negligence defence which we look at further in Chapter 7). Kelly v Bega Valley County Council Unreported, 13 September 1982 Court: New South Wales Court of Appeal Facts: A boy aged 11 was seriously injured after coming into contact with a high voltage terminal owned and constructed by the council. He sued the council. They sought a ruling on contributory negligence. Legal principle: The question for the court was to what extent was the boy responsible for his own injuries? That is, what was the extent, if any, of his contributory negligence? The court’s decision (application of the legal principle to the facts): Glass JA imposed an objective standard. He said: ‘I … take the law to be that the conduct of a particular infant plaintiff charged with contributory negligence is to be measured according to the hypothetical conduct of an infant of the same age’. He said that there could be a ‘gloss’ (a qualification or variation) on the objective standard so that the court could consider particulars such as ‘the levels of intelligence, experience and development’. For the court to consider this potentially lesser standard, the evidentiary standard is on the child to show he or she has a ‘physical or mental infirmity’. These include ‘the brain damaged child, the one-legged child, the blind child would be able to invoke his idiosyncrasies’ (but not this plaintiff). Background and context: We will look at this case again in Chapter 7 (see 7.27) in terms of the defence of contributory negligence, which examines the issue ‘to what extent is a plaintiff responsible for his or her own injuries?’ Glass JA went on to state that ‘the conduct of each negligent party is open to calibration on three separate scales — its intrinsic danger, its duration and the maturity of the actor’. Applying these, he found as follows.

Factor

Applied to the Applied to the defendant council 11-year-old plaintiff

Intrinsic danger of electricity infrastructure

The plaintiff put only himself at risk

••The council transmitted electricity at lethal voltages in a public street ••The council was, therefore, potentially putting the public at risk

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Factor

Applied to the Applied to the defendant council 11-year-old plaintiff

Duration of the electricity project

‘The plaintiff’s default was ephemeral and impulsive in character’

The council’s ‘default’ (set out above) applied throughout the council area for a lengthy period of time

Maturity (age etc) of the actor (ie relevant parties)

‘The plaintiff was an immature boy of 11’

‘The defendant’s default was that of mature men’

Glass JA relied on a fourth factor. He found that the council had created a situation which was alluring, that is, 11-year-old boys would be attracted to climbing their electricity poles. He found that this ‘in a real sense provoked and facilitated the default of the plaintiff’. He found the council, therefore, 75 per cent to blame.

Breach of the duty of care Introduction 5.12

In order to determine if there has been a breach of the duty of care, a number of factors need to be discussed. First, whether or not there is a factual breach needs to be assessed. That is, what did the defendant do or fail to do that constitutes a breach? Some examples of a factual breach are: •• not giving way at an intersection; •• failing to diagnose a medical condition; and •• providing negligent advice to a client. In order to establish a factual breach, it is necessary to analyse the relevant statutory provision/s and the precedent common law cases. For example, in New South Wales it is necessary to apply s 5B of the Civil Liability Act 2002 (NSW).

Has the defendant breached the duty of care in this case? 5.13

Negligence litigation involves assessment of the particular relationship between plaintiff and defendant and the relevant and particular facts and circumstances as between them. The inquiry is aimed at particulars, not generalities, and cases often turn on finite and particular pieces of evidence.The court seeks to answer the specific inquiry: has the defendant actually been negligent? That is, has the defendant breached his or her duty of care in this case? 268

5.16

Breach of the Duty of Care

This involves assessment and analysis of several factors, including: •• the behaviour of the defendant; •• the behaviour of the plaintiff; and •• the surrounding facts and circumstances.

Legislative provisions 5.14

Traditionally, whether or not there was a breach of the duty of care was determined under common law principles. In order to work out whether or not there was a breach of the duty of care it was necessary to look at a selection of what was then known as ‘calculus of negligence factors’. It is no longer necessary to apply these factors under the direction of the common law. These factors have been subsumed into the applicable legislation. The provisions in the other jurisdictions in Australia are very similar to the New South Wales provisions.3 We will focus on the New South Wales provisions in this chapter. Please note there are no equivalent provisions in the Northern Territory. Instead see Romeo v Conservation Commission (NT) (1998) 192 CLR 431.

5.15

Section 5B of the Civil Liability Act 2002 (NSW) is as follows: (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (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.

Section 5B(1) of the Civil Liability Act 2002 (NSW) 5.16

Section 5B(1)(a) of the Civil Liability Act 2002 (NSW) sets out that a defendant cannot be liable for an unforeseeable risk. In other words, a foreseeable risk must not be far-fetched or fanciful.

3. See Civil Law (Wrongs) Act 2002 (ACT) s 43 (1); Civil Liability Act 2003 (Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s 48(1); Civil Liability Act 2002 (WA) s 5B(1).

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Section 5B(1)(b) of the Civil Liability Act 2002 (NSW) notes that the risk must not be insignificant. In Shaw v Thomas,4 Macfarlan JA stated: ‘The requirement in s 5B(1)(b) that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much’. Section  5B(1)(c) refers to the concept of the reasonable person which has traditionally been used in negligence cases. The standard of the reasonable person has been critiqued extensively. Obviously, what is reasonable behaviour to one person, may not be to another.The reasonable person tends to be viewed as an idealised, ethical standard. Section 5B(2) factors 5.17

Section 5B(2) is essentially a statutory implementation of what was previously known as the ‘calculus of negligence factors’ as stated in 5.12. In order to determine how these sections are applied, it is helpful to look at both past common law cases and cases which have since interpreted these sections, as shown in Table 5.1.

Table 5.1

Relevant section in New South Wales

Factor

Summary

Relevant case law

Section 5B(2)(a)

Probability

Probability of harm happening

Bolton v Stone [1951] All ER 1078 Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761

Section 5B(2)(b)

Paris v Stepney Borough How serious are Gravity/ seriousness of the injuries/damage Council [1951] 1 All ER 42 likely to be? injury

4. Shaw v Thomas [2010] NSWCA 169.

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Breach of the Duty of Care

Relevant section in New South Wales

Factor

Summary

Relevant case law

Section 5B(2)(c)

Practicality

The burden to the defendant of taking precautions

Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn v Hadba (2005) 221 CLR 161

Section 5B(2)(d)

Justifiability/ social utility

Were the actions of the defendant justified? In light of social/cultural/ environmental considerations, are the actions of the defendant justified?

Watt v Hertfordshire County Council [1954] 2 All ER 368 NSW v Fahy (2007) 236 ALR 406 Rhodes v Lake Macquarie City Council [2010] Aust Torts Reports 82-073 [2010] NSWCA 235

Probability of injury to the plaintiff; that is, what were the chances of the plaintiff being injured? 5.18

5.19

One of the factors which may be relevant to determining whether or not the duty of care has been breached is probability. In other words what were the statistical chances of the injury/damage happening?

Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 Court: House of Lords Facts: During a game of cricket played at a suburban oval, a ball was hit for six and crossed a two-metre-high fence. It struck the plaintiff, Miss Stone. The matter went on appeal to the House of Lords. Key evidence was presented in the case concerning the number of times a ball had been hit out of the ground. Records had been kept over a long period of time. There had, for example, been ‘sixes’ by famous cricketers

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Torts: Principles, Skills and Application

longer than the shot in question. The findings of fact had shown that the number of balls driven straight out of the ground, however, was so small as to be almost negligible, and the probability of a ball so struck hitting anyone standing in the road adjacent to the ground was so slight as to be almost negligible. Legal principle: The principle that emerges from this case is as follows: the less likely it is that there could be an incident that will give rise to damage or injury, the less likely the court will be to find the defendant liable. The corollary of this is that the more likely it is that the event will occur, the more likely the court will be to find negligence on the defendant’s part. Background and context: This is a post-World War II United Kingdom case involving the English national game. Taking a ‘law and critique’ approach, one could argue that cricket lies at the centre of the English national identity and is an important aspect of the national psyche and also that of many judges who may have been educated at schools where cricket in the summer and rugby in the winter are the leading sports. Consequently, the judges may have had instilled in them a lifelong love of the game. While judges are not necessarily ‘cricketing tragics’, their interest and enjoyment of the game could be argued to diminish the chances of a liability finding in a case such as Bolton v Stone.

5.20

Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 Court: High Court of Australia Facts: In 1998, the plaintiff, who was a boy of 14, dived from a bridge which had been constructed by the Roads and Traffic Authority (RTA) in 1959. The water below the bridge was shallow and the plaintiff suffered catastrophic injuries. The plaintiff brought an action against the RTA and the council was later joined to the action. The two defendants had jointly erected signs prohibiting running and diving from the bridge. They were aware that these signs were not complied with. The trial judge found the defendants liable with a 25% discount for contributory negligence. This was appealed to the High Court. Only the action against the RTA was relevant. Legal principle: The key legal principle was that as the chance of injury happening was low, the RTA did not breach its duty of care. This was the case even though the gravity of the injury was very high. The court’s decision (application of the legal principle to the facts): The RTA did not breach their duty of care here. Background and context: This case is indicative of how the High Court has treated statutory authorities and councils in recent years. The High Court realises statutory authorities often have a great many responsibilities to those it owes duties of care to. In dissent, Kirby J noted the signs were useless and modifying the handrail would have been reasonably cheap.

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Breach of the Duty of Care

Seriousness of consequences of the injury 5.21

5.22

The next factor that can be looked at to determine if there has been a breach of the duty of care is gravity or the seriousness of the consequences of the injury.

Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 Court: House of Lords Facts: This case involved a one-eyed factory worker who was injured by a piece of metal and lost the sight in his remaining functional eye. As a result, he was totally blinded. The employer was aware of his having sight in only one eye. The case went on appeal to the House of Lords. Legal principle: Paris assesses the relevant principles involved in ascertaining the negligence of a defendant in relation to a plaintiff who has a known disability. This potential plaintiff is in a more vulnerable position than usual. The consequences of an eye injury are very serious (and obviously more so than usual). The court’s decision (application of the legal principle to the facts): An eye injury will involve much graver consequences for a one-eyed worker than a two-eyed person. The employer (defendant) had knowledge of the disability and could have taken practical steps (such as the provision of safety goggles) to prevent the injury. Significance of this case: Knowledge of a disability or ailment may be relevant to finding a breach of duty in industrial cases. Background and context: Another post-war United Kingdom case.

Practical alternatives open to the defendant 5.23

5.24

Did the defendant have practical alternatives available, that is, what measures could the defendant have taken to prevent the accident? This is explored in the next case.

Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 Court: High Court of Australia Facts: This case involved a level crossing accident. A goods train travelling on a privately owned rail track owned by the defendant collided with a car, killing the car driver. Legal principle: In assessing liability on the defendant’s part, the court will assess whether there was a ‘practical alternative’ or alternatives open to the defendant, such that the loss might have been avoided. What could have been done to avoid this level

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Torts: Principles, Skills and Application

crossing accident? The court heard evidence to the effect that ‘catchpoints’ should have been installed. Were they practicable? Their use entails derailing the train. The court’s decision (application of the legal principle to the facts): The majority found the defendant liable and held that catchpoints were a practical alternative open to the defendant and should have been installed. Even though their use involved derailing the carriage (of a goods train), this was seen as practical in light of the fact that the alternative involved the possibility of driver or pedestrian fatalities at the level crossing. See the dissenting judgment of Webb J. He said (at 228–9): ‘To derail a truck is an extreme measure and the onus of showing it is a reasonable precaution against accident must rest heavily on the party asserting that it is’. He found, accordingly, that the defendant was not liable. Significance of this case: The practicability of alternatives has entered the lexicon of the judges in terms of ascertaining liability. Background and context: Cases dealing with railway safety issues and other transport cases would look closely at the principles established in this case.

5.25

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Court: High Court of Australia Facts: Graham Barclay Oysters Pty Ltd grew oysters at Wallis Lake. A group of consumers contracted the hepatitis A virus as a result of eating these oysters. There was evidence that the source of contamination was pollution of the lake by infected human faeces which came primarily from land-based locations surrounding the lake. The defendants were the growers and suppliers of oysters, the local council and the State of New South Wales. Legal principle: When taking into account the courses of action which were available to the Barclay companies, it is necessary to consider the magnitude of the risk, the likelihood of the risk eventuating and the practicality of undertaking alternative actions. The court’s decision (application of the legal principle to the facts): Each of the options available to the Barclay companies were difficult, expensive and inconvenient. Therefore, it was found that Barclay did not breach their duty of care. Significance of this case: This case relates to the search for principle in terms of finding a test for a duty of care. It is also relevant to determining when a statutory authority has breached their duty to properly discharge their statutory powers. Background and context: The events documented in this case had a detrimental impact on the oyster growers who were situated at the Wallis Lake.

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Breach of the Duty of Care

Practicality issues when children are involved 5.26

5.27

Even though it is important for parents and caregivers to take care when looking after children, they cannot be expected to be able to prevent all risks.

Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn v Hadba (2005) 221 CLR 161 Court: High Court of Australia Facts: The defendant school had a ‘flying fox’ in the playground. The flying fox had been in the playground for six years and there had been no serious incidents. One day at recess time, an eight-year-old student went on the flying fox. She was pulled off the flying fox by other students and was injured. A teacher was on duty but did not observe the incident. Legal principle: Practicality considerations need to be taken into consideration in terms of supervision of children. The court’s decision (application of the legal principle to the facts): The joint majority judgment (Gleeson CJ, Hayne, Callinan and Heydon JJ) noted there was not an appropriate system of supervision which was a practical alternative to the system which was already in place. It was impracticable for the school to increase the level of supervision as staff needed to have breaks. Significance of this case: This case is significant as it indicates that not all accidents can be avoided in the school setting. What is practical in the circumstances needs to be determined when considering breach. Background and context: This is an interesting case as it demonstrates the practical realities that not all accidents can be avoided. Interestingly, McHugh J dissented in this case. He noted the risk was foreseeable and it could have been avoided if the school exercised reasonable care.

Justifiability/social utility 5.28

In some instances, action of the defendant, which may have otherwise constituted a breach of the duty of care, can be justified. The most obvious example of this is if there is an emergency situation. The social utility consideration is more difficult to define. Perhaps it can best be explained as making decisions based on the best interests of society as a whole. For example, the presence of trees is said to have a social utility.

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Watt v Hertfordshire County Council [1954] 2 All ER 368 Court: Court of Appeal Facts: A fireman was injured on the journey to an emergency. Legal principle: Lord Denning examined the working conditions applicable to fire officers, the police, ambulance officers and other similar jobs. What did people who did such work accept as part of their employment? He set up two models of employment: 1. those involving ‘for profit’ organisations; and 2. those jobs being for the ‘public good’. Lord Denning said (at 371): ‘… the commercial end to make profit is very different from the human end to save life or limb’. Fire officers worked for the public good according to Lord Denning. The court’s decision (application of the legal principle to the facts): The injured fireman accepted the risk of injury, given the type of work he did. He worked for the public good in a hazardous occupation. Significance of this case: This case is somewhat dated in the employee– employer context. Lord Denning’s notion is almost one of volenti non fit injuria (that is, the employee voluntarily accepts the risk of injury) as regards certain types of employment; this is no longer a defence in Australian employment law. Background and context: Lord Denning espoused a post-war continuation of the ‘essential services’ ethos. He lambasted a soft ‘recovery’ mentality that could potentially mean people involved in ‘public good’ enterprises suing for injuries at every opportunity. For Lord Denning and many judges operating in the wake of World War II, stoicism was a normative value. Query what effect the extensive privatisation of public services would have on this type of judicial attitude.

5.30

NSW v Fahy (2007) 236 ALR 406 Court: High Court of Australia Facts: The respondent (Gemma Fahy) was a constable in the Police Service of New South Wales. When Gemma and her partner arrived at a shopping centre to investigate a hold-up, the victim of the hold-up was conscious but bleeding profusely. The police service employed a ‘buddy system’, but the policewoman’s buddy left for no good reason. Gemma Fahy argued that her exposure to the trauma without a ‘buddy’ was a cause of her psychiatric injury. Legal principle: In terms of offering a safe system of work, the police service was not obliged to offer the presence of another police officer.

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The court’s decision (application of the legal principle to the facts): The majority held that the police service was not liable for Gemma Fahy’s posttraumatic stress disorder (PTSD) as there was no obligation to ensure the presence of another police officer. Significance of this case: This case is significant as it demonstrates how safe system of work principles are looked at. Background and context: This case also discussed the relevance of the Shirt test.

5.31

Rhodes v Lake Macquarie City Council [2010] Aust Torts Reports 82-073; [2010] NSWCA 235 Court: New South Wales Court of Appeal Facts: A tree branch fell on the plaintiff’s driveway. This caused personal injury. The Housing Corporation, who owned the neighbouring property, asked that the tree be removed. The council refused as they thought the tree was in a ‘sound and stable condition’. The occupier sued the council and the Housing Corporation. She argued that the latter should have more fully informed the council of all previous incidents involving the tree. Legal principle: Was the council negligent because it did not remove the tree? Should the Housing Corporation be liable for not providing more information to the council? The court’s decision (application of the legal principle to the facts): The council was not negligent as the risk of substantial damage from the tree had a low probability. Significance of this case: This case is significant as it documents that native trees have a ‘social utility’. Therefore, it was not unreasonable to maintain the tree.

Other breach issues Relevant time period and critical inquiry 5.32

The next case focuses on timing issues in the litigation process. The relevant time period is that between: •• the date of the tortious event; and •• the date of the trial.



Depending on the complexity of the litigation process and the attitudes of the parties, there could be a period of several years between the event and the trial. The critical inquiry is: If there is some new, important information or critical 277

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factor available or known at the date of the trial, which would prove negligence by the defendant, but which was not available or discovered at the date of the accident, should the defendant be found negligent in any event?

The answer to this inquiry is that a defendant is judged by the standards or knowledge that existed at the date of the tortious event, and not at the later (trial) date.

State of knowledge and timing of new developments 5.33

5.34

That is, the critical issue is whether the new development pre-dates the allegedly negligent or tortious event (and not the trial date). This principle is illustrated by the next case.

Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131 Court: Court of Appeal Facts: In 1947, two men were admitted to hospital. They were given anaesthetic injections. They were paralysed as a result. The ampoules of anaesthetic fluid had been suspended in phenol. It was comprehensively shown in 1954 that this was a negligent practice because acid was likely to penetrate the cracks in ampoules. Legal principle: The defendant is judged by standards/knowledge that apply at the date of the allegedly tortious event. The court’s decision (application of the legal principle to the facts): Denning LJ said (at QB 84) that ‘we must not look at the 1947 accident with 1954 spectacles’.

5.35

E v Australian Red Cross (1991) 31 FCR 299; 105 ALR 53 Court: Federal Court of Australia (Full Court) Facts: The plaintiff underwent surgery. When she experienced post-operative bleeding, she was given a blood transfusion. The blood was sourced from the Red Cross Blood Bank. The transfusion transmitted HIV to the plaintiff. At this time of the blood transfusion, there was no test available for HIV. Legal principle: It was not unreasonable for the respondents to wait until there was a transfusion-related AIDS case before they started routinely testing the blood. The court’s decision (application of the legal principle to the facts): The respondents did not breach their duty of care by failing to test transfusion blood for HIV.

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Breach of the Duty of Care

Use of statistics at the trial 5.36

5.37

The next case illustrates the question: can statistics be used by parties as effective evidence to support their arguments in a trial?

Haley v London Electricity Board [1965] AC 778 Court: House of Lords Facts: A hole had been dug in the pavement of a suburban street. The hole had not been fenced off; a pick and shovel were left at one end and a ‘punner’ (a ramming or flattening tool) at the other end. Lord Reid (at 789) described the punner so that it sounded like something out of a Harry Potter story: consisting ‘of a long handle like a broomstick to one end of which is attached a heavy weight’. A blind person, walking with the aid of a cane, fell into the hole after tripping on the punner handle. A critical piece of evidence tendered at the trial was in relation to statistics and, in particular, the number of blind people who lived in London at the date of the accident. Legal principle: How should statistics be used in a case? The court’s decision (application of the legal principle to the facts): Lord Reid wrote (at 791): ‘… there is evidence in the case about the number of blind people in London and it appears from government publications that the proportion in the whole country is near one in 500’. He continued: ‘I find it quite impossible to say that it is not reasonably foreseeable that a blind person may pass along a particular pavement on a particular day’. He concluded (at 792): ‘I think, from common knowledge, that quite a light fence some two feet high is an adequate warning. There would have been no difficulty in providing such a fence here’. Significance of this case: Before you use statistics at trial, you need to weigh up their potential benefit and harm. Who will provide them and how can they be attacked under cross-examination? They can assist and they can hinder. As a legal adviser you need to be selective about their use; you need to ensure that expert testimony can support them and their methodology. Background and context: This case illustrates that the common law of negligence principles has produced a tangible effect on corporate and social behaviour. In particular, as part of a range of warning features, we now often see  light plastic mesh fence (in bright colours) around holes in the street, at building sites and so forth.

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Breach issues in games, sports and other activities 5.38

This legal development considers the role played by rules in determining questions of liability. The rules under consideration are of two basic types. There may be rules: •• that relate to membership of the club or association under consideration; and •• about the playing of, or participation in, the sport or activity itself.

5.39

Rootes v Shelton (1967) 116 CLR 383 Court: High Court of Australia Facts: A waterskier was injured. He was one of three people being towed by one boat. The three waterskiers were crossing each other’s paths undertaking a manoeuvre known as a ‘crossover’ or ‘Russian Roulette’. He was blinded by spray and collided with a stationary launch. He sued the driver of the towing boat in negligence alleging two grounds: going too close to the stationary launch and failing to provide a warning of its presence. Legal principle: Participation in games — when is someone not acting as a reasonable person would? In sports, what do you consent to? What role does rule compliance play? The court’s decision (application of the legal principle to the facts): Whether a duty is owed (and, in turn, breached) ‘depends in each case on its own circumstances’ (per Barwick CJ). There was also discussion of voluntary assumption of risk. Significance of this case: Rule-based activities are assessed on a case-by-case basis. Voluntary assumption of a risk — a defence that may be raised by the defendant — may well play a part and will increase in importance. Background and context: Critical issues will include: What is the nature of the activity? Who sets the rules? Are the rules generally abided by and enforced? What is the knowledge of any breaches by the organisers/ conveners? What is the significance of this case in light of the growth in high-risk sports: parachuting, paragliding, hang-gliding, bungee jumping, abseiling, canyoning, potholing?

The courts are having to develop responses to new and emerging activities played by or participated in by a large number of people. Refer, for example, to the indoor cricket case of Woods v Multi-Sport Holdings Pty Ltd.

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5.40

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 Court: High Court of Australia Facts: This case involved an occupier’s liability for an eye injury incurred as the result of indoor cricket and the use of a soft spongy ball. Goggles were not provided. Note that the judges distinguish it from ‘rules of the game’ cases such as Rootes v Shelton.5 Legal principle: Was the indoor cricket centre liable in negligence? The court’s decision (application of the legal principle to the facts): It was found by the majority (four to one with McHugh J dissenting) that the indoor cricket provider, Multi-Sport, was not liable to the player Woods. While it owed Woods a duty of care, there was no breach of that duty. Significance of this case: It adds to and clarifies the law of negligence in the sports context.

Defendant with ‘special skills’: medical surgeons 5.41

How do the courts treat medical surgeons as defendants? By what standard is their conduct judged? Essentially, they are judged by the standard of a duly qualified surgeon. This is the same principle applied to other professionals; they are judged in relation to their qualifications. But what of the ‘grey’ areas? Is a mistake that causes loss characterised as an error of judgment or is it negligence? This can have serious outcomes.

Characterised as ‘a mere error of judgment’

Characterised as negligence

Likely result: a finding of no liability

Result: a finding of liability

5

This was the dilemma faced by the House of Lords in Whitehouse v Jordan,6 in which Lord Denning found a case of error of judgment.7 5. Rootes v Shelton (1967) 116 CLR 383. 6. Whitehouse v Jordan [1981] 1 All ER 267. 7. See further, H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, 3.2.28.

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5.42

Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 Court: High Court of Australia Facts: This case involved the failure by the surgeon to warn of the risks involved with eye surgery; the patient was already blind in one eye. In particular, there was a failure by the specialist ophthalmic surgeon to warn of the possibility of ‘sympathetic ophthalmia’, that is, the good eye being affected as well. Legal principle: It was found by the majority, led by Mason CJ, that there was negligence by the specialist as regards a failure to warn of possible side effects of the surgery. The duty of care of the doctor (specialist) to the patient is a single, comprehensive duty. The majority in their joint judgment (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ at CLR 487) said: ‘in Australia it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill’. In relation to the standard of care of a qualified ophthalmic surgeon, they said at (CLR 483): ‘the standard of reasonable care and skill is that of the ordinary skilled person exercising and professing to have that special skill, in this case the skill of an ophthalmic surgeon specialising in corneal and anterior segment surgery’. The court’s decision (application of the legal principle to the facts): The court rejected the United Kingdom Bolam principle,8 which was that the common practice of doctors usually provided a safe harbour from liability; instead, common medical practice in the Australian context was merely a piece of evidence to be included in the evidential mix to determine negligence. The doctor’s duty extends to ‘the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case’. Significance of this case: We look at this case again in Chapter 10.

8

8. Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118.

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Review In this chapter we have focused on standard of care and breach issues. Both elements need to be addressed in a negligence action. The standard of care is ordinarily determined based on reasonable care principles.The level of care can be either heightened or lessened based on the circumstances. It is necessary to determine if there is both a legal and factual breach. In order to determine if there is a legal breach, the relevant legislation and case law need to be analysed and applied.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 2 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 3

Key Cases Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 E v Australian Red Cross (1991) 31 FCR 299; 105 ALR 53 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Haley v London Electricity Board [1965] AC 778 Imbree v McNeilly [2008] HCA 40 Kelly v Bega Valley County Council Unreported, 13 September 1982 McHale v Watson (1966) 115 CLR 199 NSW v Fahy (2007) 236 ALR 406 Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 Rhodes v Lake Macquarie City Council [2010] Aust Torts Reports 82-073; [2010] NSWCA 235 Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131 Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn v Hadba (2005) 221 CLR 161

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Rootes v Shelton (1967) 116 CLR 383 Watt v Hertfordshire County Council [1954] 2 All ER 368 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145

Chapter 5 Review Questions 1. What is the reasonable person test? 2. Is it objective or subjective? 3. Nominate a category of defendant for whom the reasonable person test is set at: (a) a lesser standard; and (b) a higher standard. 4. What is the standard of care placed on a medical specialist? 5. What were the key facts of the case in: (a) McHale v Watson (1966) 115 CLR 199; (b) Kelly v Bega Valley County Council (unreported, CA(NSW), 13 September 1982) (see Luntz et al, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, 6.2.30C); and (c) Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn v Hadba (2005) 221 CLR 161. 6. In Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202, what was the ratio? 7. Construct a diagram depicting the key facts and events of Caledonian Collieries Ltd v Speirs. 8. What other applications (that is, for other circumstances, events, ‘callings’, professions, etc) do you see for the broad ratio from Caledonian Collieries Ltd v Speirs? 9. In Watt v Hertfordshire County Council [1954] 2 All ER 368, what was the ratio? 10. Construct a diagram depicting the key facts and events of Watt v Hertfordshire County Council. 11. What other applications (that is, for other circumstances, events, ‘callings’, professions, etc) do you see  for the broad ratio from Watt v  Hertfordshire County Council?

284

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Tutorial 5: Standard of care and breach

Internal memorandum Antonia Johnson To: Trainee Date: 20/12/20XX Re: Railways Board of NSW We have been asked by the Railways Board of NSW (the board) to advise it on the following facts. The board has had all its country network signal boxes automated and piston brakes and catchpoints installed. It wants to know its legal position in the following scenario: If a signal were to fail such that trains were on a collision course, could the catchpoints or piston brakes be utilised? 1. The catchpoints achieve the same result as that referred to in Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202. 2. The piston brakes halt the train very rapidly and may cause injuries to passengers. The board’s position is that this would be far better than the calamity of a train collision or derailment. Would the board be negligent to deploy either or both the catchpoints and piston brakes? Please prepare a memorandum for our use in a meeting with the board that I am arranging for later in the week. Thank you, Antonia Johnson



Tutorial 5: Student Example Answer Prepared by: Andrew Ferguson (2014); updated by Sophie Precians (2018), law student at the University of New England

Internal memorandum To: Antonia Johnson From: Sophie Precians Date: 20/12/20XX 285

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Re: Railways Board of NSW (The board) In relation to the above matter, it appears that the principal issue is whether the board (possible defendant) would be negligent in deploying either the catchpoints and/or the piston brakes in order to prevent a collision occurring between two trains.The possible plaintiffs in this scenario are difficult to isolate; however, the most likely would be passengers on the trains, employees of the board, other members of the public and property owners. The calculus of negligence factors, such as practicability and justifiability, will also be important aspects in considering the board’s legal position. In order to assess the liability of the board, each element of negligence must be considered carefully and applied to the scenario. At this early stage, and using the facts provided by the board, it appears that the board could argue that it should not be found negligent through a breach of its duty of care owed by utilising the safety mechanisms available to it. This would also be subject to considerations of any recent improvements in technology that the board could be using to provide a safer railway network. Duty of care It is reasonably clear that the board owes a duty of care to a number of people. Those who are owed a duty of care by the board is determined by the neighbourhood principle, stating that those ‘who are closely and directly affected by the acts of the defendant are owed a duty’.9 The other sub-element of duty of care is reasonable foreseeability. The plaintiff would need to prove that he or she was someone who would foreseeably be at risk of injury in some way if the board failed to take reasonable care.10 The principle that ‘statutory powers are conferred they must be exercised with reasonable care, so that those who exercise the powers could by reasonable precaution have prevented an injury, and was likely to be occasioned, damages may be recovered’,11 has been well settled and was outlined in Caledonian Collieries Ltd v Speirs.12 This principle establishes that a duty of care will be owed by the board to exercise reasonable care in preventing a reasonably foreseeable injury. The majority also held that ‘in the occupation and management of a railway … the [defendants] owe a duty to … exercise reasonable care for their safety from the dangers that arise from the presence of the railway’.13 It appears that any person who was affected by the conduct of the board, such 9. Donoghue v Stevenson [1932] AC 562 at 580. 10. Chapman v Hearse (1961) 106 CLR 112 at 120–1. 11. See also Great Railway Co v Hewlett [1916] 2 AC 511 at 519; East Suffolk Rivers Catchment Board v Kent [1941] AC 74 at 85; and Cox Bros (Australia) Ltd v Commissioner of Waterworks (1933) 50 CLR 108 at 119, 121, cited in Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220. 12. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220. 13. Caledonian Collieries Ltd v  Speirs (1957) 97 CLR 202 at 221 per Dixon CJ, McTiernan, Kitto and Taylor JJ.

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as passengers and employees, would not have too much trouble establishing that a duty of care existed at the time of the incident based on the established principle in Caledonian Collieries, and considering such tests as proximity and foreseeability.14 Standard of care The standard of care expected of the board is an objective standard, as set by Caledonian’s case. That is, the conduct of the board is to be measured according to the hypothetical conduct of a reasonable railways board. In Caledonian’s case, the court held that the defendant had acted negligently by not installing catchpoints, which was seen as a reasonable precaution in the circumstances. Thus, the conduct of the defendant was seen as careless in the eyes of the law, as it did not meet the standard of behaviour set by the courts. Caledonian’s case deals with similar legal issues and principles raised by the board’s scenario. The plaintiff(s) would need to establish that the board’s conduct fell below the expected objective standard of a reasonable railway board in the same circumstances. Breach of duty of care To determine if the board would breach their duty of care at the standard expected, the court will determine if the board, in deploying the safety mechanisms, do anything that was not reasonable in the circumstances. In Caledonian’s case, the High Court held that the defendant had been negligent by not installing catchpoints as a safety device to prevent a collision. In that case, the damage or risk of injury was seen to be less likely if the catchpoint had been installed, utilised and had resulted in a derailment of the trucks, than if the safety device were not used to stop the trucks and they were allowed to run away and into the path of other road users. Caledonian Collieries is still useful in that it can give some indication of the court’s position on the use of safety devices being used in railway situations. While it is analogous in most aspects, there is a point of difference, as Caledonian Collieries involved coal trains, rather than passenger trains as in the present scenario. To determine if there is a breach of the duty of care, the tests in the Civil Liability Act 2002 (NSW) s 5B need to be examined. Foreseeability The Civil Liability Act  2002 (NSW) s  5B(1)(a) states that a person is not negligent unless the risk was foreseeable.15 The test that determines if a risk is foreseeable is if it is not far-fetched or fanciful.16 The court in Wyong v Shirt 14. The High Court of Australia is in a state of ‘flux’ at the moment as to which test is to be relied upon when determining whether a duty of care is owed. An alternative to the two-stage proximity test has not been unanimously stated, so it may still be applied: see Victoria v Richards (unreported, CA(Vic), 11 November 1998, BC9806288) per Callaway JA at [7]. 15. Civil Liability Act 2002 (NSW) s 5B(1)(a). 16. Wyong Shire Council v Shirt (1980) 146 CLR 40.

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determined that a ‘risk which is not far-fetched or fanciful is real and therefore foreseeable’.17 Following the precedent laid out in Caledonian Collieries, if the Railways Board did not install the catchpoints they would be negligent, as it is foreseeable that the catchpoints will help prevent danger. Not insignificant The not insignificant test was introduced in New South Wales Civil Liability Act 2002. It has been determined by case law that it is a more demanding test than the reasonable foreseeability test, but not by very much.18 The test that needs to be determined is that if the risk is not insignificant, Railways Board can be negligent. The risk of harm if the catchpoints are not implemented is not insignificant as the harm can be that a train will run away and cause damage to other road users in a collision, which could result in death as opposed to stopping the train and causing some minor injuries.19 Calculus of negligence The calculus of negligence is established as a test in s  5B(1)(c) of the Civil Liability Act 2002, but the balance is found in s 5B(2).20 Probability The Civil Liability Act states that the probability of harm would occur if care was not taken.21 In RTA v Dederer, the court looked at previous history of harm occurring from the incident, in that case over the 40 years that the risk had been there, only one person had injured themselves, the plaintiff, which led the court to say that the probability of harm was low.22 As established above, there is a greater level of harm if care is not taken by Railways Board, so therefore if the catchpoints are installed, the probability of harm would decrease from high to medium. Likely seriousness of harm The second limb of calculus of negligence is the likely seriousness of the harm.23 In Paris v Stepney Borough Council, the principle that was established is that the defendant knows or ought to know that if care is not taken, injury will be grave.24 As the board is aware that the likely seriousness of harm is grave if the train is on a collision course, the likely seriousness of harm is high.

17. Wyong Shire Council v Shirt (1980) 146 CLR 40. 18. Shaw v Thomas [2010] NSWCA 169 at [44]–[45]. 19. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 225 per majority. 20. Civil Liability Act 2002 (NSW) s 5B. 21. Civil Liability Act 2002 s 5B(2)(a). 22. Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761. 23. Civil Liability Act 2002 (NSW) s 5B(2)(b). 24. Paris v Stepney Borough Council [2001] AC 367.

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Burden of taking precautions The third limb of the calculus of negligence is the burden of taking precautions to avoid the risk of harm.25 In the present scenario, the Railways Board is considering if its installation of catchpoints will take precautions against a collision course by a train with other road users. If the burden of taking precautions is not unreasonably high, it will be likely that the court will question why the precautions were not implemented.26 It would be likely that the burden of installing the necessary catchpoints or piston brakes the burden of taking precautions is low. Social utility The final limb of the calculus of negligence is that the social utility of the activity that creates the harm must be considered.27 This means that the social desirability of the defendant’s activities must be considered in relation to the likelihood of harm.The social desirability of installing the catchpoints or piston brakes would be high, as without them the risk of a train collision is high. In Watt v  Hertfordshire County Council, the court found that the saving of a life or limb justifies considerable risk.28 The social utility to avoid a train collision would be considerable and thus the risk of installing the catchpoints or piston brakes is necessary to avoid the harm. Defences for the board If the board can prove that another tortfeasor was to blame, either partly or wholly, for the damage suffered by plaintiffs, then the amount it may have to pay for compensation would be reduced.The scenario suggests that the trains would be on a collision course as a result of a signal failure. If the board can establish that the person(s) responsible for the installation, operation and maintenance of the signal boxes was someone other than the board, it may transfer the burden of compensation to that party. This would rely on a causation issue. The court would consider whether the trains would be on a collision course but for the negligence of the board or the signal operator(s). Non-delegable duty The board may have a special responsibility to see that care is taken of both its employees and passengers. The court may take the view that a special relationship exists between the board and possible plaintiffs. This relationship requires that the board owes not just a duty to take reasonable care, but a duty to ensure that reasonable care is taken for the plaintiffs’ safety.29 In Burnie Port

25. Civil Liability Act 2002 (NSW) s 5B(2)(c). 26. Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263. 27. Civil Liability Act 2002 (NSW) s 5B(2)(d). 28. Watt v Hertfordshire County Council [1954] 1 WLR 835. 29. Kondis v State Transport Authority (1986) 154 CLR 672 at 687–8; 55 ALR 225 per Mason, Murphy, Dawson and Deane JJ.

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Authority v General Jones Pty Ltd,30 the High Court held that ‘the relationship of proximity giving rise to the non-delegable duty of care … is marked by special dependence or vulnerability on the part of that person’. The plaintiffs in this scenario, especially the passengers, are quite clearly in a position of vulnerability and dependence. They are especially vulnerable to danger if reasonable precautions are not taken. However, the standard of care required of the board remains that which is reasonable in the circumstances, even where a dangerous activity is involved.31 The court will need to determine whether a non-delegable duty exists, and whether the board has breached that special duty, considering the particular circumstances of the case, and whether the board owes a higher degree of care. Conclusion At this stage, I would take the view that the duty of care, which the board owes, requires that it takes reasonable precaution in the course of operating the railway network. In considering whether the board’s conduct is within the demands of reasonable care, the majority judgment in Caledonian’s case appears to take the view that it would be preferable to stop the trains from colliding. The use of the piston brakes would be less likely to cause damage than the catchpoints, in light of the evidence in Caledonian’s case. It is worth noting the comments of Webb J in his dissenting judgment in this case:‘… to derail a truck is an extreme measure and the onus of showing it is a reasonable precaution against accident must rest heavily on the party asserting that it is’.32 We will need to obtain further information from the board as to the location of the catchpoints on the railway line, and consider the consequences of derailing the trains in light of the risk of damage to surrounding property and people at the catchpoint position. We will also need to investigate the full effects of deploying the piston brakes and whether these safety mechanisms are the safest possible option for the board, considering any technological advancements in railway safety equipment and procedures. We also need the board to inform us of their staff emergency training procedures as it is vital that staff know exactly what to do in an emergency and how to use safety equipment.

30. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551; 120 ALR 42 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ. 31. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 554; 120 ALR 42 per the majority. 32. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 229 per Webb J.

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Chapter 6

Vicarious Liability and Non-Delegable Duties Legal practice skill: The importance of classifying relationships when determining legal liability

Learning aims •

Understand the concept of vicarious liability

•

Appreciate the importance in law of a worker being classified as an employee or as self-employed

•

Deal with issues and legal tests relevant to an employee, including the scope of authority, the course of employment, the control test and the integration test

•

Understand that some duties are regarded as non-delegable on the part of the employer

•

Appreciate some of the statutes providing procedural and other reforms in this area of the law

Background concepts First principles 6.1

To understand the concept of vicarious liability, we need to briefly review a ‘standard’ negligence action. In simple terms, a negligence action involves two parties; the plaintiff and the defendant. For example: •• Bobbie is injured at her place of work, ABC Ltd. Who is the plaintiff? Who is the defendant? Bobbie is the plaintiff, and the employer, ABC Ltd, is the defendant. •• I am injured and my car is damaged, when I am sitting at a red light, by a car negligently driven by Tim. Who is the plaintiff? Who is the defendant? I am the plaintiff and the other driver, Tim, is the defendant. 291

6.1

Torts: Principles, Skills and Application

These are negligence actions involving only two parties to the action. There may be witnesses, but they are not named as parties to the action; witnesses do not seek damages. They are not potentially liable to pay damages. They are, therefore, not involved in the loss-shifting process. The two examples we have mentioned so far are examples of simple negligence claims, in the sense of the number of parties involved, and given the fact that the defendant is said to owe a personal duty of care to the plaintiff. What other actions are common in negligence? This is where vicarious liability is relevant.

Vicarious liability: the elements involved 6.2

The characteristics of vicarious liability are as follows: •• It involves three parties, rather than two. •• It involves a situation where a plaintiff (P) is injured as a result of X’s negligence. •• In spite of X’s actual blameworthiness, the defendant (D) (who is a third party and not actually involved in the accident) assumes liability for the loss on X’s behalf. •• Vicarious liability invariably arises in the worker’s injury context (but is not necessarily restricted to this context); that is, vicarious liability can arise in contexts other than employer–employee, but this is overwhelmingly the most common context. Other contexts include principal–agent and business partner–co-partner.1 •• In the employment context, the practical outcome is that the employer is responsible for the negligence of the employee (X), and the employer is, therefore, in turn, liable to the injured party (P). •• Vicarious liability is a form of strict liability on the part of the employer (or party who bears liability) as there is no actual fault on their part. •• The paradigm in which vicarious liability arises requires control by the party who is ultimately liable over the person initially to blame; hence, an employer will be liable for the negligence of its employees and, on the same basis, a principal may be liable for the negligence of an agent.

Historical perspectives 6.3

As noted, vicarious liability can arise in more than the employer–employee context; it is a liability based to some degree on ‘control’ by the party who is made liable. The discussion in this chapter is predicated on the employer–employee relationship as being broadly illustrative of the key features of vicarious liability.

1. See  H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 17.

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The development of tort law and, in particular, negligence in the context of employer–employee dealings, throughout the 20th century and into the 21st century, is underpinned by social and employment policy changes. The 20th century saw the development of legal and social policy that strengthened the rights of employees, including entitlements we now regard as fundamental, such as pensions and sick pay. These developments took place within the wider economic framework as Western societies moved from agrarian to industrial phases and then from early industrial to more advanced industrial phases. The law reflecting this change shifted the risks at work from the worker onto the employer. However, with a move towards more casual workers, is Australian society going back to past practices? Vicarious liability is a form of strict liability. That is, liability is not imposed because of immediate fault on the part of the employer. Liability is imposed by virtue of the relationship of the employer to the actual party at fault (who is an employee of that employer.) In this sense, liability is imposed on relational grounds. Broader based justifications which have been put forward for imposing liability for vicarious liability have been as follows: •• A ‘moral’ element: that is, the relative wealth of the employer/company as defendant, as opposed to the relative lack of resources of the plaintiff. This notion of the employer having the capacity to pay is also referred to as the ‘deep pockets’ theory. •• Efficient loss distribution: that is, the loss is moved from the injured employee, as plaintiff, to the defendant employer. •• Organisational control: that the employer by virtue of its status as employer is vested with a certain element of control, organising ability and, ultimately, power over the wellbeing, health and safety of its employees. It is the third element or justification referred to above, namely ‘control’ that has dominated the deliberations of the Australian courts when grappling with vicarious liability issues. These practical points are discussed below.

Practical issues: vicarious liability The basic concept of vicarious liability in the employment context 6.4

In order for the courts to impose vicarious liability in the employer–employee context, it is self-evident that the courts need to make a threshold finding: that is, they need to characterise the relationship between the actual wrongdoer and the party assuming liability as an employer–employee relationship, that is, the employer employs the wrongdoer.

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How do the courts determine whether someone is an employee? The concept of ‘control’ by the employer over the work of the employee is a key factor, and can be broken down into several elements including: •• the hours of work, including the start and end point of the day/night period of work, the duration of standard hours, overtime hours and so forth; •• whether the relationship is an exclusive one or if the ‘employee’ free to work for others; •• methods of remuneration — whether it is a salary, success fee or hourly rate; •• roles and tasks, including job description and detailed work requirements; •• the provision of uniforms and other employer insignia, such as motor vehicles; •• the provision of tools of the trade and safety equipment; and •• the codes, if any, dealing with employee conduct, language allowed at work, competence and so forth. The control test, therefore: •• involves a complex ‘umbrella of factors’; but •• as we shall see, it is no longer the exclusive test for determining the status of the relationship between the parties, but remains important.

Practical issues relevant to litigation 6.5

The critical point is that the relationship needs to be characterised as employer– employee to give rise to vicarious liability. The labels and descriptions that the parties assign or adopt or assume are not conclusive.Whether someone is called or referred to as an employee is a matter of ‘form’, and not legal ‘substance’; the courts seek to ascertain the essential underlying nature of the relationship and to identify its actual character. What are the alternative findings in relation to the parties? The two possibilities are: 1. A one-off suspension of the usual employment relationship That is, for the purpose of the particular incident, the relationship of employer– employee is suspended. This can arise when the employee acts outside the bounds of his or her employment relationship. The courts characterise such behaviour on the part of employees as not being within ‘the course of their employment’ or, of such people being on a ‘frolic of their own’. 2. The relationship is not an employment one at all This means that, instead of being in an employer–employee or master–servant relationship or in a ‘contract of service’, the employee is in fact self-employed or an independent contractor. Rather than being a contract of service between employer and employee, it is a ‘contract for services’ between party A and the independent contractor. That is, it is an arm’s length contract.

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The legal principles of vicarious liability An example of vicarious liability in an employer–employee context Personal duty 6.6

Let’s assume that Adam is a toolmaker working in a factory.Adam works for ABC Ltd, a public company. If Adam injures himself because of the lack of a safety guard on his machine, he sues ABC in negligence. This is simple negligence in the sense that ABC owes a direct and personal duty of care to Adam.

Vicarious liability 6.7

Assume that Barbara is employed as a maintenance worker by ABC Ltd. Her job is to fit guards onto machines, and to maintain them, but let’s assume that she has forgotten to refit the damaged guard onto Adam’s machine.The scenario would be: •• •• •• ••

Adam is injured. Adam works for ABC Ltd, as does Barbara. Barbara is actually responsible for Adam’s injuries. Adam would still sue ABC Ltd — who will be vicariously liable for Barbara’s conduct.

Defences to vicarious liability in the employment context 6.8

Will ABC Ltd always be responsible for an injured worker it employs? Not necessarily, as we shall see. The defences potentially open to ABC and able to be pleaded will be from among the following: •• ‘Frolic’ cases: That the employee was on a frolic of his or her own and, as a result, acting outside the scope or course of the employee’s employment. The employee was not, therefore, in the employer’s control and was outside the zone of protectable behaviour. •• Independent contractors: That Barbara and Adam are not employees, but independent contractors.This would require an examination by the court. It turns out that the true character of their work means they are self-employed and responsible for their own insurance needs.

An example of an employee on a frolic of his or her own 6.9

There can be situations where the worker will not be compensated, because of his or her own lack of care, or because of the fact that he or she has actually gone out on what the courts have labelled ‘a frolic of their own’.

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Facts scenario Adam comes to work ‘high’ on cocaine. He has also had a ‘night on the town’, drunk a lot of alcohol, and arrived home at 5 am. What would ABC argue about him being injured at 7 am when he falls over and hits his head in the work canteen, because he was running about ‘like a wild man’ according to witnesses? What would the possible answers be?

One scenario would be that ABC Ltd is liable. Obviously, a counter-argument would be that ABC Ltd is not liable.Think about it if you are arguing for Adam. You would say that he was at work, he was getting ready to work, and this was part of his employment. If you were acting for ABC, on the other hand, you would say that Adam was out of control, he was doing his own thing, the company has a ‘Sober at work, no drugs’ policy, and cocaine is an illegal drug. Who would win? Clearly, any case in law depends on all the facts and circumstances, but based on these particular facts, Adam would be very unlikely to succeed in his claim against ABC Ltd. The practical point is that workers’ compensation cover may not be available to Adam.

The ‘course of employment’ test: the relevant legal principles and cases 6.10

We have identified that a key threshold issue is: ‘Do we have an employer– employee relationship?’ If we do, ‘What is the scope of the employee’s authority?’. That is, what does the employer require the employee to do? The scope of an employee’s authority is to be found in several areas of law, including employment law, and also in terms of agency, where we ask ourselves: ‘What is the agent’s authority, given to him or her by the principal?’ A practical example of agency would be a company director who is, by virtue of that role, an agent of the company.

The first type of employee case — determining the ‘authority’ given to employees 6.11

When determining an employee’s or an agent’s authority, there are three aspects to examine: 1. What is the express authority? That is, what is actually in the employment contract? 2. What is the implied authority? That is, what can we imply from the express terms of the contract? 3. What is ostensible (or apparent) authority? This is probably the most difficult element of authority. This is really asking, what sort of authority can we assume, based on the person’s job title, his or her job description, or, for 296

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example, industry standards relevant to that person’s role? For example, what authority does a lead mechanic have? Could he or she sell you a car? Would this be a usual part of his or her authority? The High Court dealt with the question of the scope of an employee’s authority in Deatons Pty Ltd v Flew.

6.12

Deatons Pty Ltd v Flew (1949) 79 CLR 370 Court: High Court of Australia Facts: A barmaid threw a glass of beer, as well as the contents (beer), at a patron’s face. The patron was injured. Legal principle: The issue for the High Court was whether the employer of the barmaid was vicariously liable for her actions in injuring a patron. The court’s decision (application of the legal principle to the facts): What the High Court did was characterise the barmaid’s actions as self-defence. Dixon J said that she was acting in self-defence; therefore, she had not acted within the scope of her authority. In other words, the injured person’s losses were not compensable by the employer. Background and context: Would this decision be affirmed in a court today, and is it really the case that if you are acting in self-defence, you can never be acting in the course of your employment, or within your authority? Take, for example, the nightclub bouncer who has to deal with rowdy or troublesome would-be entrants to an event. Deatons’s case is a fairly problematic one, especially in the light of the fact that it is now more than 50 years old, but it is a High Court case that has not been overruled.

The next, more recent, case, Commonwealth v Connell, deals with the context of government employees and vicarious liability.

6.13

Commonwealth v Connell (1986) 5 NSWLR 218 Court: New South Wales Court of Appeal Facts: Connell’s case involved naval apprentices who were ‘skylarking’. One was pushed off a bridge by another and was injured as a result. Legal principle: The legal issue was whether the apprentices were acting in the course of their employment. If they were employees and acting within the scope of their employment contracts, the Commonwealth could compensate the injured apprentice. The court’s decision (application of the legal principle to the facts): The court found the Commonwealth, as defendant, liable and that the employee

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could be compensated on the basis of vicarious liability. Glass JA discussed the employment test as being one of characterisation; that is, how should the court characterise this particular act in relation to the authority given to the employee? Background and context: The result in Connell was different from the 1949 High Court case, Deatons v Flew.2 This illustrates that the cases can be somewhat difficult to fit together, and each needs to be carefully analysed in its own right. Connell, for example, is a more recent case, which gives us a different result. Is it principled from the perspective of the plaintiff and the defendant?

The second type of employee case — the ‘frolic’ cases 6.14

The second type of employee case2 is the one at the margins of the employee’s role.This is what the courts have referred to as the ‘frolic cases’ when employees are characterised as being on a frolic of their own and, therefore, acting outside the scope of their employment. By way of overview, we can summarise the frolic cases as follows: •• The old cases are fairly hard on the employee, for example Storey v Ashton.3 •• The modern Australian cases, on the whole, tend to favour the employee.This can be somewhat artificial at times, because it would appear, arguably, that the court is seeking a remedy for the plaintiff, and is seeking to place the loss on a defendant with deep pockets, that is, the employer. Examples of this approach are found in Chaplin v Dunstan Ltd 4, Park v Peach5 and Connell’s case above. •• It is important to look for the thread of these cases, and try to see whether we are really looking at two sets of cases — the first set which appears to be fairly harsh on the plaintiff, and others, which appear to be fairly harsh as regards the defendant.

Other employee cases 6.15

Following on from the ‘folly cases’, or the ‘frolic of their own’ cases, there are two sub-groups of cases dealing with folly by the employee.These two sub-groups are: •• where the employee acts even though there has been an express prohibition by the employer; and •• where the employee acts for his or her own benefit.

2. 3. 4. 5.

Deatons v Flew (1949) 79 CLR 370. Storey v Ashton (1869) LR 4 QB 476. Chaplin v Dunstan Ltd [1938] SASR 245. Park v Peach [1967] VR 558 (Full Court).

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Acting in spite of an express prohibition by the employer 6.16

6.17

The next case relates to how vicarious liability is treated when an employee disregards the express directions of his or her employer.

Bugge v Brown (1919) 26 CLR 110 Court: High Court of Australia Facts: This was a property case in which a property owned by Bugge suffered loss as a result of the negligence of Winter who was employed by the adjoining property owner, Brown. Winter, a rouseabout, lit a fire in a place where he had been expressly told not to light a fire. The fire spread to Bugge’s property and caused him loss. Legal principle: Was Brown, as Winter’s employer, responsible for Winter’s act (lighting the fire), which was in contravention of an express prohibition? The court’s decision (application of the legal principle to the facts): Brown was vicariously liable to Bugge for Winter’s act. Significance of this case: Even though this is an early High Court case, it appears to be a case where the employee was favourably treated. Background and context: This case can be characterised as one involving property damage, an innocent third party suffered the property damage, and the court appeared to be seeking a remedy from a defendant with deep pockets.

Employee acting for his or her own benefit 6.18

6.19

The following case examines how vicarious liability is relevant when an employee acts for his or her own benefit.

Lloyd v Grace, Smith & Co [1912] AC 716 Court: House of Lords Facts: This case involved fraud on the part of an employee, Sandles, who was the conveyancing manager and managing clerk of the firm of solicitors, Grace, Smith and Co. The fraud was perpetrated against a client of the solicitor, Mrs Lloyd, a widow who owned two cottages and was seeking increased income from them. She left the title deeds with the firm. Mrs Lloyd’s properties were signed over to Sandles by means of his fraud and deception. Legal principle: The firm was liable to the client. The court’s decision (application of the legal principle to the facts): The House of Lords found that the employee, Sandles, was acting within the scope of

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his employment. They said that it was irrelevant that the employee had acted for his own benefit, rather than for the benefit of the employer law firm. Significance of this case: This case shows the wide scope of vicarious liability in a fiduciary context, such as that of solicitor–client. Background and context: The case placed importance on the connection between the nature of the employment and the actionable tort. Lord Steyn described the case as a breakthrough in that vicarious liability is not necessarily defeated, if the employee acted for his or her own benefit.6

An analysis of the two types of frolic cases 6.20

These are two fairly old cases by the senior6 courts in their respective countries, which would seem to suggest that, where we have an innocent third party, and there is property damage, the courts are going to take a fairly broad, and perhaps artificial, view of vicarious liability, and find the defendant employer liable. What can we take from these cases? We can see that an innocent employer can be liable for the acts of a dishonest, or rogue, employee. Where the courts set the limits for the defendant’s liability is somewhat difficult to predict. They are obviously trying to balance considerations such as: •• finding a remedy for an innocent plaintiff; and •• finding liability on the part of a defendant with resources and the capacity to pay damages. The ‘rogue employee’ case is, therefore, a particular type of employee case. It tests the ‘grey areas’ of where the employer’s vicarious liability begins and ends.

Independent contractors: the relevant legal principles and cases 6.21

So far we have dealt with situations of employment. If, however, a person is not an employee of the employer, then the person may be an independent contractor.

Employees and independent contractors 6.22

We need at the outset to be able to characterise an employer–employee relationship because this has basic legal and insurance consequences, as shown in Table 6.1.

6. Lloyd v Grace, Smith & Co [1912] AC 716, 224.

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Table 6.1 Nature of relationship

Employer/employee

Independent contractor/ other party

Consequences for liability The employer will usually be vicariously liable for the negligent acts of the employee

The independent contractor will be liable for his or her own negligence

Insurance issues

The independent contractor should be self-insured

The employer should carry workers’ compensation insurance for its employees

The elements of control and the control test 6.23

A key concept for the courts in determining the nature of the relationship has been control; that is, the employer has a level of control over what the employee does. Control can be broken down into several factors, as we saw at 6.4. These factors include: •• •• •• ••

the hours of work; the general role and specific nature of required tasks; the supply of uniforms; and codes of conduct at work, including language, competence etc.

Another way of looking at control is to say that if an employee is acting in the course of his or her employment (in this case, the earlier example of Adam and Barbara in 6.6), then that employee is under the control of the employer. If the employee is literally out of control then the law would suggest that the employee is not acting in the course of his or her employment. Alternatively, the law would say that Adam is acting on a frolic of his own.The result in law may well be that the employer is not liable either on a personal basis to Adam, or would not be liable for a frolic of Barbara’s own as well. So, the control test of the course of employment is important to our understanding of vicarious liability. In summary, if Adam is on a frolic of his own, he probably won’t succeed against ABC Ltd. If Barbara is on a frolic of her own — for example, if she hasn’t put any guards on the machines because she has been on a ‘bender’ — then, theoretically, ABC Ltd could argue to Adam: ‘Sorry, but Barbara is to blame. We won’t pick up liability because she was not acting in the course of her employment. She was acting outside the employee zone of acceptable or protectable behaviour’. We need to appreciate that tort law in the 21st century is underpinned by social and employment policy, which, when applied to the example, could be argued 301

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to be striving to find a remedy for Adam, and to shift the loss to the company (ABC Ltd). In thinking about vicarious liability, consider some of these facts, and bigger issues. For example: •• Tort law development moves with the times. •• Australian tort law inherits its origins from United Kingdom 19th-century tort law, which was really informed by caveat emptor (that is, buyer beware) which, when translated into employment policy, meant that the courts were harsh on employees. Putting this into context, would it be right for ABC Ltd (the huge company) to avoid liability simply on the basis of a rogue employee, such as Barbara? The key to understanding these cases, especially the more recent cases in vicarious liability, is that courts appear to seek a favourable result for the employee. If this is the case, why do you think such favourable treatment is occurring? First of all, some of the justifications for vicarious liability could be as follows: •• Is there a moral element in that ABC Ltd (the wealthy company) should pick up liability for injured employees? •• Vicarious liability can be seen as efficient loss distribution, in that it shifts the loss from the plaintiff to the defendant. •• A ‘deep-pockets ability to pay’ approach, implicitly at least, informs the courts’ thinking. That is, ABC Ltd will be insured and it will have the capacity to pay. These are all seen as reasons underpinning vicarious liability.

The impact of self-employment 6.24

An alternative scenario for Adam and Barbara would be that a court might, in fact, find that Barbara is not an employee of ABC but is, in fact, what we call self-employed, or an independent contractor. Self-employment and independent contracting are essentially one and the same thing. In other words, we would say that Barbara is not controlled by the employer, but she runs her own business — she may supply her own uniform, her own van, her own equipment etc.

The threshold test for vicarious liability 6.25

So, an important threshold test for any court in vicarious liability is to ask two questions: 1. Do we have an employer–employee relationship? 2. If there is an employer–employee situation, is that employee acting in the course of his or her employment?

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This is the second type of case, where the defendant actually responsible for the plaintiff ’s injury (for example, Barbara in our earlier example) is not an employee of ABC Ltd at all, but is in fact self-employed; that is, she is an independent contractor. The key case in this area is Stevens v Brodribb Sawmilling Co Pty Ltd.

6.26

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 Court: High Court of Australia Facts: Stevens was a log haulier, who was severely injured when a log that was ‘substantially shorter than the others and [one that] would not straddle both pairs of skids’ on the ramp (per Mason J at CLR 22) rolled onto him. Stevens alleged that Gray, a ‘log loader’, was responsible for the accident. Stevens also alleged that the company, Brodribb Sawmilling Co Pty Ltd (BSC), was vicariously liable because both he and Gray were employees of BSC. Legal principle: This is one of the key cases in Australia on the test of whether someone is an employee (and can thereby rely on vicarious liability principles) or an independent contractor (and, effectively, needs to be self-insured). In order to ascertain someone’s status as an employee or independent contractor, the court examines the ‘indicia of the nature of the relationship’ (per Wilson and Dawson JJ at CLR 36): •• the hours of work and who sets them; ••

the manner of being paid — whether in this context, for example, it was by reference to volumes of timber; and

••

whether tax is deducted at source.

The court’s decision (application of the legal principle to the facts): It was held by the High Court on examination of the facts and circumstances, that neither Gray nor Stevens was an employee of BSC. Stevens, therefore, had to rely on a general common law duty of care being owed to him by the company, BSC, as the controller of the site at which he was injured; on the facts, there was no breach of that general duty. Gray was negligent, but BSC was not his employer and so was not vicariously liable for Gray’s negligence. (What of suing Gray? Without insurance backing him, this was not productive.) BSC still had an obligation to provide a safe system of work as it was the party in overall charge of the site. On the basis of the disclosed facts, Mason J found no negligence (see, for example, Mason J at CLR 31–2). Deane J, alone of the judges, found that BSC had breached its general duty to provide a safe system of work. On the evidence adduced, BSC ‘provided no system at all to deal with the problem of loading the shorter logs’ (per Deane J at CLR 54). The key issue in this case revolves around that of control. Essentially, it is the case that if a party controls another person sufficiently, that person is likely to be found

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to be an employee. It is a question that the court will need to examine in relation to all relevant indicia: it is not conclusive that just because you call yourself an employee, and think that you are an employee, then you are an employee. It is a question to be concluded in each case, so there may be some grey-area cases. Significance of this case: In applying its control test to determine whether a person is an employee, or is in fact independently contracted (self-employed), the elements we mentioned before from general principles were the elements that the High Court examined: ••

How is the person paid?

••

Who provides his or her vehicle?

••

Who provides his or her uniform?

••

Who sets the hours of work?

••

Where can the person work?

••

Can the person work for other employers?

In other words, how much discretion does the person have as to his or her work activities, and how much discretion is vested in the employer? Background and context: Stevens v Brodribb is a very important case in terms of ascertaining how the High Court, and how Australian courts in general, will determine the threshold issue of whether someone is an employee. It is important and fundamental that we recognise that if someone is characterised or classified as an independent contractor (for example, Barbara), then Barbara may be directly responsible for Adam’s injuries. What does this mean for Adam? What it means, in a practical sense, is that Barbara may have no money, no insurance, and no capacity to pay him. So, you can see that it is fundamentally important, when you are looking at litigation in tort, that you consider the defendant’s ability to pay.

The distinction between who is an employee and who is an independent contractor has troubled employers. The following case helps to make this distinction on the basis of particular circumstances of engagement. The case considers the factors and indicia which courts look at when determining whether a worker is an employee or an independent contractor.

6.27

Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161 Court: High Court of Australia Facts: The appellant went to buy a bottle of milk at a service station and convenience store near where she lived. When she opened the door of the fridge,

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the door came off and hit her on the head. She suffered injury to her head, neck and hand. Four or five hours before this incident, a mechanic attended the service station and tightened the hinges on the door. He said the door was working properly after it was fixed. Legal principle: The main legal question here was whether the ‘mechanic’ who fixed the fridge was an employee of the respondent? In order to determine this, a number of indicia were examined. The court’s decision (application of the legal principle to the facts): The joint majority judgment (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) held the mechanic was an independent contractor. This was based on the following: ••

The respondent did not control the way in which the mechanic worked.

••

The mechanic was not presented to the public as being part of the respondent’s business.

Kirby J in dissent held that the mechanic should have been classified as an employee. Some of the factors which were used to come to this conclusion were as follows: ••

The mechanic performed work for the respondent on a daily basis.

••

The mechanic performed the same work as Boylan’s employees.

••

The mechanic was directed by the respondent’s employees to complete tasks.

••

The mechanic regularly attended the respondent’s premises to pick up parts etc.

Significance of this case: Demonstrates how the courts classify whether a worker is an employee or an independent contractor.

Tests to determine the nature of the relationship 6.28

As we have seen so far, a critical test is whether someone is an employee or an independent contractor. In Australia, different tests are used to determine this issue. Obviously, the outcome of the question is critical to a plaintiff. If there is found to be an employer–employee relationship, then the employer will be vicariously liable and workers’ compensation will be available. If, on the other hand, there is found to be no employer–employee relationship, then the employer may not be vicariously liable. Alternatively, you will need to look, as a plaintiff, to the independent contractor, as it is the independent contractor who will be personally liable.Therefore, of course, you will hope as the plaintiff that the independent contractor has insurance and some capacity to pay you. Alternatively, the plaintiff will need to look to a general duty of care owed by the controller of the site, as was found in Stevens v Brodribb Sawmilling.7

7. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513.

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A departure from the traditional English approach of control? 6.29

We have already identified that, in the Stevens v  Brodribb Sawmilling case, a critical test was that of control. Is this the only test? Is this test sufficient on its own? Mason J said that ‘the existence of control, while significant, is not the sole criterion by which to gauge whether a relationship is one of employment’.8 What this means, in effect, is that the High Court is moving away from the traditional English approach, which placed great emphasis on control. Mason J goes on to say that control is: merely … one of a number of indicia [that is, indications] 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 [‘putative’ means possible] employee.9

We could call this a multi-factored approach (otherwise known as the ‘multiple indicia’ test), so that control is merely one issue to consider within a broader matrix of considerations.

Tests other than control for determining employment status 6.30

What other broad tests have been used in Australia? Another test that we could refer to is the organisation test. At its most basic, it asks: Is the person [employee] an integral part of the employer organisation? Is he or she integrated into the workplace, or does the person stand, as it were, outside it?

The English courts have adopted this test, and have talked about the employee as a subordinate, and the employer as the ‘boss’. What is the status of this organisation, or integration, test in Australia? Kirby P (when he was president of the New South Wales Court of Appeal prior to his appointment to the High Court) discussed this in Ellis v Wallsend District Hospital10 where he held: In Australia, although not rejected as irrelevant, the ‘organisation test’ is not accepted as sufficient or as an independent method for determining that vicarious liability arises.

What did Kirby P say in Ellis about control? He was in line with Mason J in Stevens v  Brodribb, and he quoted Mason J basically to say that control in

8. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24; 63 ALR 513. 9. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24; 63 ALR 513. 10. Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 562.

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Australia is no longer the principal, less still the sole, criterion accepted by Australian courts. In summary, therefore, control is no longer the only or even the main test for determining a worker’s classification, but in practical terms it remains central. In the Australian courts, no single test has been enunciated; the ‘control test’ has effectively been downgraded. Is this part of the trend that Australian tort law has moved in since the Australia Act 1986 (Cth)?

What are we left with as a test in Australia? 6.31

What are we left with as far as these tests are concerned? Basically, a test we call the ‘indicia’ test. This test involves the courts looking at a number of criteria or indicia — in other words, they take into account a number of factors. As Kirby P said in Ellis (at 562): In place of this [control] test, the High Court of Australia suggested [Stevens v Brodribb at 24] the need to look to a number of indicia from which the nature of the relationship and the responsibilities deriving from it would be defined.

As we will see from more recent cases discussed below, we can argue that a number of the indicia that the courts are looking at are still control-oriented. We need to be able to analyse the language that the courts use.The courts have indicated that they want their own terminology for this, so they have called it the ‘indicia’ test. We have seen that it is obviously a complex task for a court to decide or to determine whether a person is an employee or independent contractor.

Cases applying the Stevens v Brodribb principles 6.32

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A New South Wales  Court of Appeal case illustrates the application of the principles to emerge from Stevens v Brodribb.11

Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135; BC200102379 Court: New South Wales Court of Appeal Facts: This case involved a work accident. Wilke fell from a ceiling onto a concrete floor while working at Astra. He sustained serious personal injury.

11. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513.

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Legal principle: The decision in Stevens v Brodribb was applied. The court’s decision (application of the legal principle to the facts): The court held (at [11]) that, in line with Stevens v Brodribb, irrespective of the assumed status of Wilke as either employee or independent contractor, in the situation where independent contractors are engaged to do work which ‘might as readily be done by employees’ and where there is a need for directions to be given and for coordination of the various tasks, then a safe system of work has to be provided. Significance of this case: This case confirms the width of the Stevens ruling. Each work circumstance needs to be assessed in light of the particular and appropriate guidance required, especially as to direction and coordination of the workplace. High-risk work sites such as building sites (as in Wilke) or the timber industry (as in Stevens or Coote [CGU Insurance v Coote [2018] WASCA 117]) are especially prone to a broad approach being taken to the concept of a safe system of work. Background and context: Meagher JA observed (at [8]): ‘One gains the impression that in the building game one always uses independent contractors, not employees, in the (I hope, vain) belief that the statutory safeguards relating to work safety will no longer apply’.

Other High Court cases dealing with vicarious liability in the work context 6.34

6.35

The next case forecasts a move away from the importance of control in the workplace context when determining vicarious liability.

Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44 Court: High Court of Australia Facts: The plaintiff, Hollis, a courier based in Sydney, was emerging from a building when another courier on a bicycle collided with him. Hollis suffered a permanent 25 per cent disability to his knee. The other cyclist rode off, but Hollis identified the rider’s shirt (green in colour) as belonging to Crisis Couriers, a competing courier business. Legal principle: Was the unidentified cyclist an employee of Vabu Pty Ltd (trading as Crisis Couriers) so that Vabu was vicariously liable for the negligence of its employee in injuring Hollis? Alternatively, if the unnamed cyclist was an independent contractor, did he owe a non-delegable duty of care to someone in Hollis’s position?

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The court’s decision (application of the legal principle to the facts): The unidentified cyclist was an employee of Vabu Pty Ltd. This was principally because in ‘the totality of the relationship’ (at [24]) between the cyclist and Vabu, there was the required degree of control to give rise to a relationship of employee–employer: ‘it would be unrealistic to describe the couriers other than as employees’ (at [57]). Significance of this case: This case illustrates that the move away from control as indicated by the High Court in Stevens v Brodribb may have reached its ‘highwater mark’ and that control is re-emerging as the critical issue in determining the nature of the relationship in the employment context. Background and context: The High Court discussed this case as involving lowskilled workers (at [48]): ‘these couriers were not providing skilled labour or labour which required special qualifications’. Taxation and other factors were also discussed.

The High Court and recent workplace accident cases 6.36

6.37

The next case illustrates the High Court’s application of principles established in the earlier case Stevens v Brodribb Sawmilling Co Pty Ltd.12 It is a good example of the French High Court consolidating and clarifying the reach of the common law in a gradualist manner.

Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35 Court: High Court of Australia Facts: The court delivered a single joint judgment comprising French CJ, Gummow, Hayne, Heydon and Bell JJ. The court summarised the facts as follows: Introduction 1. Background facts. On 7 March 2003 Brian Allan Fox, the first respondent in each of these appeals, suffered severe injury in the course of working at the construction site of the Hilton hotel in Sydney. Leighton Contractors Pty Ltd (‘Leighton’), the appellant in the first appeal, was the principal contractor for the project. By the ‘Works Contract’, Leighton had contracted with Downview Pty Ltd (‘Downview’) to carry out the concreting, including the

12. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513.

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provision of reinforcing and formwork, for certain works. Downview had subcontracted the concrete pumping to Quentin Still and Jason Cook. Mr Fox and Warren Stewart were engaged by Mr Still and Mr Cook in connection with the concrete pumping for a pour that was scheduled to take place on 7 March. 2. After the concrete pour was completed Mr Still, Mr Stewart and Mr  Fox commenced to clean the concrete delivery pipes. This involved blowing an object through the pipes with compressed air. In the negligent manner in which this was done the end pipe swung around and struck Mr Fox on the head. 3. The trial. Mr Fox brought proceedings in the New South Wales District Court in negligence against Leighton, Warren Stewart Pty Ltd, which employed Warren Stewart, and Downview. The trial judge (Gibb DCJ) found that the accident was caused by the negligent conduct of Mr Still and Mr Stewart. She dismissed the claims against Leighton and Downview, holding that there was no relevant breach of duty by either of them. She gave judgment for Mr Fox in the amount of $472,561.95 against Warren Stewart Pty Ltd. Warren Stewart Pty Ltd did not appeal against the judgment. Unfortunately for Mr Fox, it has since been de-registered. 4. The appeal to the Court of Appeal. Mr Fox appealed against the dismissal of his claims against Leighton and Downview. The Court of Appeal allowed the appeal, holding that Leighton and Downview were each subject to a common law duty of care for the benefit of Mr Fox and that each was in breach of that duty. The primary judge’s orders were set aside and judgment was given against Leighton and Downview in the sum of $472,562. The Court of Appeal upheld a crossappeal brought by Leighton against the dismissal of its cross-claim and ordered that Downview pay 80% of the judgment debt owed by Leighton to Mr Fox. 5. The appeal to this Court. Leighton and Downview appealed by special leave from the orders of the Court of Appeal. They contended that the imposition on each of them of a common law duty of care owed to Mr  Fox, an independent contractor, involves an unwarranted extension of the liability of principals for the negligent acts of other independent contractors engaged by them. Each appeal should be allowed for the reasons that follow. 6. On 16 April 2009, after the institution of the appeals, Downview was deregistered. On the hearing of the appeals leave was given to substitute Calliden Insurance Limited as the second respondent in the first appeal, and as the appellant in the second appeal, pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act  1946 (NSW). Calliden gave an undertaking as to costs in the terms of the undertaking previously given by Downview as a condition of the grant of special leave in the second appeal. This was an undertaking that Downview would pay Mr Fox’s costs of the appeal and that it would not seek to disturb any costs order in his favour made in the Court of Appeal. Leighton gave an undertaking in the same terms as a condition of the grant of special leave in the first appeal. Legal principle: 20. The duty of principals to independent contractors. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is

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Vicarious Liability and Non-Delegable Duties recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd [(1986) 160 CLR 16 at 47–8]: An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.

The court’s decision (application of the legal principles to the facts): The court held that the independent contractor’s role on site remained independent from the lead contractor. The task of line cleaning the concreting pipe was not subsumed into the general operation of the site. As such, the independent contractor was responsible to its own staff for providing a safe system and competent fellow workers in regard to this discrete task. In this case, the court discussed the legal principle of duty in its decision by stating: 48. It may be accepted that Leighton, as the occupier of the site, owed a duty to persons coming onto it to use reasonable care to avoid physical injury to them. However, this says nothing about whether Leighton owed a duty to Mr Fox to take reasonable care to prevent him suffering injury on the site as the result of the negligent conduct of Mr Stewart. The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken. The factors that the Court of Appeal took into account in concluding that the older case-law had been supplanted and that the common law now recognises a duty owed by a principal contractor to subcontractors and others coming onto a construction site ‘to provide training in matters of safety to subcontractors working on [the] site’ may

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be summarised as follows. Leighton had the legal authority to control who was admitted to the site; a significant number of tradespeople and other workers were on the site at any one time; construction sites are relatively dangerous workplaces; and ‘induction training is now a recognised part of major construction works’. All, save the last, are matters which in the opening sentence of the first critical passage quoted above the Court of Appeal correctly recognised would not give rise to a duty of care owed by a principal contractor to an independent contractor. … 62. In Stevens v  Brodribb Sawmilling Co Pty Ltd Mason J explained that if an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work and where there is a need for direction and co-ordination of the various activities being undertaken, the entrepreneur will come under a duty to prescribe a safe system of work. Mr Fox submitted that Downview’s liability should be sustained upon this basis. He pointed to the fact that this was a busy building site with many people in and about it. However, as the Court of Appeal observed, there is nothing unreasonable about subcontracting the work of concrete pumping. It is an activity that requires specialised equipment and which lends itself to being carried out by independent contractors. The primary judge’s findings that the line cleaning was a self-contained operation that did not require co-ordination with other activities on the site was not disturbed. Mr Fox’s submission cannot be sustained.

Significance of this case: This case provides another example of the High Court under French CJ consolidating the principles by which the court will recognise and impose a duty of care. It is taking a gradualist approach rather than looking for new tests. It is seeking in this practice to provide a case-by-case sketching of the limits of the duty issue by relying on the tests, formulae and relevant indices developed in previous High Courts, particularly the immediately preceding courts of Mason CJ and Gleeson CJ. Background and context: This case provides guidance on safety obligations of the ‘lead contractor’ and liability for negligent acts by other independent contractors.

The next case deals with the interplay between workers’ compensation issues and the common law of negligence.

6.38

Hickson v Goodman Fielder Ltd [2009] HCA 11 Court: High Court of Australia Facts: The High Court held as follows: 1. Gummow J. The appeal should be allowed and consequential orders made as proposed by Bell J. I agree with her Honour’s reasons.

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2. Hayne J. I agree with Bell J. 3. Heydon J. I agree with Bell J. 4. Kiefel J. I agree with the orders proposed by Bell J for the reasons given by her Honour. 5. Bell J. On 12 March 2003, the appellant (‘Mr Hickson’) suffered serious injury as the result of a collision between his pushbike and a motor vehicle driven by Mr Ala. The accident occurred while Mr Hickson was on a journey to which s 10 of the Workers Compensation Act 1987 (NSW) (‘the Compensation Act’) applies. Accordingly, his injury for the purposes of the Compensation Act is taken to have occurred in the course of his employment with the respondent (‘Goodman Fielder’). Goodman Fielder made compensation payments to Mr Hickson. Mr Hickson also had rights in tort against Mr Ala. 6. Mr Hickson sued Mr Ala in tort in the District Court of New South Wales (‘the tortfeasor action’). Goodman Fielder was not a party to that action. Mr Ala filed Notice of Grounds of Defence containing extensive particulars of Mr Hickson’s alleged contributory negligence. It was common ground in the later litigation between Goodman Fielder and Mr Hickson that contributory negligence had been a live issue in the tortfeasor action. 7. The tortfeasor action was settled by Mr Hickson and Mr Ala. Effect to the settlement was given by an order in the District Court (Charteris DCJ) for judgment in favour of Mr Hickson for $2.8 million plus costs. The order was pronounced orally on 6 June 2006. No formal order was settled and entered. 8. Goodman Fielder commenced proceedings in the District Court on 7 June 2006 against Mr Hickson seeking repayment of the amount of the compensation which it had paid to Mr Hickson, a sum of $607,315.43, pursuant to s 151Z(1)(b) of the Compensation Act (‘the repayment action’). 9. The Compensation Act manifests a policy against the receipt of what might be called ‘double compensation’. This is evident in provisions in Pt 5 which include those of s 151Z. In a case such as this, in which a worker recovers, first, compensation and, secondly, damages from a person other than the employer, s 151Z(1)(b) provides that the worker is liable to repay out of those damages the amount of compensation which has been paid in respect of the injury and that the worker is not entitled to any further compensation. 10. Under s 9(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (‘the Law Reform Act’), Mr Hickson’s claim against Mr Ala was not defeated by his contributory negligence but the damages recoverable by him were subject to reduction on this account. Section 10(2) of the Law Reform Act provides for the reduction in the liability of the worker to repay workers’ compensation in a case in which the damages recoverable at common law are reduced on account of contributory negligence. 11. In answer to Goodman Fielder’s claim, Mr Hickson pleaded that his actions on 12 March 2003 contributed to his injuries and that his liability to repay compensation to Goodman Fielder was reduced to the same extent that the damages recoverable by him against Mr Ala were reduced.

Legal principle: The court, while mindful of the principle of double compensation, also had to deal with the impact of contributory negligence. The worker was

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Torts: Principles, Skills and Application injured in a car accident while at work. He sued the third party in common law negligence as one road user to another. He also received, in his capacity as an employee, his workers’ compensation statutory entitlements. He settled his common law claim against the other driver without going to trial. He contended that, as part of the settlement arrangement, he reduced his common law damages, on the basis of his contributory negligence, by a dollar amount which was more than the total amount of workers’ compensation payments he had received. The court held on this basis that he did not have to repay his amount of workers’ compensation. In this way, the court held that s 151Z of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) had been complied with, and that double compensation had not been received. Bell J noted: 12. The principal question raised by the appeal is whether the reduction in the liability provided by s 10(2) of the Law Reform Act operates only where the third party tortfeasor is sued to judgment and the court has made a finding of the extent to which it is just and reasonable that the damages recoverable are reduced having regard to the worker’s share in responsibility for the damage.

Her Honour later stated that: 50. It is clear that the reduction for which s 9(1)(b) of the Law Reform Act provides involves an exercise in apportionment and that the words ‘to such extent’ are used to convey ‘to the degree’. While, in some contexts, ‘extent’ may mean ‘amount’, the use of the formulation ‘to the same extent’ in s 10(2) in a context in which it is linked to the reference ‘to such extent’ in s  9(1)(b) is against finding that it is intended to refer to the amount in money and not to proportionate reduction. It strains the language of s 10(2) to read ‘to the same extent’ as meaning ‘in the same amount’. The reduction in liability to repay compensation for which s 10(2) provides is proportionate to the reduction in the damages recoverable on account of the worker’s contributory negligence.

The court’s decision (application of the legal principles to the facts): The key findings are set out in [45] and [46], referred to below. Absolute or proportionate reduction under s 10(2)? 45. On the appeal the parties made submissions concerning one aspect of the interpretation of s 10(2) of the Law Reform Act which was not raised by the questions that Kearns DCJ was asked to determine. It concerns the amount of the reduction and depends upon the meaning of the words ‘to the same extent’ in the provision. Mr Hickson submits that his liability to repay the compensation is reduced by the amount by which the total damages that would have been recoverable are reduced on account of his contributory negligence. This, it is submitted, ensures that to the extent Mr Hickson is under-compensated by Mr Ala because of Mr Hickson’s own fault he does not lose the benefit of his no-fault statutory compensation. 46. The significance of the distinction is illustrated in the submissions made on Mr  Hickson’s behalf. Assume a worker is 25% responsible for his injury and at the date of resolution of his common law claim has received

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$800,000 in workers’ compensation. The worker’s undiscounted damages are assessed at $4 million. After reduction for his contributory negligence, the worker is entitled to an award of $3 million damages on his common law claim. His damages have been reduced under s 9 of the Law Reform Act on account of his contributory negligence by an amount of $1 million. On the interpretation of s 10(2) favoured by Mr Hickson there is no liability to repay any of the compensation received because it is less than the amount by which the  damages have been reduced on account of contributory negligence. On the alternative interpretation, for which Goodman Fielder contends, the liability to repay the compensation is reduced by 25% being the proportion by which the damages were reduced. In this example the worker is required to repay the compensation less 25%, an amount of $600,000, and in the result the worker retains a total of $2.4 million in common law damages.

Significance of this case: This case provides clarification regarding key provisions in the New South Wales  statutory framework. As such, it will be of persuasive value to other state and territory jurisdictions.

Intentional criminal acts and vicarious liability 6.39

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One issue which has gained significant attention in recent years is whether or not employers should be liable for the criminal acts of their employees. This issue was explored in Prince Alfred College Incorporated v ADC.

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 Court: High Court of Australia Facts: In the early 1960s, a 12-year-old boarder was sexually abused by Bain, a housemaster who was employed by Prince Alfred College (PAC). From the early 1980s, the respondent started experiencing symptoms of psychological injury. In 1997, it was agreed between the parties they would not pursue formal litigation and instead an alternative arrangement was agreed upon. The respondent later commenced civil proceedings against Bain, and reached a settlement in 1999. He then pursued further financial assistance from PAC without success. The respondent brought proceedings against PAC in 2008. In the Supreme Court of Australia, the respondent alleged PAC was liable for damages in terms of a breach of a non-delegable duty of care and breach of its duty of care. In addition, it was alleged PAC was vicariously liable for Bain’s wrongful acts. In order to bring an action, the respondent needed to get approval for an extension of the limitation period. The primary judge refused an extension of time. On appeal it was held unanimously that PAC was vicariously liable. It was also held that an extension of time should be granted. PAC was then given special leave to appeal to the High Court.

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Torts: Principles, Skills and Application Legal principle: The High Court commented on the approach which should be taken in terms of the possible vicarious liability of Bain’s criminal acts. Consideration needs to be given to the role of the employee to the victim. Some of the factors to consider include authority, power, trust, control and the ability to achieve intimacy with the victim. The court’s decision (application of the legal principle to the facts): The appeal was allowed. The members of the High Court unanimously decided that the primary judge was correct in not granting the special extension of time. This was found for a variety of reasons, including the fact that the respondent chose not to issue proceedings in 1997. Significance of this case: This case provides direction on how vicarious liability issues should be determined in cases where there is intentional criminal activity by the employee. It also provides direction on how vicarious liability issues are taken into account in such cases. Background and context: The test for finding vicarious liability was discussed in New South Wales v Lepore.13 The analysis in this case is far from clear, and Lord Phillips P noted in Various Claimants v Catholic Child Welfare Society14 that Lepore provided a ‘bewildering variety of analysis’. Prince Alfred College Incorporated v ADC15 was the first High Court case to address vicarious liability in more than 14 years. This case is particularly significant given the Australian Royal Commission into Institutional Responses to Child Sexual Abuse. Note that one issue that has been discussed in relation to the civil liability of the Catholic Church for child sexual assault cases is whether or not people working with the Catholic Church can be classified as employees. If this status cannot be determined, this may defeat one of the tests of vicarious liability. Often it is difficult to prove an employee/employer relationship due to the business structure the Catholic Church prefers. For more information on this issue, see Kate Gleeson, ‘Exceptional Sexual Harms: The Catholic Church and Child Sexual Abuse Claims in Australia’.16

Vicarious liability in the social context 6.41

The next case, Scott v Davis, deals with the issue of vicarious liability in the social rather than the work context.

13. New South Wales v Lepore (2003) 212 CLR 511. 14. Various Claimants v Catholic Child Welfare Society [2012] UKSC 56. 15. Prince Alfred College Incorporated v ADC (2016) 258 CLR 134. 16. K Gleeson,‘Exceptional Sexual Harms:The Catholic Church and Child Sexual Abuse Claims in Australia’ (2018) 27(6) Social and Legal Studies 734.

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Scott v Davis (2000) 204 CLR 333; 175 ALR 217 Court: High Court of Australia Facts: Davis restored vintage planes and flew them from his private airstrip at his property in the Barossa Valley in South Australia. He also allowed other qualified pilots and aircraft enthusiasts to fly the planes on social occasions. On the day of the accident, Bradford, a qualified and competent pilot, took Travis Scott on a ‘joy flight’ after (repeated) requests from Scott’s parents. Due to Bradford’s negligence, the plane crashed. Bradford was killed and Travis Scott was badly injured. Scott’s parents, who witnessed the crash, suffered nervous shock. Travis Scott and his parents sued Davis on a vicarious liability basis for the negligence of Bradford. At first instance, the court found that Davis was not vicariously liable for the negligent flying of Bradford. The Scotts appealed to the High Court. Legal principle: The High Court (by a 5:1 majority) reiterated that ‘control’ was a critical ingredient if the owner of the aircraft (Davis) was to be vicariously liable for the flying of the pilot (Bradford). The court’s decision (application of the legal principle to the facts): The court found that Bradford was neither the employee, nor the agent of Davis. The vital ingredient of control was missing. As Gleeson CJ said (at [16]): ‘At the time of the pilot’s negligent act, Davis was not in a position to assert a power of control over the manner in which the pilot was flying the aeroplane. The pilot was neither in fact, nor in law, subject to his direction and control at the critical time’. The court also dismissed an argument that Davis should be vicariously liable because Bradford was using the plane at Davis’s request, and for his purposes. Gleeson CJ (at [18]) reiterated ‘the general rule that a person is not vicariously liable for the negligence of an independent contractor. An independent contractor may be using an article at another’s request and for the other’s purposes, but the other is not ordinarily responsible for the contractor’s negligence’. He concluded (at [19]): ‘All that the pilot did was to render, on a social occasion, a voluntary service at the request of [Davis]. He was not a representative or delegate of [Davis]’. Significance of this case: The High Court has stressed the relevance of control as being critical to establishing vicarious liability. The court was also keen to stress that the context of the accident was a social, and not a commercial or work, setting. The court was not keen to extend commercial liability principles to the social arena. Background and context: By analogy with Imbree v McNeilly,17 a pilot owes a duty of care to his or her passengers, just as a driver of a motor vehicle does. The court did not extend the agency cases concerning motor vehicles to the aircraft context. It will be interesting, therefore, to see  if the court reviews the motor vehicle cases and the principles referred to in the course of the judgments.

17. Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40.

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Piecing the cases together 6.43

Based on the cases discussed so far, we can begin to gain an insight into how the cases fit together. The main common law principles can be summarised as follows in Table 6.2 (these would be in addition to relevant legislative principles).

Table 6.2

Relationship Category of between parties duty

Content of duty Cases/practical issues • Safe place of work • Safe system of work • Safe tools • Competent fellow workers

Employee will be entitled to workers’ compensation payments; able to sue in common law if injuries are more than 15% of whole of body

1.  Plaintiff is an employee; defendant is an employer

Employer owes a duty of care to employees

2.  Plaintiff is self-employed and injured

Generally, the injured party will need to look out for his or her own safety (subject to 3 below)

3.  Plaintiff is self-employed, but on a site controlled by the defendant

The site controller owes a general duty to make the site safe

A general duty may be owed at common law

Stevens v Brodribb18 (no liability found on facts); Wilke v Astra19 (liability found on facts)

4.  Plaintiff is injured by D who is an employee of ABC Ltd

ABC Ltd is vicariously liable for the negligence of D

Vicarious liability

Hollis v Vabu20 (in which the defendant was an employee of the vicariously liable employer); Commonwealth v Connell 21 (in which both plaintiff and defendant were employees of the vicariously liable employer)

Plaintiff will need to be self-insured

18. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. 19. Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135. 20. Hollis v Vabu (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44. 21. Commonwealth v Connell (1986) 5 NSWLR 218.

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Relationship Category of between parties duty

Content of duty Cases/practical issues

5.  P is injured by D who is ordinarily an employee of ABC Ltd, but for present purposes is acting outside the scope of employment or on a frolic of his or her own

ABC Ltd is not vicariously liable for the negligence of D

Deatons v Flew22

6.  P is injured by D who is neither an employee nor agent of ABC Ltd

ABC Ltd is not vicariously liable for the negligence of D

Scott v Davis23 (the accident context was regarded as social rather than one of employment)

Particular issues concerning vicarious liability 6.44

Three particular areas of importance in the context of vicarious liability are: 1. hospitals and health professionals; 2. non-delegable duties; and 3. joint and concurrent liability.



We will look at these three particular liability situations in turn.

Vicarious liability in the context of hospitals and health professionals 6.45

A critical, specific category is that of hospitals and health professionals. A good example of the health professional in this context is the medical specialist. How will his or her work day be organised? Let us take, for example, plastic surgeons and obstetricians — they will have their own rooms or surgeries where they will see private patients. For example, an obstetrician will see patients during

22. Deatons Pty Ltd v Flew (1949) 79 CLR 370. 23. Scott v Davis (2000) 204 CLR 333; 175 ALR 217.

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their pregnancies. An obstetrician may also do rounds at a public hospital seeing public patients, for example, providing services for people at that hospital, with such patients being in the public health system, rather than private patients. Of course, obstetricians may also see their own private patients at the hospital. The issue becomes this: ‘If a specialist is working at a hospital, is the hospital vicariously liable for his or her negligence, or is the specialist regarded as an independent contractor?’ This was the issue in Ellis v Wallsend District Hospital.

6.46

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Court: New South Wales Court of Appeal Facts: Mrs Ellis was a private patient of Dr Chambers. Dr Chambers recommended an operation. The operation was performed at Wallsend District Hospital. As a result of the operation, Mrs Ellis became a quadriplegic. Dr Chambers died. Mrs Ellis sued Dr Chambers’s estate. She alleged negligence on the basis that he had failed to warn her of the risks of the operation. She succeeded on this basis. As it turned out, she did not get full compensation, that is, Dr Chambers’s estate was not able to pay her in full. To pick up the shortfall, she also sued the hospital on two grounds: 1. vicarious liability; and 2. personal liability, that is, that the hospital itself was liable. The court’s decision (application of the legal principle to the facts): Dealing with the vicarious liability issue, a majority of the New South Wales  Court of Appeal (Samuels and Meagher JJA) held that the hospital was not vicariously liable. What was the basis of their findings? They held that Dr Chambers was not an employee of the hospital. They looked at the general arrangement between Dr Chambers and Wallsend District Hospital. They held that he was an honorary medical officer, that is, he was not paid by the hospital. He was on call for public ward patients, and in return he could use the hospital’s operating theatre. They looked at Dr Chambers’s particular relationship with Mrs Ellis, and the fact that she was a private patient. For these reasons, the majority held that the hospital was not vicariously liable, and that Mrs Ellis was essentially restricted to suing Dr Chambers’s estate, which was not fully able to fund her compensation. Significance of this case: Another very interesting point from the case is the dissenting judgment of Kirby P as he then was. He found that the hospital was vicariously liable on the basis of the hospital’s arrangement with Mrs Ellis. When a patient is operated on at a hospital, the hospital requires a consent form to be signed — the patient consents to be anaesthetised and operated on. The hospital cannot, of course, word the consent form so that it says, in effect: ‘I consent to being injured and I can’t sue you’. It is simply a consent to be anaesthetised and

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undergo the operation. Negligence, or otherwise, is a completely separate issue. Kirby P looked at the particular consent form which Mrs Ellis had signed: ‘The consent form read “I understand that an assurance has not been given that the operation will be performed by a particular surgeon”‘(at 566). What does this mean? It means that the hospital was saying that they were not guaranteeing that Dr Chambers would operate on Mrs Ellis. What Kirby P is saying is that this broke the nexus or relationship between Mrs Ellis and Dr Chambers, and that Mrs Ellis was then essentially just another patient of the hospital. So, Kirby P found different reasons and a different result from the majority. Kirby P then went on to say that he would have found the hospital personally liable. This is obviously an obiter point for Kirby P because his ratio was such that he had already found vicarious liability due to the drafting of the hospital’s consent form.

Non-delegable duties 6.47

Non-delegable duties are personal duties owed by an employer or organisation that cannot be delegated or given away to someone else. Legal liability attaches to the organisation itself. Sir Anthony Mason, as Chief Justice of the High Court, identified several of the areas where an employer is basically stuck with personal duties.Those areas are: •• •• •• •• ••

hospital and patient; schools; providing a safe system of work; dangerous substances and dangerous activities on premises; maintaining fences and preventing stock or cattle from getting onto highways; and •• contractual entrance and invitees.

Most of these categories are mentioned in Burnie Port Authority v General Jones Pty Ltd.24 We will look at these examples briefly.

Hospital and patient 6.48

The situation in Ellis v  Wallsend District Hospital25 would have been reversed if Mrs  Ellis had been a public patient as the hospital would then have been personally liable to her (she was actually a private patient of Dr Chambers).That is, if she had been a public patient, the hospital would not have been able to delegate the duty to anyone else (including Dr Chambers). Refer to Table 6.3.

24. Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42. 25. Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.

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Table 6.3

Patient treated by

6.50

Non-delegable duty issue The hospital also has a non-delegable duty of care to patients. The extent and limit of this duty depends on the scope and nature of the medical services which the hospital has undertaken to supply. It does not extend to the situation covered in the next row

The doctor is an independent contractor and the hospital would deny vicarious negligence on this basis

If treatment is carried out by the doctor pursuant to a direct engagement with the patient, and not on behalf of the hospital, the doctor is potentially directly and personally liable, not the hospital (as the treatment has been rendered independent of its control)

A doctor in his or her own right at the hospital, that is, private patient

6.49

Vicarious liability issues

Hospital’s doctors, Hospital is vicariously liable that is, public patient for treatment, etc carried out by its employees

The next case establishes that a non-delegable duty is owed directly from the Commonwealth to children who attend a school.

Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577 Court: High Court of Australia Facts: The incident occurred at a school in the Australian Capital Territory. (The New South Wales Government administered Australian Capital Territory schools at the date of the accident. That authority had been delegated to the New South Wales Government by the Commonwealth Government.) The incident occurred before school time. The school headmaster had died suddenly, and a meeting of staff had been called to announce this; the staff members were, therefore,

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inside the school buildings. The school children were outside, unsupervised. One student swung on the school flagpole, and then the top of the flagpole (the ‘truck’) fell off the top and, in doing so, seriously injured another pupil. Legal principle: The question was whether the injured pupil was able to sue the school and, if so, on what basis? The High Court found that the Commonwealth owed a direct duty of care to look out for the safety of the children who attended the school. The point of this case was that the Commonwealth could not delegate its responsibilities to the state of New South Wales. The court’s decision (application of the legal principle to the facts): A direct duty of care was owed by the Commonwealth Government to the children who attended the school; it could not be delegated by the Commonwealth to the state of New South Wales.



A more recent case was argued before the High Court and, on the facts, no negligence was found.

Providing a safe system of work 6.51

6.52

The next case is significant as it establishes what the scope of the duty of care in an employee/employer situation.

Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 Court: High Court of Australia Facts: The plaintiff, Anastasios Kondis, a labourer, was injured during his employment with the State Transport Authority (STA). The jib of a crane was being manually extended by a third-party contractor engaged by the STA in its railway yard located in central Melbourne. It fell on Kondis, injuring him. Kondis sued the STA in vicarious liability for the negligence of the contractor and sued STA alternatively as owing a direct and non-delegable duty. Legal principle: Was this a case where the STA could delegate away the safety of the site as regards its employee, Kondis? The court’s decision (application of the legal principle to the facts): The STA was directly liable for a personal duty of care it owed the plaintiff, that is, it was a non-delegable duty. Mason J said that it is part of the common law general duty that employers need to take reasonable care and skill for the safety of their employees. This duty has three main elements: 1. The employer needs to provide adequate plant and equipment (for example, gloves, goggles, properly maintained and up-to-date machinery etc).

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2. A safe place of work, so that, for example, the floor is properly dry, and the workplace is clean, ventilated, heated etc. 3. A safe system of work so that, for example, employees are trained, they know what they are doing, there are proper tasks, and there is proper supervision etc. Significance of this case: Basically, Kondis is authority for the fact that an employer is personally responsible for these particular elements of the general duty of care, and the employer cannot delegate them away to a third party.



6.53

Another recent case was Czatyrko v Edith Cowan University in the High Court. In that case, the unanimous judgment, which was explicitly stated as narrow and made on the basis of the particular facts of the case, is set out below.

Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 Court: High Court of Australia The High Court held as follows: Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ held as follows: 1. This appeal raises no question of general principle and depends on its own facts. The only question that it poses is whether the Full Court of the Supreme Court of Western Australia was wrong in deciding that a trial judge erred in holding that an employer failed in its duty of care to an employee by not providing him with a system of work, and plant and equipment to enable him to carry out his work safely. Facts 2. The appellant began to work for the respondent as a general assistant in February 1990. His duties included the shifting of furniture and the distribution of mail. 3. On 13 January 1997, the appellant and another employee, Mr Fendick, were required to load 30 or so boxes on to a truck for removal to another campus. The boxes contained books and documents. The truck was parked on a grassy area outside a building. It was fitted with an enclosed tray, to which was attached an unenclosed hydraulic lifting platform. The platform was about 1.5 m deep and its width was approximately the same as that of the truck. The platform was powered by the battery in the truck and was operated by a switch. It emitted a loud noise when it was being raised and a ‘clanging’ sound when it ‘hit the top’ (to bring it level with the tray of the truck). No sound was emitted, however, when it was being lowered. 4. The appellant and Mr Fendick each had a trolley. Together, they collected boxes and loaded them on to the truck, both using the platform. A storeman gave

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them a message that their supervisor wanted them to get on with the job more quickly. Mr Fendick suggested to the appellant that the appellant should work on the truck while Mr Fendick brought the remaining boxes to him. The appellant agreed. Mr Fendick, who was operating the platform control, then collected some boxes on his trolley, took them up to the appellant on the platform, unloaded them, and went down again on the platform to collect more boxes. The appellant remained on the truck re-organising the boxes that were already loaded in order to make the best use of the available space, which was almost three-quarters filled. Mr Fendick brought another load of boxes up on the platform. He placed them on the truck. By this time, there was little room left on the truck. Mr Fendick, without saying anything further to the appellant, went down again on the platform. When the platform was about two-thirds of the way down, and still descending, the appellant, who did not realise it had moved, and who was still re-organising the boxes on the truck, stepped backwards. If the platform had still been there, he would have been secure. Instead, he stepped into space, and fell heavily. The proceedings in the District Court 5. The appellant sued the respondent in the District Court of Western Australia for damages for negligence, as well as breaches of the Occupational Safety and Health Act 1984 (WA) and the Occupiers’ Liability Act 1985 (WA). The Statement of Claim alleged common law negligence in the form of failing to provide safe equipment and failing to provide a safe system of work. The case was argued in the Full Court, and in this Court, on the basis that the statutory counts added nothing material to the appellant’s case. Argument was directed entirely to the common law claim. The appellant claimed that the respondent had failed to take reasonable precautions to ensure his safety in these ways: by failing to provide a warning device to indicate that the platform was in the process of being lowered; by instructing the appellant and Mr Fendick to do their work hurriedly and in a manner that ‘ignored safety issues’; and, by failing to have in place a system of work requiring the employee operating the platform to inform other employees of its movements at any time. The respondent denied liability and contended, among other things, that the appellant’s injuries were caused or contributed to by his own negligence in failing to look behind him before stepping backwards. 6. In cross-examination of him at the trial, the appellant conceded that in the course of doing the work it was necessary for him to turn around and to continue to look behind him from time to time to see what he had to pick up and stack. It was not controverted that the platform could readily and inexpensively have been fitted with a device that would emit warning sounds. Apart from the appellant and Mr Fendick, the only other witness who gave evidence about these matters at trial was an engineer who said that he himself had designed a lifting platform similar to the one in use in this case and had ‘felt it was absolutely essential to have a warning beeper’. He agreed, however, that ‘it is in the marketplace very unusual to have a beeper attached to them’.

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7. The trial judge (Martino DCJ) found that the respondent had exposed the appellant to an unnecessary risk of injury. His Honour said that as the loading of the truck continued, standing room would be reduced. The appellant would then be compelled to step on to the platform. As the platform could be lowered soundlessly, it was foreseeable that the appellant would not know that the platform had been lowered and would lose his step when he attempted to stand on it. 8. The trial judge formed the opinion that the risk of injury to the appellant could have been avoided if the appellant were to be given a clear warning as and when the platform was lowered. An appropriate warning could have been given, either by a device which emitted sound when the platform was being lowered, or by the respondent’s insistence on a system of work requiring that the person lowering the platform inform the loader that the platform was about to be lowered. 9. As to the respondent’s alternative plea of contributory negligence, the trial judge thought it relevant that the appellant believed that the platform would be in place when he stepped backwards ‘because he had not been told that the platform was to be lowered nor heard any sound to indicate that it was being lowered’. Plainly the trial judge considered the belief was not unreasonable. Accordingly, it was not negligent of the appellant to step backwards without looking to see whether the platform was in such a position or not. 10. Having found that the respondent was entirely responsible for the appellant’s injuries, it was unnecessary for the trial judge to consider the appellant’s alternative causes of action. He accordingly gave judgment in favour of the appellant in the sum of $379,402. The Full Court 11. The respondent successfully appealed to the Full Court of the Supreme Court (Wallwork, Murray and Templeman JJ). Murray J, with whom Wallwork and Templeman JJ agreed, observed that a person ‘paying attention to where he was putting his feet would have been perfectly safe’. His Honour stressed that the appellant was under an obligation to take reasonable care to avoid foreseeable risk of injury to himself: the appellant’s injuries were materially caused by his own negligence. In any event, even if the respondent were in breach of its duty of care by not making provision for a warning, the appellant’s negligence in failing to look where he was stepping should nonetheless be regarded as a substantial cause of his injuries. In those circumstances, his Honour would have apportioned liability to the extent of 70% against the appellant. He said this [[2002] WASCA 334 at [16]–[17]]: It seems to me that the true issue upon which the case turned was simply whether, in the circumstances, the omission to provide a warning, in either form suggested,

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that the lifting platform was to be or was being lowered breached the duty of care, or whether this was a case where, as Kirby J said in Romeo v Conservation Commission (NT) [(1998) 192 CLR 431 at 478]: Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just. In that event, because the obligation of the [respondent] is to take reasonable care to avoid foreseeable risks of injury, the duty will not be breached by the failure to warn. Of course, one must be careful not to elevate that observation, which was directed to the facts of Romeo, into some form of definitive statement of the law, but the remark was described by Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd [(2001) 76 ALJR 483 at 490] as ‘fair comment’ ‘as a generalisation’. The Court must not lose sight of the fact that, as Gleeson CJ said in Woods, ‘ultimately, the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk’.

Murray J went on to say: [I]n my respectful opinion, the breach of the duty of care owed by the respondent was not established simply by the observation of the trial Judge … that it was obvious that, ‘when the loading of the truck was almost complete so that there was limited space left on the tray of the truck, the [appellant] would step on to the platform’. To my mind, the chance that he would do so without looking where he was going was, although reasonably foreseeable, remote. In my opinion, the [respondent] was, acting reasonably, entitled to expect that the [appellant] would look where he was going rather than that he would step back, knowing that he was about to step off the back of the truck tray, without looking to see  whether the hoist, which he knew was constantly on the move and which he knew he would not necessarily hear being lowered, was in fact in a position level with the tray of the truck. Further, unless he looked or heard what was happening behind him and so positively satisfied himself that it was safe to step backwards, the [appellant] could not know whether there were cartons of books on the hoist or whether, as was the case when the accident happened, [Mr] Fendick was there. There was no substitute for the [appellant] looking where he was going and, in my view, it was not negligent for the respondent to rely upon him to do so. If, however, I am wrong on the issue of breach of duty, it is convenient in respect of the liability of both parties to have regard to the question of contributory negligence … [The trial judge] did not find this to be a case of mere inadvertence. He found that the [appellant] stepped back without looking because he believed that the hoist would be in a position for him to do so safely. He was of that belief, his Honour found, because the [appellant] had not been told that the hoist was to be lowered and had not heard any sound to indicate that it was being lowered. Again, in my respectful opinion, that is not to the point. The question was whether the [appellant] failed to take due care for his own safety in any of the respects pleaded; in short, by failing to look where he was going when there was no suggestion that there was anything to prevent him doing so. In my respectful

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opinion, the [appellant’s] failure in that regard was very much the substantial cause of the receipt of the [appellant’s] injuries. If the [respondent] was negligent in failing to have a system to warn the [appellant] when the hoist was being lowered, then, in my opinion, the [appellant’s] failure to take the simple precaution of looking to see that it was safe to step backwards was contributory negligence and, in my view, the proper apportionment would have been 70 per cent against the [appellant], having regard to all the circumstances of the case.

The appeal to this Court 12. The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. 13. The appellant’s reliance on these principles is well founded. This case is in our opinion a tolerably clear one. This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning ‘beeper’ or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. The Full Court therefore erred, in our opinion, in its determination that the respondent was not in breach of its duty. 14. Compliance by the respondent, as an employer, with its duty of care to an employee was not to be measured by reference to the reasonableness of imposing on an occupier of land an obligation to warn members of the public about the obvious risks on the land. The case for the appellant was not that he should have been warned by his employer that if he fell off the truck he might suffer injury, or that if he stepped off the back of the truck into space he would fall. It was not a question of warning the appellant of a risk. It was a question of creating a risk by failing to adopt a safe system of work. 15. There should have been in place a system of work designed to avoid the risk that a person required to step backwards and forwards on and from a moveable

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platform might do so without first looking behind him. The system of work necessarily had also to take into account that the task was a repetitive one to be performed in a diminishing space. Proper account of these matters was not taken by the respondent. It did no more than require that the appellant and Mr Fendick load the truck. That proper account of these matters was not taken was overlooked or disregarded by the Full Court. 16. An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely. This case could also be characterized as a case of a failure to do that. The simplicity and inexpensiveness of a warning device that could have been fitted, required that it be fitted here. This was another matter to which the Full Court failed to pay due regard. The respondent was negligent. The Full Court erred in holding to the contrary. 17. The respondent submits, nevertheless, that even if the Full Court erred, its provisional finding of contributory negligence of 70% on the part of the appellant should not be disturbed. 18. In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant’s attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than ‘mere inadvertence, inattention or misjudgment’. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. The appeal should be allowed. We would make orders as follows: 1. The appeal should be allowed with costs. 2. The orders of the Full Court of the Supreme Court of Western Australia made on 9  December 2002 should be set aside and in their place it should be ordered that the appeal is dismissed with costs.

Dangerous substances and dangerous activities on premises 6.54

We will now turn to who is responsible for dangerous substances and activities on a premises. The next case establishes that the need to control dangerous substances and activities lies with the site controller. 329

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Torts: Principles, Skills and Application

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 Court: High Court of Australia Facts: The basic facts were that the Burnie Port Authority had taken on an independent contractor by the name of W & S to weld and undertake some repairs to the roof of a cold store, owned and operated by the Burnie Port Authority. As part of that work, W & S used a product called Isolite, which was difficult to set fire to but, once it was alight, it was difficult to extinguish. The Isolite subsequently caught fire, and there was an extensive fire which destroyed cold stores belonging to the plaintiff, General Jones, which had its cold stores on the Burnie Port Authority’s site. General Jones lost a large quantity of fruit and vegetables as a result of the negligence of W & S. Legal principle: The issue here was whether W & S, as the independent contractor, was liable to General Jones, or was the Burnie Port Authority liable pursuant to the ordinary principles of negligence? That is, was this a personal duty being imposed, rather than a vicarious one — and, therefore, one that they could not delegate away? The court’s decision (application of the legal principle to the facts): Rylands v Fletcher26 has been absorbed into general Australian negligence law. Burnie Port Authority was held liable pursuant to the ordinary principles of negligence, that is, it was a personal duty, not a vicarious one. The ratio is that if there are dangerous substances/activities, the need to control them rests with the site controller and this cannot be delegated away. Background and context: This case is interesting for the fact that the old English authority of Rylands v Fletcher has been absorbed into general Australian negligence law.

Maintaining fences and preventing stock going onto highways 6.56

An owner of land abutting the highway has a personal duty to maintain fences so as to prevent animals from straying onto the highway, and thereby putting users of the highway at risk. This means that if the owner contracts with another party to maintain the fences, for example, the owner is still responsible if they are not kept in repair.This duty cannot be delegated.The authority for this is Simpson v Blanch.27 26

Contractual entrance and invitees 6.57

The occupier of premises may owe a non-delegable duty to a person who comes onto premises pursuant to a contract. It really depends upon the contractual position: Calin v Greater Union Organisation Pty Ltd.28

26. Rylands v Fletcher (1868) LR 3 HL 330. 27. Simpson v Blanch (1988) Aust Torts Reports ¶81-458. 28. Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; 100 ALR 746.

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Joint and concurrent liability 6.58

An issue related to vicarious liability is the issue of liability involving several parties.

What do we mean by joint liability? 6.59

Joint liability is liability arising from one source only. An example of this would be vicarious liability.

What is concurrent liability? 6.60

On the other hand, concurrent liability means that there are two or more separate tortious incidents contributing to the plaintiff ’s damage. An example of this is Chapman v Hearse,29 in which two defendants were independently responsible for the death of Dr Cherry, whose executor sued on behalf of his estate.



The reason that joint liability and concurrent liability were important is because, at common law, there were procedural obstacles to the recovery for a plaintiff. Basically, if a plaintiff pursued one of two defendants, it could prevent him or her from pursuing the other so that, in effect, there was a form of ‘double jeopardy’ for a plaintiff.

Statutory reform of joint and concurrent liability 6.61

Statutory reform has removed the old unfairness of the common law. In particular, in New South Wales, the statutory reform is known as the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). Basically, this means that a plaintiff can sue both parties, and can seek contributions from both parties, and the contribution will be on the basis of a just and equitable contribution.30

New South Wales Workers Compensation Act 6.62

The following extracts come from the Workers Compensation Act 1987 (NSW). The controversial change is that an injured worker is not able to bring a common law claim unless he or she has at least a 15 per cent ‘whole of body’ disability.31 Part 5 — Common law remedies Division 2 Common law and other remedies generally 151 Common law and other liability preserved This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.

29. Chapman v Hearse (1961) 106 CLR 112. 30. See Luntz et al, Torts: Cases and Commentary, note 1 above, Ch 18. 31. See s 151H of Workers Compensation Act 1987 (NSW) (below).

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151A Effect of recovery of damages on compensation (1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case): (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (c) the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act. (2) If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act  1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation: (a) the amount of any weekly payments of compensation already paid in respect of the injury concerned, (b) the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned. (3) If damages are recovered in an action under the Compensation to Relatives Act  1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death: (a) the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and (b) a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker. (4) If a person recovers motor accident damages in respect of an injury from the employer liable to pay compensation under this Act: (a) the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.

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151B (Repealed) 151C 6-months delay before commencement of court proceedings against employer for damages (1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer. (2) Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs: (a) the employer wholly denies liability in respect of the injury, (b) the employer admits partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted. (3) This section does not limit or otherwise affect the operation of Part 6 of Chapter 7 of the 1998 Act. Part 6 of Chapter 7 of the 1998 Act imposes restrictions on the commencement of court proceedings for damages. 151D Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999. 151DA Time not to run for commencement of proceedings in certain cases (1) Time does not run for the purposes of section 151D: (a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281(2)(b) of that Act, or Note. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.

(a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent 333

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impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Week 7 of the 1998 Act (including any further assessment under section 329 of that Act), or (a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or (a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or (b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current. (2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (‘the defendant’) on whom it was served or it is withdrawn by the person who served it, whichever happens first. (3) The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act. (4) The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker. (5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable. (6) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias. Division 3 Modified common law damages 151E Application — modified common law damages (1) This Division applies to an award of damages in respect of: (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury, being an injury caused by the negligence or other tort of the worker’s employer. (2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation 334

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Act 1999 applies. However, this Division will generally apply in the case of an injury to a coal miner if the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (see section 3D of the Motor Accidents Act 1988 and section 3B of the Motor Accidents Compensation Act 1999). (3) This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker’s employer even though the damages are recovered in an action for breach of contract or in any other action. (4) Subsection (3) is enacted for the avoidance of doubt and has effect in respect of actions brought before as well as after the commencement of that subsection. 151F General regulation of court awards A court may not award damages to a person contrary to this Division. 151G Only damages for past and future loss of earnings may be awarded (1) The only damages that may be awarded are: (a) damages for past economic loss due to loss of earnings, and (b) damages for future economic loss due to the deprivation or impairment of earning capacity. (2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897. 151H No damages unless permanent impairment of at least 15% (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. [Emphasis added] Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.

(2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%): (a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and (b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and (c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%. Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.

(3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury. 335

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(4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. (5) In this section: ‘psychological injury’ includes psychiatric injury. ‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. 151I Calculation of past and future loss of earnings (1) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker’s net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount). (2) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits). (3) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35. 151IA Retirement age In awarding damages for future economic loss due to deprivation or impairment of earning capacity or (in the case of an award of damages under the Compensation to Relatives Act  1897) loss of expectation of financial support, the court is to disregard any earning capacity of the injured worker after age 65. 151J Damages for future economic loss — discount rate (1) For the purposes of an award of damages, the present value of future economic loss is to be qualified by adopting the prescribed discount rate. (2) The prescribed discount rate is: (a) a discount rate of the percentage prescribed by the regulations, or (b) if no percentage is so prescribed, a discount rate of 5 per cent. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages. 151K, 151KA (Repealed) 151L Mitigation of damages (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment, (b) whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment, 336

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(c) whether the injured worker has duly complied with the worker’s obligations under Chapter 3 of the 1998 Act (Workplace injury management), (d) whether the injured worker has sought appropriate rehabilitation training. (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)–(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps. (4) In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker. 151M Payment of interest (1) Limited statutory entitlement A plaintiff has only such right to interest on damages as is conferred by this section. (2), (3) (Repealed) (4) (a) Interest is not payable (and a court cannot order the payment of interest) on damages unless: (i) information that would enable a proper assessment of the plaintiff ’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff ’s full entitlement to all damages of any kind but has not made such an offer, or (ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff ’s full entitlement to all damages of any kind but has not made such an offer, or (iii) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made. (b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff ’s full entitlement to all damages of any kind. (c) For the purposes of this subsection, an offer of settlement must be in writing. 337

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(5) Calculation of interest If a court is satisfied that interest is payable under subsection (4) on damages: (a) the amount of interest is to be calculated for the period from the date of the death of or injury to the worker until the date on which the court determines the damages, and (b) the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section. (6) Rate of interest The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 for the period concerned. (7) Judgment debts Nothing in this section affects the payment of interest on a debt under a judgment or order of a court. 151N Contributory negligence — generally (1) The common law and enacted law as to contributory negligence apply to awards of damages, except as provided by this section. (2) Damages for deprivation or impairment of earning capacity are not to be reduced because of contributory negligence below the amount that the court estimates would have been payable by way of a commutation of weekly payments of compensation under Division 9 of Part 3 if the person concerned were eligible to be paid a lump sum under that Division. (3) In an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are to be reduced by such percentage as the court thinks just and equitable having regard to the person’s share in the responsibility for the damages. (4) Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 applies to an action for damages referred to in subsection (3). (5) In an action for the award of damages under the Compensation to Relatives Act  1897, section 13 of the Law Reform (Miscellaneous Provisions) Act  1965 does not apply so as to prevent the reduction of damages by the contributory negligence of the deceased person. 151O Defence of voluntary assumption of risk The defence of volenti non fit injuria is not available in an action for the award of damages but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured or deceased person was negligent in failing to take sufficient care for his or her own safety.

338

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151P Damages for psychological or psychiatric injury No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of: (a) the injured worker, or (b) a parent, spouse, brother, sister or child of the injured or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction. 151Q Structured settlements (1) This section applies to an award of damages if the plaintiff requests that it apply. In making an order under this section the court is to give preference to the views of the injured worker. (2) If this section applies to an award of damages, the court: (a) may separately determine the amount of damages for future economic loss and the amount of damages for past economic loss, and (b) may order that any damages determined by the court for future economic loss are to be paid in accordance with such arrangements as the court determines or approves. (3) In making an order under this section, the court is required to have regard to the following matters: (a) the ability of the plaintiff to manage and invest any lump sum award of damages, (b), (c) (Repealed) (d) the views of the defendant in relation to the proposed order, (e) such other matters as the court considers appropriate. (4) In making an order under this section relating to damages for impairment of earning capacity, the court may order the damages to be used to purchase an annuity for the plaintiff on such terms as the court considers appropriate. (5) (Repealed) (6) Arrangements determined or approved under this section may include provision that payments of damages for impairment of earning capacity are to be made at intervals of not more than 12 months. (7) A party to any arrangements determined or approved under this section may apply to the court at any time for an order varying or terminating the arrangements. (8) The court may, on an application under subsection (7), make such order as it considers appropriate, having regard to the provisions of this section. (9) The regulations may make provision for or with respect to any matter dealt with in this section and, in particular, may impose conditions or limitations on the orders that may be made under this section or otherwise regulate the making of those orders. 339

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151R Exemplary or punitive damages A court may not award exemplary or punitive damages to a person in an award of damages.

Summary of the key changes 6.63

As s 151H provides, no common law damages ‘may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%’. This means a seriously injured worker, but one falling short of the 15 per cent medical threshold, will not be able to sue in negligence. Is this fair? Much of the argument now is to the effect that the reforms have gone too far in favour of defendants and, as a corollary, impact adversely on plaintiffs.

6.64

The High Court case of Insight Vacations Pty Ltd v Young32 confirms the point that the Civil Liability Act 2002 (NSW) does not have jurisdiction beyond the state, and does not become a surrogate federal law.

Recent High Court litigation 6.65

The High Court case of Barclay v  Penberthy33 discusses employer–employer accident compensation, and gives an indication of current trends in the handling of tort-based litigation by the High Court.

6.66

The High Court case of Kuhl v  Zurich Financial Services Australia Ltd34 is fundamental in reminding lawyers to call the right witnesses and elicit the correct evidence at trial in the first instance. To do so beyond trial increases expense for the parties, is more difficult, and introduces a degree of uncertainty and unpredictability. That is because the right to raise new issues may well depend on the exercise of discretionary decisions by the superior courts.

32. Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; 85 ALJR 629; 276 ALR 497; [2011] ATPR 42-354; [2011] HCA 16. 33. Barclay v Penberthy [2012] HCA 40. 34. Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11.

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Review

We have seen that there is a distinct difference for plaintiffs between a finding of personal liability of a defendant as opposed to vicarious liability. When considering vicarious liability, the issues relevant to employees are: • the scope of authority; and • whether they were acting in the course of their employment.



If we are seeking to characterise a worker’s status, we need to determine that that person is an employee rather than a self-employed person. In Australia, this is the indicia test, which also refers to the control test and the integration test. These are not terms of art, but labels; what the courts do in fact is to review all the factors in a given case.We have seen that some duties owed by an employer cannot be delegated to a third party, so these duties are, in fact, directly owed. We have seen, briefly, that the common law procedural obstacles to plaintiffs have largely been overcome by statutory reform. However, the rights of injured workers in New South Wales to bring common law claims have been seriously eroded by the statutes.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 14 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts:  Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Chs 17 and 18

Key Cases Bugge v Brown (1919) 26 CLR 110 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 Commonwealth v Connell (1986) 5 NSWLR 218 Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577 Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 Deatons Pty Ltd v Flew (1949) 79 CLR 370 Hickson v Goodman Fielder Ltd [2009] HCA 11 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44 Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35 341

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Lloyd v Grace, Smith & Co [1912] AC 716 Scott v Davis (2000) 204 CLR 333; 175 ALR 217 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 Sweeney v Boylan Nominees Pty Limited (2006) 226 CLR 161 Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135; BC200102379

Chapter 6 Review Questions 1. What is ‘vicarious liability’? 2. Give an example of vicarious liability. 3. What is the practical significance of the court finding that a person is an independent contractor, rather than an employee? 4. What are the three main aspects of an employer’s duty of care owed to employees? 5. What is the ‘control test’? 6. What is the current status of the control test in Australian courts? 7. What were the key facts of Stevens v Brodribb Sawmilling Co Pty Ltd? 8. What is the ratio of Stevens v Brodribb Sawmilling Co Pty Ltd? 9. What are ‘non-delegable’ duties? 10. What is the significance of the decision in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; [1999] HCA 59? 11. What does Gaudron J in Crimmins mean by the phrase ‘vulnerability of the person’ and how important do you think it is? 12. What is ‘concurrent liability’?

Tutorial 6: Accidents and compensation Internal memorandum From: Antonia Johnson To: Trainee Re: Contempo Fashion World We act for Contempo Fashion World, a company that has a clothes-making factory in Melbourne, with outlet stores both in Melbourne and Sydney.

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Contempo boss Maria Paglia has sent the following email: Hi Antonia Good to see  you at the Business Awards again. Just a few queries on our common law position. Please draft a memo I can use at the next board meeting (due in a week’s time): (a) We have a dressmaker who has been splashed in the eye with dye. We issue goggles and give instructions; she wasn’t wearing them and didn’t have an assistant as our manual instructs. (b) One of our seamstresses slipped on the factory floor. Apparently, there was some oil on the floor. (c) We use fashion consultants who work from home. We regard them as self-employed. One is saying she hurt her back while working for us in setting up our Melbourne new season range. One of our dummies fell on her. Kind regards, Maria Your task Please prepare the draft memo to Contempo’s boss, Maria Paglia, so that I can settle it in the morning. Thanks, Antonia

Tutorial 6: Answer Guide General issues This is a potentially open-ended memo. It is asking you to consider the bigger picture and the operational policy in which your client finds itself. Ideally, this means knowing something about the client’s business. It also asks you to focus on the key issues. It is, therefore, two-fold in nature: 1. think ‘commercially’ from the client’s perspective; and 2. provide specific legal input on the actual issues raised. To give advice in this instance, we need to look closely at Stevens v Brodribb Sawmilling Co Pty Ltd (High Court), among other cases.

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Dealing with the three issues 1. Dye in the eye • An employer is under a general duty of care to its employees. This includes a duty to provide a safe place of work and a safe system of work. • Goggles and other safe equipment are provided but weren’t worn. Why not? • This raises the issue of contributory negligence by the injured employee. • However, the employer can’t simply say ‘we provide equipment and a system of work’ and leave it at that. • Did the employer know that goggles were not routinely worn and that the system of having another worker to assist was not followed? The employer’s knowledge is critical.

Conclusion on this issue: On the basis of the given facts, it would appear that there may be a case of liability on Contempo’s part for breach of the employer’s duty of care. This includes a possible finding of contributory negligence on the part of the injured worker — this would reduce the damages payable to the worker. Other issues: Was the worker vulnerable, as was the ‘one-eyed’ factory worker in Paris v Stepney Borough Council?35 2. Slipping on the floor • An employer is under a general duty of care to its employees. This includes a duty to provide a safe place of work. • The floor is an integral part of the safety of a workplace. • This raises several issues: How long was the oil there? Was oil spilt regularly and where did it come from? What did the employer (via the floor manager) know and when? • Ward v Tesco Supermarkets Ltd,36 was about yoghurt spilt on the floor of a supermarket: the store was not sure how it came to be there. However, there was evidence of about 10 spillages per week in this store. The defendant, Tesco Supermarkets, was a large national food chain and was aware of regular food spills. The court ruled that it should have had a system in place to clear them up promptly. Tesco Supermarkets had ‘deep pockets’.

Compare the approach taken in other cases such as: • Dulhunty v J B Young Ltd.37 This was a department store, not a food store. Someone slipped on a grape. The court held that there was no negligence by the store. Why? Because the failure to inspect the floor and clean it at regular intervals was not a cause of harm. This was in the absence of evidence of 35. Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42. 36. Ward v Tesco Supermarkets Ltd [1976] 1 All ER 219. 37. Dulhunty v J B Young Ltd (1975) 7 ALR 409.

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how long the grape was on the floor before the plaintiff slipped. It was much rarer for food to be left on the floor of a shop that does not sell food.

Conclusion on this issue: On the basis of the given facts, it would appear that there is a case of liability on Contempo’s part for breach of the employer’s duty of care. 3. The falling dummy • An employer is under a general duty of care to its employees. This includes a duty to provide a safe place of work. • The threshold question is whether the person is an employee (and covered by the duty of care and the employer’s workers’ compensation policy) or an independent contractor, and not covered (that is, dependent on her own insurance arrangements). • This raises several issues concerning the working arrangement between Contempo and the injured party. The key issue is the control test indicia from Stevens v Brodribb. Note (in classic Mason court fashion) that Mason CJ said that control was not the sole test — all the factors needed to be considered in any one case.

Conclusion on this issue: On the basis of the facts as given, it is not clear whether the person is an independent contractor. Contempo could deny the claim on the basis that the person is an independent contractor and then defend any proceedings on a similar footing. However, a safe system of work may still need to be provided in light of the Stevens case as applied by the New South Wales Court of Appeal in Wilke v Astra.38

Tutorial 6: Student Example Answer Prepared by: Andrew Price (2014). Revised by Bryce Wilson, Law, UNE (2018)

Internal memorandum To: Maria Paglia — Contempo Fashion World From: Antonia Johnson Re: Common law position relating to possible negligence action I refer to your recent email requesting the common law position of Contempo Fashion World in relation to the possible actions in negligence by three of your employees.

38. Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135.

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First, it must be established that the alleged incidents took place in Victoria. Entitlement to sue for damages at common law under the Victorian WorkCover scheme varies depending on the date of injury. Due to WorkCover legislative reforms and amendments, access to common law has been abolished for injuries sustained on or after 12 November 1997. However, access has also been restored for injuries on or after 20 October 1999. Different sections of the Accident Compensation Act 1985 apply depending in part on when the injuries occurred. If employees are to bring a successful action in negligence, they must prove that Contempo Fashion World has breached the duty of care it owed to them. Further, Contempo Fashion World may be unable to rely on any of the defences it may have available to it. Action A Damage If the dressmaker can establish that Contempo Fashion World was in breach of the duty of care it allegedly owed to her, the damage element of the negligence action should be established. On the facts, the dressmaker has allegedly been splashed in the eye with dye. It is likely that the damage element would be established, if the dressmaker has probably suffered some form of personal injury. The exact nature of this injury will need to be established. Duty of care For a successful action to be brought against Contempo Fashion World, it must be established that Contempo Fashion World owed the dressmaker a duty of care. From the given facts, it would appear that the dressmaker was an employee of Contempo Fashion World. In an action in negligence, it is accepted that an employer owes an employee a duty of care.39 This duty would fit within a recognised duty category. This duty is established by precedent, in which 1) employers owe employees a non-delegable duty of care to provide safe working systems; 2) provide and maintain safe working equipment; and 3) provide a safe place of work.40 Standard of care The relevant standard of care applicable to Contempo Fashion World in this matter must be established. The court will first determine what the relevant standard should have been, as a question of law. This is to decide whether or not Contempo Fashion World had breached the duty it owed the dressmaker. In Sydney County Council v  Dell’Oro,41 it was held that the standard of care would be influenced by the nature of the relationship of the parties. From the facts, it would appear that a normal employer–employee relationship exists. 39. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513. 40. Kondis v State Transport Authority (1986) 154 CLR 672; 55 ALR 225. 41. Sydney County Council v Dell’Oro (1974) 132 CLR 97.

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Therefore, the standard of a reasonably careful and competent employer would apply. Breach In establishing whether Contempo Fashion World had breached the duty it owed to the dressmaker, it is important to examine the decision of Mason J in Wyong Shire Council v Shirt.42 Mason J established two issues that need to be examined in determining breach. First, would a reasonable employer have foreseen that its conduct involved a risk of injury to its employees that was not far-fetched or fanciful? On the balance of probabilities, it is likely that the dressmaker could show that it is foreseeable that injury may occur while dressmaking, as it involves the use of machines, sharp instruments and dyes. However, it would be useful to know where the dye had come from and what caused it to spray in the direction of the dressmaker’s face. If the dye had come from a machine that had never spurted the dye previously, then the alleged incident may not have been foreseeable. Second, it is necessary to compare the action taken to what a reasonable employer could have done to prevent the apparent risk of injury to the employee. It may be important to look at a range of factors including 1) the risk of the injury occurring and the gravity of the injury that allegedly resulted;43 2) the practicability of taking precautions against the risk;44 and 3) any relevant statutory standards.45 From the facts, Contempo Fashion World issues goggles and gives specific safety instructions. This indicates that Contempo Fashion World has taken steps and implemented procedures to provide a safe place of work and comply with statutory standards. However, in determining liability, it is important to determine how these instructions were given and what exactly the content was. This also includes the procedures in place to ensure the instructions are followed. For example, it may be necessary to look at the communication of the instructions as it may be that the dressmaker is unable to read. Therefore, the dressmaker was unable to follow the instruction manual. The dressmaker may raise arguments including, but not limited to, why she was not told to wear the goggles for that shift, and further, that no one had checked to see if she was wearing them. In the plaintiff ’s submission, in both cases this would have prevented the alleged damage. The facts also suggest the dressmaker was required to have an assistant present while performing this task. It is important to establish why the dressmaker was performing this task alone. Because, if the dressmaker had decided to perform the task alone, we could argue she contributed to the loss sustained. However, it is likely that the dressmaker would argue that no one had checked to make sure that she had an assistant. 42. Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217. 43. Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42. 44. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202. 45. Sibley v Kais (1967) 118 CLR 424.

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It may also be that there was a shortage of staff, in which case it is likely that Contempo Fashion World would be found to have fallen below the relevant standard. This would be a breach of the duty it owed to the dressmaker. There is a non-delegable duty owed by employers to employees, which may suggest that Contempo Fashion World may have breached the duty owed to the dressmaker; however, it would be prudent to ascertain more facts before forming an opinion on liability. Defences If Contempo Fashion World were found to have breached the duty it owed to the dressmaker, we would argue contributory negligence as a defence. This would be argued on the basis that the dressmaker had been issued with safety goggles and instructions and had refused to wear and follow them. Further, the dressmaker was instructed and required to have an assistant and had ignored this requirement. Future conduct • Determine the exact nature of the loss suffered. • Establish what caused the dye to spray, where it came from, and why it was being used. • Determine why there was no assistant present and whether anyone routinely checks to make sure assistants are present. • Discover what instructions were given and how. • Establish why the employee had not followed the instructions given.

Action B Damage It would appear from the facts that the employee would have sustained some form of personal injury as a result of slipping on the floor. This needs to be established as soon as possible as there can be no action unless the damage component is satisfied. Duty See Action A. Standard See Action A. Breach Similarly to Action A, it is essential to examine the same principles from Wyong Shire Council v Shirt in relation to the alleged breach of the duty of care. It must be determined where the oil has come from, before advising on breach. This is important because, for example, the oil may have leaked from a sewing machine that has never leaked before. 348

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It could be argued that the employer could not have reasonably foreseen the machine leaking, therefore would not be liable in negligence. However, it may be that the machine has leaked on numerous other occasions and the employer has made no attempt to fix the leak. In this instance, it would obviously be foreseeable that a leak could pose a danger to employees. Should it be found that the alleged incident was reasonably foreseeable, it is important to discover what Contempo Fashion World could have done to prevent the apparent risk of injury to the employee. It is necessary to examine the procedures Contempo Fashion World has in place for the cleaning up of spills and the general cleaning of the floors. It may also be important to look at a range of factors including 1) the risk of the injury occurring and the gravity of the injury that allegedly resulted;46 2) the practicability of taking precautions against the risk;47 and 3) any relevant statutory standards,48 if it was not practical to do any more than what was already being done regarding cleaning and having appropriate measures in place. Contempo Fashion World may be found not to have breached the duty owed to the employee. Defences On the information provided, we are unable to comment on defences. Once further information is obtained, it may be possible to raise contributory negligence as a defence. For example, the employee may have been wearing non-work appropriate shoes with a slippery sole that would be considered inappropriate for that line of work. If so, it may be considered the employee contributed to her own misfortune. Future conduct It is necessary to determine: (a) The exact nature and extent of the loss. (b) Where the oil came from. If it was from a machine, has this happened before? If the oil leaked from a faulty container, do we need to join the distributor as a third party to the possible proceedings? (c) What are the cleaning procedures in place at Contempo Fashion World? (d) Did the employee do anything that contributed to her loss, for example, was she wearing slippery-soled shoes? Action C Damage From the facts, it would appear the fashion consultant would be bringing an action for personal injuries due to the dummy allegedly falling on her. The

46. Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42. 47. Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202. 48. Sibley v Kais (1967) 118 CLR 424.

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extent of her injuries needs to be ascertained. However, it would appear likely that the damage element of the action would be satisfied. Duty of care While the facts state that Contempo Fashion World regards the consultant as self-employed, this may not necessarily be correct. The main issue surrounding this action is the question of whether the employer–employee relationship exists between Contempo and the consultant. This relationship is important because, if the fashion consultant is found not to be an employee of Contempo, she would be classed as an independent contractor. Therefore, she would be liable for her own negligence and should be self-insured. Currently the key case in Australia to determine whether someone is an independent contractor or employee is Stevens v  Brodribb Sawmilling Co Pty Ltd.49 The rule of law established in this case is that, in order to determine the status of an employee or independent contractor, the court will examine the indicia of the nature of the relationship. Mason J held: The existence of control, whilst significant is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of the court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question.

Mason J went further to explain that: … The other relevant indicia 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 provisions for holidays, the deduction of income tax, and the delegation of work by the putative employee.50

More facts need to be ascertained before advising on the relationship between Contempo Fashion World and the fashion consultant. It can be assumed that the dummy that fell on the fashion consultant was owned by Contempo Fashion World and it may also be argued that there was some obligation to work by setting up the new season range. Both factors would favour the action of the fashion consultant. If the plaintiff is held to be an employee, then the duty discussion as in Action A and Action B will apply to this matter. Standard of care See principles as per Action A. However, it could be argued that the standard of care in this situation should be lowered, as it is not reasonable for the employer to visit every fashion consultant’s home to ensure that sufficient occupational health and safety requirements are satisfied on a regular basis. The standard of care is an objective one, which is a question of law for the judge. It may be necessary to determine relevant factors, such as how many fashion consultants

49. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24; 63 ALR 513. 50. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24; 63 ALR 513.

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work from home for Contempo Fashion World and where the plaintiff lived in relation to the Contempo Fashion World head office. Breach It is essential that more facts be ascertained before advising on breach. From the facts, it would appear that if the fashion consultant was deemed to be an employee, then Contempo Fashion World might have fallen below the relevant standard and breached the duty of care it owed to her by not providing a safe place of work and safe working systems. Defence More facts need to be ascertained before advising on defences. Future conduct It is essential to establish: (a) What loss was suffered by the plaintiff and what are the details of this loss? (b) Employment details to establish the employer–employee relationship such as payslips, tax, holiday entitlements etc. (c) How many fashion consultants work for Contempo away from the head office to determine the relevant standard of care. (d) What safety regulations and policies did Contempo Fashion World have in place for consultants who work from home? (e) Why did the dummy fall on the plaintiff, what caused this and what was the plaintiff doing at the time? (f) Was the plaintiff doing anything at the time of the loss that would indicate she was the author of her own misfortune? We will need to set up an appointment to receive more facts and gain further instructions regarding the future conduct of these matters. Should you have any further questions, please do not hesitate to call.We look forward to hearing from you soon. Kind regards, Bryce Wilson Trainee Solicitor

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Chapter 7

Defences to Negligence Claims Legal practice skill: Working with statutes

Learning aims •

Understand the main defences in a negligence action

•

Understand the legislative changes in terms of obvious risks and dangerous recreational activities

Background concepts First principles 7.1

Let’s look at a standard negligence action. We have a plaintiff and a defendant. For example, I run into the back of your car, your car is damaged and you suffer whiplash.You have a potential claim against me for two things: 1. property damage to your car; and 2. personal injuries for your whiplash. This may involve matters such as your taking time off work, receiving physiotherapy treatment, getting medicines, paying doctors’ bills etc. Taking this scenario, we can analyse what particular aspects of negligence you would allege; that is, how was I negligent? The starting point will be:What was my requirement as a driver? What standard of care should I observe? As we have seen previously, this involves a general standard encapsulating three elements: that I am: 1. qualified to drive; 2. competent to drive; and 3. experienced in the practice of driving such that the requisite standard is that of the reasonable driver.1

1. Imbree v McNeilly; McNeilly v Imbree [2008] HCA 40.

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By running into the back of your brand-new Subaru, did I observe the standard encapsulated by the three elements above? Obviously, you will say no. Why would that be? It could be for several potential reasons, depending on the particular facts and circumstances: •• •• •• •• •• •• ••

Perhaps I was driving too close to your vehicle. I was driving too fast. It was wet and I should have driven more cautiously. It was near a school. I did not keep a proper lookout. I wasn’t paying attention. My tyres were bald.

This accident could raise any number of negligence scenarios, and obviously it would be helpful to you if there were witnesses. This accident could also give rise to criminal proceedings as well as civil proceedings. So, for example, I may be charged with dangerous driving, or I may be charged with having a blood alcohol limit reading of more than 0.05 per cent. (It is, however, important that we appreciate that guilt in a criminal matter is not the same as liability in a negligence or civil proceeding — they are separate issues.) But let’s take the scenario that I am 100 per cent to blame; that is, I am totally to blame for the damage to your neck and to your car. But what if I say: ‘Hang on, I may be only partly to blame; you should also share some responsibility. You can’t shift all of the loss onto me’. What possible argument could I raise? I could possibly argue, depending on the facts and circumstances, that: •• You braked ‘out of the blue’. •• That there was simply no pedestrian crossing or intersection as you allege, and no reason for you to suddenly stop as you did. •• You would probably counter this by saying that I was too close in any event. •• Alternatively, I could say that you were not wearing a seatbelt, or that your seatbelt, while fitted, was old and worn out. •• You had been ill for a week with flu and you were on medication and you shouldn’t have been driving at all, or you suffered a sudden coughing fit and swerved out of control. These are all obviously hypothetical, and will depend on a court deciphering and making sense of: •• •• •• ••

your version of events; my version of events; the versions and accounts of witnesses (if any); and the magistrate’s findings — both in fact and in law. 354

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The main defences in a negligence action: contributory negligence, volenti non fit injuria and obvious risks 7.2

We have established there are three basic defences that a defendant can allege, depending on the circumstances and all the facts: 1. contributory negligence; 2. volenti non fit injuria; and 3. obvious risks. It is important to know at the outset that volenti is not available in all circumstances.

7.3

So, we open up two possibilities in terms of the previously mentioned scenario: 1. I may be 100 per cent to blame for the accident, so that you shift the loss totally onto me. Obviously, I will have third-party injury insurance, assuming the car is registered, but will I have third-party property insurance? So, can you recover the damage done to your car from me, or do I have no insurance — so that you would struggle to get any money out of me? 2. I may be less than 100 per cent to blame for your accident so that if, for example, I am 90 per cent to blame, the court would attribute liability of 10 per cent to you, and so on.This is essentially what contributory negligence is. It is that the plaintiff is found to be partly, or even theoretically, wholly to blame for his or her own injuries and damage. As a result, the damages are reduced accordingly. A second defence I might seek to raise is volenti non fit injuria. (However, this defence is not available in the context of a motor vehicle accident in New South Wales.) Essentially, this defence means that if you volunteer to do something, you cannot claim compensation for injuries as a result.

Contributory negligence Threshold issues 7.4

Historically, contributory negligence was a complete defence.The defence was governed by the ‘last opportunity rule’. In other words, the plaintiff could not claim damages unless the defendant had the last opportunity of avoiding the harm.

7.5

In relation to modern contributory negligence cases, the main test is: ‘Did the plaintiff fail to look out for himself or herself, as would a reasonable person?’ It is a hypothetical objective standard where, essentially, plaintiffs are not meant to look out for third parties, but for their own safety and protection. The standard of care which is relied on is what a reasonable person would have done in the same position. 355

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Torts: Principles, Skills and Application

The practical impact of successfully establishing a contributory negligence action is that damages will be reduced by the same percentage. So, if the contributory negligence of the plaintiff is found to be 30 per cent of the loss, the damages will be reduced by 30 per cent.

Australian motor vehicle cases dealing with contributory negligence 7.6

7.7

The next two cases demonstrate how contributory negligence is taken into account in motor vehicle scenarios.

Joslyn v Berryman (2003) 214 CLR 552 Court: High Court of Australia Facts: Both the plaintiff and defendant had been drinking alcohol. They had a car accident and the plaintiff was seriously injured. The trial judge found both the defendants negligent and reduced the damages by 25 per cent for contributory negligence. On appeal, the New South Wales  Court of Appeal set aside the finding of contributory negligence. Legal principle: Contributory negligence is an objective test as it ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’. The court’s decision (application of the legal principle to the facts): The relevant test here was whether or not a reasonable person in the intoxicated passenger’s position would realise the risk of injury when accepting the lift. Just because the passenger was intoxicated does not ‘absolve the passenger from complying with the standard of care required of an ordinary reasonable person’. Contributory negligence was found and the damages were reduced by 60 per cent.

7.8

Imbree v McNeilly (2008) 236 CLR 510 Court: High Court of Australia Facts: An unlicensed driver lost control of a motor vehicle. The passenger was seriously injured when the vehicle overturned. The passenger knew the driver had very little driving experience. The Court of Appeal reduced damages by two-thirds due to the contributory negligence. Legal principle: Instead of reducing the standard of care that an unlicensed driver owes to a passenger, the High Court instead relied on the defence of contributory negligence. The standard of care in driving cases is that of the reasonable licensed driver.

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The court’s decision (application of the legal principle to the facts): Chief Justice Gleeson noted that instead of owing a lower standard of care to a supervisory driver, ‘the supervisor would be more likely to be affected by contributory negligence’. The damages were reduced by 30 per cent due to contributory negligence. Background and context: This case signalled a change in the way inexperienced drivers are dealt with in negligence cases. It also reiterated the importance of insurance in motor vehicle negligence cases.

In T & X Co Pty Ltd v Chivas,2 the issue in contention was whether or not the car driver’s culpability should be higher than the pedestrians.This question was raised due to the practical reality that the conduct of the driver is inherently more dangerous to others. It was held that in the circumstances, the damages should be reduced by 75 per cent due to contributory negligence.

Special considerations regarding contributory negligence 7.9

Contributory negligence cases are predicated on the court inquiring into how reasonable the plaintiff ’s conduct was. There are three factors that can complicate that inquiry. Those three factors are as follows: 1. sudden emergencies; 2. anticipating a breach by someone else; and 3. situations occurring in the work environment. We will deal with each in turn.

Sudden emergencies 7.10

7.11

The first situation we will focus on is sudden emergencies; that is, instances where a plaintiff needs to make a quick decision without time to consider the options.

Caterson v Commissioner for Railways (NSW) (1973) 128 CLR 99 Court: High Court of Australia Facts: The plaintiff jumped off a moving train. It moved away from the station, apparently without warning, and the plaintiff was injured. Legal principle: The jury held that there was no contributory negligence by the plaintiff. The case went on appeal to the High Court. The Commissioner appealed

2. T & X Co Pty Ltd v Chivas (2014) 67 MVR 297.

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Torts: Principles, Skills and Application on the basis that, as a matter of law, a finding of no contributory negligence should not have been available to the jury. The court’s decision (application of the legal principle to the facts): The High Court held that it was open to the jury to find that the plaintiff was not at all to blame, based on what it referred to as the ‘sudden emergency doctrine’. This doctrine asks the question: ‘Is the risk by the plaintiff reasonable in all the circumstances?’ The plaintiff needed to weigh up matters in the heat of the moment. Here, the balancing act was as follows: there was a slight risk of injury to the plaintiff, as against a considerable inconvenience of going to the next station. There were special factors to consider: the next station wasn’t just a domestic station one kilometre away; the next station was in fact some 130 kilometres away. Also, the plaintiff’s 14-year-old son was alone on the platform, and the plaintiff’s son was, in any event, some 60 kilometres from the family home. So, for those reasons, it was held that the jury finding should not be overturned. It was open to the jury, as a matter of law, to find that the plaintiff had not contributed to his own injuries. Significance of this case: This is very much an outback case, involving railways in the country network. It shows the importance of examining the facts and circumstances critical to each case. Background and context: This case involved an accident which took place in New South Wales before the Law Reform (Miscellaneous Provisions) Act 1965. An interesting point here is to note how long this case took to get to the High Court — more than eight years.

Anticipation of breach by others 7.12

7.13

The next situation relates to the need in some instances, such as when driving, to anticipate the mistakes and lack of care of others.

Sibley v Kais (1967) 118 CLR 424 Court: High Court of Australia Facts: The defendant did not give way to a vehicle on his right at an unprotected intersection, and a crash occurred. This was a breach of the ‘give way to the right’ rule which involved a breach of the relevant driving statute. Legal principle: Western Australia had a contributory negligence statute from 1947 (the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947). How would contributory negligence principles work in this context? The court’s decision (application of the legal principle to the facts): The ratio of the case, in broad terms, is that a plaintiff cannot assume that a defendant

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Defences to Negligence Claims will not act negligently. In particular, a driver cannot assume that another driver will obey traffic regulations or act in a particular way. So, in other words, what you need to do is take all circumstances into account in any given scenario. What do we have here? Even though the defendant was in the wrong, the plaintiff’s damages were reduced by 25 per cent. The High Court reiterated that the common law duty for drivers is to act reasonably in all the circumstances.

Contributory negligence in the work context 7.14

7.15

Anyone who has undertaken unskilled labour knows that the tasks can get boring and mundane. The following case recognises this fact and documents how it is dealt with in terms of contributory negligence.

McLean v Tedman (1984) 155 CLR 306; 56 ALR 359 Court: High Court of Australia Facts: This case involved a garbage collector who was carrying a very heavy bin (a ‘humper’ which contains between four to eight household garbage deposits) across the road. As he was crossing the road with the humper on his shoulder, he was hit by a car. Legal principle: Queensland had a contributory negligence statute from 1952 (now the Law Reform Act  1995). The issue for the court here was: ‘Did the facts amount to contributory negligence by the worker, or simply momentary inadvertence as a result of the nature of his work?’ What the High Court was being asked to do was to characterise his particular act. The court’s decision (application of the legal principle to the facts): The High Court held that it was not contributory negligence by the worker, but momentary inadvertence due to the familiarity with the repetitive nature of the job, and due to the fact that he was concentrating on matters at hand. The majority of the High Court held that Brambles, the employer, had not provided a safe system of work. They also went on to say that, essentially, contributory negligence takes into account all of the circumstances and conditions in which someone has to work, and it is essentially a question of fact. The majority held that the facts were such that contributory negligence shouldn’t be attributed to this worker. The relevant facts were as follows: • There was poor light at the time. • The worker was preoccupied with the matters at hand. • He was carrying a very large and heavy item, the humper. • His speed was obviously restricted by carrying the humper.

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Torts: Principles, Skills and Application • He was running across the road and keeping up with the truck, which was all part of the job in those days. • So, for these reasons, there was no contributory negligence, but a finding of an unsafe system by the employer. Significance of this case: Obviously this case is part of why we now have mechanised ‘bin loaders’, with no one running around the streets. Background and context: Gibbs CJ dissented on the finding of contributory negligence by the injured worker. He held that there was contributory negligence primarily because the worker carried the humper on his right shoulder and the car came from the left, so his vision should not have been affected. This further illustrates the critical nature of the findings of fact.

Contributory negligence issues relevant to child plaintiffs 7.16

7.17

Another issue of particular importance is that of contributory negligence by children. The issue here is what is the level of care a child owes to herself or himself in terms of safeguarding themselves.

Kelly v Bega Valley County Council Unreported, 13 September 1982 Court: New South Wales Court of Appeal Facts: The plaintiff received a shock from a high-voltage terminal that formed part of a transformer which was on an electric pole in the town of Eden. The pole had been put up and maintained by the Bega Valley County Council (BVCC). Legal principle: The child plaintiff sued BVCC in negligence. Damages of $95,000 were awarded at the trial. The jury found, though, that the plaintiff was 75 per cent responsible, leaving a damages award of approximately $20,000. This was appealed to the New South Wales Court of Appeal. The court’s decision (application of the legal principle to the facts): Glass JA found that the child was 25 per cent to blame, not 75 per cent. Significance of this case: Glass JA used McHale v Watson3 as indicative of the sort of standard a child plaintiff needs to adopt in order to look out for its own safety. (McHale, discussed in 10.7, involved a 12-year-old boy who threw a piece of steel, which he had in fact sharpened, and which hit a nine-year-old girl four to five feet away with whom he was playing. It had glanced off a pole and struck the girl in the eye. She sued him and his parents. McHale is about the standard for a child defendant.) With contributory negligence, as we have seen, there is a

3

3. McHale v Watson (1966) 115 CLR 199.

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Defences to Negligence Claims standard involved, but it is a standard to look out for yourself as a plaintiff. It is not a duty of care owed to third parties. The McHale tests for the duty of care owed by a defendant 12-year-old boy are said to be objective, but they seem also to be subjective, so they are really a mixed test of the objective and the subjective: see further 10.7. In McHale, McTiernan ACJ said that the degree of care expected was that of ‘a child of the same age and experience’ (at 205); Kitto J said it was that of ‘an ordinary child of the same age’ (at 215); and Owen J said it was that of ‘a child of similar age, intelligence and experience’ (at 229). Applying the third of those formulas, Glass JA referred to the Canadian case of Finbow v Domino4 in his judgment in Kelly. In relation to a child aged eight, who had a mental age of a three-year-old, the Canadian court had found that it was not possible to attribute contributory negligence. How did Glass JA regard the test from McHale? Glass JA said that the plaintiff here would need to show a physical or mental handicap which affected him, and he raised instances of this as being brain damage, that he was one-legged, or that he was blind. Glass JA refers to these as ‘idiosyncrasies’. Glass JA then found that the onus was on the 11-year-old plaintiff to show that he had a mental or physical infirmity, calling this a ‘gloss’ on the objective test. Glass JA found no such gloss. Mere lack of age and lack of knowledge are not enough. Background and context: It is interesting to note that the plaintiff was 11 years old at the date of the accident, but there had been an 11-year delay in getting the case to the Court of Appeal. This case is not without its criticisms. You could argue that this case is out of step with modern scientific and psychological research carried out by child psychologists, such as Piaget,5 who say that children are simply not capable of carrying out these notions of self-awareness or looking out for their own safety. This remains a problematic area for the courts. 45

Statutory provisions dealing with contributory negligence 7.18

Provisions relating to contributory negligence have been codified in tort reform legislation. In New South Wales, s  5R(2)(a) of the Civil Liability Act  2002 (NSW) states the standard of care is ‘that of a reasonable person in the position of that person’. In this regard the ‘matter is to be determined on the basis of what that person knew or ought to have known at the time’ under s 5R(2)(b) of the same Act.

4. Finbow v Domino (1957) 11 DLR (2d) 493. 5. See H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, 6.2.35.

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Section 5S of the Civil Liability Act 2002 (NSW) also reaffirms the common law test that damages can be reduced by as much as 100 per cent for contributory negligence if the court thinks this is just and equitable. Some commentators have critiqued the just and equitable rule. Because the just and equitable rule works on a percentage basis, you can see  that it can sometimes be unfair. For example, take someone who is catastrophically injured and becomes a quadriplegic. If that person was 50 per cent to blame for his or her losses, the damages would be halved from their starting base. The just and equitable apportionment uses a percentage basis reduction. Alternatively, and perhaps more fairly, an ‘amount’ basis would reduce a plaintiff ’s damages by a lump sum so that it might correspond more closely with a plaintiff ’s blameworthiness.

Statutory interpretation of s 5S of the Civil Liability Act 2002 (NSW) 7.19

Section 5S was interpreted by the New South Wales Court of Appeal in Zanner v  Zanner.6 In this case, an 11-year-old child drove his mother’s car for a few metres into the family carport. The question was should the child’s mother be found 100 per cent contributorily negligent? The New South Wales Court of Appeal found the contributory negligence should be changed to 80 per cent. It was said that ‘cases where it would be appropriate to reduce damages payable to a contributory negligence plaintiff by more than 90 per cent would be very rare’.

Volenti non fit injuria — voluntary assumption of risk Background issues 7.20

7.21

7.22

As we have seen, volenti means ‘to one who is willing, no legal wrong is done’. The practical availability of volenti is limited; for example, volenti is not available in motor vehicle and industrial cases in New South Wales. Let’s look briefly at a case involving a smoker, where the volenti defence was held not to be available to the defendant cigarette company.

Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289 Court: Supreme Court of Victoria Facts: This involved a woman who had begun smoking as a 15-year-old schoolgirl in 1963. She smoked 20 cigarettes a day until 1985 (which is about 160,000

6. Zanner v Zanner [2010] NSWCA 343.

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Defences to Negligence Claims cigarettes in total). She sued the manufacturer. The defendant said basically: ‘you volunteered, you took the risk, we can’t help you’; that is, they relied on the defence of volenti. Legal principle: Was volenti available? The court’s decision (application of the legal principle to the facts): The volenti defence was not available to the defendant. The basis of the defence is that a plaintiff knows about the dangers of the activity. Knowledge is critical. The defendant tobacco company pleaded that Mrs Scanlon ‘knew or ought to have known that the smoking of the said cigarettes involved’ risk of injury. The judge struck out that pleading. Significance of this case: Questions of causation and proof have been very difficult for plaintiffs in these sorts of cases and have generally ended the plaintiff’s chances of success. (These cases reflect the rigours of litigation and the psychological overlay of problems for an already ill plaintiff taking on a well-resourced defendant. Mrs Scanlon had to discontinue the trial due to her illness.) Only in the last couple of years has this sort of case been successful in Australia.7 7

In the more recent case of Randwick City Council v  Muzic,8 the defence of volenti failed. It failed as the defendant did not prove the plaintiff had a full appreciation of the risk. In contrast, in Leyden v Caboolture Shire Council,9 the defence was successfully invoked in relation to a 15-year-old boy who was injured on a BMX track.

Statutes dealing with voluntary assumption of risk 7.23

In New South Wales, the defence of voluntary assumption of risk has been statute barred in industrial and motor accident cases.

7.24

WORKERS COMPENSATION ACT 1987 - SECT 151O Defence of voluntary assumption of risk 151O Defence of voluntary assumption of risk The defence of volenti non fit injuria is not available in an action for the award of damages but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured or deceased person was negligent in failing to take sufficient care for his or her own safety.

7. See Luntz et al, Torts: Cases and Commentary, note 5 above, 6.3.5. 8. Randwick City Council v Muzic [2006] NSWCA 66. 9. Leyden v Caboolture Shire Council [2007] QCA 134.

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Motor accidents 7.25

MOTOR ACCIDENTS ACT 1988 - SECT 76 Defence of voluntary assumption of risk 76 Defence of voluntary assumption of risk (1) Except as provided by subsection (2), the defence of volenti non fit injuria is not available in proceedings for damages arising from a motor accident but, where that defence would otherwise have been available, the amount of any damages shall be reduced to such extent as is just and equitable on the presumption that the injured person or deceased person was negligent in failing to take sufficient care for his or her own safety. (2) If a motor accident occurs while a motor vehicle is engaged in motor racing, the defence of volenti non fit injuria is available in proceedings for damages brought in respect of the death of or injury to: (a) the driver of the vehicle so engaged, or (b) a passenger in the vehicle so engaged, other than a passenger who is less than 18 years of age or who otherwise lacked capacity to consent to be a voluntary passenger. (3) For the purposes of subsection (2), a motor vehicle is engaged in motor racing if it is participating in an organised motor sports event or an activity that is an offence under section 40 of the Road Transport (Safety and Traffic Management) Act 1999.

Obvious risks and dangerous recreational activities Obvious risks 7.26

7.27

The concept of obvious risks as a defence in negligence actions has been gaining in popularity over the past two decades. One case which demonstrates how this defence is used in practice is Ainger v Coffs Harbour City Council.10

Ainger v Coffs Harbour City Council [2005] NSWCA 424 Court: New South Wales Court of Appeal Facts: The plaintiff was injured when she tripped and fell on an uneven footpath in Woolgoolga. She suffered personal injuries and the incident also aggravated degenerative changes in her back and neck. The evidence suggested that this was a small and inexpensive defect to fix. The defect was repaired simply and inexpensively the day after the accident.

10. Ainger v Coffs Harbour City Council [2005] NSWCA 424.

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Defences to Negligence Claims Legal principle: The law allows for inadvertence. There is no principle which dictates people need to maintain constant vigilance when walking. The court’s decision (application of the legal principle to the facts): The council was liable and damages were not reduced by contributory negligence. Significance of this case: This case is significant as it demonstrates that people do not need to be constantly vigilant in terms of identifying risks. To do so would be impractical and against common sense.

In New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia, the ‘obvious risk’ provisions are similar but not exactly the same. In New South Wales, s 5F of the Civil Liability Act 2002 (NSW) sets out the meaning of an ‘obvious risk’: 5F Meaning of “obvious risk” (1) For the purposes of this Division, an “obvious risk” to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Statutory interpretation of s 5F of the Civil Liability Act 2002 (NSW) 7.28

7.29

The following case cleared up the confusion in terms of how children should be judged in negligence cases.

Doubleday v Kelly [2005] NSWCA 151 Court: New South Wales Court of Appeal Facts: Two seven-year-olds had a sleepover. They decided to go on the trampoline with rollerskates on. The young plaintiff suffered personal injuries. The trial judge found that a reasonable person in the position of the home occupier would have taken precautions against the foreseeable risks of harm by preventing the children from going on the trampoline.

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Torts: Principles, Skills and Application Legal principle: In light of s 5F of the Civil Liability Act 2002 (NSW), ‘a reasonable person in the position of that person’, the ‘characteristics of being a child of seven with no previous experience in the use of trampolines or roller skates was part of that position’. In other words, when children are involved subjective elements will be taken into account in terms of what is an obvious risk. The court’s decision (application of the legal principle to the facts): The occupier was liable and no contributory negligence was applied. Significance of this case: This case is significant as it indicates that subjective elements can be considered in terms of what is obvious to a reasonable person.

Other obvious risk provisions 7.30

Section 5G(1) of the Civil Liability Act 2002 (NSW) notes that injured persons are presumed to be aware of obvious risks. This presumption can be rebutted if the ‘person proves on the balance of probabilities that he or she was not aware of the risk’. Angel v Hawkesbury City Council11 notes that just because there is a finding of the presence of an ‘obvious risk’ that the person is aware of, does not mean there is a definitive finding of a breach of duty. Coupled with s 5G is s 5H of the Civil Liability Act 2002 (NSW), which notes that a person does not owe a duty of care to another person to warn of an obvious risk to the plaintiff. There are a number of exemptions in this section, including as follows: •• The plaintiff has requested advice or information about the risk from the defendant.12 •• The defendant is required by a written law to warn the plaintiff of the risk.13 •• The defendant is a professional 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.14

Statutory interpretation of s 5H of the Civil Liability Act 2002 (NSW) 7.31

In order to understand the practical ramifications of the legislation it is necessary to examine how the provisions have been interpreted by the court. We will now consider what the ramifications are of s 5R in terms of the standard of care attached to contributory negligence.

11. Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955 (NSWCA). 12. Section 5H(2)(a) of the Civil Liability Act 2002 (NSW). 13. Section 5H(2)(b) of the Civil Liability Act 2002 (NSW). 14. Section 5H(2)(c) of the Civil Liability Act 2002 (NSW).

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7.32

Jaber v Rockdale City Council (2008) Aust Torts Reps 81-952 Court: High Court of Australia Facts: A 19-year-old dived head first into the sea. He sustained serious injuries. Legal principle: The council did not owe the appellant a duty to warn of the obvious risk. A reasonable person in the appellant’s position would have more effectively tested the depth of the water. The court’s decision (application of the legal principle to the facts): Hitting his head on the seabed was an obvious risk under the legislation. Significance of this case: This case is significant as it provides guidance on the requirements of warnings in terms of obvious risks.

Standard of contributory negligence 7.33

The next question which needs to be explored is what the standard of care should be in contributory negligence cases. Section  5R(2)(a) of the Civil Liability Act 2002 (NSW) states the ‘standard of care required of the person who suffered harm is that of a reasonable person in the position of that person’. This will determined based on what the ‘person knew or ought to have known at the time’.15

Statutory interpretation of s 5R of the Civil Liability Act 2002 (NSW) 7.34

7.35

We will now consider what the ramifications are of s  5R in terms of the standard of care attached to contributory negligence.

Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380 Court: New South Wales Court of Appeal Facts: The plaintiff was a trespasser who suffered spinal injuries when falling from a railway bridge. This bridge was often used as a shortcut to get to the other end of town. Consolidated Broken Hill Ltd (CBH) was aware people used this bridge as a shortcut. The lower court found that CBH had negligently caused Mr Edwards to sustain serious injuries. It found that Mr Edwards was guilty of contributory negligence and apportioned liability by attributing one-third of the responsibility

15. Section 5R(2)(b) of the Civil Liability Act 2002 (NSW).

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Torts: Principles, Skills and Application of the damage to him and two-thirds to CBH. CBH appealed on the grounds that his Honour erred in finding that it breached its duty of care, alternatively in failing to attribute a greater share of responsibility for his damage to Mr Edwards. Legal principle: As the plaintiff made a ‘deliberate and voluntary’ decision to cross the bridge, even though it was an ‘obvious risk’ contributory negligence was increased. The court’s decision (application of the legal principle to the facts): A duty of care was owed in this case as the occupier knew that people trespassed on this land. They also found that CBH has breached their duty of care by not taking steps to prevent people from crossing the bridge. Contributory negligence was also found. This was the case as ‘a reasonable person in the position of Mr Edwards would not have gone on to cross the bridge’ under s 5R(2)(a) of the Civil Liability Act 2002 (NSW). Significance of this case: The court found that individuals should care for themselves as much as they expect others to care for them — the fundamental notion is that people should take responsibility for their own lives and safety. Thus, the contributory negligence was lifted from one-third to 50 per cent.

Recreational activities Sport 7.36

7.37

Participants and spectators in sport are taken to have consented to inherent risks in the sport.16 This does not mean that if there has been a breach of the rules of the game that there is necessarily going to be a breach of the duty of care.

Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 Court: High Court of Australia Facts: The appellant was a 32-year-old experienced outdoor cricketer. He suffered a serious eye injury while playing indoor cricket. The respondent organised the game and provided some safety equipment. Helmets and pads were not supplied. The trial judge accepted that a duty of care was owed by the respondent. The issues which were in contention was the scope of the duty of care and breach. On appeal to the High Court, the particulars of negligence were that the respondent failed to warn the plaintiff of the dangers of playing indoor cricket and also failed to provide appropriate eye protection. Legal principle: The probability of risk is relevant to the obviousness of a risk.

16. Rootes v Shelton [1967] 116 CLR 383.

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Defences to Negligence Claims The court’s decision (application of the legal principle to the facts): The majority found the risks were obvious and known to the appellant. The respondent was not obliged to provide helmets nor change the rules of the game. Significance of this case: There was discussion in this case about facts and matters which courts can take into account when reaching a decision. For example, Callinan J in the majority, noted that judges cannot apply their own views and seek information about ‘social ethics, psychology and politics’.

Recreational activities and tort reform 7.38

Tort reform in each of the jurisdictions had a significant impact on recreational activities. Section 5L of the Civil Liability Act 2002 (NSW) states there will be no liability for harm suffered from obvious risks of dangerous recreational activities. Of course, this begs the question: what is a dangerous recreational activity? In order to determine this, it is necessary to see  how the courts have defined a dangerous recreational activity. In Falvo v Australian Oztag Sports Association,17 the New South Wales Court of Appeal stated that ‘the phrase “significant risk” cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as the likelihood of the risk materialising’. Ultimately, the plaintiff ’s claim failed because he could not establish causation. The next case provides one example of what has not been classified as a dangerous recreational activity.

7.39

Lormine Pty Ltd v Xuereb [2006] NSWCA 200 Court: New South Wales Court of Appeal Facts: The plaintiff went on a dolphin watching cruise. It was advertised as being on ‘calm ocean water’. When at sea, the plaintiff suffered personal injuries as a result of a ‘rogue wave’. Legal principle: It was found that the ‘rogue wave’ was not an obvious risk. This was the case as there was nothing in the brochure to suggest the vessel would go on rough waters. The court’s decision (application of the legal principle to the facts): An obvious risk must be determined ‘objectively and prospectively’. It was found this defence failed. Significance of this case: This case is significant as it was found that the dolphin watching cruise was not a dangerous recreational activity.

17. Falvo v Australian Oztag Sports Association (2006) Aust Torts Reps 81-831.

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Risk warnings and legislation 7.40

7.41

One of the aspects that tort reform has had an impact on is risk warnings. As an example, s 5N of the Civil Liability Act 2002 (NSW) provides a waiver of a contractual duty of care for recreational activities in most circumstances. In terms of where this waiver extends to, it is helpful to look at the following case.

Insight Vacations Pty Ltd v Young (2011) 276 ALR 497 Court: High Court of Australia Facts: The plaintiff bought a tour package from the defendant whose business was based in New South Wales. The contract the plaintiff had with the defendant stated, ‘Where the passenger occupies a motor coach seat fitted with a safety belt, neither the Operators nor their agents … will be liable for any injury … arising from any accident or incident, if the safety belt is not being worn at the time …’. While travelling on a coach from Prague to Budapest, the plaintiff reached for her bag from the overhead shelf. She received personal injuries when the bus stopped suddenly. Legal principle: The key question which was asked in this case was whether or not s 5N of the Civil Liability Act 2002 (NSW) has a geographical limit. The court’s decision (application of the legal principle to the facts): It was found that s  5N does have a geographical limit and is confined to incidents in New South Wales.

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Review The area of defences is a good example of how tort reform has impacted on the common law. The main defences which are used in negligence actions are volenti non fit injuria (voluntarily assuming the risk), contributory negligence and obvious risks. As far as volenti is concerned, this is difficult to prove, even when available, because of the onus of proof position placed on the defendant. As a matter of practical policy, in some jurisdictions volenti is not available for industrial or motor vehicle cases. Contributory negligence is still commonly used as a defence in negligence cases. If the plaintiff is found to have been contributorily negligent, then this reduces the plaintiff ’s damages from a 100 per cent figure. There are two steps: 1. What are the plaintiff ’s damages? 2. What is the contributory negligence percentage? Damages are reduced by that percentage. Defences relating to ‘obvious risks’ and recreational activities have also gained prominence as a result of common law and statutory reforms. In many cases the ‘obvious risk’ defence has largely replaced volenti non fit injuria.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Chs 10 and 11 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 8

Key Cases Ainger v Coffs Harbour City Council [2005] NSWCA 424 Caterson v Commissioner for Railways (NSW) (1973) 128 CLR 99 Doubleday v Kelly [2005] NSWCA 151 Imbree v McNeilly (2008) 236 CLR 510 Insight Vacations Pty Ltd v Young (2011) 276 ALR 497 Jaber v Rockdale City Council (2008) Aust Torts Reps 81-952 Joslyn v Berryman (2003) 214 CLR 552 Kelly v Bega Valley County Council (unreported, 13 September 1982) (see 6.2.30C of Luntz et al) Lormine Pty Ltd v Xuereb [2006] NSWCA 200 371

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McLean v Tedman (1984) 155 CLR 306; 56 ALR 359 Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3) [1987] VR 289 Sibley v Kais (1967) 118 CLR 424 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460

Chapter 7 Review Questions 1. What is contributory negligence? 2. Is it possible for a plaintiff to be 100 per cent liable for his or her own injuries? 3. What is meant by the term ‘just and equitable’? 4. How would a judge go about applying the term in an actual case? 5. How has statute changed contributory negligence? 6. When will volenti non fit injuria be used as a defence? 7. In what circumstances could an obvious risk defence be argued successfully?

Tutorial 7: Defences

Internal memorandum From: Guido Markewicz To: Trainee Re: Victorian law issue I have been asked to advise on a Victorian matter. Lance Patterson is a 20-year-old law student. He had a job working in the holidays picking pears on a commercial property owned by Orange Orchards Ltd (OOL). He was operating an augur which crushed the pears. He had been given limited instruction and had been successfully operating the machine for nearly four weeks when he was injured. He was wearing gloves and goggles provided by the company. The machine jammed and, without thinking, he tried to unblock it — this was at the end of a 10-hour day. His arm was caught and badly mangled. A fellow worker turned the machine off. It seems the settings on the augur were changed that afternoon without his knowledge. It was running faster than usual. Lance was rushed by air ambulance to Melbourne. Unfortunately, doctors could not save his arm. (It is his right arm — he is left-handed.) We need to investigate this claim thoroughly. Please prepare a memorandum for me. Specifically look at:

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(a) Is OOL liable in negligence? You can do this briefly. Refer to general breach principles and have a look at employer duties owed to employees. (b) In detail, I want you to consider if Lance has been contributorily negligent. This is crucial. It could greatly affect his claim and any quantum of damages.What cases are relevant and what strategies do you think we should deploy? Please focus on the common law issues for the purposes of this memorandum, at this stage. Thanks, Guido

Tutorial 7: Student Example Answer Prepared by: Shannon Matchett, Law, UNE

Internal memorandum To: Guido Markewicz From: Shannon Matchett Re: Lance Patterson v Orange Orchards Ltd (OOL) Dear Guido, Please see  below for advice on the Orange Orchards Ltd (OOL) matter. I have responded to your request in two parts. Part A discusses negligence in regards to Lance’s injuries at his workplace. Part  B considers whether Lance has been contributorily negligent. I have provided my recommendations in accordance with common law principles to advise on the best way forward for Lance. For Victorian law, the relevant legislation is the Wrongs Act 1958 (Vic). Part X is the relevant provision for negligence claims. Regards, Shannon Matchett Trainee

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Part A Damage Actionable damage must be identified to claim for damages in negligence.18 The first limb of establishing damage is to identify the type of damage and confirm it is a recognised category. Personal injury, economic loss and property damage are recognised types of action damages.19 The common law characterisation of damage is reflected in the definition of harm under s 43 of the Wrongs Act.20 Lance’s right arm was mangled and could not be recovered by medical treatment. The actionable damage requirement has been clearly satisfied in this instance. The second limb of establishing damage is remoteness. Remoteness requires that the damage be reasonably foreseeable.21 For remoteness, a reasonable person is one with the knowledge and experience of the defendant.22 The question at law is whether OOL could have reasonably foreseen, as a consequence of their negligence, Lance’s injuries.23 In light of the limited instruction received and lengthy shifts worked by Lance, this damage was likely reasonably foreseeable.

Duty of care OOL can only be held liable for the damage if a duty of care is owed to Lance.24 At common law, a duty of care is owed when the defendant would reasonably foresee their conduct harming the plaintiff.25 In cases of employees being injured, reasonable foreseeability is generally sufficient to establish a duty of care.26 An employer has a non-delegable duty of care to ensure the workplace and system of work is safe for employees.27 As previously discussed, the damage to Lance was reasonably foreseeable. The relationship between Lance and OOL is that of an employer and employee, which is an established category of case.28 Consequently, OOL owed a duty of care to Lance.

Breach The next step in establishing negligence is determining whether the duty of care owed by OOL to Lance was breached. In considering this, the court looks to whether a reasonable person in the position of the defendant would have foreseen the risk.29 If so, 18. Commissioner of Railways (WA) v  Stewart (1936) 56 CLR 520; Brookfield Multiplex Ltd v  Owners Corporation Strata 61288 (2014) 254 CLR 185. 19. Commissioner of Railways (WA) v  Stewart (1936) 56 CLR 520; Brookfield Multiplex Ltd v  Owners Corporation Strata 61288 (2014) 254 CLR 185. 20. Wrongs Act 1958 (Vic). 21. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617. 22. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617. 23. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617. 24. Donoghue v Stevenson [1932] AC 562. 25. Donoghue v Stevenson [1932] AC 562. 26. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. 27. Kondis v State Transport Authority (1984) 154 CLR 672. 28. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. 29. Council of the Shire of Wyong v Shirt (1980) 146 CLR 40.

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the court considers what the hypothetical reasonable person would take to respond to the risk.30 Section 48(1)(c) of the Wrongs Act 1958 (Vic) has adopted these principles. The risk of Lance’s injury is reasonably foreseeable. Although an exhaustive list of preventative steps that could have been taken is unnecessary, several may be pertinent. Lance was operating dangerous machinery and working a 10-hour shift. He had received limited instructions. A reasonable person in the position of the defendant would take steps to prevent the reasonably foreseeable injury. The facts indicate the only preventative steps taken were the provision of gloves, goggles and some limited instructions. Consequently, it is likely that OOL has breached their duty of care owed to Lance.The next step in the negligence claim is to establish a causal link between OOL’s negligence and the injury suffered.

Causation Lance is required to prove that his injuries would not have occurred if not for the negligence of OOL. The first element to establish this causal link is the ‘but for’ test.31 This test is reflected in s  51(1) of the Wrongs Act  1958 (Vic). The test examines whether the harm would have been sustained but for the negligence of the defendant.32 The general principles outlined by the Act consider factual causation and the scope of liability.33 When determining the scope of liability, s 51(4) guides the court.34 The courts are instructed to consider why responsibility for the harm ought to be imposed on the defendant.35 The harm sustained by Lance would not have occurred but for his limited training and unsafe workplace conditions. As discussed, OOL and Lance are part of an established category of case with a clear duty of care owed. Consequently, it is appropriate for the scope of OOL’s liability to extend to the harm caused by their negligence. Therefore, both limbs of causation are made out in this case.

Part B Contributory negligence Lance’s claim in negligence will be affected if contributory negligence is established, as this decreases the overall quantum of damages. Commissioner of Railways v  Ruprecht held that contributory negligence arises where the plaintiff exposes themselves to the risk of injury.36 The defendant bears the onus of establishing that the plaintiff did not take reasonable care for their own safety.37 The lack of reasonable care must be linked to the damage sustained.38 Section 62(1) holds that 30. Council of the Shire of Wyong v Shirt (1980) 146 CLR 40. 31. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. 32. Wrongs Act 1958 (Vic) s 51(1)(a). 33. Wrongs Act 1958 (Vic) s 51(1). 34. Wrongs Act 1958 (Vic) s 51(1). 35. Wrongs Act 1958 (Vic) s 51(1). 36. Commissioner of Railways v Ruprecht (1979) 142 CLR 563. 37. Nance v British Columbia Electric Railway Co Ltd [1951] AC 601. 38. Nance v British Columbia Electric Railway Co Ltd [1951] AC 601.

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contributory negligence is determined by the same standard applied to determining whether the defendant was negligent.39 Consequently, the standard of care for the plaintiff will be that of a reasonable person in their position.40 The common law principle holds that this standard of care is an objective test.41 Reasonable care requires that the plaintiff protects themselves from reasonably foreseeable risks.42 This consideration, however, is with reference to the plaintiff ’s exposure to the defendant’s negligence.43 For damage arising out of employment, the court will consider the conditions of how the employee performed their task.44 The court is reluctant to find contributory negligence where harm arose from an employee performing the duties set by an employer.45 In such instances, the defendant must establish multiple elements: a lack of reasonable care; that they ought to have known, or knew; that their conduct was highly dangerous; and that the conduct was not required in performing their duties.46 It is likely that OOL will assert that Lance was contributorily negligent by putting his hand in the augur. OOL would be required to establish that Lance showed a lack of reasonable care.47 They must further show that Lance had known, or ought to have known, that his conduct was highly dangerous.48 Furthermore, OOL must demonstrate that his conduct was not a part of his duties.49 It will already be difficult for OOL to meet the requirements of establishing contributory negligence in this instance. To maximise our chances of rebutting any assertion of this nature, emphasis should be placed on Lance’s lack of training. Operation of the augur appeared to clearly be a part of Lance’s duties. Consequently, the provision of limited instruction would appear insufficient to prevent a reasonably foreseeable harm. Prima facie, the likelihood of a negligence claim succeeding is high.

39. Wrongs Act 1958 (Vic). 40. Wrongs Act 1958 (Vic) s 62(2)(a). 41. O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1. 42. Sibley v Kais (1967) 118 CLR 424. 43. McLean v Tedman (1984) 155 CLR 306. 44. Sungravure Pty Ltd v Meani (1964) 110 CLR 24. 45. Commissioner for Railways v Halley (1978) 20 ALR 409. 46. Commissioner for Railways v Halley (1978) 20 ALR 409. 47. Commissioner for Railways v Halley (1978) 20 ALR 409. 48. Commissioner for Railways v Halley (1978) 20 ALR 409. 49. Commissioner for Railways v Halley (1978) 20 ALR 409.

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Causation Legal practice skill: Completing a negligence checklist

Learning aims •

Appreciate the nature of factual causation and scope of liability

•

Understand the principles of the ‘but for’ test

•

Explore alternative tests of causation

•

Know the scope of liability

Background concepts First principles 8.1

Recall that the elements that make up the tort of negligence are duty, breach and damage. In terms of damage, there are two limiting factors: 1. It is incumbent upon the plaintiff to prove that it was the defendant’s breach of duty that caused the plaintiff ’s damage. This is the element of factual causation (formerly known simply as ‘causation’). 2. The plaintiff must prove that the damages he or she claims are not too remote. That is, the plaintiff will not be able to recover damages that are an insufficiently predictable outcome of the defendant’s breach of duty. This is referred to as ‘legal causation’ or ‘scope of liability’ (formerly known as ‘remoteness’). Factual causation and scope of liability have specialist legal meanings.The issues involving causation and remoteness can be reformulated as questions: •• Factual causation: Has the damage, loss or injury to the plaintiff been caused by the defendant’s breach of duty? •• Scope of liability: Is the damage, loss or injury of a type or kind which was reasonably foreseeable (and therefore recoverable) or is it too remote (and therefore not recoverable)? It is important to note that not all types of damage suffered by a person are recoverable at law. So, for example, a claim that a severely disabled person would 377

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not have been born ‘but for the negligence of the doctor’ and that person wishes to claim for the damages of being born (as opposed to not being born) is not maintainable at law — see Harriton v Stephens.1 Similarly, the law will not award damages for sorrow or a grief reaction, but only for ‘nervous shock’.2

Factual causation: basic concepts 8.2

Causation is an essential part of the plaintiff ’s claim and the onus of proof is on the plaintiff to satisfy the element of causation on the balance of probabilities. The law of negligence requires a logical connection between: •• the defendant’s negligent act or failure to act; and •• the plaintiff ’s loss or damage. Looked at from a practical point of view, the question for the court in any one case becomes whether the plaintiff ’s loss can be shifted to the defendant or the defendant’s insurer. This will only happen if the defendant’s breach caused damage to the plaintiff and that damage caused by the defendant was reasonably foreseeable as a consequence of the defendant’s breach.

8.3

We have summarised the various elements of causation as follows in Table 8.1.

Table 8.1 The causation process

What is involved with Satisfying the causation this stage? process

Related issues

1. Stage 1

Factual causation

The plaintiff establishes a factual link between the defendant’s negligence and the damage suffered

Known as the ‘but for’ test or, where that test is inappropriate, resort can be made to established principles of the common law

2. Stage 2

Scope of liability

The plaintiff establishes causation beyond a factual element

That the damage suffered was reasonably foreseeable

3. Legal result

Is the defendant liable?

The defendant is liable if both stages 1 and 2 are satisfied

The defendant is not liable if either of the stage 1 or stage 2 tests remains to be satisfied

1. Harriton v Stephens (2006) 226 CLR 52. 2. Mount Isa Mines v Pusey (1970) 125 CLR 383.

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Factual causation: the ‘but for’ test 8.4

As we have seen, the concept of factual causation is a necessary, but not sufficient, element of a plaintiff ’s negligence claim against a defendant. The plaintiff must also satisfy legal causation. Why is this? As was explained by the New South Wales Court of Appeal in Dobler v Halverson,3 tort law is neither scientific nor philosophical in its remit. Since tort law is based upon evidence on the balance of priorities, tort law can decide that, for legal purposes, the defendant has caused damage to the defendant, even when science cannot determine the existence of a causal relationship: Seltzam Pty Ltd v McGuiness.4 The role of tort is to decide questions of legal responsibility. It answers the complex question based on the particular facts and circumstances: should this defendant compensate this plaintiff? The purpose of the factual causation inquiry is to act as a sieve or filter for the courts. The defendant’s negligence is a necessary condition of the plaintiff ’s damage or loss. The most common test of causation is referred to as the ‘but for’ test: •• Would the plaintiff ’s loss have occurred but for the defendant’s negligence? •• Did the defendant’s negligence actually cause the plaintiff ’s loss? The primacy of the ‘but for’ test has been confirmed in s 5D(1) of the Civil Liability Act 2002 (NSW): (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm … The ‘but for’ test can best be understood by referring to the case of Barnett v Chelsea and Kensington Hospital Management Committee.

8.5

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1968] 1 All ER 1068 Court: UK High Court of Justice (Queen’s Bench Division) Facts: The plaintiff was the widow of a nightwatchman. She sued the hospital for negligence. The nightwatchman and two of his colleagues had been vomiting for hours and had gone to the casualty ward of a hospital. They were examined by a nurse. The nurse attempted to have the doctor on duty examine

3. Dobler v Halverson [2007] NSWCA 395. 4. Seltzam Pty Ltd v McGuiness [2000] NSWCA 29.

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the nightwatchmen. In blatant disregard for the duty of care he owed the nightwatchman, the doctor refused. He told them to go home and to contact their own doctors. The nightwatchman died the next day. An autopsy revealed that the cause of death was arsenic poisoning and that he would have died whether or not he had gone to the hospital the previous night. Legal principle: The judge, Sir Basil Nield, held that causation of loss had not been proved. The court’s decision (application of the legal principle to the facts): The doctor’s failure to attend and diagnose was not the cause of damage to the plaintiff. The defendant’s negligence was not a necessary condition of the death. Significance of this case: The case illustrates that, irrespective of the gravity of the breach of duty, provided that no additional harm has been caused to the plaintiff, the defendant will not be liable. Factual causation is a necessary element of a plaintiff’s case.

A recent Australian example of the application of the ‘but for’ test is outlined below in Perisher Blue Ltd v Harris.

8.6

Perisher Blue Ltd v Harris [2013] NSWCA 38 Court: New South Wales Court of Appeal Facts: The plaintiff went on a school excursion to a snowfield with 49 other students. He was given lessons on a slope rated as ‘green’. He then proceeded down the slope with an instructor following him. He saw a mound which he proceeded over. He then saw a ditch straight ahead of him and, despite his efforts to try to avoid the ditch or slow down, he caught one leg in the ditch, flipped over and injured his L1 and L2 vertebrae. He spent 26 days in hospital. He sued the ski fields for allowing a ski class to be conducted in an area in which there was a dangerous obstacle. The trial judge held that the presence of the ditch on a beginner’s slope created a risk of injury. The risk was foreseeable and not insignificant, particularly as a person falling while skiing was always prone to serious injury. His Honour said that identification of the risk would have led a reasonable person to take precautions such as: • placing a barricade around the ditch; • filling in the ditch with snow to even out its effects; or • not conducting lessons in an area proximate to obstacles. Legal principle: Did the presence of the ditch cause the injury to the plaintiff?

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Causation

The court’s decision (application of the legal principle to the facts): The trial judge found, and the Court of Appeal confirmed, that ‘but for’ the presence of the ditch, which was or ought to have been known to the ski fields, the damage to the plaintiff would not have happened. Significance of this case: This case reinforces the importance of the ‘but for’ test in establishing causation.

The High Court has confirmed that the mere fact that a risk of harm exists and there has been a failure to fulfil a duty of care is insufficient to ground liability in negligence.

8.7

Roads and Traffic Authority v Royal [2008] HCA 19 Court: High Court of Australia Facts: A two-car collision occurred at an intersection where there was a known history of accidents occurring. An allegation was made that ‘the cross intersection design instituted by the defendant authority gave rise to a statistical inevitability of a proportion of cross-vehicle crashes’. Held: The High Court held that the fact there was a duty owed and it had been breached, did not necessarily mean that breach was the cause of any harm which resulted: 5 The problem — the danger, the risk — thus discussed, however, had nothing to do with the collision in question. The problem or danger or risk was that where two vehicles were approaching in adjoining lanes, one might obscure the other. That did not happen in this case. … 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.

Significance of this case: The case reiterates the importance of proving a causal link between the breach of duty and the harm which ensues.

It is important to note that, if the damage suffered by the plaintiff would have occurred anyway, then it is not possible to establish that ‘but for’ the defendant’s negligence, damage would not have occurred. 5

5. Roads and Traffic Authority v Royal [2008] HCA 19 at [25].

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Adeels Palace Pty Ltd v Moubarek; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420 Court: High Court of Australia Facts: The defendant ran a restaurant/nightclub. The plaintiff was shot by a patron in the nightclub. The plaintiff sued the defendant for negligence alleging that, had he employed a sufficient number of security guards at the nightclub, the plaintiff would not have been shot. Legal principle: Was the plaintiff able to satisfy causation? The court’s decision (application of the legal principle to the facts): The High Court held that it could not be satisfied that, had the defendants employed more security guards, the outcome would be any different. This was because the gunman’s ‘conduct at the restaurant on the night was dictated neither by reason nor by prudential considerations’. Significance of this case: It is not sufficient to prove that the plaintiff was owed a duty of care by the defendant, and that that duty was breached. It must, additionally, be proved that that failure caused damage to the plaintiff.

Compare the decision in Adeels Palace, with the case below:

8.9

Strong v Woolworths Ltd (2012) 285 ALR 420 Court: High Court of Australia Facts: The plaintiff, who walked with the aid of crutches, slipped on a chip just outside the entrance to the defendant’s premises. The area where she slipped was a footpath sales area which was run and controlled by the defendants. This area was near a food court. The plaintiff sued the defendant for failing to monitor and clean the area where she slipped. The defendant admitted it owed the plaintiff such a duty. Although damages were awarded at first instance, the Court of Appeal overturned this finding on the basis that they said it was incumbent on the plaintiff to prove, on the balance of probabilities, when the chip was dropped (that is, earlier in the day, as opposed to immediately before the plaintiff slipped on it). If it could not be proved that the chip was dropped earlier in the day, then the plaintiff had failed to prove that, by doing the inspections, the defendant could have avoided the harm suffered by the plaintiff. Legal principle: Was the plaintiff able to prove causation? The court’s decision (application of the legal principle to the facts): The High Court said that it was not necessary to prove the matters suggested by the Court

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of Appeal. It was enough for the plaintiff to prove, on the balance of probabilities, that the defendant’s negligence was a necessary condition of her harm: Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred … [the plaintiff] was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.6

Significance of this case: It is not necessary for a plaintiff to prove, definitely, the precise sequence of events. A plaintiff must prove, on the balance of probabilities, that the defendant’s negligence was a necessary condition of the harm. Compare the finding of the High Court in Strong v Woolworths Ltd with that of the Queensland Court of Appeal in Queensland v Nudd,7 another case about a person on crutches slipping on a surface — in Nudd’s case the person slipped on water.

Developments under the Civil Liability Act 8.10

The ‘but for’ test does not always produce a just result. So, for example, where the defendant’s injury is caused by two or more tortfeasors, each of whose actions might have been sufficient to cause the damage, the result might be that neither is held liable for the damage. To cope with this possibility, the Civil Liability Act 2002 (NSW) s 5D(2) states: In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

The established principles may be seen as referring to three types of cases: •• where there may be a need to draw inferences; •• where there are multiple sufficient causes; and •• res ipsa loquitur.

The drawing of inferences 8.11

The following case addresses the need to draw inferences.

67

6. Strong v Woolworths Ltd (2012) 285 ALR 420 at [32]. 7. Queensland v Nudd [2012] QCA 281.

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Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315 Court: Queensland Court of Appeal Facts: The defendant was an aerial spraying company and the second appellant was the managing director. Pilots employed by the company conducted aerial spraying of properties about 20 kilometres north of the plaintiffs’ properties. Some four days after the spraying, yellowing and damage were seen on the respondent’s cotton crops. The plaintiff sued in negligence. At first instance, the trial judge found the defendant liable. The trial judge was satisfied that it was more probable than not that some of the chemicals sprayed by the appellants reached the respondent’s cotton crops and that, although there was insufficient information to permit the use of a particular scientific model to make a reliable estimate of the amount of chemical deposited, the herbicide caused the damage to the respondent’s cotton crops. The defendant appealed, inter alia, on the grounds that the trial judge had erred in establishing causation. Legal principle: Did the plaintiff have to positively establish that the negligence definitely caused the harm, or could the court draw inferences from the evidence? The court’s decision (application of the legal principle to the facts): The Court of Appeal found:8 43. It was not contentious that a certain minimum quantity of herbicide was necessary before it would damage cotton crops in the way that the respondent’s cotton crops were damaged. It is also clear that the evidence did not justify a finding about the precise quantity of herbicides deposited upon the respondent’s cotton crop. As was submitted for the respondent, however, it is not the law that the absence of scientific proof of a causal relationship precludes a finding that it was more probable than not that the appellants’ spraying operation caused the damage. 44. The evidence in the experts’ joint report was that spray drift of about 20 kilometres was possible. In addition to that evidence and the findings summarised in [14] of these reasons, the evidence justified the trial judge’s findings that: (a) There was a trail of damage, which was consistent with the application of the herbicide sprayed by the appellants, on the northern side of the trees between the area where the herbicide was sprayed and the respondent’s cotton crops. (b) Properties between where the appellants sprayed the herbicide and the respondent’s cotton crops were affected by the drifting herbicide. (c) The respondent’s cotton crops at Elgin and Noonameena were in fact damaged by herbicide. (d) Those damaged cotton crops exhibited symptoms which were typical of exposure to Metsulfuron and Grazon, which were in the herbicide sprayed by the appellants. (e) No potential cause of the damage to the respondent’s cotton crops could be identified other than the appellants’ spraying of the herbicide at Sherwood and Wallumba.

8

8. Footnotes have been omitted.

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45. In relation to the last finding, the respondent submitted that, whilst the onus of proof remained upon the respondent throughout, the absence of any answer by the appellants which might displace the inference of causation raised by the other facts justified the trial judge in deciding the issue in the respondent’s favour.

Significance of this case: A court was entitled to draw inferences.

Drawing of inferences to bridge evidentiary gaps endorsed by the High Court 8.13

8.14

In the following case, the High Court enables the causal link to be inferred.

Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 Court: High Court of Australia Facts: A surgeon performed an operation on the plaintiff’s oesophagus. A known complication of the procedure (mediastinitis) eventuated causing damage to the patient. The complication is a random event and can occur without negligence on the part of the surgeon. The patient sued in negligence on the basis of a failure to warn of the complication. The patient did not say that, had she known of the procedure, she would not have had the procedure performed. Rather, she said that, had she known of the complication, she would have postponed the procedure and had it performed by a more experienced surgeon on a later date. Legal principle: Was causation proved? The court’s decision (application of the legal principle to the facts): The difficulty facing the court that, while having a more experienced surgeon perform the operation may have resulted in a less likelihood of the side effect occurring, since the side effect could occur as a matter of random chance, there was no guarantee this would be the case. The majority suggested the causal link could be inferred, since the very risk of which the plaintiff complained about was the risk which eventuated. The surgeon was liable in negligence for a failure to warn. Significance of this case: The High Court endorses the drawing of an inference to bridge an evidentiary gap.

8.15

Amaca v Booth [2011] HCA 53 Court: High Court of Australia Facts: The plaintiff was a mechanic. He had three brief exposures to asbestos between 1943 and 1959, two as a child when helping his father with home

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renovations and another when he spent about 20 minutes loading bags containing asbestos onto a truck in 1959. The plaintiff was exposed to asbestos in brake linings during his work as a mechanic between 1953 and 1983 with a threeyear interregnum. His work included the replacement of brake linings made from asbestos. The frequency of the replacement tasks varied from twice a month to three times a week. Mr Booth developed mesothelioma — a lung disease caused by exposure to asbestos fibres. He sued the manufacturers of the brake linings he worked on when he was a mechanic. Legal principle: Was causation proved? The court’s decision (application of the legal principle to the facts): Though there was some uncertainty as to the way mesothelioma worked, the court was prepared to draw an inference that the plaintiff’s exposure to asbestos fibres while he worked was the cause of his illness. Significance of this case: The High Court endorses the drawing of an inference to bridge an evidentiary gap.

The problem of multiple sufficient causes Multiple causes of injury to a plaintiff — novus actus interveniens? 8.16

On occasion there can be a difficult debate where there are two or more causes of an injury suffered by the plaintiff, which is the cause of the damage suffered. Are both parties responsible? Or is the second cause so overwhelming that it breaks the chain of causation between the wrongdoing of the first tortfeasor, and the harm which ensues? Compare the two cases below.

8.17

Chapman v Hearse (1961) 106 CLR 112 Court: High Court of Australia Facts: Chapman drove his car into the back of Emery’s car. Chapman was thrown from his car and left lying on the road after the accident. Dr Cherry came upon the scene, immediately got out of his car and began to assist Chapman. While this was happening, a car driven by Hearse hit Dr Cherry and killed him. Legal issue: Who was responsible for causing the death of Cherry? The court’s decision (application of the legal principle to the facts): It was reasonably foreseeable that if a person drove negligently and injured a third party, another person might come to the third party’s aid. It was not necessary that the precise sequence of events be foreseeable. Chapman was therefore liable for causing the death of Cherry.

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Legal significance of the case: While sometimes the second tort can be so overwhelming as to break the chain of causation between the first tortfeasor and the harm, sometimes it is not. In the latter case, the first tortfeasor remains liable.

8.18

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 Court: High Court of Australia Facts: A truck loaded with fruit and vegetables was parked in the middle of a six-lane highway. The load was to be taken to the adjacent fruit and vegetable business via a forklift. The plaintiff, a car driver (impaired by alcohol), hit the truck. Action was brought against two defendants: 1. the owner of the fruit and vegetable business; and 2. the truck driver. At the trial, it was found that the defendants were 30 per cent at fault and the plaintiff was 70 per cent at fault in terms of contributory negligence. On appeal, the Full Court of the Supreme Court found that the plaintiff was 100 per cent to blame, that is, a finding of 100 per cent contributory negligence. Legal principle: What was the correct apportionment of liability? The court’s decision (application of the legal principle to the facts): In the High Court, the trial judge’s apportionment was restored. Significance of this case: Mason CJ noted (at ALR 429) that the ‘but for’ test of causation while important is not exclusive. He said it does not provide a total answer. Causation may often involve an element of speculation on the part of the court: ‘[I]t is often extremely difficult to demonstrate what would have happened in the absence of the defendant’s negligent conduct’ (at ALR 429). The ‘but for’ test gives way to the ‘what would’ (have happened) hypothetical. Deane J, on the ‘but for’ test, asked if it were the exclusive test. He answered that no, it is not the exclusive test. He hypothesised that, if it were the exclusive test, it would give rise, in certain circumstances, to a no-result possibility. For example, what of two independent and sufficient causes? In that case, there would be no result if the ‘but for’ test were an exclusive test.

The court states that causation may be a matter of common sense: As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant’s wrongful conduct has generated the very risk

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of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things.

The principle derived from March v Stramare is often called the ‘common sense’ rule of causation.

More complex causation scenarios Multiple contributing causes 8.19

Chapman v Hearse and March v Stramare are examples of cases where there are successive causes of a single injury. The plaintiff ’s loss arises because of several causal factors that occur at the same time and which, in combination, give rise to the loss. In this situation, both the defendant’s negligent conduct as well as other causal factors are necessary conditions of the loss. As a result, the defendant’s liability can be assessed as follows: •• One tortious contributing cause and other non-tortious causes: In this case, the defendant (that is, the party responsible for the tortious cause) will be liable for the whole of the plaintiff ’s loss unless he or she can accurately establish the percentage contribution of the non-tortious factors to the loss. •• Two or more contributing tortious causes: In this case, each of the defendants will be liable to contribute to the plaintiff ’s loss in proportion to their respective contributions, that is, it might be 50 per cent each or 90–100 per cent depending on the facts and circumstances. Whatever the case, the liability of the defendants will, taken together, add up to 100 per cent. Where the causes — tortious and non-tortious — are not able to be clearly differentiated or proved: •• Where the plaintiff cannot prove the relative contributions made by the different causes, the defendant may be liable for the whole of the loss if the defendant’s tort ‘materially contributed’ to the loss.

8.20

Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615 Court: House of Lords Facts: This involved tortious and non-tortious events. The plaintiff, a steel dresser, was exposed to silica dust in a factory operated by his employer. He contracted the disease pneumoconiosis (dust on the lung). The dust came from two sources: 1. a swing grinder: which was fitted with dust-reducing equipment; and 2. a pneumatic hammer: for which, at that time, there was no known way of reducing or removing dust.

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Causation

The dust-reducing equipment on the swing grinder was clogged and, as a result, it was not working efficiently. This was a tortious cause of the plaintiff’s damages. Did it make a material contribution to the plaintiff’s disease? The court held it was material if it was ‘not negligible’. Dust from the pneumatic hammer was a non-tortious cause because there was nothing that the employer could do about it. Legal principle: Was the employer liable for the whole of the damage suffered by the plaintiff? The court’s decision (application of the legal principle to the facts): The employer was liable for the whole of the damage suffered by the plaintiff. Significance of this case: In cases of tortious and non-tortious events, the tortfeasor may be liable for the whole of the loss.

Multiple successive causes Where different factors occur at different times 8.21

Successive tortious acts are covered by the ‘three rules’ in SGIC v Oakley.9 On the assumption there have been two tortious acts, committed by two defendants, the rule in Oakley’s case states: 1. If the second incident would not have occurred, but for the fact that the plaintiff was in poor health because of the first, then the first defendant is regarded as liable for both the damage from the first and the second tortious injury. 2. If the second incident would have occurred, even if the plaintiff was in good health, but the second injury involves an aggravation of the first injury, then the first defendant remains liable for the first injury, and the aggravation to that injury caused by the second incident. The second defendant is only liable for any injury of a new or different kind caused by the second incident. 3. If the second injury would have happened, even if the plaintiff was in good health, and the second injury involves no aggravation of the first injury, then each tortious injury is regarded as causally separate such that the first defendant is liable for the first injury, and the second defendant is liable for the second injury. An alternative approach to that in SGIC v  Oakley was suggested in the Queensland case of Nilon v Bezzina.10 In that case, a plaintiff was injured in a car

9. SGIC v Oakley (1990) Aust Torts Reports ¶81-003. 10. Nilon v Bezzina [1988] 2 Qd R 420.

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accident in  1976 and lost 35 per cent of his earning capacity. A subsequent car accident in 1982 resulted in another injury to his spine. After this second incident, his loss of earnings was increased to 70 per cent. The Court of Appeal decided that, despite the fact that the second injury ‘overwhelmed’ the first (and was separate from it), the first tortfeasor remained liable for 50 per cent of the loss of earning capacity. Where there has been a tortious act, followed by a subsequent non-tortious event independent of the first, but certain to have happened, then the original tortfeasor is only liable for the extent of the loss caused up until the time of the second event.

8.22

Jobling v Associated Dairies Ltd [1982] AC 794; [1981] 2 All ER 752 Court: House of Lords Facts: The plaintiff was employed by the defendant. As a result of the defendant’s negligence, he injured his back in 1973. Between 1973 and the trial in 1979, he developed a separate back condition which rendered him totally unfit for work. This condition was discovered in 1976. Legal principle: What was the scope of the defendant’s liability? That is, was it liable for losses: • from 1973–1976; or • from 1973 onwards? The court’s decision (application of the legal principle to the facts): The court held that the subsequent illness would ‘have overtaken the plaintiff in any event’. The employer was liable for damages from 1973 to 1976 but not beyond then. The illness was regarded as a vicissitude of life (that is, a non-tortious event) and so could be disregarded in arriving at ‘proper’ compensation. Where a tort has been committed and then an independent non-tortious event occurs, a court will assess the degree of probability that the second event would have occurred, or might have occurred, and will adjust its award of damages against the tortfeasor to reflect the degree of probability: Malec v  JC Hutton Pty Ltd.11 Significance of this case: Where there has been a tortious act, followed by a subsequent non-tortious event independent of the first, but certain to have happened, then the original tortfeasor is only liable for the extent of the loss caused up until the time of the second event.

11

11. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

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Causation

Res ipsa loquitur 8.23

Res ipsa loquitur is a principle which permits a court, in the absence of positive proof as to what did cause damage to occur, to draw an inference as to what has occurred. The principle applies provided three conditions are satisfied: •• There is an absence of explanation of the occurrence that caused the injury. •• The occurrence was of such a kind that it does not ordinarily occur without negligence. •• The instrument or agency that caused the injury was under the control of the defendant. The court may then (but is not obliged to do so) draw an inference that what must have happened was that the defendant was negligent. See the High Court’s decision in Schellenberg v Tunnel Holdings Pty Ltd.12

Remoteness of damage 8.24

We have examined the factual causation aspect.We will now deal with the final element — legal causation or remoteness. This requirement is negative in nature — the damage sustained by the plaintiff must not be too remote. In order to succeed in a negligence claim, the plaintiff must show that: •• The defendant owed a duty of care. •• The defendant breached that duty of care. •• The breach caused injury to the plaintiff, which is not too remote. The concept of remoteness is now embedded in s 5D(1)(b) of the Civil Liability Act 2002 (NSW): 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: … (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).

Early approaches to remoteness 8.25

The early approach (pre-1960s) to remoteness was simple. There was none. All a plaintiff needed to do was establish that the defendant’s negligence had caused the plaintiff ’s loss. In summary:

12. Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.

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Torts: Principles, Skills and Application

•• Causation was critical. •• Remoteness did not factor itself into the equation of whether the defendant was liable. •• This early approach is exemplified by Re Polemis and Furness,Withy & Co Ltd.13 •• The early approach changed in the 1960s with two cases referred to as ‘the Wagon Mound cases’:14 - Overseas Tankship (UK) Ltd v  Mort’s Dock and Engineering Co Ltd (The Wagon Mound (No 1)); and15 - OverseasTankship (UK) Ltd v Miller Steamship Co Pty Ltd (TheWagon Mound (No 2)).16

Interplay of remoteness and reasonable foreseeability 8.26

The ‘old’ test for remoteness of damage, exemplified by Polemis,17 was very wide. Its practical effect was that the defendant was liable for all direct consequences of his or her actions. It was suitable for its day because of the then legal context. That is, it was: •• pre-Donoghue v  Stevenson18 and the establishment of general duty of care principles; and •• prior to the indeterminacy concerns enunciated in Palsgraf v  Long Island Railroad Co.19 The Polemis test survived a long time. It was criticised for being too broad. It was, as we have seen, eventually overruled by the Privy Council in the 1960s in the Wagon Mound cases. The new rule was reasonable foreseeability. That is: •• the defendant was liable for all reasonably foreseeable damage; and •• the reasonable foreseeability test replaced the direct consequences test. Was the new rule any better? Was it too wide? Was it certain or just as vague? It led to its own technicalities as courts determined whether foreseeability of damage referred to: •• the type of damage which might flow from the negligence. This became a classification issue; and •• the extent of the damage. This became a question of degree. We look briefly at cases dealing with these issues below.

13. Re Polemis and Furness,Withy & Co Ltd [1921] 3 KB 560. 14. These cases are discussed in M Davies & I Malkin, Butterworths Tutorial Series — Torts, 4th ed, LexisNexis Butterworths, Sydney, 2003, Ch 5. 15. Overseas Tankship (UK) Ltd v Mort’s Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388. 16. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617. 17. See  H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017. 18. Donoghue v Stevenson [1932] AC 562. 19. Palsgraf v Long Island Railroad Co 248 NY 339 (1928).

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Types of foreseeable damage 8.27

8.28

In the following case, the court applied a general test of foreseeability.

Hughes v Lord Advocate [1963] AC 837; [1963] 1 All ER 705 Court: House of Lords Facts: Council workers were digging a hole and they had a ladder going down into it. They had covered it with a tent. They lit a paraffin lantern in the tent and went on a tea break leaving the lamp lit. Two young boys went into the tent and were severely burnt when the lamp fell into the hole and exploded. Legal principle: Was the council liable to the boys for their injuries? The court’s decision (application of the legal principle to the facts): It was held that the type of injury suffered (burns) was foreseeable as a result of the workers leaving the lamp lit and unattended. Three possibilities were canvassed by the court: 1. Reasonable foreseeability of loss — a damage test. These damages were recoverable. 2. If the type of damage is not foreseeable, then no recovery. 3. Hybrid, that is, the type of loss may be foreseeable, but the manner of its occurring is not foreseeable. In broad terms, the court took the first option. They said that it did not matter that the exact chain of events was not foreseeable, that is, the exact manner in which the harm occurred. The workers had created a known source of danger: • burns were a type of injury that were foreseeable; and • but the exact manner of those burns coming about does not have to be foreseen, that is, the exact sequence or chain of events does not have to be able to be predicted. Significance of this case: As a law student, and would-be lawyer, it always helps to bear in mind the context of the case. For example, the context of Hughes included: • Child plaintiffs: as we have seen, the courts are more lenient with children and seek a remedy where possible. • The defendant: was a council with resources. • The facts: workers were off on their tea break. Background and context: As Hughes demonstrates, the courts apply a test of general, as opposed to specific or pinpoint accuracy, foreseeability. That is, the following elements do not have to be foreseeable: • the precise way the injury happens; • how the loss actually occurs; and • the exact manner of the kind of injury occurring.

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Extent of injuries 8.29

What happens if the type of injury is not in question, but its extent is? Extent of the injury becomes the focus. It becomes a question of degree. The practical issue for the court is that it will ask where it should draw the line as far as the defendant’s liability is concerned in terms of the injury/loss sustained by the plaintiff. By analogy with a numerical example, let’s say that, on a scale of 1 to 10, the defendant’s negligence gave rise to injuries equating to 2 out of 10 for most plaintiffs of this plaintiff ’s class, but this particular plaintiff ’s injuries turn out to be 9 on the scale. The issue is thus: does the court award damages equivalent to 2 or 9 out of 10? For example, if a defendant inflicts an injury causing a nosebleed and the plaintiff is a haemophiliac, then the plaintiff would bleed beyond the ordinary or normal range. Or a plaintiff with a particularly soft or ‘thin’ skull who suffers a head injury may suffer haemorrhaging and other complications which others with normal skulls would not. Negligence law sets up an idealised standard where ‘one size fits (mostly) all’. A bar is set: that of the ‘normal’,‘ordinary’ and ‘reasonable’ person. It is expressed as an objective test, that is, ‘the man on the Clapham omnibus’ or the person on the Manly ferry or the Bondi tram. It becomes a convenient starting point for the courts. They can then ask: how does the plaintiff vary from that point on the spectrum? It is a useful device? Why? •• •• •• ••

It reduces litigation. It mitigates the floodgates threat and notions of indeterminacy. While it is not statistically informed, it will resolve most cases. It allows the courts to isolate the difficult cases by categorising the problematic issues.

What are the difficult issues/cases? They are those involving: •• children; and •• adults with particular propensities or predispositions such as ‘eggshell skulls’ or other vulnerabilities. As we have seen, generally the law values stoicism (for example, Lord Denning’s judgments referred to in Chapter 4). The cases dealing with the extent of a plaintiff ’s injuries, therefore, present particular challenges for the courts.20

20. Consider, for example, the approach of the law to liability for psychiatric harm.

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8.30

Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 Court: New Zealand Court of Appeal Facts: This New Zealand case is not binding in Australia, but the case provides a good review of the cases in this area. The plaintiff was a worker. He cut his hand as the result of the employer’s negligence. His hand became swollen and feverish, and he was taken to hospital. He suffered irreversible brain damage as the result of a virus entering the wound. Legal principle: Should the negligent employer be liable for the whole extent of the injury including the brain damage given the worker’s particular predisposition to the virus? The court’s decision (application of the legal principle to the facts): Richmond J reviewed the Commonwealth cases. He found that the eggshell skull (or thin skull) principles still represented good law. They provide a foreseeability ‘principle’ which allows cases at the margins to be resolved. Richmond J found that they supported a position that, if a defendant negligently caused a physical injury, then that defendant will be liable for the consequences which flow from: • the pre-existing special susceptibility of the victim, in this case, the brain damage; and • the new risk or susceptibility created by the initial injury. Significance of this case: As noted above, this case is not binding in Australia, but is a good review of the cases in this area. Background and context: There are three critical inquiries: 1. Are the consequences of a kind, type or character which the defendant ought to have foreseen? 2. Is the injury of a kind, type or character which is reasonably foreseeable? 3. Then there is the necessary link between the defendant’s negligence (that is, the initial injury is covered) and the ultimate consequences of the initial injury. That is, is there an adequate relationship of cause and effect between the initial injury and the ultimate consequences?

Child plaintiffs 8.31

As we have noted, cases involving children present the courts with difficult issues. Should more latitude be accorded to child plaintiffs? What of the injuries suffered? What is their character and type? These are some of the factors referred to in the following case.

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Torts: Principles, Skills and Application

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 Court: New South Wales Court of Appeal Facts: This case involved a 10-year-old boy who suffered a minor laceration when he fell from a school bus. He hit his head on a pole. He was taken to hospital, observed and then discharged. Subsequently, he developed Ganser syndrome, a statistically rare psychiatric disease. Legal principle: What were the ‘recoverable damages’? Was the transport authority liable in negligence for: • the initial laceration; or • the onset of Ganser syndrome? The court’s decision (application of the legal principle to the facts): The Urban Transit Authority was liable for both damages: the laceration and the onset of Ganser syndrome. The initial laceration was a material contributing cause of the serious illness which followed it. There was a close association between the two events. As to the issue of timing, the manifestations of Ganser syndrome were present immediately after the accident. It formed part of the recoverable damages.

Scope of liability under the Civil Liability Acts 8.33

Since the advent of the Civil Liability Acts, the Wagon Mound test of remoteness has been adopted as the test of scope of liability.That is, was the type or kind of harm reasonably foreseeable? Additionally, courts have also been empowered 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’:21 While this does allow courts to consider whether it is appropriate that liability extend to the harm suffered, courts have cautioned against ‘thinking too hard’ about the issue — especially in motor vehicle cases. In Zanner v Zanner,22 the plaintiff was injured when her 11-year-old son was driving a car into a garage. The 11-year-old’s foot slipped, and the car hit the plaintiff who was standing in front of the car.The court had no difficulty either in finding that factual causation was satisfied (‘but for the negligent driving of the 11-year-old, would his mother have been injured?’), nor that the damage suffered was within the scope of liability. Allsop P noted that ‘[t]his case does not demand any great agonising’.23 Similarly in French v QBE Insurance (Australia) Pty Ltd,24 Fryberg J suggested that the allowance made in Civil Liability Acts for

21. Civil Liability Act 2002 (NSW) s 5D(2). 22. Zanner v Zanner (2010) 79 NSWLR 702. 23. Zanner v Zanner (2010) 79 NSWLR 702 at [12]. 24. French v QBE Insurance (Australia) Pty Ltd [2011] QSC 105 at [55].

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the courts to examine policy factors when deciding whether or not scope of liability has been satisfied does not ‘require a trial judge to reinvent the wheel in every case … In an ordinary case it suffices for the purpose of deciding the scope of liability to observe that liability should be imposed because the case law requires it’. For an example of a case where the High Court decided it was not appropriate for liability to extend to the harm suffered, see Wallace v Kam.25 In that case, there were two possible side effects of proposed surgery. The patient was told of neither. The court accepted that, had he been warned of the risk which did not eventuate, he would not have elected to undergo the surgery. That risk did not eventuate, but the other one did.

25. Wallace v Kam [2013] HCA 19.

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Review The aim of this chapter has been to provide a brief introduction and overview of the issues of factual causation and scope of liability. These are probably, along with duty, the two most difficult areas of the law of negligence for the courts and for lawyers advising their clients.That being the case, they inevitably provide a challenge for would-be lawyers.



Reading H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and G Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Chs 4 and 5



Key Cases Adeels Palace Pty Ltd v Moubarek; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420 Amaca v Booth [2011] HCA 53 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428; [1968] 1 All ER 1068 Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 Hughes v Lord Advocate [1963] AC 837; [1963] 1 All ER 705 Jobling v Associated Dairies Ltd [1982] AC 794; [1981] 2 All ER 752 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2012] QCA 315 Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 Perisher Blue Ltd v Harris [2013] NSWCA 38 Roads and Traffic Authority v Royal [2008] HCA 19 Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 Strong v Woolworths Ltd (2012) 285 ALR 420



Chapter 8 Review Questions



1. What does factual causation mean in the context of negligence? 2. How is the term ‘scope of liability’ used by the courts? 3. What is the significance of the tests for: (a) the type of damage; and (b) the extent of the damage?

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Tutorial 8: Factual causation/scope of liability

Internal memorandum From: Guido Markewicz To: Trainee Showtime Unlimited is a fairground operator. Last Saturday night, the big top was struck by lightning in a freak electrical storm, the first to hit Dubbo ‘in years’ according to local residents. This caused the power in the tent to short circuit and to go out. The crowd panicked and tried to rush from the tent. A stand collapsed and some 28 people were injured (including nine children). Several people are still in hospital.The back-up generator was not in operation. It was being overhauled. Showtime’s insurers are Stargazer Insurers — notorious defenders of claims. I have been instructed on behalf of the injured 28 people to investigate the possibility of a class or group action against Showtime Unlimited. Showtime has denied the claim on the basis that neither the injuries nor the manner in which they occurred was foreseeable and was, therefore, too remote. What do you think? Make notes for a negotiation meeting that I want to call with Stargazer. Thanks, Guido



Tutorial 8: Student Example Answer Prepared by: Rachael Hennessy, Law, UNE

Internal memorandum From: Rachael Hennessy To:

Guido Markewicz

Date: 01/01/20XX Re: Notes for negotiations with Stargazer Insurers Attached are the notes you requested for the negotiations with Stargazer Insurers. From the facts at hand, it appears that those who have been injured may have a claim against Showtime Unlimited. 399

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1. Duty of care To decide if Showtime Unlimited owed a duty of care, it must be decided whether the injuries and the damage caused to the 28 victims were reasonably foreseeable.26 The 28 victims claim that their injuries are a result of the negligence of the respondent; therefore, it seems that the victims were in the class of people who were at risk if Showtime Unlimited was to act negligently. The duty in this case appears to be contractual; in buying a ticket one would expect to have precautions taken to avoid injury. In Sutherland Shire Council v Heyman, Deane J stated: 27 … in cases of personal injury or property damage, there is sufficient proximity of relationship between the defendant and the plaintiff to give rise to a duty of care if injury to the latter is a reasonably foreseeable consequence of the negligence of the former.

In his decision Deane J also proffered that for a duty of care to be present there must be: • loss or damage to the plaintiff; and • a requisite degree of proximity in the relationship between the plaintiff and the defendant.28 When applying the decision in Sutherland Shire Council v Heyman, it appears that Showtime Unlimited owed a duty of care to the plaintiffs.29 There was damage as well as the physical proximity of being present in their big top tent. Standard of care owed There are many issues to be considered when calculating the standard of care owed by Showtime Unlimited to its patrons. One question that must be asked when considering this element is whether the company issued a disclaimer.The decision in Macleay Pty Ltd (t/as Wobbie World) v Moore30 held that a disclaimer does not prevent a body being found negligent if it is not made obvious to possible plaintiffs. It is fair to assume that the standard of care would be high due to the fact that young children and families would have been attending and had placed their safety in the hands of the fairground operators. In Turner v  South Australia, Gibbs CJ held that: … where it is possible to guard against a foreseeable risk which, although perhaps not great nevertheless cannot be called remote or fanciful, by adopting 26. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495; 60 ALR 1 at 53–4. 27. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495; 60 ALR 1 at 53–4. 28. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495; 60 ALR 1 at 53–4. 29. Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495; 60 ALR 1 at 53–4.While the two-stage test for proximity has been criticised in Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687, the High Court has not stated another measurement and, therefore, this test must still be applied. 30. Macleay Pty Ltd (t/as Wobbie World) v Moore (1992) Aust Torts Reports ¶81-151.

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a means which involves little difficulty or expense, the failure to adopt such means will in general, be negligent.31

The fact that the back-up generator was being overhauled at the time of the show suggests that a greater standard of care should have been displayed to avoid damage. The greater the vulnerability of the plaintiff, the greater the precautions needed to be taken.32 The fact that children were present suggests that the company should have displayed a higher standard of care. Some issues that may affect the standard owed are: • the presence of families and children in the big top; • any possible disclaimer; • the absence of a back-up generator; and • whether the fairground operators acted as a reasonable company would. From the facts that have been offered, it appears that a high standard of care should have been displayed. The prime factors in determining the precautions that should have been taken are: the gravity of harm; the existence of practical alternatives; the probability of such an accident occurring; and whether the defendant can justify its actions. These factors will be discussed next. 2. Breach of the duty of care In deciding whether Showtime Unlimited has breached its duty of care, the question must be asked as to whether there is legislation providing that backup generators are mandatory. If so, this may well have an impact on whether the defendants are found liable in negligence. (a) Gravity of harm: Paris v Stepney Borough Council claims that the higher the vulnerability of the plaintiff the higher the risk.33 The fact that eight of those who were injured were children and the probability that the victims were in a crowded environment suggests that the gravity of harm was high. (b) Practical alternatives: The alternatives open to the operators were to ensure that they had the back-up generator in a working condition and emergency procedures, that is, emergency back-up lighting, in place. The outcome of this will be affected if the operators carried out an accepted emergency plan. (c) Probability: It is fair to assume it is highly probable that, in that environment, damage would occur if precautions were not taken. (d) Justifiability: Unless the operators can justify why there was no back-up generator and why a stand was able to collapse, it is possible that they could be found liable. 31. Turner v South Australia (1982) 42 ALR 669 at 670; 56 AJLR 839. 32. Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42. 33. Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42.

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3. Causation According to Gummow J in Chappel v  Hart,34 the question to be asked in assessing causation is whether the defendant caused the results complained of. The ‘but for’ test must also be applied; would the injuries have occurred but for the negligent conduct of the defendant?35 If not, the defendant is likely to be found liable in negligence. Another issue that may affect the chain of causation was whether there were any novus actus interveniens (independent subsequent events). To establish whether this has been the case, it is necessary to consider the fact that the conduct of the plaintiffs was voluntary. It must also be considered whether there was any subsequent negligent conduct by the defendant or other parties. Additional information is necessary before this can be discussed in more detail. 4. Remoteness Lord Reid in Hughes v Lord Advocate stated that: 36 … a defender is liable, although the damage may be a good deal greater in extent than was reasonably foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.

It seems fair to conclude that it is not too remote a consequence that people would panic during a power failure in a crowded area. In addition, bad weather is reasonably foreseeable; it does not take a ‘freak’ thunderstorm to cause power failure. 5. Defences It is highly likely that Showtime Unlimited will put forward a defence. This could be any one of the following: voluntary assumption of risk, contributory negligence or the lack of presence of a duty of care owed. Voluntary assumption of risk If there is consent by the plaintiffs, that is enough to allow volenti to succeed. It seems highly unlikely that this defence can succeed because it would be very difficult to prove that the injured children would have had the capacity to consent to the risks that they encountered. Unless there was an obvious disclaimer and the injured patrons were aware that the back-up generator was being overhauled, it seems unlikely that this defence could succeed.

34. Chappel v Hart (1998) 195 CLR 232; 156 ALR 517. 35. March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423. 36. Hughes v Lord Advocate [1963] AC 837 at 845; [1963] 1 All ER 705.

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Contributory negligence The operators may allege that those who have been injured contributed to the damage. In such a case, it would be a viable defence to claim that this is an ‘agony of the moment’ case, especially because children were involved.37 6. Further steps to take in assessing liability • • • • • • • • • •

What were the injuries sustained? When was the back-up generator last in working condition? Why was it being overhauled? Was there any emergency procedure or lighting? If so, was it followed correctly? What caused the stand to collapse? Was the stand safe and who constructed it? Had the stand been inspected? Are there any disclaimers? Were there any breaks in causation? Were weather conditions obvious?

37. Shelley v Szelley [1971] SASR 430.

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Chapter 9

Damages Legal practice skill: Client advice and estimates of damages

Learning aims •

Appreciate the different types of torts damages

•

Gain insights into the fact that awards of damages are aimed at restoring plaintiffs to their pre-accident positions

•

Appreciate the practical challenges for courts in awarding damages

Introduction 9.1

This chapter will primarily relate to assessing damages in personal injury cases. It will concentrate on the common law principles relating to assessing damages, but will also comment on how recent statutory provisions have either altered or fortified the common law principles. The amount of damages that may be payable is usually the most important consideration for the parties to a tort action. The legal practitioners from both parties will consider the issue of damages in order to determine whether to launch an action or whether it would be strategically better to settle a matter.

The aim of tort damages 9.2

9.3

The award of damages in the tort law context aims to restore the plaintiff to his or her pre-accident position, as far as money can do so. It looks to put the person who has suffered harm back to the moment before the accident or loss-inducing event. Damages in contract, on the other hand, look forward.They are predicated on the future and the completion of the contract.The context for damages claims arising can be in negligence or another basis, for example, breach of statute. In negligence, the plaintiff must prove on the balance of probabilities that the: •• defendant owed a duty of care; •• defendant breached the duty of care; 405

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•• plaintiff suffered compensable loss or damage, that is, loss or damage recognised by the law as something of value and not merely insignificant or a trifle; and •• defendant’s breach caused the plaintiff ’s injury, loss or damage, that is, there is a logical and legal link between the defendant’s wrongdoing and the loss suffered by the plaintiff. If the plaintiff can show that he or she has suffered damage, injury or loss of a type which is recognised at law, the court awards damages, and will do so by ascertaining a monetary figure that equates to the loss as closely as possible.

Damages arising in other contexts 9.4

9.5

As noted above, other contexts in which damages may be relevant include claims in respect of statutes.This will depend on the basis of the relevant statute and the interpretation of the particular provision. It may be that fault does not have to be proven by the plaintiff. An example of this is recovery under no-fault schemes, such as workers’ compensation and motor vehicle accidents. As we have seen, damages become relevant only if the plaintiff can establish all the other elements of negligence such as a duty of care and breach of that duty. Damages are, therefore, a further element of the claim. Note that there is a distinction between damage and damages. Damage relates to the physical injury or loss, whereas damages relates to the monetary equivalent of the loss or injury.With a physical injury, the courts operate to find equivalence between injury and dollar values. They do this by taking the particular circumstances of the plaintiff into account. The damages will, therefore, vary from case to case and plaintiff to plaintiff. For example, what is a broken arm worth to? •• •• •• ••

a 12-year-old school student; an 18-year-old piano prodigy; a surgeon; and a labourer.

The types of issues relevant to the quantum of damages in such a case will include: •• Will the injury leave permanent loss of function? •• Will it involve loss of earning capacity? •• Is the preferred arm or the non-preferred arm involved?

Classifying damages 9.6

In most instances, the aim of damages is to put the plaintiff in their pre-tort position. Generally, the damages that are awarded relate to expenses that the plaintiff either has incurred or will incur in the future. In addition to this, 406

9.10

Damages

there are some less commonly used heads of damages that fulfil other purposes: nominal, contemptuous, aggravated and exemplary damages. These types of damages are defined below.

Nominal damages 9.7

Nominal damages are awarded when the plaintiff proves no more than the fact that the defendant has committed a tort against the plaintiff. An example of this is where a trespass to the person action may be viable, but there is no actual damage to compensate for. This head of damage is not relevant to negligence actions because of the absence of the damage element.

Contemptuous damages 9.8

Contemptuous damages are a very small award of damages when the plaintiff ’s case is established but the jury or judge believes that the conduct does not warrant a greater award. This smaller award may reflect the court’s displeasure with the plaintiff ’s conduct (that is, if it is frivolous, vexatious or vindictive). Nowadays, the courts have discretion as to the awarding of costs; in former times when costs rules were quite restrictive, a finding of contemptuous damages did not give rise to a presumption for the plaintiff that they would be awarded costs. (Whereas, such a presumption did operate in favour of a plaintiff who was awarded nominal damages.)

Aggravated damages 9.9

Aggravated damages are generous and significant damages awarded when the manner in which the tort was committed was insulting and humiliating. In New South Wales v Zreika,1 Sackville AJA defined ‘aggravated damages’ as ‘compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant’s wrongdoing’. Thus, aggravated damages are ‘assessed from the point of view of the plaintiff ’.2 Section 21 of the Civil Liability Act 2002 (NSW) disallows an award of aggravated damages in a negligence action that is under the umbrella of the Act.Thus, in most circumstances, aggravated damages are more readily awarded in intentional tort cases, such as assault and battery.

Exemplary damages 9.10

Exemplary damages may be awarded where the defendant’s conduct is so outrageous that the court awards more than compensatory damages in order to punish and deter the defendant (and others) from acting in this manner.

1. New South Wales v Zreika [2012] NSWCA 37 at [60]. 2. New South Wales v Zreika [2012] NSWCA 37 at [60].

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Torts: Principles, Skills and Application

Sackville AJA stated in New South Wales v Zreika3 that even though exemplary damages are not awarded often, they can be awarded ‘in a wide variety of circumstances’. Therefore, if exemplary or punitive damages are awarded, the plaintiff effectively receives a windfall. As  opposed to aggravated damages, exemplary damages are ‘based on the conduct of the defendant’.4 As with aggravated damages, s 21 of the Civil Liability Act 2002 (NSW) precludes an award of exemplary damages in negligence actions.

Compensatory damages 9.11

The most commonly awarded type of damages is compensatory. As the name suggests, compensatory damages endeavour to compensate the plaintiff for any losses that have occurred as a result of the defendant’s negligence. Todorovic v Waller5 sets out the main principles surrounding compensatory damages. These are: •• The plaintiff should be put back into his or her pre-accident position (as much as this is possible with a sum of money). •• Damages should be recovered once and forever in a lump sum (note that this principle is not as well established as it once was).6 •• It is not a matter for the court how the plaintiff chooses to spend his or her damages once they are awarded. •• The burden of proof lies with the plaintiff to prove the injury or loss for which he or she seeks damages.

Assessing damages 9.12

Damages are classified in a number of different ways. The two primary classifications of damages are: •• special and general damages; and •• pecuniary and non-pecuniary damages.

Special and general damages 9.13

The difference between special and general damages is based on the time they occurred and their specific or general nature.

3. New South Wales v Zreika [2012] NSWCA 37 at [61]. 4. New South Wales v Zreika [2012] NSWCA 37 at [60]. 5. Todorovic v Waller (1981) 150 CLR 402. 6. In Todorovic v Waller (1981) 150 CLR 402 at 412, Gibbs CJ and Wilson J stated that ‘the court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it’.

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Damages

Special damages are incurred after the negligence up to settlement; as they are incurred, they are exact dollar amounts to be quantified. By contrast, general damages look to the future and are approximations.We can represent these two types of damages in general terms on a timeline as set out in Table 9.1.

Table 9.1 Date 1: Of the accident or loss incurring in which the plaintiff suffers damage

Special damages are incurred by the plaintiff – these cover the period between the accident and the trial/verdict

Date 2: The trial and verdict; an award of general damages may be made to the plaintiff

Special damages:

General damages: Usually, this involves an award of ‘once and for all’ damages.

These include: • out-of-pocket expenses; and • other expenses incurred from the date of the accident to verdict.

These may include an award of: • special damages; and • general damages. Calculation of general damages: These may include: • future loss of earning capacity; and • pain and suffering endured since the date of the event.

9.14

Special and general damages are a broad classification of the damages that are relevant both before and after the case has gone to trial. Thus, special damages are the losses that are assessed between the date of incident or injury and the verdict. These types of damages can generally be assessed with a relatively high degree of precision as the costs have usually already been incurred by the plaintiff. For example, some of the costs that may be relevant include hospital and medical expenses that have been paid for. On the other hand, general damages are more difficult for the courts to assess as they are typically dealing with future expenses that have not eventuated at the time of the verdict. Future pecuniary losses may be awarded (such as loss of earning capacity) as well as future non-pecuniary losses such as pain and 409

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Torts: Principles, Skills and Application

suffering. Some general damages also arise from the date of the injury and are assessed at trial; these include pain and suffering. Hence, the terms ‘general’ and ‘special’ are somewhat ambiguous and refer variously to both the nature of the damage suffered and the time period.

Pecuniary and non-pecuniary damages 9.15

The other main classification of damages is pecuniary and non-pecuniary. Put simply, pecuniary damages relate to damages that can be classified in a more precise way. On the other hand, non-pecuniary damages relate to losses that are not as easy to quantify in a precise manner.7 Examples of pecuniary and non-pecuniary damages are shown in Table 9.2.

Table 9.2 Pecuniary damages Hospital, medical and care expenses

Loss of earning capacity

Loss of ability to earn money Non-pecuniary damages Loss of amenity or loss of enjoyment of life

Pain and suffering

Loss of expectation of life

As noted above, pain and suffering can occur from the date of the incident. It is part of the award of general damages. Pain and suffering can be assessed in terms of two distinct time periods following the loss-incurring incident: •• from the date of incident to the date of trial; or •• from the trial onwards and into the future; this necessarily involves the court some projections about likely future events, and circumstances relevant to the plaintiff. Trial should only be sought when the plaintiff ’s injuries have at least stabilised.

7. Note that some legislation, such as the Motor Accidents Compensation Act 1999 (NSW), refers to non-pecuniary loss as non-economic loss.

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Damages

Heads of damages 9.16

We will now look at the different heads or types of damages that are available in a negligence action. The heads of damages that are discussed in this section are pecuniary and non-pecuniary damages.

Pecuniary damages 9.17

By their nature, pecuniary damages are easier for the court to quantify as they can assess the amount of damages in a more precise manner. The pecuniary damages to be discussed include: •• hospital, medical and care expenses; and •• loss of earning capacity.

Hospital, medical and care expenses 9.18

This head of damages aims to compensate the plaintiff for all expenses that it would be reasonable to incur while treating and coping with the injuries. Expenses may include items such as wheelchairs, crutches and making modifications to one’s house (for example, the use of ramps for access, handrails, modifications to kitchen and bathrooms, and so on).

Is compensation assessed for hospital or living-at-home expenses? 9.19

9.20

An issue of increasing importance is whether or not the compensation for medical and care expenses should be on the basis of the plaintiff residing at home, or living in hospital or other type of medically supported facility. This is an issue also with aged care and with the National Disability Insurance Scheme (NDIS).

Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 Court: High Court of Australia Facts: The plaintiff, a woman aged 20, was severely injured in a motor vehicle accident caused by the defendant’s negligence. The defendant was her fiancé. As a result of the accident she became a quadriplegic and epileptic, lost the power of speech and suffered severe respiratory impairment. She was fully aware of her plight. Legal principle: The main issue that was in contention was whether or not the plaintiff should be compensated for medical expenses of living at home or within the hospital. It was stated in evidence that living in the hospital was significantly cheaper than living at home.

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Gibbs and Stephen JJ (Barwick CJ agreeing) stated that: The question here is not what are the ideal requirements but what are the reasonable requirements of the [plaintiff] … In these circumstances the future cost of reasonable nursing and medical attention, must, we think, be assessed on the basis of a lifetime substantially spent in hospital.8

It was recognised that the plaintiff would be unhappier living in hospital rather than at home, and her damages were therefore increased under the loss of enjoyment of life head. The court’s decision (application of the legal principle to the facts): The expenses that are payable for care expenses are for the reasonable requirements of the plaintiff rather than for the ideal circumstances. Thus, in this case the plaintiff was compensated on the basis of living in hospital, while making reasonably regular home visits, rather than living at home with constant care. In relation to whether or not the board and lodging should be deducted from loss of earning capacity, it was held, in this case, that these losses should be as ‘it is necessary to avoid compensating for gross rather than net losses’.9

Legal issue

Judge/s

Conclusion

Reasons given

Is the defendant required to pay for hospital or living-at- home expenses?

Gibbs and Stephen JJ

Expenses that meet the reasonable requirements of the plaintiff (in this case, hospital care).

The defendant only needs to meet the reasonable requirements of the plaintiff.

Should board and lodging expenses be deducted from earning capacity?

Gibbs and Stephen JJ

Yes

To the extent that there are years when she otherwise would have been earning an income.

89

8. Sharman v Evans (1977) 138 CLR 563 at 573–4; 13 ALR 57. 9. Sharman v Evans (1977) 138 CLR 563 at 577.

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Damages

Legal issue

Judge/s

Conclusion

What other expenses should be taken out of loss of earnings?

Gibbs and Stephen JJ

Travel fares and special clothing that would have been incurred when earning the income. Some allowance for sickness, early death and a period of unemployment.

Should the plaintiff’s loss of earning capacity be reduced because of her prospects of marriage?

Murphy J

No

Reasons given

‘A woman who loses her capacity to make the usual contributions of a wife and mother in a household suffers great economic deprivation … It is her capacity to work, either in the household or outside, which is affected.’

Background and context: Note that the public perception and attitude may now be favouring home care in circumstances such as those in Sharman v Evans. For example, in Rosecrance v Rosecrance,10 the court noted that there was a trend in medical opinion and community values to treat institutionalised care as a last resort. It was held in this case that the plaintiff’s health would benefit from being at home rather than being placed in institutionalised care. 10

10. Rosecrance v Rosecrance (1995) 105 NTR 1 at 25.

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Torts: Principles, Skills and Application

Gratuitous services 9.21

One of the other issues that relates to care expenses is whether or not the defendant is obliged to pay for care services if they are undertaken gratuitously. In other words, if the plaintiff ’s mother or husband wanted to provide care to the injured plaintiff for free, would the defendant still have to provide damages under this head of damages? Allowing damages to be payable for gratuitous services has many advantages. For example, from a policy perspective, tort damages should encourage the provision of non-institutional care by a family member or friend whenever possible.11 On the other hand, however, would awarding damages for services that do not need to be paid amount to an unfair windfall for the plaintiff? For a number of practical and policy reasons, it has been held that the defendant should still have to pay for care expenses, even if it is envisaged that these will be administered voluntarily.

Griffiths v Kerkemeyer12 Griffiths v Kerkemeyer,13 the male plaintiff was catastrophically injured, and as a result, he required constant nursing care for the rest of his life, which in this case would be provided by his fiancé at no external cost to the plaintiff. The defendant argued therefore the hospital and care expenses should be reduced to zero. The High Court rejected this argument and held that compensation could be payable for care expenses even when a member of the plaintiff ’s family had agreed to provide the services voluntarily.14 Such a claim was a departure from the longstanding principle that damage is only recoverable if there is evidence of ‘actual financial loss’.15 Notwithstanding this historical position, in Griffiths v Kerkemeyer it was held that the plaintiff could recover the cost of gratuitous care services, even though the plaintiff would not be under a legal obligation to pay for these services.16

9.22 In

The High Court held that what is critical and relevant is the loss ‘of capacity which occasions the need for the service’. The ‘existence of a legal liability to

11. Kirby J in Hodges v Frost (1984) 53 ALR 373 (Fed Ct of A, FC) at 379–80 stated: ‘In terms of public policy, it is at least arguable that the law of damages should encourage the provision of non-institutional care by acknowledging some entitlements to compensation in respect of gratuitous services offered by relatives and friends. Such services may prove to be more efficacious and certainly more congenial than paid services … A rule against such compensation could have a tendency to force an injured person to secure more expensive, less convenient … and less congenial paid services.’ 12. Note that Griffiths v Kerkemeyer (1977) 139 CLR 161 was recently followed by the Queensland Court of Appeal in Foster v Cameron [2011] QCA 48. 13. Griffiths v Kerkemeyer (1977) 139 CLR 161. 14. Griffiths v Kerkemeyer (1977) 139 CLR 161 at 163 per Gibbs J. 15. CSR Ltd v Eddy (2005) 226 CLR 1 at 15. 16. Griffiths v Kerkemeyer (1977) 139 CLR 161 at 193–4 per Mason J.

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9.23

Damages

pay for the service is not the dominant consideration’. It is the ‘market cost’ of providing the services which should be awarded. There were a number of compelling policy reasons why the High Court came to this conclusion. For example, Mason J reasoned that the defendant should not benefit from the willingness of a family member or friend of the plaintiff to look after the plaintiff free of charge.17 Stephen J, in a forward thinking judgment, also pointed out that not allowing for an award of damages in cases such as this will not only benefit the defendant but also their insurers and the community as a whole ‘at the expense of those who … have voluntarily undertaken the care of a loved one’.18 In addition, there is no guarantee that the volunteer carer would be able to fulfil the caring services indefinitely.Thus, the fact that the services are intended provided gratuitously is irrelevant. The true loss is the capacity which brings about the need for the services. The legislatures of the states and territories have since thoroughly reviewed and reduced the effect of the types of damages awarded under the principles enunciated by the High Court in Griffiths v Kerkemeyer as the following case demonstrates. 9.23

Kars v Kars (1996) 187 CLR 354 Court: High Court of Australia Facts: In this case, the plaintiff was injured by her husband’s negligent driving. As a result of her injuries, the plaintiff was unable to perform many of the activities of daily life by herself. Therefore, she had to recruit help from her husband as well as other family members and neighbours. The main legal question was whether or not the gratuitous services that were undertaken by her husband, who is also the defendant in the case, should be compensated for. Legal principle: The joint majority judgment examined both the arguments for and against providing recovery for the gratuitous services that were undertaken by the plaintiff. Arguments against recovery: • • •

•

The tortfeasor should not be obliged to pay for the needs twice (one in kind and one in money). The tortfeasor should not indirectly benefit from the tort through the chance that damages will flow back onto the household. The court should realistically address the possibility that services may no longer be provided, due to death, family breakdown, etc. Therefore, look at the probable proportion of care that will be provided by the husband. Inconvenient results will occur. There is no need to depart unnecessarily from basic legal principles.

17. Griffiths v Kerkemeyer (1977) 139 CLR 161 at 192–3. 18. Griffiths v Kerkemeyer (1977) 139 CLR 161 at 171.

415

9.23

Torts: Principles, Skills and Application

Arguments for recovery: •

• •

• •

•

• •

The purpose of these damages is to provide the injured party with adequate compensation. The fact that the defendant will provide the services does not diminish the needs created. From the plaintiff’s perspective, it matters not who fulfils the needs caused by the tort. Anomalies arise whatever view is taken, but a solution of legal principle should therefore be adopted that minimises such anomalies without unacceptable distortion of legal doctrine. The fact that the tortfeasor will indirectly benefit is a matter for the plaintiff. If there was no recovery, the plaintiff would have their damages effectively reduced by the fact that those needs are met by the family member who was the tortfeasor. Form would triumph over substance. It is by no means certain that the provision of voluntary services by a tortfeasor would necessarily be classified as conduct reducing the tortfeasor’s liability to the plaintiff. There is artificiality in the argument that the tortfeasor ‘pays twice’. The plaintiff’s needs remain exactly the same. Review of the relevance of insurance may be timely, but this is not the appropriate occasion for it.

The court’s decision (application of the legal principle to the facts): The appeal was dismissed. The plaintiff’s damages were assessed without taking into account that many of her care expenses would be met gratuitously and by the defendant husband.

Legal issue

Judge/s

Conclusion

Reasons given

Should the use of voluntary care services reduce the defendant’s liability under this head of damage?

Dawson J

No

‘The provision of gratuitous services to an injured plaintiff by a friend or relative is, to my mind, clearly to be categorised as an act of benevolence where there is no intention that it should result in the reduction of damages recoverable by the injured person.’19

19

19. Kars v Kars (1996) 187 CLR 354 at 362.

416

9.24

Damages

Legal issue

Judge/s

Conclusion

Reasons given

Is there a reason in principle why a person who is sued by a relative or friend should not provide gratuitous services?

Dawson J

No

If the defendant was a relative or friend, it is less likely that the plaintiff would sue without the presence of insurance. Quoted Lord Reid from Parry v Cleaver [1970] AC 1 at 14: ‘It would be revolting to the ordinary man’s sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relatives or of the public at large, and that the only gainer would be the wrongdoer.’

Market costs versus actual costs of care 9.24

Note that the care costs that were payable in Kars v Kars were found to be the market costs rather than the actual cost of care. Also see Van Gervan v Fenton.20 In Van Gervan v Fenton, the plaintiff was injured in a motor vehicle accident caused by the negligence of the defendant. After the accident, the plaintiff was in almost constant need of care, so his wife gave up her employment as a nurse’s aide to look after him. The trial judge calculated the value of these gratuitous services by awarding the amount of income that the wife had forgone in order to look after her husband. On appeal, the High Court held that the damages should have been assessed based on the reasonable market cost of the services rather than the amount of income that the wife had forgone by staying at home and caring for her husband.

20. Van Gervan v Fenton (1992) 175 CLR 327.

417

9.25

Torts: Principles, Skills and Application

Judgments in Van Gervan v Fenton21

9.25

Gaudron J (majority)

Mason CJ, Toohey and McHugh JJ (majority)

Brennan J (majority)

Deane and Dawson JJ (dissenting)

Need for services gives right for the damages

Omit from the list of services anything that the care provider would have provided in any event

Reduction in Omit from the damages only list of services where: anything that the care provider would have provided in any event

Damages not determined by reference to the income forgone by the provider of the services

Provided plaintiff is able to offer services to care provider in return

Provided plaintiff is able to offer services to care provider in return

There was a pre-existing need for his wife to provide domestic services before the accident (that is, no need is thus created)

Market value of the services of a full-time, live-in housekeeper calculated on the basis of a sevenday working week with timeand-a- half rates for Saturdays and double time for Sundays

Thus, services that are not just part of the give and take of a relationship

‘Market cost’ and ‘fair and reasonable’ value of the services

Wife should not be equated to an ‘indentured domestic servant’

Where cost is much greater or lower, the court may need to discount the market cost or value as ‘unreasonable’ in the circumstances

21. Van Gervan v Fenton (1992) 175 CLR 327.

418

9.26

Damages

Mason CJ, Toohey and McHugh JJ (majority)

Brennan J (majority)

Deane and Dawson JJ (dissenting)

Gaudron J (majority)

POLICY: No reason why damages should be diminished to the advantage of defendant Promote notions of ‘marital and family’ obligation Pay sum equivalent to what the provider would get paid if working commercially No binding agreement that services will continue Relationship between the parties may end

Gratuitous services: caring for children Sullivan v Gordon 9.26

When a plaintiff is injured as a result of negligence, the plaintiff may be unable to continue providing care to a third party, such as children, a spouse or elderly parents. This issue was extensively discussed in Sullivan v Gordon.22 In Sullivan v Gordon, the appellant suffered injuries in a motor vehicle accident, the principal injury being frontal lobe brain damage. The appellant alleged that the frontal lobe damage had a significant impact on her ability to deal with important aspects of her life, including her ability to care for her children. More specifically, her frontal lobe injury meant that her behaviour was difficult to control (at 325 per Beazley JA). Following the accident but before the trial, the appellant gave birth to two daughters by different fathers: A, born on 18 February 1991 and B, born on 23 April 1993. Before the date of the trial, she also had one abortion. While it was suggested that the appellant’s frontal lobe damage caused promiscuity, and therefore the birth of her children, the trial judge did not make this finding (at 326 per Beazley JA).

22. Sullivan v Gordon (1999) 47 NSWLR 319.

419

9.26

Torts: Principles, Skills and Application

At the date of the trial, A resided with her father or his relatives in New Zealand as the appellant claimed she had been unable to care for her. B lived with her mother, but was almost totally cared for by her grandmother. The main issue was whether the defendant should pay for the care expenses of the plaintiff ’s children (who were not in existence at the time of the negligent act), and whether the rule expounded in Griffiths v Kerkemeyer could be extended to cover care provided on a gratuitous basis to third parties. This question was decided in the affirmative for a variety of legal, social, policy and ethical reasons. From a social perspective, Mason P stated (at 322) that: For many women and some men, their own needs extend to care for other members of the family as naturally as they extend to the capacity to attend to their own personal functions.23

Additionally, from a policy perspective, the New South Wales Court of Appeal held, as was found in Griffiths v Kerkemeyer, that the wrongdoer should not benefit from the fact that care was provided by family members. CSR v Eddy 9.27

In 2005, Sullivan v Gordon24 was overruled by the High Court in CSR v Eddy.25 As a result of the latter case, voluntary care expenses for a third party (whether or not that care was being provided prior to the negligent act) were no longer claimable as a head of damage. In CSR v Eddy, the plaintiff contracted mesothelioma as a result of his employer negligently exposing him to asbestos. Before the onset of this disease, the plaintiff had provided many domestic services to his wife, who had osteoarthritis. Damages similar to those in Sullivan v Gordon were claimed. Again, several legal, social, policy and ethical issues were analysed in order to assess whether the damages paid in Sullivan v Gordon could be awarded. For more discussion of these cases, see K Talbot and J Werren,‘Wrongful Birth and Sullivan v Gordon Damages Claims: An Argument for Consistency and Reform in New South Wales’ (2010) 18 Tort Law Review 76.

Tort legislative reform and gratuitous services 9.28

This is an area where the legislature has sought to clarify the position arising from High Court decisions.

23. Thus, it was held that the appropriate allowance for care expenses was three hours per day, seven days a week. 24. Sullivan v Gordon (1999) 47 NSWLR 319. 25. CSR v Eddy (2005) 226 CLR 1.

420

9.29

Damages

Hospital, medical and care expenses 9.29

Nursing and care services provided for and to the plaintiff.These services include nursing and personal care types of services as awarded per Griffiths v Kerkemeyer.26 The plaintiff would require these services on a day-to-day basis, specifically as a result of the accident. They could be administered by various people, including family members and loved ones, on a voluntary basis, or provided on a paid basis by a third party such as a service provider. It was their provision and their cost equivalent that was awarded; as such, it was not dependent on whether they were provided on a paid or in-kind basis. Clearly, the legislative approach was to view the court’s decision as too generous, too open-ended and lacking in certainty. As a result, all legislatures, except the Australian Capital Territory, responded by limiting and proscribing these types of damages. The restrictions in the various legislatures are as set out in the Table 9.3 below. The Australian Capital Territory is the only legislature which does not restrict their award.

Table 9.3 State or The services territory are needed or only provided as a result of the injury

The services are provided by a person in a close pre-existing relationship

Relevant Act Limited to six hours per week for six months; capped by reference to average weekly wage

ACT

No restrictions

NSW

s 15(2)

s 12

Civil Liability Act 2002

NT

s 23(1)

s 23(2)

Personal Injuries (Liabilities and Damages) Act 2003

Qld

s 59(1)(a)

SA

Civil Liability Act 2003 s 58(1)(a)

*Tas *Vic WA

s 28IA(1) s 12(1)

s 58(2), (3)

Civil Liability Act 1936

s 28B(2), (3)

Civil Liability Act 2002

s 28IA(2)

Wrongs Act 1958

s 12(5)–(7)

Civil Liability Act 2002

* these two states do not allow these damages to be awarded for motor vehicle accidents.

26. Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

421

9.29

Torts: Principles, Skills and Application

The question remains: is this a workable or fair patchwork response? It makes these damages very different, depending on where and in what context the loss occurs. For plaintiffs, these damages go to the issue of basic human dignity, being able to be fed, changed, bathed and using the bathroom, etc. Questions of human dignity and access to a just system become problematic given there is such a myriad of variable provisions. 9.30

Nursing and care services provided by the plaintiff to someone else.These services included nursing and personal care types of services, as awarded per CSR Ltd v Eddy.27 In Eddy, the High Court ruled on a unanimous basis that care services the plaintiff himself provided to his disabled wife could not be awarded. The plaintiff under Griffiths v Kerkemeyer principles was able to receive a damages amount for services they needed; this did not extend to services they themselves provided to others. This may appear logical in one sense, without being just or humanistic in another sense. It forces, for example, the family to pay for a sudden new expense which has arisen as a result of the accident. It is a cost intimately linked to the plaintiff, if not the plaintiff himself. The court thought these matters should be addressed by legislatures, as the ACT had already done conferring such rights on plaintiffs. The response from the various state and territory legislatures is interesting. Rather than ensuring this issue would not be re-litigated, the issue was responded to in a patchwork way. Clearly from some legislatures’ perspective, the legislative approach was to view the court’s decision as largely correct and to almost shut the gate on the matter. As a result, some legislatures, including the Australian Capital Territory, responded by limiting and proscribing these types of damages.The restrictions in the various legislatures which did respond to the decision are set out in Table 9.4.

Table 9.4 State or The services are territory provided by the injured person to another person

Details of to whom the plaintiff provides the services

Relevant Act

ACT

Allows recovery by plaintiff for domestic or care services for a member of the household.

Civil Law (Wrongs) Act 2002

s 100

27. CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1.

422

9.33

Damages

State or The services are territory provided by the injured person to another person

Details of to whom the plaintiff provides the services

Relevant Act

NSW

Allows recovery by plaintiff for domestic or care services for a member of the household.

Civil Liability Act 2002

s 15B

NT

Personal Injuries (Liabilities and Damages) Act 2003

Qld

ss 59A–59D

SA

s 58(1)(a)

Provides for some gratuitous services to be provided.

Civil Liability Act 1936

Tas Vic

Civil Liability Act 2003

Civil Liability Act 2002 ss 28ID, 28IE

Pre-Eddy legislation; disallowed such services.

WA

Wrongs Act 1958

Civil Liability Act 2002

Loss of earning capacity 9.31

In order to determine what damages should be awarded for loss of earning capacity, the court will compare the plaintiff ’s pre-accident and post-accident earning capacity. The court will then award an amount that represents the difference between these two sums. If there is a contention between the plaintiff and the defendant as to whether or not the plaintiff can work, the onus is on the defendant to produce evidence to suggest that the plaintiff could be employed in some capacity.

How are loss of earning capacity damages assessed and reduced? Net or gross income 9.32

The court reduces damages by taking into account notional future income tax in calculating damages for loss of future earning capacity.

Expenses incurred in order to earn 9.33

Expenses that would normally be incurred in order for the plaintiff to earn are also deducted from the damages payable. Expenses, such as the cost of a practising certificate if the plaintiff is a solicitor and travel expenses, may be 423

9.33

Torts: Principles, Skills and Application

deducted from this head of damages. Board, lodging and clothing expenses are also deducted from the loss of earning capacity amount as this would ordinarily have been paid for out of the plaintiff ’s income: Sharman v Evans.28 In determining how long the plaintiff would have worked for, the pre-accident life expectancy is considered: Skelton v Collins.29 Furthermore, if the plaintiff ’s life expectancy is reduced to such an extent that the plaintiff would ordinarily have been working at that time, the court will take into account the loss of earnings of these ‘lost years’. Even though loss of earning capacity damages are awarded during these ‘lost years’, they are heavily discounted as there will be no living expenses or maintenance expenses during this time. Allowance for contingencies 9.34

When awarding for loss of earning capacity, the court will take into account other events, such as periods of unemployment and other loss of income associated with illness, accident or premature death. In addition, the court will also look at the likelihood of promotion and advancement. Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter stated:30 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.

Child care is not deducted from earning capacity, as it was found in Wynn v New South Wales Insurance Ministerial Corporation that ‘the cost of child care is simply one of various costs associated with having children’.31 Loss of ability to earn money 9.35

If a plaintiff is not earning money at the time of the tort, this does not mean that they will automatically be disqualified from receiving damages for loss of earning capacity. This is the case because the damages under this head relate to loss of earning capacity as opposed to loss of earnings. It should be noted, however, that the damages, for example, a stay-at-home parent or an unemployed person may be awarded, will be less than a plaintiff would receive who is exercising his or her full earning capacity. For example, in Mann v Elbourn,32 the Full Court found that if the plaintiff was only exercising part of their earning capacity, damages would be assessed based on the loss of earning capacity that the plaintiff was exercising at the time of the accident as well as damages relating to the loss of chance of fulfilling her full earning potential.

28. Sharman v Evans (1977) 138 CLR 563. 29. Skelton v Collins (1966) 115 CLR 94. 30. Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659. 31. Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 495. 32. Mann v Elbourn (1974) 8 SASR 298.

424

9.38

Damages

Discount rates 9.36

Damage awards are discounted in order to counteract inflation, changes in wages and prices and taxation. The reason for applying discount rates is so the plaintiff will not be overcompensated. Gibbs CJ and Wilson J stated in Todorovic v Waller that:33 The process of discounting can be dispensed with if some other consideration completely offsets the advantage that a plaintiff gains by receiving at the date of judgment a sum that if he had not been injured would have been paid to him at some time in the future, or a sum that he will be required to expend at some time in the future.

Stephen J described the art behind discounting as follows:34 The problem is, then, how best in current circumstances to translate future periodic loss into present lump sum payment. The medium of compensation being money, the incidence of tax and inflation-caused changes in money’s purchasing power and income-earning capacity may have to play a part in the process of translation if there is to be a just result.

Under common law, the discount rate is 3 per cent (see Todorovic v Waller35). Case study: loss of earning capacity 9.37

9.38

Generally, after an injury, the plaintiff ’s earning capacity is reduced. The following case, however, relates to a situation where the plaintiff earned more money after the tort than he did before the tort was committed.

McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 Court: New South Wales Court of Appeal Facts: Jarrod McCracken, who was a rugby league football player for the West Tigers, was injured in a game between his team and the Melbourne Storm. McCracken brought proceedings in negligence for damages that he sustained as a result of this injury. The issue in this case was whether or not McCracken should be able to claim for loss of earnings during the period between 12 May 2000 and 31 October 2004. During this time, it was estimated that his inability to play rugby league cost him $762,000. While unable to play football, McCracken was engaged in some very successful property development ventures, which earned him far in excess of what he would have earned from playing rugby league. There

33. Todorovic v Waller (1981) 150 CLR 402 at 414 per Gibbs CJ and Wilson J. 34. Todorovic v Waller (1981) 150 CLR 402 at 427 per Stephen J. 35. Todorovic v Waller (1981) 150 CLR 402.

425

9.38

Torts: Principles, Skills and Application

was some suggestion that his inability to play rugby league and tour in the UK allowed him more time to engage in these property dealings. Legal principle: Ordinarily, the main legal principle relating to loss of earning capacity is the amount that the plaintiff could earn after the injury is deducted from the amount the plaintiff would have earnt but for the injury. In this case, the post-injury earnings were higher than the pre-injury earnings. The court’s decision (application of the legal principle to the facts): The plaintiff’s earning capacity in relation to his property development was productive of more financial gain than the loss due to him being unable to play rugby league. Thus, there was no financial loss due to the injury.

Collateral benefits 9.39

If the plaintiff has received damages from collateral sources, the amount the defendant is liable for may be reduced. Damages will not be reduced in relation to an insurance policy entitlement. If the plaintiff is prudent enough to self-insure against the risk of injury, then any benefits that are received should not be set off against an award of damages. In Bradburn v Great Western Railway Co (1874),36 no deduction was made because of the presence of accident insurance. The reasoning was that the plaintiff does not receive the sum because of the accident, but because they have entered into a contract providing for the contingency.

Benevolent payments 9.40

9.41

Another situation which arises is where there is a gift or benevolent payment of cash made to the plaintiff by a third party.That is, there is no contract or consideration in respect of the payment. It is an act of generosity. Should these types of payments be seen as an undue windfall, and therefore as a deduction of the plaintiff ’s claimable damages, or should they be excluded and viewed as simply some good fortune for the injured person? How the court deals with such payments depends on the express intention of the third party donor. If no intention is expressed, the gift should not reduce the plaintiff ’s damages, as the following case shows.

Zheng v Cai (2009) 239 CLR 446 Court: High Court of Australia Facts: This was an appeal against a decision of the New South Wales Supreme Court of Appeal. In this case, the plaintiff/appellant, Zheng, was injured whilst a

36. Bradburn v Great Western Railway Co (1874) LR 10 Exch 1; [1874–80] All ER Rep 195.

426

9.42

Damages

passenger in a motor vehicle accident driven by the defendant/respondent, Cai. As a result of the defendant’s negligence, the plaintiff suffered significant injuries to her back and neck and developed chronic depression. After the accident, the plaintiff performed voluntary work for her church of about 20 hours per week. In addition to this, regular benevolent payments were made to the plaintiff by the plaintiff’s church following the accident. One of the documents that were tendered in evidence stated that the church had ‘provided financial support to [the applicant] for her daily living and accommodation expenses to allow her to function more effectively as a volunteer worker’. The New South Wales Court of Appeal reduced the damages that were payable to the applicant. The matter was appealed to the High Court. Legal principle: In the High Court French CJ, Gummow, Crennan, Kiefel and Bell JJ discussed National Insurance Co of New Zealand Ltd v Espagne37 extensively. In particular, it was stated that the former case meant that the intention of the donor was important. Windeyer J was quoted as saying:38 If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the one hand, the donor’s expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances.

Thus, the critical question was whether the payments made by the church to the injured party Zheng were intended by it to operate in the interest of the respondent Cai who caused the damage and thereby to diminish the damages he otherwise would be liable to pay to Zheng. There was no such intention. The court’s decision (application of the legal principle to the facts): The payments that were made by the church, as a third part, to the plaintiff Zheng while she undertook voluntary work should not be deducted from the damages recoverable from the defendant Cai for the injuries that Zheng suffered as a result of the car accident and Cai’s negligence. Note that this case was recently followed by the Victorian Supreme Court in Powercor Australia Ltd v Thomas.39

Non-pecuniary damages

373839

9.42

Non-pecuniary damages are compensatory damages that are more difficult to quantify than pecuniary damages. They include non-pecuniary damages or non-economic loss suffered as a result of pain, disability, loss of amenity and enjoyment of life, disfigurement or loss of expectation of life.

37. National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569. 38. Zheng v Cai (2009) 239 CLR 446 at [20]. 39. Powercor Australia Ltd v Thomas [2012] VSCA 87.

427

9.43

Torts: Principles, Skills and Application

Loss of amenity and enjoyment of life 9.43

One of the considerations that is taken into account when assessing damages is the subjective feelings of loss that a plaintiff may feel as a result of his or her injuries. This principle was established in Skelton v Collins.40 The damages that are awarded under this head of damage are largely dependent on the individual facts of the case. In Sharman v Evans,41 the defendant argued that the plaintiff was so disabled that there was no point in awarding money for loss of enjoyment of life. In this case it was held that the court would not reduce damages under this head as the plaintiff was able to substitute her pre-accident entertainment with more suitable entertainment such as:42 … her sight, her hearing and her taste are unaffected and in place of sport, entertainment, cosmetics and clothes she may find pleasure in recorded music, in a movie projector and the hire of films, in days spent on drives in a chauffeured car, perhaps in special foods.

The common law, as enunciated by the High Court, had been that the court could not look at other cases to compare damages awards.The court was bound to look only at the case before it. This was confirmed by the High Court in Planet Fisheries Pty Ltd v La Rosa.43 The Ipp Panel in the early part of this century recommended that courts became cognisant of what other courts were awarding. Non-pecuniary losses — methods of assessing the loss by the court 9.44

With the advent of the state and territory headline Acts, they have each dealt with a set of issues concerning how courts determined damages awards.Three issues are of particular note. First, that some states provide for comparisons with other cases; second, some deploy a sliding scale typically from 0 for a very minor issue to 100 at the extreme end of the scale; third is the percentage of permanent disability process — this is used in the Northern Territory. Refer to Table 9.5 for a summary of the methods used by each state and territory.

40. Skelton v Collins (1966) 115 CLR 94. 41. Sharman v Evans (1977) 138 CLR 563; 13 ALR 57. 42. Sharman v Evans (1977) 138 CLR 563 at 578–9. 43. Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118.

428

9.46

Damages

Table 9.5 State or territory

Relevant Act

Court can compare other cases to assess damages

ACT

Civil Law (Wrongs) Act 2002

s 99(1) s 17A

Use of a scale from slightest to gravest cases

NSW

Civil Liability Act 2002

NT

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Civil Liability Act 2003

s 61-2

SA

Civil Liability Act 1936

s 52

Tas

Civil Liability Act 2002

s 28(1)

Vic

Wrongs Act 1958

s 28HA(1)

WA

Civil Liability Act 2002

s 10A(1)

Percentage degree of permanent disability — common law abolished

s 16 ss 24, 27

Pain and suffering 9.45

9.46

The aim behind awarding damages for pain and suffering is to compensate the plaintiff for the physical suffering that the plaintiff has felt or is feeling as a result of the accident. The test is generally a subjective one.

Skelton v Collins (1966) 115 CLR 94 Court: High Court of Australia Facts: The plaintiff at the age of 17 suffered severe brain damage which rendered him unconscious. The evidence at the trial demonstrated that the plaintiff would remain unconscious for the rest of his life. Two issues were examined in the case. The first was whether or not general damages (excluding pain and suffering) should have been assessed without regard to the fact that he remained unconscious since the accident. The second was when assessing damages for the plaintiff’s lost earning capacity, should regard be had to the probable period of the plaintiff’s working life immediately before he sustained his injuries and not merely to the period of life which remained to him after that event?

429

9.46

Torts: Principles, Skills and Application

Legal principle: 1. In this case, the 17-year-old unconscious patient could not claim any damages for pain and suffering. 2. The damages awarded under loss of amenity are intended to denote a loss of capacity for the injured person to enjoy life. The issue that is important is what the plaintiff’s subjective feelings of loss are. Taylor J stated:44 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 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.

3. When an award of damages for future nursing and medical care is assessed, there will be overcompensation if damages for loss of earning capacity are awarded in full without regard for the fact that the plaintiff is already to receive as compensation the cost of his or her future board and lodging, a cost which but for his or her injuries, he or she would otherwise have to meet out of future earnings. The court’s decision (application of the legal principle to the facts): The injured plaintiff has a right to recover damages for the ‘loss of a measure of prospective happiness’. This does not operate to ‘displace or destroy his right to recover damages for economic loss resulting from his diminished earning capacity’.45 Thus, damages should be assessed having regard to the plaintiff’s pre-accident life expectancy and not only the expectancy of life as a result of his injuries.46 In addition to this, the assessment should take into account the vicissitudes and uncertainties of life and the fact that if the plaintiff had survived for the full period, it would have been necessary for him to maintain himself out of his earnings.

Loss of expectation of life444546 9.47

This is generally a nominal sum, rather than a sum attached to the numbers of years that the plaintiff may have lost: Skelton v Collins.47

44. Skelton v Collins (1966) 115 CLR 94 at 113. 45. Skelton v Collins (1966) 115 CLR 94 at 121. 46. Skelton v Collins (1966) 115 CLR 94 at 121 per Taylor J. 47. Skelton v Collins (1966) 115 CLR 94 per Kitto J at [4].

430

9.49

Damages

Contingencies 9.48

9.49

Contingencies refers to possible things occurring in the future, including chance events and how they may impact on the plaintiff.The court treats things which are more probable and likely to occur differently to matters which are speculative and of very low probability. This can be illustrated where there are two conditions endured by the plaintiff, which may or may not be as the result of the defendant’s negligence.

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Court: High Court of Australia Facts: Between October 1972 and April 1980, the defendant employed the plaintiff as a labourer in a meatworks. He suffered from a degenerative back condition. As such, it was not caused by the employer’s negligence. In July 1977, the plaintiff was also diagnosed as suffering from brucellosis, a disease acquired from animals. This condition was caused by the employer’s negligence. One possible future consequence from brucellosis is the development of depression and the development of an organic condition which results in a degenerative-like condition in the spine. Both of these conditions eventuated, but it was not clear whether they were all as a direct result of the defendant’s negligence. The Full Court of the Supreme Court of Queensland held that:48 … it is likely that, quite apart from his suffering from brucellosis, by age 44 he would have become unemployable as a result of his back condition and indeed would have developed as a result a neurotic condition of the sort from which he presently suffers.

The Full Court of the Supreme Court refused to award damages for future depression arising from the brucellosis. It said his depression was linked to the degenerative back condition and was not compensable. Legal principle: The High Court clarified that the correct approach is that the court assesses the probability that an event will occur and adjusts the damages to reflect this:49 If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events 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.

4849

The court’s decision (application of the legal principle to the facts): The plaintiff was entitled to damages for pain and suffering on the basis that his current and potential or future neurotic condition was the result of the defendant’s negligence. The damages, however, were reduced to take into account the factors,

48. Extracted at Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 641. 49. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643.

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unconnected with the defendant’s negligence, which might have brought about the onset of a similar neurotic condition. The plaintiff was also entitled to compensation for the care and attention that was provided by his wife. Likewise, these damages were also reduced to take account of the chance that this care would have been necessary irrespective of the defendant’s negligence.

The High Court sought to compensate the plaintiff for both conditions occurring on the basis they were more than speculative, and they were in the realms of probability. Whether that was a 49 per cent or 51 per cent chance did not affect the result in this case as the majority of Deane, Gaudron and McHugh JJ discussed.

No-fault schemes 9.50

In broad terms, the Australian negligence system, as a fault-based model, can be categorised as adversarial; that is, it pits a particular plaintiff against a particular defendant, and the plaintiff must succeed against that named defendant. On the other hand, the no-fault scheme is compensatory in nature; that is, it seeks to reimburse the plaintiff for their losses from a broad pool of funds, rather than from an individual defendant. In no-fault systems, such as New Zealand, damages are traditionally paid by way of periodic payments to plaintiffs, although lump sums may also be paid.50

Arguments used to support a fault-based system 9.51

The arguments often referred to support a fault-based system include: •• ‘Desert’: There is a moral element to the distribution of damages — that damages go to deserving cases. •• Deterrence: Substandard behaviour by defendants should be stamped out. •• Improving standards: Tortious outcomes and litigation can improve practices and standards, for example, safety in the workplace and the road system (for example, driving standards). •• ‘Closure’ for the plaintiff: Damages traditionally are lump sum or one-off awards that put an end to the litigation once and for all. •• Punishment of defendants: This has been exceptional in Australian tort law but, if trends follow those in the United States, the punishment aspect will become more commonplace as punitive damages are awarded in addition to compensatory damages.

50. See (viewed 3 September 2018).

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Arguments in favour of a no-fault compensation scheme 9.52

There are several arguments which have been put forward in favour of a universal type of compensatory scheme. •• People ‘slip through’ the common law net: The concept here is that the ability of a plaintiff to sue a putative defendant in common law is essentially a ‘lottery’ depending on the factual context of the plaintiff ’s injuries. For example, a victim of a motor vehicle accident caused by another driver can call on a compulsory insurance fund, whereas many accident victims have no insurance and no defendant to sue. •• Inadequate compensation: As common law payouts are generally by way of a one-off lump sum, that sum may turn out to be inadequate, if it does not, for example, reflect inflation trends. •• Delays/expense: The fault system is litigious in nature and the common law is, in turn, an adversarial system. This may mean that a case takes several years to resolve. This can produce an anxiety syndrome in plaintiffs known as ‘psychological overlay’. It  also means mounting costs and a reluctance by plaintiffs to get on with life, retraining and so on, because they have a parallel concern about maximising their damages; that is, there is a tension between ‘recovery of the person’ and ‘recovery of damages’.

9.53

We will now discuss motor vehicle accident claims, which provide some examples of how a no-fault-based system can work.

Motor vehicle accidents 9.54

The damage type in motor vehicle accidents is usually personal injury and property damage. The various road traffic legislation of each of the states and territories generally provides for compulsory third-party cover for personal injury, that is, the driver at fault is the first party; the insurance company is the second party; and the injured person is the third party. This system operates by reference to ‘loss spreading’, that is, a large pool of premiums has been contributed by many drivers/ payers. The schemes around Australia demonstrate the complexity of a federal system where there is little connectedness between the jurisdictions.

Motor vehicle accident no-fault schemes 9.55

Each state and territory has separate provision (refer to Table 9.6 below). The practical complexities are such that there is not a uniform definition of the basic and important concept: what is a motor accident?

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Table 9.6 State or territory

Relevant Act(s) now covering the area

ACT

The Lifetime Care and Support (Catastrophic Injuries) Act 2014

NSW

Motor Accidents (Lifetime Care and Support) Act 2006

NT

Motor Accidents (Compensation) Act 1956

Qld

National Injury Insurance Scheme (Queensland) Act 2016

SA

The Motor Vehicle Accidents (Lifetime Support Scheme) Act 2013

Tas

Motor Accidents (Liabilities and Compensation) Act 1973

Vic

Transport Accident Act (Vic) 1986

WA

Motor Vehicle (Catastrophic Injuries) Act (WA) 2016

9.56

The usual situation in most states is that the right to common law compensation (which is usually lump sum) is precluded by the legislation which is based on paying for treatment and expenditure as it occurs or by agreement. For example, the New South Wales Act precludes common law lump sum damages by the following provision: Motor Accidents (Lifetime Care and Support) Act 2006 Section 7 Eligibility for participation in the Scheme (3) A person is not eligible to be a participant in the Scheme in relation to an injury if the person has been awarded damages, pursuant to a final judgment entered by a court or a binding settlement, for future economic loss in respect of the treatment and care needs of the participant that relate to the injury.

9.57

Two states, Western Australia and Queensland, provide an exception to preclusion of common law damages. This occurs in limited circumstances and is found in ss 42–44 of the National Injury Insurance Scheme (Queensland) Act 2016, and ss 5(3) and 8(3) of the Motor Vehicle (Catastrophic Injuries) Act (WA) 2016. For Queensland, the following information from the Queensland Law Handbook is relevant:51 To successfully claim against another person for personal injury or property damage caused by a motor vehicle accident in Queensland, you must be able to show another person was at fault—it is not sufficient to show the other person

51. Source: https://queenslandlawhandbook.org.au/the-queensland-law-handbook/health-and-wellbeing/ accidents-and-injury/claiming-compensation-after-a-motor-vehicle-accident/> (viewed 3 September 2018).

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was insured. Different laws apply in the other states. If an accident occurs in another state, the law applying in that state will govern your claim. If a person is convicted of a criminal offence as a result of a motor vehicle accident (eg driving under the influence of alcohol, driving without due care and attention), this can be used as evidence in a civil claim but is not necessarily proof of negligence. Can property damage and personal injuries be claimed separately? The nature and extent of any property damage caused by a motor vehicle accident is usually readily apparent and can be easily assessed and quantified. On the other hand, the extent and consequences of a person’s injuries may not be obvious for some time after the accident. It is possible to pursue separate claims for property damage and personal injuries. In all likelihood, the property damage insurer will not be the same entity as the compulsory third party (CTP) insurer. In any event, care needs to be taken to ensure a decision in the first case does not bind the parties in any subsequent case. For example, a badly injured claimant would not necessarily want a 50/50 apportionment of liability in a related property damage claim to automatically apply to their personal injuries claim. Consideration of these issues can be very complicated and should be referred to lawyers specialising in these types of claims. 9.58

Alternatively, in New South Wales, the Lifetime Care and Support Scheme provides care for people who are injured in motor vehicle accidents. If an injured person is permitted into the scheme, they can be participants for life, or interim participants,52 and the scheme covers future medical and care requirements. Section 11A of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) states that the Lifetime Care and Support Authority of New South Wales needs to pay ‘reasonable expenses incurred by or on behalf of a person while a participant in the Scheme’. These expenses need to be reasonable and necessary in the circumstances and they must relate to the motor accident injury (s 11A(2)). Thus, when settling claims, these expenses are not paid by the insurers as they are covered by the scheme. Section 4(4) of the Motor Accidents (Lifetime Care and Support) Act states that the Act applies ‘in respect of a motor accident injury whether or not the injury was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle or of any other person and so applies even if the injured person was at fault’. Thus, the Act applies whether or not one of the parties is at fault, so it is a no-fault scheme. Also note the Motor Accident Compensation Act 1999 (NSW), which covers motor vehicle accidents in New South Wales.

Workers’ compensation 9.59

Workers’ compensation is an example of no-fault schemes operating in each state and territory of Australia, and at the Commonwealth level. There are no fewer than 12 key pieces of legislation (see Table 9.7 below), so the search for

52. Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) s 7(2).

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consistency, for national uniformity, is very elusive. The common law may still be relevant via claims in negligence, depending on the context. The legislation requires a person to: •• satisfy the test of being an employee; •• have suffered an injury, loss or disease which is dealt with in the relevant legislation; and •• show there is sufficient connectivity or nexus between the loss-inducing event and the status of employment.

Table 9.7 Jurisdiction — Commonwealth, state or territory

Relevant Act

Commonwealth

Safety, Rehabilitation and Compensation Act 1988 Military Rehabilitation and Compensation Act 2004 Seafarers Rehabilitation and Compensation Act 1992

ACT

Workers Compensation Act 1951

NSW

Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

NT

Return to Work Act 2015

Qld

Workers Compensation and Rehabilitation Act 2003

SA

Return to Work Act 2014

Tas

Workers Rehabilitation and Compensation Act 1988

Vic

Workplace Injury Rehabilitation and Compensation Act 2013

WA

Workers and Injury Management Act 1981

The National Disability Insurance Scheme (NDIS) 9.60

A recent legislative initiative that introduces a no-fault scheme for people with disabilities is the National Disability Insurance Scheme (NDIS). On 28 March 2013, the National Disability Insurance Scheme Act 2013 (Cth) 436

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received Royal Assent. This Act sets up an agency to establish the NDIS, which has the following aims: •• support the independence and social and economic participation of people with disability (s 3(1)(c)); •• provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch (s 3(1)(d)); •• enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (s 3(1)(e)); •• facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability (s 3(1)(f)); •• promote the provision of high-quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the mainstream community (s 3(1)(g)); and •• raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability (s 3(1)(h)). The NDIS aims to provide support services, as opposed to paying out sums of compensation to people with disabilities. Time will tell how this legislation and the enactment of the scheme will impact on tort litigation. Some of the provisions that are of interest in this legislation are as follows:

Requirement for a person to seek compensation under the NDIS 9.61

Given that the NDIS is part of the Federal Budget, there are mechanisms within the Act to keep monetary outlays in check. This includes the requirement that people who reasonably can, seek damages at common law via the relevant process. The Chief Executive Officer (CEO) of the scheme is given relevant powers in this regard. Section 104 of the Act provides as follows:

Chapter 5—Compensation payments Part 1—requirement to take action to obtain compensation 104 CEO may require person to take action to obtain compensation (1) This section applies if: (a) a participant or a prospective participant is, or in the CEO’s opinion may be, entitled to compensation in respect of a personal injury; and (b) the participant or prospective participant: (i) has taken no action to claim or obtain the compensation; or (ii) has taken no reasonable action to claim or obtain the compensation. 437

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(2) The CEO may, by written notice, require the participant or prospective participant to take the action specified in the notice within the period specified in the notice. The action must be action that is reasonable to enable the person to claim or obtain the compensation. (3) In considering whether it is reasonable to require a participant or prospective participant to take an action, the CEO must have regard to the following: (a) the disability of the participant or prospective participant; (b) the circumstances which give rise to the entitlement or possible entitlement to compensation; (c) any impediments the participant or prospective participant may face in recovering compensation; (d) any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation; (e) the financial circumstances of the participant or prospective participant; (f ) the impact of the requirement to take the action on the participant or prospective participant and his or her family.

(4) The CEO must not give a notice under subsection (2) requiring a participant or prospective participant to take action to claim or obtain compensation unless the CEO is satisfied that the participant or prospective participant has reasonable prospects of success in claiming or obtaining the compensation. 9.62

By way of summary of the relevant provisions: •• Section 104(1) and (2) empowers the CEO of the scheme to require people who are recipients of the scheme to seek compensation. •• This is only a requirement if it is reasonable to do so (s 104(3)). •• If a participant is required to take action and does not, their plan may be suspended or, if not in place, the scheme will not be implemented until the person takes the required action (s 105(1), (2)). •• If the participant does have a successful action, the agency must deduct from these damages, the amounts that NDIS has paid for the benefit of the participant (s 105B(a)) and any costs incidental to the claim (s 105B(b)).The balance then will be paid to the participant. •• The National Disability Insurance Scheme Launch Transition Agency may recover compensation fixed after the NDIS amounts have been paid (s 106(1)) if the compensation is given in respect of a personal injury and the NDIS amounts have been paid and the judgment specifies a portion to be a component for supports of a kind funded or provided under the NDIS.

9.63

There are other schemes of no-fault compensation. These include criminal injuries which is state and territory-based, and more recently the national redress scheme for victims of childhood sexual abuse arising out of the Royal Commission set up by the Federal Government led by Julia Gillard. National schemes should be encouraged as a contemporary solution to large 438

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scale litigation issues such as these; they avoid the litany of inconsistency on a case by case basis; they reduce complexity for plaintiffs and reduce issues of inaccessibility to monetary compensation for claimants. These ‘failings of access’ extant in the common law torts system simply exacerbate the mental and physical stress of complex fault-based systems for litigants. They disadvantage individual plaintiffs, and reinforce the power imbalance with often wellresourced defendant corporations and organisations. Ensuring there are simple, easy-to-access, national, no-fault schemes is the optimal way forward. This is quite clearly the lesson for Australian tort law arising from the mountain of complexity which has been built up and layered in the nine separate jurisdictions over the last 40 or so years. It is high time for a rational, national framework to be put in place; the cooperative federalism work in this area in corporations law should be instructive.

Damages in life and death Predicting the future: life expectancy of plaintiffs 9.64

Some cases require courts to make ‘whole-of-life’ compensation awards, for example where a plaintiff is badly and permanently injured and will be unable to work. Such cases require courts to make complex judgments about: •• life expectancy; •• the number of working years lost; and •• the yearly amount of remuneration denied the plaintiff. The following High Court case illustrates the complexities that judges are required to resolve.

9.65

Golden Eagle International Trading Pty Ltd v Zhang (2007) 234 ALR 131; [2007] HCA 15 Court: High Court of Australia Facts: Zhang was born in 1973 in China and settled in Australia in 1991. He suffered serious personal injuries in a motor vehicle accident in New South Wales on 24 December 1997. He  was a passenger in the vehicle. He had not been wearing a seatbelt. Legal principle: A critical issue was outlined in [4] of the judgment: 4. In this Court, two issues remain. The first is whether the Court of Appeal erred in having regard, when assessing the life expectancy of the first respondent, to life expectancy tables that were ‘projected’ rather than ‘historical’. Upon that issue, we agree with what is said by Kirby and Hayne JJ and would add only this. Despite criticism of it, the ‘best evidence rule’ has not fallen completely into desuetude. Subject to the exigencies of litigation, the circumstances of the

439

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parties, and the other settled and statutory rules of evidence, it has vitality. An aspect of the rule is that courts should act upon the least speculative and most current admissible evidence available. To prefer the prospective rather than the historical life expectancy tables is to do no more than that. This ground of appeal should fail.

The court’s decision (application of the legal principle to the facts): The judgment concluded (in [68]–[70]) as follows: Life expectancy tables 68. The primary judge assessed the plaintiff’s life expectancy by reference to historical tables published by the Australian Bureau of Statistics. Those tables were based upon annual information with respect to deaths and made no allowance for any future improvement in life expectancy. 69. The plaintiff submitted at trial that life expectancy should be calculated by reference to certain prospective tables also published by the Australian Bureau of Statistics. Those tables take account of the predicted improvement in life expectancy. The tables look forward rather than confining attention to what history has already revealed about life expectancy. 70. The Court of Appeal held that ‘it is appropriate for the courts to make their estimations on the basis of the best information available: the projected tables would appear to be a more accurate assessment of future trends than the historical tables’. There is no reason to doubt that the Court of Appeal was correct in its conclusion that the projected tables published by the Australian Bureau of Statistics were more likely to give an accurate estimate of future life expectancy than the historical tables published by the Bureau. That being so, it follows that the Court of Appeal was right to conclude that, despite the then prevailing practice in the courts of New South Wales, the primary judge should have used the prospective rather than the historical tables.

Significance of this case: The case illustrates the need to use future projections on life expectancy, rather than historical data. The judgment reflects scientific and medical progress and the fact that life expectancy is growing in Western countries such as Australia.

Wrongful birth and wrongful life 9.66

These subjects are fraught.They can be categorised as areas of potential medical negligence. However, the courts have seen the moral and ethical hazards of awarding any damages in torts for these things.Why? Clearly there is a complex moral question which goes to the core of the plaintiff ’s identity. ‘I am alive, but I prefer not to be’, is the inevitable assumption. Second, and perhaps most conveniently, torts damages are intended to put the plaintiff back in their pre-accident position. Hence, there is an insurmountable logic for the plaintiff to overcome.These matters are referred to in the medical negligence discussion at Chapter 10.

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Wrongful death 9.67

The historical common law position was that actions for damages did not survive the death of the plaintiff.This created unfairness and poverty for family members and dependants. As a result, statutes first in the UK and then in the Australian states and territories corrected this injustice. As a result, a wrongful death suit can be brought variously brought by the estate itself, by the relatives of the deceased person, or by the legal dependants of the deceased person. A dependant is a person who depends on another person, financially or for care purposes. The term is defined differently for different purposes in various statutes, as is the definition and scope of the term ‘relative’. To be successful under the statutory schemes, the would-be plaintiffs need first to satisfy the particulars of the relevant definition of relative or dependant, and then the generic three-stage process: 1. that a duty of care was owed by the defendant to the deceased plaintiff; 2. that the defendant breached a legal duty of care by an act or omission that fell short of legally acceptable standards; and 3. that damage arose as a result. Thus, it needs to be shown that the deceased would have had a viable cause of action at the time of his or her death.

The estate’s action and the dependants’ actions 9.68

Both the estate of the deceased, on the one hand, and the dependants or relatives, on the other hand, can have a viable action under wrongful death. Even though in practice there will probably be some overlap between the two sets of claimants, the purposes of the actions are different. Under the estate’s action, the estate is awarded the damages, whereas the dependants are awarded the damages under the dependants’ action legislation. Again, there is some overlap as to what can be claimed by both the dependants and the estate (that is, funeral expenses), but generally the damages are for different purposes. As a general rule, the estate is able to claim for pecuniary losses from the time of injury to death, whereas the dependants can claim damages for future losses that have become apparent because of the loss of support that they ordinarily would have gained from the deceased.The various elements of the two types of action, of the deceased, and the relatives and dependants, are represented below in Figures 9.1 and 9.2 respectively.

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Figure 9.1 Estate’s action Survival of actions:Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (for the estate)

Give estate back any expenses associated with the death

Funeral expenses

Lost earnings before death

Medical expenses before death

Figure 9.2 Dependant’s action Dependants’ actions: Compensation to Relatives Act 1897(NSW) (for the estate)

Reasonable expectation of pecuniary benefit

Loss of support (wages, etc) and value of the dependency

Possibility of widow remarrying, etc

Superannuation, life insurance

House and contents and some personal property

Funeral and burial expenses

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The statutory base relevant to wrongful death cases The estate of the deceased plaintiff’s action against the defendant 9.69

Statute plays a key role in setting up the basis of such claims and the potential damages recoverable. The reason it came into statute in Australia was largely due to the widespread use of motor vehicles. The number of people dying in motor vehicles accidents and leaving dependants was such that the United Kingdom introduced laws in the mid-1930s.The Australian states followed suit.

The estate’s action for wrongful death 9.70

Causes of action for wrongful death survive the death of the plaintiff. They came about largely because of the dependant issues caused by motor accidents. Children and family members would suddenly face real financial hardship as the result of death of family member who may have been the main wage earner in the family. Dust diseases, including mesothelioma, have also impacted the legislation, as the extracts from the South Australian and New South Wales legislation in Table 9.8 show.

Table 9.8

9.71

State or territory

Section

Relevant Act

ACT

Pt 2.4

Civil Law (Wrongs) Act 2002

NSW

s2

Law Reform (Miscellaneous Provisions) Act 1956

s 12B

Dust Diseases Tribunal Act 1989

NT

Pt II

Law Reform (Miscellaneous Provisions) Act 1956

Qld

s 66

Succession Act 1981

SA

s2

Survival of Causes of Action Act 1940

Tas

s 27

Administration and Probate Act 1935

Vic

s 29

Administration and Probate Act 1958

WA

s4

Law Reform (Miscellaneous Provisions) Act 1941

The South Australian provision is as follows: 2—Survival of causes of action (1) Subject to this Act— (a) a cause of action vested in a person at the time of his or her death survives for the benefit of his or her estate; and (b) a cause of action existing against a person at the time of his or her death survives against his or her estate. 443

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(2) This section does not apply to a cause of action in defamation. 3—Damages in actions which survive under this Act (1) 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; (b) shall not include any exemplary damages; (d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. (2) However, if a person commences an action for damages in respect of a dustrelated condition and dies as a result of that condition before the action is finally determined, damages for pain and suffering, bodily and mental harm, and curtailment of expectation of life, and exemplary damages, are recoverable for the benefit of the estate of the person. (3) In subsection (2)— dust-related condition means— (a) a disease specified in the Schedule; or (b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust. 9.72

The relevant New South Wales provision, s 2 of the Law Reform (Miscellaneous Provisions) Act 1944, is set out below. 2 Effect of death on certain causes of action (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Division 2 of Part 3 of the Property (Relationships) Act 1984. (2) 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: (i) any exemplary damages, or 444

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(ii) any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of the person, during such time after the person’s death as the person would have survived but for the act or omission which gives rise to the cause of action, (b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry, (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to the person’s estate consequent on the person’s death, except that a sum in respect of funeral expenses may be included, (d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person’s expectation of life. (3) (Repealed) (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Part, to have been subsisting against the person before the person’s death such cause of action in respect of that act or omission as would have subsisted if the person had died after the damage was suffered. (5) The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation to Relatives Act 1897, as amended by subsequent Acts, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as so amended as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1). (6) The rights conferred by this Part for the benefit of the estates of deceased persons and the obligations continued or created by this Part against the estates of deceased persons shall be in addition to and not in derogation of any rights conferred or obligations created by or under the Motor Vehicles (Third Party Insurance) Act 1942 or the Transport Accidents Compensation Act 1987 or the Motor Accidents Act 1988. (7) This section has effect subject to section 12B of the Dust Diseases Tribunal Act 1989.

Under these provisions, damages are awarded to compensate the pecuniary losses to the estate from the time of the injury until death. Compensation can be awarded for medical, hospital and related expenses prior to death. In addition, the deceased’s loss of earning capacity to the date of death is compensated. 445

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The dependants of the plaintiff’s action against the defendant 9.73

The dependants of the deceased may also have a viable action, in their own right, for wrongful death against a defendant/s. Causes of action for wrongful death can be brought by the dependants in their own name. The relevant provisions are shown in Table 9.9.

Table 9.9 State or territory

Section

Relevant Act

ACT

Pt 3.1

Civil Law (Wrongs) Act 2002

NSW

s3

Compensation to Relatives Act 1897

NT

Compensation (Fatal Injuries) Act 1974

Qld

ss 62, 63

Civil Proceedings Act 2011

SA

Pt 5

Civil Liability Act 1936

Tas

s 27

Fatal Accidents Act 1934

Vic

Pt III

Wrongs Act 1958

WA

Fatal Accidents Act 1959

The relevant statute in New South Wales for this is the Compensation to Relatives Act 1897 (NSW) s 3(1). 3 An action to be maintainable against any person causing death through neglect despite the death of the person injured (1) Whensoever 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, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to a serious indictable offence. (2) In any such action any reasonable expenses of the funeral or the cremation of the deceased person and the reasonable cost of erecting a headstone or tombstone over the grave of the deceased person may be recovered. (3) In assessing damages in any such action there shall not be taken into account: (a) any sum paid or payable on the death of the deceased under any contract of insurance, or (b) any sum paid or payable out of any superannuation, provident, or like fund, or by way of benefit from a friendly society, benefit society, or trade union, or 446

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Damages

(c) any sum paid or payable by way of pension under: (i) the Widows’ Pension Act 1925–1942, (ii) the Coal and Oil Shale Mine Workers (Pensions) Act 1941–1942, (iii) the Australian Soldiers’ Repatriation Act 1920–1943 of the Parliament of the Commonwealth, (iv) the Widows’ Pensions Act 1942–1945 of the Parliament of the Commonwealth, (v) the Invalid and Old-age Pensions Act 1908–1945 of the Parliament of the Commonwealth, or under any Act (Commonwealth or State) amending or replacing any such Act.

For a defendant to be able to bring an action under the Compensation to Relatives Act, it must be shown that they were both a dependant and they had suffered pecuniary loss due to the wrongful death of the deceased.

Case law relating to dependants’ actions 9.74

The best-known Australian case relating to dependants’ actions is Haber v Walker.

Haber v Walker [1963] VR 339 Court: Supreme Court of Victoria (Full Court) Facts: Mr Joseph Haber, a father of eight dependent children, was injured in a car accident on 12 January 1957 at the intersection of View and Glen Streets, Glenroy, Victoria. Mr Haber was found 10 per cent contributorily negligent for his injuries (the defendant, Cedric J Walker, being 90 per cent to blame). Mr Haber’s injuries included brain damage. He became depressed and committed suicide. Legal principle: Could Mr Haber’s spouse and his eight dependent children recover damages under s 16 of the Wrongs Act 1958 (Vic)? Section 16 provided as follows: 16 Liability for death caused wrongfully Whensoever 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, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured …

The court’s decision (application of the legal principle to the facts): By a 2:1 majority (Lowe and Smith JJ; Hudson J dissenting), the court found that the suicide of Haber flowed from, and was causatively linked to, the initial injuries suffered

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in the motor vehicle accident. The plaintiff, Mrs Haber, needed to show under s 16 that the death by suicide was a consequence of the defendant’s negligence. The plaintiff did not, however, need to prove the more difficult matter that the suicide of Mr Haber was foreseeable by the defendant, Mr Walker. The surviving members of the Haber family were awarded the sum of £11,500 in the wake of Mr Haber’s wrongful death. Significance of this case: This case is based on a particular statute, so that its remit can be read down and particularised. However, it is informative about how Australian courts might view and interpret such matters in future.

Note, however, that Haber v Walker was not applied in Lyle v Soc.535455

9.75

Lyle v Soc [2009] WASCA 3 Court: District Court of Western Australia Facts: On 24 September 1999, the appellant was involved in a motor vehicle accident with the deceased (Ms Slavica Soc). The day after the accident, the deceased was diagnosed with a flexion extension injury to her neck. She was prescribed painkillers and anti-inflammatory medication. For the next two years the deceased continued to be treated with medication for pain that was caused by the  accident and other pre-existing conditions. On 29 October 2001, she was found dead as a result of ‘acute combined drug toxicity’. The respondent, who was the husband of the deceased, brought an action against the appellant under the Fatal Accidents Act 1959 (WA). He alleged that the appellant was responsible for the death of the deceased, as the appellant caused the motor vehicle accident, which caused the flexion extension injury and thus the deceased’s death as a result of her taking medications prescribed in respect of that injury. The deceased had suffered from headaches, ill health, mental health issues, obesity and suspected abuse of prescription medication for a long time before the accident. Legal principle: The court noted that in Haber v Walker,54 the plaintiff was not required to prove that the death by suicide was reasonably foreseeable, but only that the death was a consequence of the defendant’s negligence (at 30). In Lyle v  Soc, it was held that the preferable approach was the one adopted in Lisle v Brice55 that ‘on the day in question it was reasonably foreseeable that negligent

53. Lyle v Soc [2009] WASCA 3. 54. Haber v Walker [1963] VR 339. 55. Lisle v Brice [2001] QCA 271.

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driving might result in the train of events which did in fact occur’.56 Thus, it was accepted in both Lyle v Soc and Lisle v Brice that the requirement of reasonable foreseeability must be satisfied. The court’s decision (application of the legal principle to the facts): The appellant in this case was successful, as Steytler P was ‘unable to accept that damage of that kind was reasonably foreseeable as a result of a very minor collision between two motor vehicles’. 57 Significance of this case: This case did not apply Haber v Walker. So even though Haber v Walker was not explicitly overruled, it does indicate that other courts have some concerns about the decision.

Wrongful death damages 9.76

The aim of the damages for relatives and dependants of the deceased person, as set out in Table 9.9 above, is to compensate the dependants of the deceased for the loss of contribution by the deceased for their support.

Non-pecuniary losses5657 9.77

If a non-pecuniary loss can be assessed in monetary terms, it may be allowable as a head of damages. For example, damages may be claimed for the loss of services that the deceased contributed to helping out with the household: Nguyen v Nguyen.58 In that case, the High Court held that the services that were lost from the deceased, such as child care and household services, could be claimed under a wrongful death action. Also see New South Wales Insurance Ministerial Corp (formerly GIO) v Willis.59 In this case, the mother was killed. She had two children by her husband and subsequently another child by another man. On her death, her former husband cared for his two children and different arrangements were made for the care of the third child. The Court of Appeal held that it was foreseeable by the defendant that a woman who was killed might have children by different fathers and that the children would be cared for separately. Since the arrangements for the children were foreseeable, it held that the damages were correctly assessed by reference to the cost of meeting the needs of the children separately, even

56. Lisle v Brice [2001] QCA 271 at [42]. 57. Lyle v Soc [2009] WASCA 3 at [34]. 58. Nguyen v Nguyen (1990) 169 CLR 245. 59. New South Wales Insurance Ministerial Corp (formerly GIO) v Willis (1995) 35 NSWLR 668.

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though this exceeded the commercial value of the services provided by the mother while the children were all together. Recently, Grosso v Deaton60 considered both Nguyen v Nguyen61 and New South Wales Insurance Ministerial Corp v Willis.62 This case considered a mother of two who was killed in a motor accident. The two children subsequently resided with their respective fathers. The issue was whether the deceased’s children had suffered a compensable loss. The court referred to the two cases above and decided that a compensable loss had been suffered and awarded damages.

9.78

Grosso v Deaton [2012] NSWCA 101 Court: New South Wales Court of Appeal Facts: A single mother of two boys (age 12 and 8 years) was killed in a car accident. After her death the two sons went to live with their respective fathers. The question therefore was whether or not the sons had suffered compensable loss. The claims were brought by Joshua’s grandmother as the executor of the estate of the deceased. The executor was seeking damages for loss of domestic services and loss of an expectation of financial benefit. Legal principle: The additional care provided by a surviving parent may be taken into account to offset the loss, but not the gratuitous services provided by other family and friends. The court’s decision (application of the legal principle to the facts): The appeal was allowed and damages were assessed at $413,670.

Legal issue

Judge/s

Conclusion

McColl JA Yes Did the sons suffer compensable loss in the circumstances?

Reasons given Agreed with Basten JA’s reasons.

60. Grosso v Deaton [2012] NSWCA 101. 61. Nguyen v Nguyen (1990) 169 CLR 245. 62. New South Wales Insurance Ministerial Corp v Willis (1995) 35 NSWLR 668.

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Legal issue

Judge/s

Conclusion

Reasons given

Basten JA

Yes

‘[T]he suggestion that the fathers took over the care responsibilities of the mother was manifestly erroneous. Each of the fathers is in fulltime employment: it is highly improbable that either could be described as providing the day-to-day care for their sons which the mother, who was a fulltime carer, provided.’ 63

Neither. Approximately 20 years given the circumstances of the case

The likelihood that the boys would no longer be dependants at 18 was remote. Instead, there would be a tapering off of dependency from 17 until approximately 20 years of age.

Basten JA Is the period of dependency until 18 or 21 years?

Value of the dependency63 9.79

One of the main heads of damages that is going to be relevant to a wrongful death claim is the value of dependency (pecuniary losses). One case that looks at this issue is De Sales v Ingrilli.64 McHugh J set out a number of factors that should be looked at in determining the value of dependency. These include: the deceased and his or her spouse meeting the actuarial determination of the period of their joint life expectancy, the marriage of the deceased and the spouse surviving to the end of their joint life expectancy …, the income of the deceased not being cut off by premature death or reduced by sickness, accident, unemployment, retrenchment or demotion, the deceased continuing to maintain the same or similar level of financial support to the dependants that they were receiving as at the date of death, the relatives receiving non-income financial benefits from the deceased such as superannuation or an increase in wealth through investments or inheritance. 65

63. Grosso v Deaton [2012] NSWCA 101 at [25]. 64. De Sales v Ingrilli (2002) 212 CLR 338. 65. De Sales v Ingrilli (2002) 212 CLR 338 at [97].

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Possibility of the surviving spouse remarrying 9.80

One of the other questions that may be considered is the possibility of the surviving spouse remarrying. The primary question that is asked is how the substitution of the first spouse will compare with the second spouse. Thus, if the second spouse is not able to support the spouse at the same level as the deceased, the loss of the plaintiff is deemed to continue beyond the date of the second marriage, though reduced by whatever support is likely to be obtained from the second or subsequent spouse. Gaudron, Gummow and Hayne JJ in De Sales v Ingrilli said that:66 It is … wrong to treat … the prospect of forming some new continuing relationship as a separate item for which some identified discount must be made from whatever calculation is made of the present value of future benefits that would have flowed from the deceased to the relatives … But most importantly, it cannot be assumed that any new union will be, or will remain, of financial advantage to any of those for whose benefit the action is brought.That being so, some financially advantageous marriage or relationship must be treated as only one of many possible paths that the future may hold.

Survivor’s earnings 9.81

Carroll v Purcell 67 held that, in general, the earnings of the surviving spouse are to be ignored as the death does not create the capacity to work.

Succession of property: matrimonial property 9.82

General rules. There is no deduction in damages when a spouse inherits the family home as ‘the widow merely continues to enjoy as owner what she previously enjoyed as a wife’. However, in some cases, the courts may take into account the value of the house, or at least the extent of the acceleration of succession to an absolute or irrevocable interest: Zordan v Metropolitan (Perth) Passenger Terminal Trust.68

Wage and overtime accrual 9.83

This is usually not considered as this is generally taken into account when calculating the loss.

Long service leave accrual 9.84

This should not be entirely ignored when assessing damages, but the full amount is not deductible.

66. De Sales v Ingrilli (2002) 212 CLR 338 [at 76]. 67. Carroll v Purcell (1961) 107 CLR 73. 68. Zordan v Metropolitan (Perth) Passenger Terminal Trust [1963] ALR 513.

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Damages

Apportionment 9.85

Pecuniary losses are apportioned between the children and the spouse. In Parker v Commonwealth,69 it was stated that the 17-year-old daughter, who was almost a dependant (at the time studying to be a nurse), would probably have expected pecuniary benefits on occasions from her father, that is, when she qualified as a nurse or on the occasion of her marriage.

Contributory negligence 9.86

Contributory negligence is a matter pleaded by the defendant alleging the plaintiff failed to properly look out for themselves and were partly or fully to blame for their loss. At common law, it was originally a complete defence by the defendant and could defeat the claim. It is now, as the result of legislation, a matter of apportionment on what the court believes is ‘just and equitable’ in all the circumstances. A claim can be defeated on the basis the plaintiff was found to be 100 per cent to blame. Dependants bringing claims in that capacity, or in their own right, are subject to complex state-by- state provisions.

Contributory negligence — wrongful death 9.87

As with negligence actions brought by a living plaintiff, actions bought by the estate of the deceased, or that person’s relatives or dependants, is subject to the principles of contributory negligence. A finding of contributory negligence may result in a partial, or even complete, reduction of damages. The relevant statutory provisions are as follows in Table 9.10.

Table 9.10 State or territory

Section

Relevant Act

ACT

Pt 7.3, ss 27 and 47

Civil Law (Wrongs) Act 2002

NSW

Pt 3

Law Reform (Miscellaneous Provisions) Act 1965

Pt 1A, Div 8, s 5T

Civil Liability Act 2002 NT

Pt 5

Law Reform (Miscellaneous Provisions) Act 1956

Qld

Pt 3, Div 3

Law Reform Act 1995

Ch 2, Pt 1, Div 6

Civil Liability Act 2003

69. Parker v Commonwealth (1965) 112 CLR 295.

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State or territory

Section

Relevant Act

SA

s7

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001

Tas

s4

Wrongs Act 1954

Div 7

Civil Liability Act 2002

Vic

ss 25, 26, 62

Wrongs Act 1958

WA

Pt 1A, Div 5

Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 Civil Liability Act 2002

9.88

The Tasmanian provision is as follows: WRONGS ACT 1954 - SECT 4 Apportionment of liability in case of contributory negligence (1) Where a person suffers damage as the result partly of that person’s wrongful act and partly of the wrongful act of any other person, a claim in respect of that damage is not defeated by reason of the wrongful act of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage; but– (a) this subsection does not operate to defeat a defence arising under a contract; and (b) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable. (2) Where damages are recoverable by a person by virtue of subsection (1) of this section subject to such a reduction as is mentioned in that subsection, the court shall find and record the total damages that would have been recoverable if there had been no wrongful act by the claimant. (3) Section three applies in any case where two or more persons are liable or would, if they had all been sued by the person by whom the damage was suffered at the time when the cause of action arose, have been liable by virtue of subsection (1) of this section in respect of the damage suffered by any person. (4) Where a person dies as a result partly of that person’s wrongful act and partly of the wrongful act of any other person, and accordingly if an action were brought for the benefit of the estate under the Administration and Probate Act 1935 the damages recoverable would be reduced under subsection (1) of this section, any damages recoverable in an action brought for the benefit 454

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Damages

of the dependants of the person under the Fatal Accidents Act 1934 shall be reduced to a proportionate extent. (5) Where, in a case to which section three or subsection (1) of this section applies, one of the persons who committed a wrongful act or his personal representative avoids liability to another person or his personal representative by pleading any enactment limiting the time within which proceedings may be taken, he is not entitled to recover damages or contribution from that other person or personal representative. (6) Where a case to which subsection (1) of this section applies is tried with a jury, the jury shall determine the total damages that, apart from any limitation of liability provided by any contract or prescribed by any enactment or any limitation of the jurisdiction of the court, would have been recoverable if there had been no wrongful act by the claimant and the extent to which those damages are to be reduced. (7) A reference in this section to the wrongful act of a person shall be construed as including a reference to a wrongful act for which that person is vicariously liable. (8) This section has effect notwithstanding anything contained in any enactment passed before the commencement of this Act whereby a person is debarred from recovering damages or from taking an action for the recovery of damages in respect of any damage or injury that he caused, or to which he contributed, by his own negligence. 9.89

Section 5T of the Civil Liability Act 2002 (NSW) provides the following: 5T Contributory negligence — claims under the Compensation to Relatives Act 1897 (1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is entitled to have regard to the contributory negligence of the deceased person. (2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.

Tort reform and damages Non-economic loss 9.90

The maximum amount of damages for non-economic loss in New South Wales is $350,000: s 16(2).70 There needs to be a 15 per cent threshold for non-economic loss damages so that no damages will be able to be awarded unless the severity of the non-economic

70. Section references in 9.83, 9.84 and 9.85 are to the Civil Liability Act 2003 (NSW).

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loss is at least 15 per cent of a most extreme case and claims above 15 per cent will be determined according to a sliding scale: s 16 (1).

Economic loss 9.91

The maximum amount of damages for economic loss due to loss of earnings, deprivation or impairment of earning capacity or loss of expectation of financial support is fixed at a rate that is three times average weekly earnings in New South Wales: s 12(2). A claimant will have to satisfy the court that assumptions, such as assumptions about future earning capacity, on which an award of damages for future economic loss is based, accord with the claimant’s most likely future circumstances but for the injury: s 13(1).

Discount rates 9.92

Lump sum damages for future economic loss will be required to be discounted by 5 per cent or some other amount prescribed by the regulations: s 14(2).

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Review We can see that there are several elements to every negligence claim. We have focused in this chapter on the considerations that the courts take into account when assessing damages. Even though the courts aim to put the plaintiff in their pre-accident position, it is questionable as to whether this aim is achieved, especially since the advent of tort reform in each of the Australian jurisdictions. Negligence actions comprise a given set of issues which need to be established for the plaintiff to be successful in their claim or lawsuit. These are as follows:

Matters or issues to be established

Who establishes the issue?

If the issue is established?

If the issue is not established?

1. A duty of care is owed by the defendant

The plaintiff

Move to ‘breach’ below

The plaintiff’s case will collapse

2. Breach of the duty by the defendant

The plaintiff

Move to The plaintiff’s case ‘damage’ below will collapse

3. Damage to the plaintiff or plaintiff’s property

The plaintiff

Move to ‘other issues’ below

The plaintiff’s case may succeed, depending on ‘other issues’

4. Other issues (1): The plaintiff The damage/loss incurred by the plaintiff is not too remote

The plaintiff’s case Move to ‘other issues (2)’ should succeed subject to any below reduction in damages referred to below

5. Other issues (2): The defendant Contributory negligence by the plaintiff

Will reduce the damages awarded to the plaintiff

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Chs 9 and 10 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 8 457

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Key Cases Golden Eagle International Trading Pty Ltd v Zhang (2007) 234 ALR 131; [2007] HCA 15 Grosso v Deaton [2012] NSWCA 101 Haber v Walker [1963] VR 339 Kars v Kars (1996) 187 CLR 354 Lyle v Soc [2009] WASCA 3 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 Skelton v Collins (1966) 115 CLR 94 Sharman v Evans (1977) 138 CLR 563 Zheng v Cai (2009) 239 CLR 446

Chapter 9 Review Questions 1. 2. 3. 4. 5.

What is the aim of tort damages? What are the problem areas of damages and why? What are damages up to the date of trial/settlement referred to as? What is the difference between pecuniary and non-pecuniary damages? Do you think the plaintiff is put in their pre-accident position if they are awarded tort damages?

Tutorial 9: Damages

Internal memorandum From: Guido Markewicz To: Kayt Hogan (trainee) Date: 30/08/20XX

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Re: John Davy, Alexandra Smith and Bob Cousins John Davy and Alexandra Smith were involved in a serious car accident with Bob Cousins (the driver of the other vehicle). Bob Cousins failed to give way to John Davy at an intersection. Both John Davy and Alexandra Smith were seriously injured. John Davy received extensive physical injuries and a possible cognitive impairment, while Alexandra Smith received facial lacerations, whiplash and a fractured shoulder. Alexandra Smith is a model who earns $10,000 a day for modelling jobs. It looks like she will not be able to model again because of the lacerations on her face. She may, however, be able to undertake other employment, but she has only ever worked as a model. She has also incurred medical expenses as a result of the various treatments that she needed to undertake after the accident. In addition to this, Alexandra was an amateur violinist who enjoyed playing in a local string quartet. As a direct result of the accident, she is no longer able to play the violin. She is very upset about this. John Davy is a stay-at-home father who is no longer able to look after his children. He has employed Sylvia to look after his children for 30 hours per week. In addition to this, John needs assistance with housework and cooking. Bob Cousins, who, coincidentally, is John’s neighbour, has indicated that he would like to assist John with the housework and cooking without payment. Also, even though John had been a stay-at-home father for the past five years, before he had his children he was a high-profile barrister who was earning $120,000 a year. It looks like the accident has had a direct impact on his cognitive abilities, so it is unlikely that he will be able to go back to being a barrister once his children are older. Please write a memorandum setting out the legal positions of John Davy, Alexandra Smith and Bob Cousins. Thanks, Guido

Tutorial 9: Student Example Answer

Prepared by: Kayt Hogan (trainee) Law UNE Internal memorandum To: Guido Markewicz From: Kayt Hogan (trainee) Date: 09/09/200X 459

Torts: Principles, Skills and Application

Re: John Davy, Alexandra Smith and Bob Cousins As requested, the legal positions of John Davy, Alexandra Smith and Bob Cousins are set out below. Bob Cousins If it can be shown that Bob Cousins breached a duty of care owed to John Davy and Alexandra Smith, he may be liable for damages in accordance with that outlined below. Alexandra Smith Alexandra Smith was seriously injured in the car accident, and received facial lacerations, whiplash and a fractured shoulder. Consequently, Alexandra Smith may be entitled to compensatory damages for personal injury. The key aim of compensatory damages is to award ‘a sum of money [that] will, as nearly as possible, put [the plaintiff] in the same position as if [he or she] had not sustained the injuries’.71 Such damages are awarded under certain heads, namely non-pecuniary loss, for example, pain and suffering, and loss of amenities; and pecuniary loss, such as medical expenses and loss of earning capacity.72 With respect to pecuniary loss, Alexandra Smith will be able to recover damages for the medical expenses incurred as a result of the accident; however, the damages that may be awarded for loss of earning capacity will be more difficult to calculate. Alexandra Smith is unable to work as a model again due to the lacerations on her face, and although she may be able to undertake other employment, she has only ever worked as a model. So, because Alexandra Smith has not totally lost the capacity to earn, it seems plausible to suggest that the court would calculate her loss of earning capacity for the period in which Alexandra Smith could be expected to continue work as a model. This, of course, would be very difficult. In calculating the amount to be recovered for loss of earning capacity, the court will deduct any expenses incurred in order to earn.73 For example, if Alexandra Smith purchased clothes for modelling out of her income, those expenses will be deducted. Damages awarded will also be discounted in order to accommodate for inflation, taxation and wage changes.74 Turning now to non-pecuniary loss, Alexandra Smith may be able to recover damages for loss of amenities due to her inability to continue playing the violin. In Skelton v Collins,75 Taylor J stated that loss of amenity as a head of damages ‘is intended to denote a loss of the capacity of the injured person consciously to 71. Todorovic v Waller (1981) 150 CLR 402 at 412 per Gibbs CJ and Wilson J. 72. CSR Ltd v Eddy (2005) 226 CLR 1 at [28]–[31] per Gleeson CJ, Gummow and Heydon JJ. 73. Sharman v Evans (1977) 138 CLR 563 at 577 per Gibbs and Stephen JJ. 74. Todorovic v Waller (1981) 150 CLR 402. 75. Skelton v Collins (1966) 115 CLR 94.

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enjoy life to the full’.76 As Alexandra Smith can no longer do what she enjoys, it can be seen that she can no longer enjoy life to the full. Provided, then, that Alexandra Smith is not limited by s 16(1) of the Civil Liability Act 2002 (NSW), she may be able to recover damages under this head too. John Davy John Davy suffered from extensive physical injuries, and has a possible cognitive impairment as a result of the accident. Due to this, John Davy can no longer look after his children, and needs assistance with household chores. Furthermore, John Davy was a high-profile barrister, and it appears that the accident has impacted on his ability to continue in this profession. With respect to pecuniary loss, John Davy may recover damages for medical expenses, although, as in Alexandra Smith’s case, damages for loss of earning capacity may be hard to calculate. The court would most likely consider the age at which John Davy’s children will be old enough for him to return to work, and may also look at whether John Davy is capable of working in any other capacity. As set out above, any expenses incurred in order to earn will be deducted, and damages will be discounted to accommodate for taxation, inflation and wage changes. Unfortunately, with respect to John Davy’s inability to care for his children, it has become quite difficult to show that damages should be awarded as a result of CSR v Eddy.77 While it could be possible to show that John Davy may recover under this head, s 15B(9)(a) of the Civil Liability Act 2002 (NSW) provides that damages may not be awarded where the injury in question is the result of a motor vehicle accident, as is the case here. John Davy may be more successful in claiming damages for the assistance Bob Cousins provides him with housework and cooking. In Griffiths v Kerkemeyer,78 it was held that a plaintiff could recover for domestic services, even if they are given gratuitously, and additionally, Kars v Kars79 decided that this principle will hold even if the person providing the care is the defendant. As such, John Davy can recover damages for the assistance given to him for household chores. Conclusion Bob Cousins will be liable for the damages recoverable by John Davy and Alexandra Smith as discussed above.

76. Skelton v Collins (1966) 115 CLR 94 at 113. 77. CSR v Eddy (2005) 226 CLR 1. 78. Griffiths v Kerkemeyer (1977) 139 CLR 161. 79. Kars v Kars (1996) 187 CLR 354.

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Chapter 10

Medical Negligence Legal practice skill: Acting for people injured by medical negligence

Learning aims •

Familiarise with medical negligence concepts

•

Categorise the various tasks performed by medical practitioners

•

Understand the Bolam test

•

Appreciate the importance of the High Court case Rogers v Whitaker

•

Learn the legislative changes in the area

•

Explore ongoing controversies associated with wrongful life versus wrongful birth claims

Background concepts 10.1

This chapter explores the major causes of action in the situation where an aggrieved patient seeks to bring a tortious claim against a health professional. The negligence law in this area has been in a state of flux for some time, as the law transitions from a profession-centred test of negligence, to a patientcentred one, then back to a more middle ground. The law of battery applying in this area has been considerably more stable. This chapter will: •• outline the elements and application of the tortious causes of action; •• provide examples from the cases, of failures of diagnosis, advice and treatment; and •• then proceed to examine a troubled area of the law — the actions in wrongful birth and wrongful life.

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Torts: Principles, Skills and Application

The two principal tortious causes of action 10.2

There are two principal tortious causes of action which an aggrieved patient might use when complaining about substandard treatment provided by a doctor: an action in battery and an action in negligence. The reason these actions are useful to a patient will be clearer when you think about the types of activities doctors undertake patient consultations, as shown in Table 10.1.

Table 10.1 Tasks performed by medical practitioners

Facets of the task include:

Diagnosis

• conducting examinations and ascertaining the medical condition of the patient; and • giving patients warnings as to risks associated with operations, procedures, medicines etc.

Treatment

• performance of operations, including preparation for (for example, anaesthetics) and after-care.

Prognosis

• making predictions about future case management.

Some of these activities will involve a doctor touching a patient. Consider the examples below in 10.3 and 10.4.

Diagnosis 10.3

A typical set of diagnostic tests run on a patient by a general practitioner might include: •• checking the patient’s blood pressure, which involves placing a cuff on the patient’s arm, inflating that cuff, then deflating it; •• applying a tongue depressor to the patient’s tongue and examining the inside of the patient’s mouth; •• shining a light into the patient’s eye to examine it •• applying a stethoscope to the patient’s chest, back or stomach areas or placing a thermometer under the patient’s tongue to take the patient’s temperature; and •• other diagnostic tools exist, such as taking blood tests.

464

10.7

Medical Negligence

Of course, sometimes making a diagnosis may be as simple as a doctor asking a patient questions about his or her symptoms. In which case, no touching may be involved.

Treatment 10.4

There is a wide range of treatments, just as there is a wide range of ailments. Some treatments are dependent upon touching, to varying degrees, in order to be efficacious. Examples include lancing or surgically removing growths, manipulations of joints or muscles, and surgery. Having examined some of the examples of when a doctor touches a patient, we now look at how the law treats an allegation that touching was not wanted. The relevant action is an action in battery.

Battery 10.5

The elements of battery, it will be recalled, are a direct, intentional application of force to another. The presence of a valid consent to the above is, in Australia, a defence. All of the treatments and diagnostic instruments mentioned above involve a direct, intentional application of force. It follows that, if a patient does not give an effective consent to the application of force on him or her, then he or she may have an action in battery against the medical practitioner. Defining the scope of an effective consent is, therefore, critical to whether a patient is successful in a battery action.

The notion of consent in terms of battery 10.6

There are three elements of consent to what would otherwise be a battery. They are: 1. Volition — a patient’s consent must be freely given. 2. Information — a patient must be informed of the nature of the proposed touching involved in the medical treatment. 3. Competency — a patient must have the necessary capacity to be able to give consent.

Competency 10.7

The law commonly restricts people’s ability to enter into binding obligations. So, for example, a person who has suffered a serious brain injury may be unable to make financial decisions.

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10.7

Torts: Principles, Skills and Application

The same is true in respect of medical treatment decisions. The law has had a difficult time in defining who may (or who may not) make treatment decisions. Put another way, who may, and who may not, give consent to medical treatment? Think about the following examples and decide who of the following should be able to give consent to medical treatment: •• a two-year-old boy who grazes his knee and requires some antiseptic and a band aid; •• a two-year-old boy who falls and suffers a compound fracture to his arm; •• an eight-year-old girl who wants a breast augmentation operation; •• a 10-year-old boy who wants a rhinoplasty (‘nose job’); •• a 15-year-old boy who wants a sex-change operation; and •• a 17-year-old girl who wants to donate bone marrow to her sister. The High Court was confronted with issues relating to child consent to medical treatment in Marion’s Case.

10.8

Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; 106 ALR 385 Court: High Court of Australia Facts: Marion was a severely intellectually disabled 14-year-old girl. Her parents applied to the Family Court for an order to perform a sterilisation operation on her, or for an order that it would not be illegal for the parents to consent to the performance of this operation on her. Legal principle: What are the legal rights and responsibilities of adults and children, in respect of children’s medical treatment? The court’s decision (application of the legal principle to the facts): The High Court decided that, once a child reached a certain age and maturity, he or she could consent to treatment. Until that time, a parent or court could give consent, provided it was in the child’s best interests to have the treatment. There are some treatments which are so serious that no parent can give consent. In respect of these treatments (including sterilisation), only a court can give consent. On this point, the High Court said that court consent is required for procedures which require invasive, irreversible and major surgery, and where there is a significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and where the consequences of a wrong decision are particularly grave. Significance of this case: The case is important because it establishes that children can, in some circumstances, consent to treatment.

466

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Medical Negligence

Consider the following question: A family, short of money, decides to send their youngest child (aged eight) out to beg for money on the streets. The father of the household considers his daughter will be a more effective beggar if she has one leg removed. Can the father consent to this procedure?

Developments in the law 10.9

Some states have altered the common law on children consenting to medical treatment. New South Wales and South Australia have statutes which deal with the question. The relevant section of the New South Wales statute, the Minors (Property and Contracts) Act 1970, is extracted below: 49 Medical and dental treatment (1) Where medical treatment or dental treatment of a minor aged less than sixteen years is carried out with the prior consent of a parent or guardian of the person of the minor, the consent has effect in relation to a claim by the minor for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, the minor were aged twenty-one years or upwards and had authorised the giving of the consent. (2) Where medical treatment or dental treatment of a minor aged fourteen years or upwards is carried out with the prior consent of the minor, his or her consent has effect in relation to a claim by him or her for assault or battery in respect of anything done in the course of that treatment as if, at the time when the consent is given, he or she were aged twenty-one years or upwards. (3) This section does not affect: (a) such operation as a consent may have otherwise than as provided by this section, or (b) the circumstances in which medical treatment or dental treatment may be justified in the absence of consent. (4) In this section: dental treatment means: (i) treatment by a dentist in the course of the practice of dentistry, or (ii) treatment by any person pursuant to directions given in the course of the practice of dentistry by a dentist. medical treatment means: (i) treatment by a medical practitioner in the course of the practice of medicine or surgery, or (ii) treatment by any person pursuant to directions given in the course of the practice of medicine or surgery by a medical practitioner.

What is the effect of the above section? How does it alter the position at common law? 467

10.9

Torts: Principles, Skills and Application

Now consider the South Australian statute which governs the consent to medical treatment of children: Consent to Medical Treatment and Palliative Care Act 1995 s 12: 12 Administration of medical treatment to a child A medical practitioner may administer medical treatment to a child if — (a) the parent or guardian consents; or (b) the child consents and — (i) the medical practitioner who is to administer the treatment is of the opinion that the child is capable of understanding the nature, consequences and risks of the treatment and that the treatment is in the best interest of the child’s health and well-being; and (ii) that opinion is supported by the written opinion of at least one other medical practitioner who personally examines the child before the treatment is commenced.

How does this differ in approach from the New South Wales statute? How does it differ from common law? Which approach do you prefer? Why?

Other competency issues 10.10

It is not only children who may not be able to consent to medical treatment. The idea of competency is interrelated with understanding — one of the other elements of a valid consent. In other words, in order for a person to be competent, he or she must have the capacity to understand, in broad terms, the nature of the treatment. This means, for example, that a person whose capacities are severely disordered by alcohol, drugs, extreme pain or fatigue, such that he or she cannot process information, may be incompetent. Obviously, a person not only needs to be able to process information, he or she must also be able to communicate (in some form) the decision he or she has made about a treatment. Consider the following question: a woman suffering from a mental illness is in the early stages of labour. A caesarean section is indicated. She wants to refuse consent to the procedure on the grounds she does not believe she is pregnant. Is she competent to refuse treatment?

Scope of the battery action for a competent patient 10.11

The battery action may still be of use to an aggrieved patient, in a very narrow range of circumstances. If a doctor were to operate on a different part of the body from that which was authorised, or if he or she were to carry out further procedures to which the 468

10.13

Medical Negligence

patient had not given consent, then a battery action would lie. So, in Chatterton v Gerson,1 the trial judge refers to a case reported in the media, where a boy went in for a tonsillectomy, but instead had a circumcision performed on him. The operation performed on him was different to that to which consent had been given. In those circumstances, a battery action would lie. 10.12

Although emergency is an accepted exception to the rule that consent is required of a patient before treatment is performed, there is an exception to this exception. If the patient has indicated that, despite the emergency, he or she does not want treatment, that wish must be respected. In these circumstances, it is clear that the motives of the practitioner are irrelevant in terms of establishing liability.

10.13

Malette v Shulman (1990) 67 DLR (4th) 321 Court: Ontario Court of Appeal Facts: A woman was admitted to casualty following a motor vehicle accident. A blood transfusion was clinically indicated, but the woman was found to be carrying a card identifying herself as a Jehovah’s Witness and noting that she did not want a blood transfusion under any circumstances. The attending physician determined that without a blood transfusion the woman would die, so gave her a blood transfusion. She sued him for battery. Legal principle: Does the emergency exception to the consent requirement apply if the patient has explicitly refused consent prior to the emergency arising? The court’s decision (application of the legal principle to the facts): A battery had been committed. The doctor’s motives were pure, but misguided. His primary obligation was to respect the patient’s wishes. Significance of this case: The case is important because it establishes the primacy of a doctor’s obligation to respect the autonomous wishes of a patient, irrespective of the consequences to the patient. Note that the above principle may be altered by statute. For example, in Victoria, due to the peculiar wording of the guardianship statute in that state, the Guardianship and Administration Act 1986 (Vic), the Guardianship and Administration Board was able to make an order which had the effect of overriding the refusal of consent: Qumsieh v Guardianship and Administration Board.2

2

1. Chatterton v Gerson [1981] QB 432; [1981] 1 All ER 257. 2. Qumsieh v Guardianship and Administration Board [1998] VSCA 45; BC9805364.

469

10.14

Torts: Principles, Skills and Application

Negligence The medical standard of care 10.14

Negligence, of course, consists of a duty of care owed by one party to another, a breach of that duty of care (by falling below the requisite standard of care expected), and that breach causing damage to a plaintiff. The High Court in Rogers v  Whitaker 3 confirmed that a doctor does owe a duty of care to a patient. This is a single duty, but encompasses three aspects — diagnosis, advice and treatment. One of the major issues that arises in the area of medical liability is the standard of care to be applied.

The notion of ‘expertise’ in terms of professional negligence 10.15

As we have seen, negligence law requires defendants to act reasonably. Reasonableness is, theoretically at least, objective. It is the standard of the reasonable person. How does this change if the courts are dealing with a qualified, expert or professional defendant whose alleged negligence relates to that person’s qualifications, expertise or profession? How do the courts treat professional defendants and, in particular, doctors? In practice, the courts begin to impose some subjective criteria as they focus on the particular class (that is, doctor, lawyer, surveyor etc) of defendant and the particular context of the injury or loss. The test goes from the very general, objective approach (the standard of the reasonable person), to the more particular, more subjective and less objective approach (the standard of the reasonable practitioner with the same qualifications and skills).

The notion of ‘medical expertise’ in particular 10.16

We can see  that questions of standard become more precise as our inquiry becomes more focused. Taking the above issues, we can see that the standard of an eye surgeon is, in practice, and at least as far as diagnosis and treatment are concerned, fairly precise, as Table 10.2 shows.

3. Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625.

470

10.17

Medical Negligence

Table 10.2 The defendant

The standard of care test

Nature of test applied

Adult member of public

The reasonable person

Objective

The medical practitioner

Other qualified medical practitioners, that is, those with a basic medical degree

Less objective — becoming subjective

The eye surgeon

Other qualified eye surgeons, Becoming more subjective that is, those with a basic medical degree plus the additional specialist qualifications required to hold oneself out as an eye surgeon

The various tasks performed by medical practitioners 10.17

We can see, therefore, that the topic of medical negligence needs to be carefully classified. There is a general duty of care for the context of the inquiry. The medical profession is made up of various health professionals with specific roles and tasks. What we are focusing on in this chapter are those people with medical qualifications. What sorts of tasks do they perform? See Table 10.3.

Table 10.3 Tasks performed by medical practitioners

Facets of the task include:

Diagnosis

The reasonable person

The medical practitioner

• examining the patient and ascertaining the medical condition of the patient

Treatment

• performing operations, including preparation (for example, an anaesthetic) and after-care

Advice

• giving patients warnings as to risks associated with operations, procedures, medicines etc

471

10.18

Torts: Principles, Skills and Application

A brief history of medical negligence principles in Australia Overview 10.18

An historical analysis of medical negligence in the Australian context relies in particular on comparing the Bolam test, named after the United Kingdom case Bolam v Friern Barnet Hospital Management Committee4 which governed the standard of care until 1992 in Australia. Then, after this time, the High Court applied a different test, derived from the Rogers v Whitaker case.5 Finally, from 2002 onwards, statutory intervention has partly restored the Bolam standard — but only in respect of treatment.6

The Bolam case 10.19

Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 Court: Queen’s Bench Legal principle: The Bolam principle is that a doctor is not negligent if he or she acts in accordance with common medical practice accepted by a responsible body of medical opinion, even though there may be other practices that exist. The standard of care was, therefore, essentially a matter of medical judgment. Significance of this case: The practical effect of this case was to establish a professional-centred test of liability. Lord Scarman explained the Bolam principle in Sidaway v Governors of the Bethlem Royal Hospital:6 The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice.

Rejection in Australia of the Bolam test in cases of advice: Rogers v Whitaker 10.20

Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 Court: High Court of Australia Facts: This case involved the risks associated with eye surgery. The patient was already blind in one eye. The specialist ophthalmic surgeon failed to warn

4. Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118. 5. Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625. 6. Sidaway v Governors of the Bethlem Royal Hospital [1985] AC 871 at 881; [1985] 1 All ER 643 at 649.

472

10.21

Medical Negligence

regarding ‘sympathetic ophthalmia’, which is where a ‘good’ eye is affected by the related onset of problems associated with the other eye. Legal principle: Was the surgeon liable for a failure to warn of these complications? The court’s decision (application of the legal principle to the facts): The majority, led by Mason CJ, found that there had been negligence by the specialist as regards a failure to warn of possible side effects of the surgery. The court said (at CLR 487): The standard expected 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 or trade.

The court indicated, in other words, that whether the doctor has breached the standard is not a question that can be answered by the medical profession itself — whether the defendant is in breach of the standard is a question for the court. Thus, the High Court rejected the view that the medical profession has that level of influence over the breach question. However, the High Court did say (at CLR 483) that: ‘Responsible professional opinion will have an influential, often a decisive, role to play’. Significance of this case: The High Court rejected the Bolam test and said instead that the common practice of doctors is merely a piece of evidence to be included in the evidential mix to determine negligence. The doctor’s duty is broad, multi-faceted and extends to ‘the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case’ (at CLR 483).

Lessons from Rogers v Whitaker for the litigator 10.21

There is a general duty of care for a person medically qualified to warn a patient of the risks associated with an operation or medical procedure. Warnings form part of the duty along with other skills such as diagnosis, prognosis and the actual performance of medical procedures. The duty to warn is not absolute, that is, not every patient has to be warned of every risk. The duty to warn is in relation to ‘material risks’. Materiality of the risk is calibrated in relation to several potential factors including the particular patient; the particular proposed procedure; the particular doctor; the probability of complications ensuing and so forth. To be successful, the plaintiff/patient still has to show that the failure to warn was causative of the loss. The credibility of the patient as a witness at trial will have an enormous practical bearing on these issues. 473

10.22

Torts: Principles, Skills and Application

Summarising the effects of Bolam and Rogers 10.22

We have gone from a ‘doctor knows best’ attitude exemplified by Bolam to a proliferation of challenges to the expertise of doctors by their fellow professionals.The practical effect of the Bolam test was that a body of respectable medical opinion was fairly conclusive as to whether a practice or procedure was negligent. A distinctive Australian approach has been mapped out by the High Court since Rogers v Whitaker in 1992.7 These two key cases can be summarised as follows.

Case

Jurisdiction

Legal principle

Link/practical context

Bolam, 1957

Queen’s Bench, UK

The medical practice followed in the particular scenario in question by a respectable body of medical opinion will negate a finding of negligence

Doctors are qualified professionals; the concept of ‘best practice’ can be agreed upon. Doctors often found not liable

Rogers v Whitaker, 1992

High Court of Australia, Mason CJ

The test for negligence depends on all the facts and circumstances. A respectable body of opinion test is not conclusive. One respectable contrary opinion can theoretically result in a finding of negligence

Doctors operate in a context of professional uncertainty. More cases of medical negligence. Rising medical premiums. A more litigious environment

Trends in terms of professional negligence 10.23

As we have seen, professional groups are increasingly subject to litigation conducted by unhappy patients, clients or customers. The general trend has seen the rise of litigiousness as we have moved from the stoic, post-war society

7. Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625.

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Medical Negligence

to the redress-seeking, post-modern society. Other professionals such as dentists, teachers, the police, lawyers, accountants, auditors and financial advisers have seen their idealised autonomy eroded by litigation. There is clearly, however, an emerging political will, as evidenced by legislation in Australia, to stem such practices.

Post-Rogers v Whitaker developments Naxakis, the High Court extended the reach of the standard in Rogers v Whitaker,8 beyond that of advice.

10.24 In

Misdiagnosis: the Naxakis case 10.25

Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 Court: High Court of Australia Facts: The plaintiff, Paraskevas Naxakis, a 12-year-old boy, was hit on the head during a fight after school. He was hit once (or possibly twice) with the other boy’s vinyl school bag. He collapsed. He was seen by a GP who referred him to Western General Hospital. Mr Jensen, the neurosurgeon, examined him. He was treated for a subarachnoid haemorrhage. As Gaudron J notes (at [8]), ‘there were unusual features of the appellant’s condition but he gradually improved and was discharged from hospital on 23 July 1980’, that is, nine days after being admitted. On 25 July he collapsed at home; he had major internal bleeding from a burst aneurysm. It was discovered that his unusual symptoms had been connected with internal bleeding. Legal principle: Was the hospital or the neurosurgeon negligent in its treatment and failure to diagnose correctly? The court’s decision (application of the legal principle to the facts): At trial before a jury, the judge in the Supreme Court of Victoria had ruled that there was not sufficient evidence of negligence and did not allow the jury to determine as a question of fact: was there negligence in this case? The High Court found that the trial judge was wrong. There was enough potential material to go to the jury. Significance of this case: This case supports the Rogers v Whitaker approach, applied not only to a failure to advise of material risks (as in Rogers v Whitaker), but also a failure to correctly diagnose (Naxakis). That is to say, it is a matter for the courts, and not the profession, to determine what is negligence.

8. Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625.

475

10.26

Torts: Principles, Skills and Application

Legislative developments 10.26

The advent of the Civil Liability Acts in most jurisdictions of Australia (in Victoria the relevant Act is called the Wrongs Act) has had an important impact on medical liability. The effect of the Civil Liability Act is to restore the modified Bolam standard in respect of a doctor’s duties of diagnosis and treatment. A doctor is not liable if he or she relies upon the practice widely accepted among a body of competent medical practitioners, unless a court determines that practice is irrational, or contrary to law. The Rogers v Whitaker9 standard applies in respect of a doctor’s duty to advise of material risks. Extracts from the Civil Liability Act are reproduced below: Civil Liability Act 2002 (NSW) 1 Part 1A Negligence Division 1 Preliminary 5 Definitions In this Part: ‘harm’ means harm of any kind, including the following: (a) personal injury or death, (b) damage to property, (c) economic loss. ‘negligence’ means failure to exercise reasonable care and skill. ‘personal injury’ includes: (a) pre-natal injury, and (b) impairment of a person’s physical or mental condition, and (c) disease. 5A Application of Part (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. (2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B. Division 2 Duty of care 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless:

9. Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625.

476

10.26

Medical Negligence

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (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. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. Division 3 Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: 477

10.26

Torts: Principles, Skills and Application

(a) the matter is to be determined 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. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Division 4 Assumption of risk 5F Meaning of ‘obvious risk’ (1) For the purposes of this Division, an ‘obvious risk’ to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of 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. 5H No proactive duty to warn of obvious risk (1) A person (‘the defendant’) does not owe a duty of care to another person (‘the plaintiff ’) to warn of an obvious risk to the plaintiff. (2) This section 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 478

10.26

Medical Negligence

(c) the defendant is a professional 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. 5I No liability for materialisation of inherent risk (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. Division 5 (ss 5J–5N) has been omitted. Division 6 Professional negligence 5O Standard of care for professionals (1) A person practising a profession (‘a professional’) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. 5P Division does not apply to duty to warn of risk This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service. Division 7 Non-delegable duties and vicarious liability 5Q Liability based on non-delegable duty (1) The extent of liability in tort of a person (‘the defendant’) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

479

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Torts: Principles, Skills and Application

(2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A. Division 8 Contributory negligence 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent 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 determined on the basis of what that person knew or ought to have known at the time. 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated. 5T Contributory negligence — claims under the Compensation to Relatives Act 1897 (1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is entitled to have regard to the contributory negligence of the deceased person. (2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897. 6–8 (Repealed) Part 2 Personal injury damages Division 1 Preliminary 9, 10 (Repealed) 11 Definitions In this Part: ‘injury’ means personal injury and includes the following: (a) pre-natal injury, (b) impairment of a person’s physical or mental condition, (c) disease. ‘personal injury damages’ means damages that relate to the death of or injury to a person.

480

10.28

Medical Negligence

Particular instances of failures in diagnosis, advice and treatment Diagnosis 10.27

Negligence in diagnosis comes in different forms.We explore some of these below.

Boehm v Deleuil [2005] WADC 55 Court: District Court of Western Australia Facts: The plaintiff consulted his general practitioner, concerned about a lump on the back of his leg. The plaintiff was assured by his general practitioner that it was a lipoma — a non-malignant growth. The growth increased in size. The plaintiff went back and saw a different doctor who advised the lump was a lipoma. Neither practitioner adequately palpated the lump, or adequately examined the lump. Had they done so, they would have formed the suspicion the lump was a malignancy. In the end, by the time the growth was properly identified as a malignancy, the plaintiff had to have his leg amputated above the knee. Legal principle: What was the nature of the doctor’s duty to diagnose? The court’s decision (application of the legal principle to the facts): The duty of care owed by a medical practitioner to a patient is a duty to exercise ‘reasonable care and skill in the provision of professional services which extend to the diagnosis and treatment of the patient’. The applicable standard of care was that of the ‘ordinarily skilled general practitioner’. Judged according to that standard, the defendants had failed by not ordering tests which could have discovered the cyst earlier. Significance of this case: The case outlines the standard of diagnosis expected of a general practitioner.

10.28

Elysee v Hassam [2018] NSWDC 137 Court: District Court of New South Wales Facts: The plaintiff consulted his general practitioner over a number of years. He had hypertension (high blood pressure) as well as diabetes. The general practitioner failed to monitor his renal function, which became progressively worse. He also did not refer the patient to a renal specialist. These failures to correctly diagnose a deteriorating renal function meant that the plaintiff’s kidney function deteriorated much faster than might otherwise have been the case. Legal principle: What is the nature of the doctor’s duty to diagnose?

481

10.28

Torts: Principles, Skills and Application

The court’s decision (application of the legal principle to the facts): A doctor has an ongoing duty to diagnose. The patient’s renal function should have been closely monitored and, when it deteriorated, the patient should have been referred to a renal specialist. Significance of this case: The case defines the scope and ongoing nature of a doctor’s duty to diagnose.

10.29

Coote v Kelly; Northam v Kelly [2017] NSWCA 192 Court: New South Wales Court of Appeal Facts: The plaintiff brought an action against the defendant for his alleged failure to diagnose a malignant melanoma on the foot of her husband. This melanoma ultimately caused the death of the plaintiff’s husband. The defendant had examined Mr Kelly’s foot, determined that what was present on his foot was a plantar wart, and proceeded to treat it accordingly. Four other doctors who were subsequently consulted by Mr Coote also treated the growth on the foot as if it were a plantar wart. It was not until a biopsy was performed did it become apparent the growth was malignant. The appearance of the lesion at the time of consultation with the defendant was critical. The plaintiff’s wife gave evidence that it had a black spot in it. The defendant denied this saying had this been present it would have represented ‘a red flag’. His clinical notes were, however, inadequate — as were those of the other four doctors. The court decided that, on the balance of the probabilities, no black spot was present, therefore there was not a failure to correctly diagnose. Significance of the case: The case reinforces the need for a doctor to take good clinical notes in respect of all aspect of his or her practice.

Treatment 10.30

10.31

Medico-legal shows on television are filled with examples of errors in treatment — doctors leaving foreign objects in patients, doctors administering incorrect drugs to patients and the like. But how accurate are these scenarios?

Masson v The State of Queensland [2018] QSC 162 Court: Supreme Court of Queensland Facts: The patient had a severe asthma attack. She was attended by ambulance officers who administered salbutamol to her. Had she been given adrenaline, she would have avoided having hypoxia which resulted in her sustaining brain damage and death.

482

10.32

Medical Negligence

Legal principle: What duty of care was expected of ambulance officers? The court’s decision (application of the legal principle to the facts): The court held the applicable standard of care required was not that of a doctor in an emergency room setting; it was that of the reasonable ambulance officer. The court found there was a reasonable body of medical opinion supporting that the patient’s high blood pressure and rapid heart rate in conjunction with her asthma supported the administration of salbutamol. Significance of this case: The standard of care expected of a medical practitioner will vary according to the medical expertise of that person. A paramedic will only be judged according to the standards of a reasonably competent paramedic, not as if that person were a doctor. Similarly, a general practitioner will only be judged according to the standards of a general practitioner.

Courts will take into account the surrounding circumstances in which care is given. So, for example, courts will consider urgent or emergency situations.

10.32

Sheppard v Swann [2004] WASCA 215 Court: Court of Appeal of Western Australia Facts: The patient went into labour. The labour was a difficult one, and the child turned out to be a large baby, weighing 11 pounds. The obstetrician did not stop the labour and give the patient the choice of proceeding via caesarean section, but proceeded via a vaginal delivery. The natural birth caused personal injury to the patient. Legal principle: In assessing whether treatment is negligent, will courts take into account situations of urgency or emergency? The court’s decision (application of the legal principle to the facts): The court decided that, given the circumstances of the case, it was not negligent for the obstetrician to not have stopped and offered the plaintiff a choice. Significance of this case: In assessing whether a doctor has been negligent, the court will take into account situations of urgency or emergency and make appropriate allowances.

It is clear that, whether the medical practitioner has fallen below the standard of a reasonably competent practitioner or not, if the patient suffers no damage, no action in negligence will be successful.

483

10.33 10.33

Torts: Principles, Skills and Application

Zhang v Hardas (No 2) [2018] NSWSC 432 Court: New South Wales Supreme Court Facts: The plaintiff attended the defendant, a chiropractor. During his treatment he used a device called an activator Mark II. The trial judge found this happened ‘only a handful of times — and never more than twice on any particular part of the spine’. At the end of the sessions, the plaintiff developed further symptoms (not related to the use of the activator). The chiropractor did not refer the plaintiff to her general practitioner for investigation of the symptoms. Legal principle: Is damage required before there can be a successful action in negligence? The court’s decision (application of the legal principle to the facts): While the chiropractor breached the owed duty of care in not referring the patient back to her general practitioner for investigation of the new symptoms, neither that failure, nor the use of the activator device, caused harm to the patient. In the absence of any damage, there can be no action in negligence.

A more controversial area is whether a doctor has a duty to follow up.The Australian Medical Association, in a press release issued shortly after the case below, phrased the question this way: If your dentist tells you that you should attend for regular check-ups, and you fail to do so, can you sue your dentist when your teeth fall out? 10.34

Kite v Malycha (1998) 71 SASR 321 Court: Supreme Court of South Australia Facts: The plaintiff consulted the defendant, a surgeon, about a lump in her breast. He conducted a fine needle aspiration and sent away the tissue removed for analysis. He asked the plaintiff to return for the test results. She did not. Due to a mix-up in the defendant’s surgery, the plaintiff’s test results were never seen by the defendant. By the time the plaintiff sought further investigations, her cancer was severely advanced. Legal principle: Does a doctor owe a duty to ‘follow up’ a patient? The court’s decision (application of the legal principle to the facts): A doctor does owe a duty to follow up a patient where the condition is serious. The defendant asked the court for a set-off alleging that the patient, by not herself returning to receive the test results, had been contributorily negligent. The court decided the plaintiff had not been contributorily negligent. Significance of this case: The case is important because it establishes that doctors owe proactive duties to assist a patient, even after the patient has left the surgery.

484

10.36

Medical Negligence

As noted above, s 5O(1) of the Civil Liability Act 2002 provides a defence where a professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, unless the court regards that practice as irrational. How does this defence work in practice? 10.35

McKenna v New England & Hunter Local Health District [2013] NSWCA 476 Court: NSW Court of Appeal Facts: A patient was compulsorily admitted to a psychiatric facility for medical treatment. After some treatment, he was released into the care of a friend who was driving him to Dubbo. At a rest stop, the patient strangled his friend. He later committed suicide. The friend’s relatives sued the defendants for nervous shock (psychiatric harm on learning of the death of their relative). The court found the defendants owed a duty of care to the patient’s friend (and through him, to the plaintiffs). The defendants claimed that their decision to release the patient was protected by the reasonable professional practice defence in s  5O of the Civil Liability Act. The court’s decision (application of the legal principle to the facts): The decision to discharge a mentally ill patient is one based on numerous considerations which must be assessed on a case-by-case basis. As none of the experts could identify a ‘reasonable practice’ in their evidence, the defence provided by s 5O of the Civil Liability Act could not be used. Significance of the case: If there is not established reasonable practice, a medical practitioner is unable to reply upon this defence.

The correctness of the decision in McKenna has recently been doubted by two judges in Sparks v Hobson; Gray v Hobson.10 The question is likely to require authoritative adjudication by the High Court of Australia.

Material risks 10.36

Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 Court: High Court of Australia Facts: Mrs Beryl Hart was to undergo a throat operation to alleviate swallowing, eating and digestion problems. She said to Dr Chappel, the surgeon, words to

10. Sparks v Hobson, Gray v Hobson [2018] NSWCA 29.

485

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the effect that she did not want a voice ‘like Neville Wran’. The patient was not warned of the risks of the operation, that is, that her voice quality could be compromised. Gummow J observed (at [52]): The appellant, Dr Chappel, is an ear, nose and throat specialist. On 10 June 1983, the respondent, Mrs Hart, underwent surgery at the hands of Dr Chappel for the removal of a pharyngeal pouch in her oesophagus. During that procedure, her oesophagus was perforated and there ensued an infection known as mediastinitis. This was caused by bacteria present in the oesophagus escaping through the perforation into the mediastinum which is part of the chest cavity. While Mrs Hart appears by November 1984 to have recovered from the perforated oesophagus and mediastinitis, the infection damaged the laryngeal nerve and led to a paralysis of the right vocal cord. This affected the performance by Mrs Hart of her duties in a senior position in the New South Wales Department of School Education. In 1985 she was retired from that position on medical grounds.

The operation was performed. It adversely affected her voice. She retired prematurely from her job. She sued the surgeon for his failure to warn her of the risks. Legal principle: Was there negligence by her surgeon for a failure to warn? The court’s decision (application of the legal principle to the facts): The surgeon was liable for the failure to warn even though the chances of the particular problems that ensued (a perforated oesophagus) were 1 in 14,000. Moreover, there was no evidence in this case that, had she been warned of the procedure, the plaintiff would have not undergone the procedure. Rather, the plaintiff said that, had she been warned of the risk, she would have had the operation performed by a more experienced practitioner. Significance of this case: The High Court discussed the case primarily in terms of causation — did the failure to warn cause the loss? The court accepted that it did.

10.37

Rosenberg v Percival [2001] HCA 18 Court: High Court of Australia Facts: The plaintiff was a nurse. She consulted the defendant, an oral and maxillofacial surgeon about her worsening malocclusion. He recommended she undergo an osteotomy. At no time did he warn her of the risk of temporomandibular joint problems following surgery. She developed such problems and sued, in part, on the basis that had the surgeon informed her of this risk, she would not have undergone surgery. Legal principle: In addition to proving that the risk was material, what does a patient need to prove in terms of causation?

486

10.38

Medical Negligence

The court’s decision (application of the legal principle to the facts): The court decided that even though the plaintiff had not been told of the risk, she was unable to prove causation. In order to prove causation, a patient needs to demonstrate that, had he or she been told of the risks of the procedure, the patient would not have had the procedure. The court took into account the seriousness of her need for corrective surgery, her evident willingness to undergo the risks of a general anaesthetic, with which she was familiar by reason of her professional background, her failure to ask specific questions about the risk, and the fact that the possibility of which, on her case, she should have been warned, was ‘very slight’. Significance of this case: This case is important because it reinforces the principle that, in order to be successful in an action for negligence, causation of loss must be proved.

Practical lesson for the litigator Know your client Rosenberg v Percival,11 the patient/plaintiff ’s views as to whether she would not have undergone the procedure if warned of the risks was not believed due to her medical experience. Issues critical to the patient’s credibility were referred to in McHugh J’s judgment (at [33]). These factors included:

10.38 In

•• the 20 years experience that the patient had had as a qualified nurse with a doctorate of philosophy in nursing and a senior lectureship in nursing at a university; and •• the patient knowing that surgical operations carry inherent risks of harm. By implication, it would have been easier for a non-medical patient (that is, someone without a medical background) to succeed in this type of case. The case is a good illustration of the importance for the plaintiff ’s lawyer of making an early, thorough and realistic assessment of client credibility in the particular circumstances of the alleged tortious event. Consider the situation where a patient is offered treatment which has associated with it, more than one material risk. What is the situation where one of the risks materialises, and the patient gives evidence that if he or she had known of that risk, he or she would have consented, but had he or she been told of another risk (which did not materialise), he or she would not have consented to the procedure?

11. Rosenberg v Percival [2001] HCA 18.

487

10.39

Torts: Principles, Skills and Application

10.39

Wallace v Kam [2013] HCA 19 Court: High Court of Australia Facts: The defendant performed neurosurgery on the plaintiff’s back. There were two risks of the procedure. The first was a risk of temporary nerve damage. The second was a risk of paralysis. The plaintiff was told about neither of these risks. The procedure was performed and the risk of temporary nerve damage materialised. The risk of paralysis did not. The plaintiff sued the defendant for failure to advise of material risks. He said that, had he known of the risk of paralysis, he would not have undergone the procedure. If he had not had the procedure then, of course, his temporary nerve damage would not have occurred. Legal principle: Does the material risk the person says would have influenced him to not undergo the procedure have to be the one which materialises? The court’s decision (application of the legal principle to the facts): The defendant was not liable for exposing the plaintiff to a risk which did not materialise. Significance of the case: A doctor is only liable when a patient suffers damage in circumstances where there has been a failure to advise of a material risk, and that risk materialises, causing damage.

Difficult cases — wrongful birth and wrongful life 10.40

Wrongful life and wrongful birth are complex and contentious actions that are similar in nature to each other. Wrongful birth relates to a claim where the parents of a child seek damages for the costs of raising a child that is born or conceived as a result of medical negligence. Wrongful life actions are similar in nature to wrongful birth actions, except that it is the child who is bringing the action as opposed to the parents. It is important to note that even though there are many legal issues that are relevant to these causes of action, the social, moral and ethical issues are equally as important. Table 10.4 illustrates the differences between the three actions.

Table 10.4 The plaintiff’s claim

Wrongful birth

Wrongful life

Who are the plaintiffs?

The parents

The child

The nature of the damages sought

The cost of the upbringing and the raising of the child

Damages for the suffering that the plaintiff has incurred

488

10.42

Medical Negligence

Wrongful birth 10.41

Wrongful birth is also referred to as ‘wrongful entry into life’.12 It is defined as: … the birth of a child in circumstances in which the pregnancy would have been terminated or the conception avoided but for the defendant’s wrongful conduct.13

The claim for wrongful birth is brought by the parents for damages. The issue of contention in these cases usually relates to damages for the costs of bringing up the child. There are an increasing number of cases where people have sought damages for the cost of raising children. These cases address very complex legal, social, ethical and moral issues that often relate to the value that we put on human life. The first case that we will discuss is CES v Superclinics (Australia) Pty Ltd14 which was a case that involved the undoubted negligence of the defendant in failing to diagnose the fact that the plaintiff/patient was pregnant.

Case law relevant to wrongful birth 10.42

CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 Court: New South Wales Court of Appeal Facts: The plaintiff gave birth to a healthy child. On several occasions, the defendant hospital had failed to confirm that she was pregnant, which meant that when she found out she was pregnant it was too late to have an abortion. Legal principle: The fact that there was a duty of care owed, and the duty was breached, was not in dispute in this case. The issue was how damages should be assessed. The court’s decision (application of the legal principle to the facts): The Court of Appeal found 2:1 in the plaintiff’s favour. Leave to appeal the decision was granted by the High Court; however, before the High Court heard the case it was settled out of court by the parties. Because such settlements are private agreements and bound by confidentiality clauses, the case has not established a precedent or guiding principle in terms of the appropriate level of damages that might be awarded. Significance of this case: The case demonstrates that parents may successfully bring wrongful birth cases against health professionals and others.

12. P Butt & P Nygh, Butterworths Concise Australian Legal Dictionary, 3rd ed, LexisNexis Butterworths, Sydney, 2004. 13. Butt & Nygh, Butterworths Concise Australian Legal Dictionary, note 12 above. 14. CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47.

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Torts: Principles, Skills and Application

Background and context: Some of the judgments in this case highlighted the moral dissatisfaction with this cause of action. For example, Meagher JA stated that: Having given birth to a healthy child … the plaintiff claimed at a Court hearing … that the child, then over six years old, was unwelcome, a misfortune, perhaps a disaster, certainly a head of damages. For all I know the child was in court to witness her mother’s rejection of her. Perhaps, on the other hand, the plaintiff had the taste to keep her child out of court. Even if that be so, it does not mean the unfortunate infant will never know that her mother has publicly declared her to be unwanted.15

Leading case in Australia

15

10.43

The leading case for wrongful birth in Australia is Cattanach v Melchior.

Cattanach v Melchior (2003) 215 CLR 1 Court: High Court of Australia Facts: Mr and Mrs Melchior married in 1984. Soon after this they had two children. They then decided that they had a complete family and wanted no more children. They planned their finances around this decision. Mrs Melchior decided to have a sterilisation so she consulted Dr Cattanach. Mrs Melchior told Dr Cattanach that when she was 15 years old her right ovary and her right fallopian tube had been removed. When Dr Cattanach performed the tubal ligation what he saw appeared consistent with that history. He therefore only attached a clip to the left fallopian tube. At the age of 44 she found out she was pregnant. In 1997 she had a son Jordan. Apparently, her right fallopian tube had not been removed. The trial judge held that Dr Cattanach had too readily and uncritically accepted his patient’s assertion that her right fallopian tube had been removed. The trial judge also found that he should have advised her to have that specifically investigated, and that he should have warned her that, if she was wrong about that, there was a risk that she might conceive. The trial judge awarded her compensation for pain and suffering, loss of amenities of life, associated with pregnancy and childbirth, the loss of some part-time earnings, and the loss of capacity to undertake future employment resulting from a thrombosis associated with the pregnancy. When the case went to the High Court, the only issue in contention was damages for raising a healthy child. Legal principle: The primary issue that was discussed in the case was if as a result of medical negligence, a couple became parents of an unintended child, can a court, in an award of damages, require the doctor to bear the cost of raising and maintaining a child? The court’s decision (application of the legal principle to the facts): The majority of the High Court held that damages were allowed for the costs of raising the unwanted child.

15. CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 at 86.

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10.43

Medical Negligence

Dissenting judges

Legal issue

Judge/s

Conclusion

Reasons given

Were the general principles of negligence satisfied?

Gleeson CJ

Yes

Reasonable foreseeability was satisfied

What were the policy issues that are relevant to this case?

Gleeson CJ, Hayne and Heydon JJ

Fundamental value of human life; the relationship between a child and parents is not financial in nature. Hayne J also looked at the ‘blessing’ argument, the ‘set-off’ argument, the ‘impossible prediction’ argument, and the ‘damage the child’ argument

A disabled child is just as important and has just as much value as a healthy child

Which economic and social issues were relevant to this case?

Gleeson CJ

Living in a secular society. Siblings’ inheritance and other financial assistance will be diminished. Indeterminate liability may be an issue

Can an economic value be put on the life of a child?

Hayne J

No

491

This is unrealistic and impossible

10.43

Torts: Principles, Skills and Application

Legal issue

Judge/s

Conclusion

Reasons given

Would allowing damages in this case lead to indeterminacy?

Heydon J

Yes

Unknown how long the child will need to be supported for. Parents and siblings would be encouraged to maximise the harm that was caused by the birth of the child

Majority judgments

Legal issue

Judge/s

Conclusion

Reasons given

Were the ordinary principles of negligence satisfied?

McHugh, Gummow, Kirby, Callinan JJ

Yes

There was no issue of causation and the breach of duty was clear

What is the harm or damage that the plaintiffs are seeking to claim for?

McHugh and Gummow JJ

The burden of the legal and moral responsibilities which arise from the birth of a child

McHugh, Is the term ‘wrongful birth’ Gummow and Kirby JJ sufficient?

No

It is misleading and inadequate

McHugh, Gummow and Kirby JJ

No

This treatment would be a mark of societies that we least admire. To do this would be discriminatory. The differentiation between healthy children and disabled children would be offensive to most parents

Should disabled and healthy children be treated differently in wrongful birth cases?

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10.44

Medical Negligence

Legal issue

Judge/s

Conclusion Reasons given

Is a child always a blessing?

McHugh, Gummow and Kirby JJ

No

This denies the widespread use of contraception

Should the benefits received from the child reduce the level of damages?

McHugh, Gummow, Kirby and Callinan JJ

No

The coal miner forced to retire does not get less damages as he is now free to read the paper in the sun each day

Would the knowledge that your parents had launched a wrongful birth claim for the costs of raising you be hurtful?

Kirby J

No, not necessarily

The experience of post-birth parental love would normally allay any hypothetical hurt that was caused to the child

Section 71 of the Civil Liability Act 2002 (NSW) 10.44

After this case was handed down the legislature in New South Wales, South Australia Queensland and Tasmania stepped in to disallow claims of this nature. For an example of this, see  the following extract from the Civil Liability Act 2002 (NSW): Section 71 Limitation of the award of damages for the birth of a child (1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or maintains the child. (2) Subsection (1)(a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

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Torts: Principles, Skills and Application

Thus, damages associated with raising a child or the loss of earnings while maintaining a child cannot be claimed under this section. Interestingly, though, the additional costs of raising a child with a disability can be claimed. In your opinion, is this compatible with the sentiments that were discussed in Cattanach v Melchior?

Wrongful birth after Cattanach 10.45

Caven v Women’s and Children’s Health (2007) 15 VR 447 Court: Supreme Court of Victoria Facts: The plaintiffs were claiming damages arising from the birth of their second child. Ms Caven had an ultrasound performed when she was 18 weeks pregnant. She was not told that she should undergo a further ultrasound or other prenatal testing. She gave birth to a son who had Down’s syndrome. The main issue in this case was whether or not the limitation period could be extended under the Limitation of Actions Act 1958 (Victoria). The plaintiffs were seeking damages for anxiety, depression, nervous shock and psychological injury. Ms Caven also claimed for pain and suffering associated with childbirth as well as losses as a result of being unable to work at times. It was also claimed that the plaintiffs suffered loss and damage as ‘a consequence of undertaking the additional care of Jared which has been required as a consequence of his Down’s Syndrome’ (at [13]). Legal principle: Even though the cause of action was barred by s 27D(1)(a) of the Limitation of Actions Act 1958 (Vic), the plaintiffs should be granted an extension of time as it was ‘just and reasonable’ to do so. The court’s decision (application of the legal principle to the facts): The limitation period was extended. It was held that the claim was not a claim for pure economic loss. Significance of this case: Provides a good discussion of the relevance of limitation periods in wrongful birth cases. Background and context: This case discussed and analysed the aforementioned wrongful birth cases such as CES v  Superclinics (Australia) Pty Ltd16 and Cattanach v Melchior.17

16. CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47. 17. Cattanach v Melchior (2003) 215 CLR 1.

494

10.46

Medical Negligence

10.46

Waller v James [2013] NSWSC 497 Court: Supreme Court of New South Wales Facts: Keeden was born with antithrombin deficiency (ATD), a hereditary condition that Keeden’s father also suffered from. Keeden was conceived through in-vitro fertilisation (IVF). The plaintiffs in this case claimed that the gynaecologist failed to inform them of the hereditary aspect of the condition. The plaintiffs also claimed that this condition caused or materially contributed to a stroke that Keeden had a few days after he was born, which left him profoundly disabled. The parents were claiming damages for the costs of having, raising and caring for the disabled child and for damages for resultant physical and psychological harm to themselves. Legal principle: All of the principles of negligence have to be satisfied for there to be a viable negligence action. In this case causation and remoteness were not satisfied. The court’s decision (application of the legal principle to the facts): The plaintiffs were unsuccessful in this case as causation and remoteness were not satisfied. How Hislop J would have assessed damages in this case was discussed, as this assessment would be important if the matter is appealed in the future. Background and context: The same facts were already decided in the wrongful life context. Note that as the proceedings pre-dated the Civil Liability Act 2002 (NSW), the provisions from this Act were not applicable. Also note that the plaintiffs were ordered to pay the defendant’s costs.

Legal issue Judge/s Conclusion

Reasons given

Hislop J What was the scope of the duty of care owed in this case?

Even though Hislop J accepted that the primary duty to inform the plaintiffs of the hereditary aspects of ATD did not reside with the defendant, the defendant however knew the second plaintiff had ATD and that there was a possibility that any child of his could inherit ATD. Thus, the defendant should have inquired whether or not the plaintiffs knew of the inheritability of ATD

A single duty owed by the defendant to supply the relevant information. This can be fulfilled by the defendant obtaining the necessary information himself or by referring the plaintiff to an appropriate genetic consultant and perhaps following up on the referral

495

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Torts: Principles, Skills and Application

Legal issue

Judge/s Conclusion Reasons given

If the plaintiffs Hislop J had been properly advised, would they have had Keeden?

No

Most reasonable people would have elected to proceed with the pregnancy. However, when looked at subjectively (that is, what would these plaintiffs have chosen), Hislop J held that had they been properly informed, they would have elected not to have Keeden

Hislop J

No

The plaintiffs failed to establish that the cerebral sinovenous thrombosis (CSVT) (stroke) was caused or was materially contributed by the ATD

Was Cattanach Hislop J v Melchior (2003) 215 CLR 1 directly applicable to this case?

No

Cattanach was different to this case as in Cattanach, the parents did not want a child and the injury to the parents was a direct result of the negligence of the medical practitioner. Whereas in this case, the parents wanted a child, but not one that was afflicted with ATD

Was causation Hislop J satisfied in this case?

No

Hislop J agreed with the submission of the defendants as the plaintiffs did not establish their loss was so connected with the defendant’s fault that ‘as a matter of ordinary common sense and experience it should be regarded as a cause of it’ (at [260])

Did Keeden’s ATD play a causative role in bringing about his disabilities?

496

10.47

Medical Negligence

Legal issue

Judge/s Conclusion Reasons given

Was the damage suffered within the scope of the duty of care?

Hislop J

No

The damage claimed (that is, physical and psychological damage and economic loss associated with having, raising and caring for Keeden) was not a reasonably foreseeable consequence of the acts and omissions alleged against the defendant

Was the damage too remote?

Hislop J

Yes

Even though it was foreseeable that Keeden might inherit ATD, the consequences of the CSVT (stroke) were not reasonably foreseeable

Wrongful life 10.47

Wrongful life is defined as: … the birth of a child that would not have been born but for another’s negligence. The negligence may involve: • an unsuccessful sterilisation operation; • failure to diagnose pregnancy in time for a lawful abortion; or • failure to successfully perform an abortion. 18

The plaintiffs in such an action seek damages for the suffering they have incurred as a result of their existence. The claim for wrongful life is brought by the child as opposed to the parent. The wrongful life category of claim in Australia has not been successful. The claims are very controversial as the plaintiffs in wrongful life claims are effectively saying that it would have been better if they never existed. The leading case in wrongful life claims in Australia is Harriton v Stephens.19 To gain a full picture of this case, we will discuss both the New South Wales Supreme Court (Court of Appeal) decision and the decision of the High Court on appeal. 18. Butt & Nygh, Butterworths Concise Australian Legal Dictionary, note 12 above. 19. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15.

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10.48 10.48

Torts: Principles, Skills and Application Harriton v Stephens; Waller (by his tutor) v James (2004) 59 NSWLR 694 Court: New South Wales Court of Appeal Facts: The appellants, Alexia and Keeden, were each born disabled to a catastrophic degree. The appellants claimed damages, being the harm they suffered by being born in their disabled condition. They argued that had the respective respondents properly diagnosed the particular circumstances that resulted in each being born disabled (maternal rubella and paternal AT3 deficiency), the suffering that each has had to and will endure, and the needs and expenses that each has had to and will incur, would not have materialised. This is because the mothers or parents of the appellants would have taken steps to ensure that the appellants would not have been born (in the case of Alexia) or conceived (in the case of Keeden). Legal principle: Could damages be claimed for the suffering that the two plaintiffs had incurred during their lives? The court’s decision (application of the legal principle to the facts): The claim for damages was not allowed as it is impossible to use non-existence as a comparator to existence.

Legal issue

10.49

Judge/s

Conclusion Reasons given

Spigelman CJ, No Was there Ipp JA a legal duty owed to the children in these circumstances?

To argue that it would have been preferable for the children to have never been born is highly contestable

Spigelman Was the CJ, Ipp JA element of damage satisfied in this case?

To satisfy this, it would have had to have been shown that non-existence is preferable to life

No

Harriton v Stephens (2006) 226 CLR 52; 226 ALR; [2006] HCA 15 Court: High Court of Australia The court’s decision (application of the legal principle to the facts): As above. The claim for damages was not allowed as it is impossible for non-existence to be a comparator to life.

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Majority judgments

Legal issue

Judge/s

Conclusion

Reasons given

Can damage be quantified in this case?

Hayne J

No

Did the doctor’s failure to give the proper information cause the damage to the child?

Hayne J

No

‘She could have had no life other than the life she has.’20

Can existence be compared to non-existence?

Callinan and Crennan JJ (Heydon J agreeing)

No

This is impossible to do

Dissenting judgment (Kirby J)

Legal issue

Judge/s

Conclusion

Reasons given

Can damage be quantified in this case?

Kirby J

Yes

There is never an exact equivalence between personal injury and money. Courts have assigned damages to other intangible injuries such as pain and suffering

Is it possible to value nonexistence?

Kirby J

Yes

The courts have done this in other settings: that is, withdrawal of life-sustaining treatment

Do wrongful life actions impose a ‘duty to kill’?

Kirby J

No

The doctor could have discharged his duty by taking reasonable care in detecting foreseeable risks which may befall the foetus

20

20. Harriton v Stephens (2006) 226 CLR 52 at [182].

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Review

Reading H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and G Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 7



Key Cases Boehm v Deleuil [2005] WADC 55 Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118 Cattanach v Melchior (2003) 215 CLR 1 Caven v Women’s and Children’s Health (2007) 15 VR 447 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 Coote v Kelly; Northam v Kelly [2017] NSWCA 192 Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218; 106 ALR 385 Elysee v Hassam [2018] NSWDC 137 Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 Kite v Malycha (1998) 71 SASR 321 Malette v Shulman (1990) 67 DLR (4th) 321 Masson v The State of Queensland [2018] QSC 162 McKenna v New England & Hunter Local Health District [2013] NSWCA 476 Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 Rosenberg v Percival [2001] HCA 18 Sheppard v Swann [2004] WASCA 215 Wallace v Kam [2013] HCA 19 Waller v James [2013] NSWSC 497 Zhang v Hardas (No 2) [2018] NSWSC 432



Chapter 10 Review Questions 1. Why did the High Court reject the wrongful life claim in Harriton’s case? 2. Why did the High Court accept the wrongful birth claim in Cattanach’s case?

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Tutorial 10.1: Wrongful life Internal memorandum From: Guido Markewicz To: Trainee Re: ‘Wrongful life’ In the High Court case, Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15, Kirby J wrote (at [8]): ‘Wrongful life’ and the danger of labels The label ‘wrongful life’ has been criticised as ‘unfortunate’, ‘ill-chosen’, ‘uninstructive’ and ‘misleading and decidedly unhelpful’. In my view, its use, even as a shorthand phrase, should be avoided.

What is meant by the phrase ‘wrongful life’? What is its status in Australian law? Do you agree or disagree with Kirby J? Give reasons.



Tutorial 10.1: Student Example Answer Prepared by: Mark Sullivan, JD student, University of Canberra

Internal memorandum To: Guido Markewicz From: Mark Sullivan Date: 20/11/20XX Re: ‘Wrongful life’ Law and life after Harriton v Stephens21 The year 2006 witnessed the hearing of a case in the High Court of Australia that threatened profound and far-reaching effects on the Australian legal system. The case, Harriton v  Stephens, left the law on ‘wrongful life’ bruised but not bleeding. In particular, the arguments of Kirby J have now, arguably, provided fertile ground for future actions of this type to be tested. 1. The facts An action was brought by the appellant child’s father on her behalf, claiming that, by negligently depriving her mother of the opportunity to decide in

21. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15.

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favour of lawfully terminating the pregnancy, the appellant was thus denied the opportunity to avoid a life of pain and suffering.22 The case was heard by the Full Bench of the High Court of Australia on appeal from the New South Wales  Supreme Court.23 Specifically, the High Court sought to determine if the appellant had a cause of action and, if so, under what heads of damage could the appellant claim. 2. The law before Harriton In Australia, prior to the hearing of Harriton, the law on ‘birth torts’24 was relatively settled only in terms of parents’ right of action with respect to wrongful life by virtue of the High Court’s findings in Cattanach v Melchior,25 and the subsequent enactment of legislation to limit parents’ rights of action for the unwanted birth of a child. This contrasts with the so-called ‘wrongful life’ cases, both in terms of the precise nature of the cause of action and the extent to which the relevant law is settled. An action for wrongful birth is brought by the parents of a child who is born as the result of the negligence of a third party. Conversely, an action for wrongful life is brought by a child. Generally (as in the case of Harriton), the plaintiff is born with some catastrophic birth defect, which, if knowledge of it had existed during the course of the pregnancy, would have led to the termination of the pregnancy. Actions for wrongful life raise questions, as one author puts it, ‘at all stages of the standard duty, breach, causation, and harm paradigm of negligence’,26 thus the law on wrongful life rests on shaky ground. As alluded to earlier, it is the dissenting judgment of Kirby J that casts the longest shadows in this respect. 3. The judgment of Kirby J: criticism of the term ‘wrongful life’ In his opening arguments, Kirby J criticises the use of the term ‘wrongful life’.27 It is this criticism that forms the foundation for the rest of his judgment. In his judgment, Kirby J states that: The label ‘wrongful life’ has been criticised as ‘unfortunate’, ‘ill-chosen’, ‘uninstructive’ and ‘misleading and decidedly unhelpful’. In my view, its use, even as a shorthand phrase, should be avoided.

22. For a succinct restatement of the facts, see  Harriton v  Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [186]ff. 23. Harriton v Stephens [2002] NSWSC 461; BC200203086 at [2]. 24. Birth torts is frequently used by commentators as the collective term used to describe causes of action in ‘wrongful birth’ (actions brought by the parents) and ‘wrongful life’ (actions brought by the child). 25. Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131; [2003] HCA 38. 26. P Watson, ‘Wrongful Life: Damnum Sine Injuria’ (2002) 53 Plaintiff 37 at 37. 27. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [8].

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In advancing this view, Kirby J drew on the writings of a number of 1970s and early 1980s legal scholars,28 and sought to distinguish his views from those advanced in the late 1970s case of Berman v Allan.29 That said, the essence of Kirby J’s point is that usage of the term ‘wrongful life’ should be avoided, and for this he offers five reasons. A. Reasons advanced by Kirby J for avoiding the usage of the term ‘wrongful life’ The first reason offered by Kirby J for avoiding the usage of the term ‘wrongful life’ is that the term is ‘borrowed from another context’30 — specifically that of actions by illegitimate children against their fathers. He then proceeds to suggest that the term is misleading,31 holding instead that the action is one based on pain and suffering experienced once born. Another point of criticism is that the term can lead to confusion across a range of similar actions,32 all of them brought by the child, but not all of them involving catastrophic disability. A more straightforward criticism is that there exists a risk that ‘wrongful life’ might be seen as the polar opposite to ‘wrongful birth’.33 Finally, his Honour warns that the term ‘wrongful life’ is value-laden and thus forever militates against a finding for the plaintiff in such cases.34 B. Analysis of the reasons advanced by Kirby J While the law is positive in its effect, it invariably falls to academia to offer a normative perspective. In the case of Harriton, it is interesting to note that, in the space of less than a year after the decision, legal commentators generated a disproportionate mass of articles and opinions about the High Court’s findings in Harriton. Of greater note is the observation that the majority of these articles support the dissenting judgment. The following sections provide a glimpse of this commentary with respect to the opinion of Kirby J that the use of the term ‘wrongful life’ should be avoided. i. Use of the term ‘wrongful life’ is out of context In stating that the term has been taken out of context, Kirby J is referring to its hitherto use for actions brought by illegitimate children against their fathers, predominantly in the United States.35 That being the case, little has since been advanced in response to this assertion. On the contrary, it is acknowledged 28. See H Teff, ‘The Action for “Wrongful Life” in England and the United States’ (1985) 34 International and Comparative Law Quarterly 423 at 425; J Kashi, ‘The Case of the Unwanted Blessing: “Wrongful Life”’ (1977) 31 University of Miami Law Review 1409 at 1432. 29. Berman v Allan 404 A 2d 8 (1979) at 11. 30. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [9]. 31. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [10]. 32. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [11]. 33. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [12]. 34. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [13]. 35. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [9].

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(even prior to Harriton) as being ‘entrenched’ in the Australian legal lexicon.36 Recognising this, to assert that the widespread contemporary use of a term ought to be avoided due to inconsistency with its historical usage is perilous in the same way as common usage of the term ‘Chatham House Rules’ ought to be avoided due to its historically incongruous contemporary usage. ii. Use of the term ‘wrongful life’ is misleading Support for the assertion that the term is misleading has enjoyed more widespread support.The essence of Kirby J’s point is that it is not the plaintiff ’s life that is wrongful, but the negligence that led to the plaintiff ’s present suffering.37 Support for this proposition is offered by several commentators, some of whom formed their views prior to the hearing of Harriton in the High Court, and who were themselves directly paraphrased by Kirby J during his judgment.38 It, nevertheless, remains that the gist of wrongful life actions centres on the plaintiff showing that his or her life with disability is less preferable to no life at all. The logical extension of this claim is that the plaintiff should never have come into existence — that his or her life is, in fact, wrongful. It follows then that the criticism of the term by Kirby J speaks more about the way he decided the case and less about his views on the term. That is, in contrast to the majority judges, who focused on the concept of damage, Kirby J focused on a compensatory principle, hence avoiding the challenge of drawing a comparison between existence and non-existence. It is this challenge that features in most objections to the viability of successful actions in wrongful life,39 and remains (even in the wake of Harriton) perhaps the greatest obstacle for successfully bringing such an action.40 iii. Use of the term ‘wrongful life’ is potentially confusing In a paragraph that itself is turgid with competing assertions, Kirby J speculates that the term is ineffectual in reducing a large range of issues into two words. Kirby J states that ‘there is a danger that important factual distinctions will be overlooked or obscured’.41 Indeed, Kirby J’s judgment, and the writings of a diversity of legal commentators, express concern about matters ranging from the mechanism of breach through to the potential scope of duties owed.42 So it 36. D Stretton, ‘The Birth Torts: Damages for Wrongful Birth and Wrongful Life’ (2005) 10 Deakin Law Review 319 at 348. 37. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [10]. 38. Stretton, ‘The Birth Torts: Damages for Wrongful Birth and Wrongful Life’, note 36 above, at 348, 349. 39. For a succinct overview of the ‘existence v non-existence’ debate, see P Watson, ‘“Life Itself Cannot be a Legal Injury” — Begging the Question on “Wrongful Life”’ (2004) 64 Precedent 24 at 29. 40. For an example of the challenging application of logic to the ‘existence v non-existence’ debate, see A Grey, ‘Harriton v Stephens: Life, Logic and Legal Fictions’ (2006) 28 Sydney Law Review 545 at 551. 41. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [11]. 42. S Todd, ‘Wrongful Conception, Wrongful Birth and Wrongful Life’ (2005) 27 Sydney Law Review 525 at 525, 526.

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would seem there is at least potential for the realisation of the concerns laid out by Kirby J in his dissenting judgment. iv. Use of the term ‘wrongful life’ may be perceived as the opposite of ‘wrongful birth’ At the heart of Kirby J’s proposition on this point is the notion that claims brought by a child might cause such an action to be preferred over one brought by the parents, as highlighted when he states, ‘considerations favouring parental claims might be disregarded in claims brought by or for the child’.43 The fact that his point forms part of a definitional commentary on wrongful birth versus wrongful life suggests that Kirby J is cautious about the potential for confusion across competing birth torts. However, Harriton was heard concurrently with an action for wrongful life in Waller v  James; Waller v  Hoolahan.44 In addition to the wrongful life action in the latter case, the plaintiff child’s parents also brought an action for wrongful birth. Rather than affirming the present concerns of Kirby J, this observation suggests that ‘considerations favouring parental claims’ are not disregarded, as Kirby J cautions.45 v. Use of the term ‘wrongful life’ is value-laden Despite Kirby J’s final point being arguably the least robust from a purely legal perspective, it likely forms the core of judicial concern in deciding wrongful life cases — and, indeed, this is suggested by his Honour.46 Specifically, Kirby J argues that the term ‘implicitly denigrate[s] the value of human existence’.47 He develops this proposition by claiming, inter alia, the term has discouraged ‘dispassionate legal analysis’.48 While his Honour may be correct in claiming the term is value-laden, the fact that the majority judgment was decided according to principles of law rather than policy suggests that the effect on judicial decision making is not perhaps as Kirby J would have us believe. That being the case, it remains the view of many legal commentators that moral considerations, akin to those warned of by Kirby J, ought to influence judicial decision making. As suggested by Watson: The soundest way for the law to proceed is … incorporating the compassionate and caring approach expected of an advanced Western democracy.49

Indeed, such an approach seems to resonate with the critical treatment of Harriton since the case was concluded — especially in terms of its social

43. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [12]. 44. Waller v James;Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457; [2006] HCA 16. 45. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [12]. 46. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [13]. 47. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [13]. 48. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [13]. 49. Watson, ‘“Life Itself Cannot be a Legal Injury” — Begging the Question on “Wrongful Life”’, note 36 above, at 31.

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implications; implications that leave uncertain the plight of disabled children who, but for some negligence, would not have been born. 4. The present status of the law on ‘wrongful life’ In practical terms, the law on wrongful life remains unchanged since that which existed prior to Harriton. Actions in wrongful life had previously failed in Australia and, with the exception of a handful of exceptional overseas cases, had similarly failed internationally. What Harriton (and Waller v James) did do, as put by Neville and Lokuge,50 was to draw a ‘line in the sand’ in terms of what the law will and will not recognise in terms of the birth torts. The courts will refuse to recognise a right of action by a child born into a life of pain and suffering where, had the possibility of such a life been known during pregnancy (but was not, due to the acts or omissions of a negligent third party), the child would not have existed. This current state of the law was neatly summarised by Hirsch as follows: [D]isabled children have no right to compensation for themselves in a wrongful life claim. This is because … it is impossible to compare a life with disabilities to non-existence. 51

This precisely aligns with arguably one of the most memorable and poignant statements in the majority ruling, that ‘[l]ife with disabilities, like life, is not actionable’. 52 5. Conclusion While Harriton did not have as profound an effect on the law surrounding the birth torts as did Cattanach, it nevertheless stands as a clear statement by the High Court of what will and what will not be considered a rightful cause of action under Australian law. If the resultant scholarly debate is any indication, the potential for this area of the law to be tested again is considerable. Moreover, despite the reservations held by Kirby J regarding its use, the term ‘wrongful life’ looks set to remain a firmly entrenched feature of the Australian legal vocabulary. Thus, until the High Court has another opportunity to revisit the law on wrongful life, the options for disabled children to obtain compensation for a life of pain and suffering remain elusive.

50. W J Neville & B Lokuge, ‘Wrongful Life Claims: Dignity, Disability and “A Line in the Sand”’ (2006) 185(10) Medical Journal of Australia 558. 51. D Hirsch, ‘Rights and Wrongs: A Post-Mortem on Birth Torts’ (2006) 75 Precedent 35 at 37. 52. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [277].

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Tutorial 10.2: Wrongful birth Internal memorandum From: Guido Markewicz To: Daniel Simon Date: 30/08/20XX We act for Tracey, Christopher and Jack Tracey and Christopher had been married for 15 years. During this time, they had five children. They decided after much deliberation that they did not want to have any more children because of financial and social reasons. Tracey and Christopher went to see Dr Stud to find out what their options were. Dr Stud advised Christopher to have a vasectomy as it was a less invasive surgery. After discussions between Tracey and Christopher, however, they decided that Tracey should have her tubes tied. Five years after the sterilisation was performed, Tracey became pregnant again. Apparently one of the clips (that blocked the fallopian tubes) became ineffective after the operation. Tracey at this time was 45 years old and mortified. After some discussion, however, they decided to keep the baby. When Tracey was 11 weeks pregnant, she started to feel unwell. She also developed a rash. She went to see Dr Stud, who diagnosed her as having rubella. Tracey was very concerned about her unborn child, but Dr Stud advised her that the baby should be fine given that she was almost in her second trimester of pregnancy.When the baby (Jack) was born, he had congenital injuries as a result of the rubella. Tracey is very distressed and now insists that if she had known of these risks to her unborn child, she would have terminated the pregnancy. When Jack is 18 years old, he begins to think that perhaps it would have been better if he had never been born at all. He feels that he has had a life of suffering and that his quality of life is non-existent. He blames Dr Stud (now retired) for his predicament. What are the legal positions of Tracey, Christopher and Jack?



Tutorial 10.2: Student Example Answer

Prepared by: Daniel Simon, LLB Student, University of New England Internal memorandum To: Guido Markewicz From: Daniel Simon Date: 30/8/20XX 507

Torts: Principles, Skills and Application

Re: Tracey, Christopher and Jack’s legal positions Tracey and Christopher will want to bring a wrongful birth action against Dr Stud. Jack, on the other hand, will want to pursue a wrongful life action. Tracey and Christopher v Dr Stud Wrongful birth Wrongful birth claims are brought by parents for the costs of raising a child who would not have been born but for the negligence of the defendant (usually a doctor or hospital). In some of these cases, the defendant may have failed to diagnose a deformity in the foetus, which would have led to a decision to abort had the mother known about it. In other cases, the defendant may have failed to sterilise the mother correctly, so that she was still fertile although she believed she was not. In this case, Dr Stud did not carry out the sterilisation procedure thoroughly. Tracey consequently conceived, although she believed she was unable to do so. In addition to this, he then failed to advise Tracey of the complications that could arise from her rubella. On the contrary, he insisted that the baby would be fine, a belief upon which Tracey relied in deciding to continue with the pregnancy rather than to abort. The main cases in Australia dealing with wrongful birth are CES v Superclinics Australia Pty Ltd53 and Cattanach v Melchior.54 CES v Superclinics In CES, the plaintiff was told she was not pregnant when she was. By the time she found out she was pregnant, she was nearly 20 weeks pregnant and could not legally terminate. The plaintiff failed at first instance. On appeal the decision was overturned. Meagher JA, in the minority, referred to the notion of the sacredness of human life55 and expressed concern that the child should find out they were rejected and unwanted and that the law should sanction this. 56 Meagher JA also cited public policy reasons when addressing the problem of assessing damages.57 In this regard, he picked up the argument of Judd J in Udale v Bloomsbury Area Health Authority58 that there was a danger of the law rewarding ‘unnatural motherhood’ more greatly. The law, it was argued, should not offer a greater bonus to a mother who finds no joy to offset the inconvenience and 53. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47. 54. Cattanach v Melchior (2003) 215 CLR 1. 55. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [4]. 56. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [3]. 57. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [10]. 58. Udale v Bloomsbury Area Health Authority (1983) 2 All ER 522 (QB).

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hardship caused by an unwanted child.59 As Judd J put it, ‘virtue would go unrewarded, unnatural rejection of womanhood and motherhood would be generously compensated’. 60 The majority of Kirby ACJ and Priestley JA both allowed the appeal but disagreed in their approach to damages. Priestley JA held that the expenses of raising a child were not caused by the defendant, but that the plaintiff made the voluntary choice of keeping the child and thus to bear the costs of raising it. 61 Kirby ACJ dismissed the approach that public policy barred the recovery of damages. He was especially critical of claims that the birth of a child is necessarily a blessing62 and of the ‘unnatural rejection’ argument as being out of harmony with Australian society. He also dismissed the concern that the child should find out they were unwanted, arguing it is not uncommon today for a child to find out that initially they were unplanned.63 He said it is the ‘economic damage which is the principal unwanted element rather than the birth or existence of the child’,64 and that the child’s birth ‘is simply the occasion by which the negligence of the respondents manifests itself ’. Kirby ACJ disagreed with the proposition that the damages sought ‘would be so speculative as to defy calculation’, citing examples of situations in which judges must assess damages upon ‘amorphous considerations’. 65 His final order, however, agreed with Priestley JA that there would be no award for the cost of raising the child. Cattanach v Melchior CES was appealed to the High Court but was settled out of court. A more recent case is Cattanach v Melchior, which did go all the way to the High Court. Mrs Melchior went to Dr Cattanach for sterilisation, telling him that her right fallopian tube had been removed when she was 15. Dr Cattanach only tied her left tube. Mrs Melchior subsequently became pregnant, and it was discovered that her right fallopian tube had not been removed. The present case is similar to Cattanach in that the doctor in both cases did not adequately sterilise the plaintiff mother. The trial judge found that Dr Cattanach had been negligent and awarded Mrs Melchior damages for pain and suffering and loss of amenities of life in relation to pregnancy. He also awarded damages for the loss of some part-time earnings and future employment. These were not disputed on appeal to the 59. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [10]. 60. Udale v Bloomsbury Area Health Authority (1983) 2 All ER 522 (QB) at 531. 61. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [32]. 62. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [117]. 63. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [117]. 64. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [121]. 65. CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 at [124].

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High Court; the only legal issue was whether a court can award damages for the cost of raising a healthy child. This differs from the present case, as Jack is not a healthy child. This point of difference is discussed below. In a 4:3 decision, Dr Cattanach’s appeal was dismissed. In the minority, Gleeson CJ and Heydon J had problems with the indeterminacy of assessing damages, even though there was no doubt that the financial costs of raising a child were reasonably foreseeable. They also, along with Hayne J, were reluctant to try to put an economic value on human life, and had concerns that awarding damages for a healthy child would be a repulsive notion in society generally. The other four justices stressed that the case was about the wrongful negligence of Dr Cattanach.That he was negligent was not in dispute, the issue of causation was satisfied, and thus damages should be awarded according to the normal doctrine of negligence. McHugh and Gummow JJ, in the only joint judgment, criticised the term ‘wrongful birth’ as distracting attention from the ‘appropriate frame of legal discourse’.66 The majority also criticised the argument that children are a ‘blessing’. All four also rejected the notion that an award for damages should be offset by any benefits a child would bring to the family. Civil Liability Act On the authority of Cattanach, then, Tracey and Christopher would be likely to succeed in a wrongful birth action. However, the effect of Cattanach has been limited by the Civil Liability Act 2002 (NSW). Section 71(1) of the Act disallows the court from awarding damages for economic loss for both the cost of rearing the child and for loss of income in such wrongful birth cases. Thus, today, Cattanach would be decided differently. However, importantly in the present case, s 71(2) does allow the recovery of the additional costs of raising a child with a disability. Wrongful birth — conclusion It seems likely that Tracey and Christopher could be awarded some damages in a wrongful birth action because Jack is disabled as a result of Dr Stud’s negligence. Any further damages would be disallowed by the Civil Liability Act. Failure to warn In addition to a wrongful birth action, Tracey may pursue a failure to warn action. Dr Stud diagnosed Tracey’s rubella correctly but failed to warn her that rubella could cause serious damage to her unborn child. Jack’s injuries were as a result of the rubella. The relevant authority for failure to warn is found in Rogers v Whitaker.67 It requires a doctor to exercise reasonable care and skill in treating and advising 66. Cattanach v Melchior (2003) 215 CLR 1 at [68]. 67. Rogers v Whitaker (1992) 175 CLR 479.

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his or her patients. The duty of care required is that of the ordinary skilled person exercising and professing to have that special skill.68 In Rosenberg v Percival,69 the High Court confirmed the requirements in Rogers and that a doctor must warn of any ‘material risks’. Gummow J in Rosenberg clarified the Rogers test for material risk. There is a material risk if: 1. in the circumstances of the case, a reasonable person in the patient’s position would be likely to attach significance to it (‘the objective limb’); or 2. the medical practitioner was, or should have been, aware that the particular patient would be likely to attach significance to it (‘the subjective limb’). 70 Callinan J said that a more inquisitive or anxious patient would be more likely to attach significance to a risk and therefore the need to warn would be even greater even for slight risks.71 Given that Tracey was ‘very concerned about her unborn child’, there seems to be no doubt that she would attach great significance to a warning that rubella may harm the child. Arguably, any reasonable person in Tracey’s position would also attach significance to the risk. In this case, as outlined above, Dr Stud not only did not warn of the risks, but advised Tracey her child would be fine because she was nearly in her second trimester.This assurance denied Tracey the opportunity to legally terminate her pregnancy, which she would have done had she known the risks that rubella brought. Any action brought against Dr Stud should also include a failure to warn claim. Jack v Dr Stud While a wrongful birth claim is brought by the parents of an ‘unwanted’ child for the costs of raising them, a wrongful life claim is brought by or on behalf of the child for the costs associated with having a disability. This type of case has not been successful in Australia. It arose for the first time in the High Court in Harriton v Stephens72 and Waller v James;Waller v Hoolahan.73 Previously, in the New South Wales Supreme Court, Spigelman CJ had rejected the case. He drew attention to the ‘highly contestable’ and ‘strenuously contested’ assertion by the child that ‘it would be preferable if she or he had not been born’.74 Ipp JA agreed, finding it impossible to use ‘non-existence as a comparator’.75 68. Rogers v Whitaker (1992) 175 CLR 479 at [6]. 69. Rosenberg v Percival [2001] HCA 18. 70. Rosenberg v Percival [2001] HCA 18 at [75]. 71. Rosenberg v Percival [2001] HCA 18 at [210]. 72. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15. 73. Waller v James;Waller v Hoolahan (2006) 226 CLR 136. 74. Harriton v Stephens;Waller v James;Waller v Hoolahan [2004] NSWCA 93 at [24]. 75. Harriton v Stephens;Waller v James;Waller v Hoolahan [2004] NSWCA 93 at [265]–[283].

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Mason P, dissenting, argued that the case should be viewed as a claim for damages for personal injury.76 The High Court upheld the Supreme Court’s decision in a 6:1 majority. The problem of comparing existence with non-existence was again a major factor in the reasoning of the majority. In the chief majority judgment, Crennan J said that it was ‘impossible’ to compare ‘a life with disabilities and non-existence’.77 The other five majority judgments agreed.78 In addition, the majority noted the policy concerns associated with allowing such an action to succeed. Perhaps primary among these concerns was that it would devalue human life. Crennan J called it ‘odious and repugnant’ to suggest that a disabled person ‘would have been better off not to have been born into a life with disabilities’. She also noted that the law in Australia regards all humans as valuable irrespective of disability, prohibiting differential treatment of the disabled.79 Another policy concern was the risk of parents being sued for wrongful life.80 It was also argued that the appellant’s disabilities were not the fault of the doctor; the doctor could not have prevented the rubella or the injuries to the child, and could not have compelled the mother to abort.81 Kirby J dissented. In a lengthy and carefully considered judgment, he answered each of the above arguments (and others). He noted that courts have been willing to compare non-existence with existence in other circumstances.82 In response to Crennan J’s argument that the injuries were not the fault of the doctor, Kirby J pointed out that the duty of the doctor was not to terminate the pregnancy but to advise the mother.83 He also disapproved of a neglectful doctor escaping ‘scot-free’.84 Kirby J spent some time criticising the use of the term ‘wrongful life’ as being potentially misleading and confusing, as well as value-laden.85 He argued that the label devalues human existence and that it has caused judges to shy away from awarding damages in these cases.86 The action itself does not devalue life; 76. Harriton v Stephens;Waller v James;Waller v Hoolahan [2004] NSWCA 93 at [102]. 77. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [252]. 78. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [170], [205] per Hayne and Callinan JJ. Gleeson CJ, Gummow and Heydon JJ did not write separate judgments but agreed with Crennan J’s judgment. 79. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [258]–[263]. 80. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [205], [250]. 81. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [244]. 82. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [95]. 83. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [112]–[114]. 84. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [101]. 85. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [8]–[14]. 86. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [13].

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on the contrary, awarding damages would allow a disabled plaintiff to lead a more dignified existence.87 Ultimately for Kirby J, though, this was a simple case of negligence: Had it not been for the respondent’s negligence, the appellant would not have been born. The suffering, expenses and losses of which she now complains would therefore have been avoided. 88

Conclusion Tracey and Christopher appear to have a strong case against Dr Stud for wrongful birth. Although any damages they may recover are now limited under the Civil Liability Act, they may be awarded damages for the costs associated with Jack’s disability. Tracey would also have a case against Dr Stud for failure to warn of the risks of rubella. Despite Kirby J’s powerful support for ‘wrongful life’ actions, the current law in Australia would not allow Jack to recover damages against Dr Stud.

87. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [122]. 88. Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 at [39].

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Chapter 11

Pure Economic Loss Legal practice skill: Advising on developing areas of the law

Learning aims

• Understand the difference between pure and consequential economic loss • Learn why the law has been more restrictive in respect of claims for pure economic loss

Background concepts 11.1

In this chapter, we look at liability for what is referred to as ‘pure economic loss’. The term may be confusing. What do we mean when we say something is ‘pure’? One hundred per cent pure orange juice means that the product does not contain anything other than orange juice: no sugar, no sweeteners, no colourings, no preservatives, no water. It is unadulterated. It is the same with pure economic loss. We are referring to a situation where what the plaintiff has suffered is simply some economic loss, not adulterated by anything else. The term ‘pure economic loss’ should be contrasted with consequential economic loss. Take a typical negligence case. A, who is not maintaining a proper lookout, smashes into B’s car. B suffers a soft-tissue injury of the neck (‘whiplash’), together with damage to his car in the order of $8,000. He is forced to take a week off work and loses $1,000 in salary. The economic losses B suffers are consequential upon the physical harm and property damage he has suffered. Recovery proceeds along normal negligence principles. What then is pure economic loss? Take the situation above.Assume that B works for C as a welder. It is a time of full employment. As B is off work, C is unable 515

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to weld some containers for D. C loses D’s business, which is worth $50,000 a year. D, too, suffers loss as he had promised the containers to E and he is now unable to provide them. C’s, D’s and E’s losses are all ‘pure economic losses’.The losses they have suffered are not consequential upon physical damage or property damage to themselves. The law applies different rules of recovery to pure economic loss. Why?

Reasons for limiting damages in pure economic loss 11.2

Mendelson notes that three arguments have been advanced to justify denial of recovery for pure economic loss:1 1. The impossibility of foreseeing pure economic loss. It has been argued that, as a general principle, neither the nature nor the incidence of pure economic loss can reasonably be predetermined. 2. Where the loss is foreseeable, it is difficult to ascertain its extent and impact. 3. Even where foreseeability and determinacy are known, there is ‘a jurisprudential tension’ between freedom of action within the law and recovery of damages for pure economic loss.

The second argument has been a powerful influence in the law. Cardozo CJ in an American case, Ultramares Corp v Touche Niven & Co,2 stated that: If liability for negligence exists, a thoughtless slip or blunder … may expose [the defendant] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.

The third argument above has been expressed by the High Court in the following terms:3 … in a competitive world where one person’s economic gain is commonly another’s loss, a duty to take reasonable care to avoid causing mere economic loss to another, as distinct from physical injury to another’s person or property, may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage.

This chapter explores the operation of pure economic loss cases, focusing on acts which cause pure economic loss. It should be acknowledged that courts have permitted recovery as a result of negligent misstatements causing loss. These are not dealt with in this chapter for two reasons. First, the cases are sui generis, involving as they do positive statements rather than failures to act. Second, the purview of such claims has largely been overtaken by the Competition and Consumer Act 2010 (Cth), and thus the cause of action has become largely (if not exclusively) statutory in nature. 1. D Mendelson, The New Law of Torts, Oxford University Press, Melbourne, 2007, p 447. 2. Ultramares Corp v Touche Niven & Co 174 NE 44 (1931). 3. Bryan v  Maloney (1995) 182 CLR 609 at 618–19; 128 ALR 163 at 166 per Mason CJ, Deane and Gaudron JJ.

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The general rule 11.3

11.4

The general rule is that recovery for pure economic loss is not permitted. An example of this principle is Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd.

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; [1972] 3 All ER 557 Court: English Court of Appeal Facts: The defendants were repairing a road. They negligently severed the power cable which was connected to the plaintiff’s factory. Power was disconnected for 14 hours. The result was that metal which was in a blast furnace was ruined, resulting in a loss of £368, and a loss of profit of £400. Four more ‘melts’ were unable to be carried out. The loss of profit in respect of these melts was £1,767. The plaintiff sued the defendant in negligence. Legal principle: Which losses were recoverable? The court’s decision (application of the legal principle to the facts): The plaintiff could recover the cost of the physical damage to the first melt, that is £368, as well as the loss of profit on that melt. The balance of the losses from the subsequent melts was irrecoverable. They were not consequential upon physical damage, but were rather pure economic loss. The Court of Appeal denied liability for these losses due to concerns about indeterminacy of liability. Significance of this case: The case establishes the general principle in respect of pure economic loss. More recently, however, Australian courts have permitted recovery for pure economic loss in limited circumstances. The law in this area is complex and evolving.

The breakaway 11.5

11.6

The first Australian case to permit recovery for pure economic loss was Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad.

Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529; 11 ALR 227 Court: High Court of Australia Facts: Caltex owned an oil terminal in Sydney. It supplied crude oil to Australian Oil Refining (AOR) whose refinery was on the other side of Botany Bay. The oil was pumped across the bay in a pipeline owned by AOR. AOR then supplied refined

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oil products back to Caltex. The dredge Willemstad negligently collided with the pipeline. Caltex’s supply was interrupted; it was unable to sell petrol and lost profits. Caltex sued for loss of profits. Legal principle: Were damages for loss of profit, not consequential upon physical loss, recoverable? The court’s decision (application of the legal principle to the facts): Caltex was allowed to recover the loss of profits it suffered, despite the fact the loss was consequential on damage suffered by a third party (that is, AOR). Damages were recoverable as the defendants could reasonably foresee  that a specific plaintiff (Caltex), as opposed to a general class of plaintiffs, would suffer loss if they did not act with due care. Stephen J was of the opinion that, in addition to reasonable foreseeability, there needed to be a control factor. This control factor, he said, was proximity. Its precise nature was dependent upon policy considerations. His Honour thought that there were a number of features which pointed towards proximity being established in the present case. These included knowledge of the pipeline and its presumed use to convey materials for refining and back. Significance of this case: The case is the first case in Australian law permitting recovery for pure economic loss.

The importance of factors cannot be underestimated.With the abandonment of proximity by the High Court, relevant factors need to be carefully considered. This is nowhere more clearly demonstrated than in the next case we will look at, Perre v Apand Pty Ltd.

11.7

Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36 Court: High Court of Australia Facts: The defendant negligently supplied seed potatoes to a South Australian farmer. The resultant potatoes produced bacterial wilt which infected the farmer’s land. The plaintiffs owned land in the vicinity of the farmer’s land, but their land was not infected with wilt. Western Australian Regulations prohibited the importation of potatoes grown on land, or in a 20-kilometre radius of land, infected by wilt. Legal principle: Were damages for the pure economic loss recoverable by Perre? The court’s decision (application of the legal principle to the facts): The trial judge found that the defendant knew that there were farmers in the area who

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exported potatoes to Western Australia. It also knew the risks associated with wilt and the Western Australian law which prohibited importing potatoes from within a 20-kilometre radius around infected areas. There is a divergence in the High’s Court reasoning in Perre’s case. Mendelson notes:4 McHugh J was critical of Gaudron’s approach; Gummow J was not persuaded by the reasoning of either McHugh J or Gleeson CJ; while McHugh and Hayne JJ were opposed to the methodology for establishing the duty of care proposed by Kirby J.

How then to reconcile the various judgments? Mendelson notes the key to resolving the conflicts in the judgments is to focus on the relevant factors such as knowledge and vulnerability. The defendant knew that farmers within a 20-kilometre radius would be adversely affected were they to supply infected potato seeds. The plaintiff had no method of knowing about the risk to which it was exposed, or protecting itself against the risk.

The factors approach in Perre v Apand Pty Ltd can be seen in the cases below.45 11.8

Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5 Court: Supreme Court of New South Wales Facts: The plaintiff purchased an entry in the OzLotto draw. A defect in the issuing machine caused the machine to not print out all the relevant details. The plaintiff brought this to the attention of the machine operator who was an employee of the newsagent in which the lottery entry was purchased. The employee issued a new ticket. She sought instructions from the Lotteries Commission as to how to proceed. A Lotteries Commission agent provided her with a code to cancel the first (incomplete ticket). The plaintiff left the newsagency with the ‘new’ ticket. When the lottery draw was made, it contained the winning numbers as listed on the ‘new’ ticket. It transpired, however, that the newsagency had, by entering the code, cancelled, not the first (incomplete) ticket, but the ‘new’ ticket. The plaintiff sued in contract and negligence. Legal principle: Could liability in pure economic loss flow for a negligently issued lottery ticket? The court’s decision (application of the legal principle to the facts): The Lotteries Commission and the newsagency were liable in negligence for the pure economic loss caused to the plaintiff. Barrett J noted as follows:5 Each duty of care is found whether one adopts a foreseeability approach or a proximity approach, particularly because Mr Reinhold was “vulnerable” in the sense

4. Mendelson, The New Law of Torts, note 1 above, p 468. 5. Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5 at [91].

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that he was not in a position to protect himself from the want of reasonable care on the part of Lotteries or the Newsagents or both in and about the matter of ticket issue and ticket cancellation: Perre v  Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180. Of necessity, Mr Reinhold relied on the accuracy and integrity of the steps taken by Lotteries and the Newsagents: Bryan v Maloney [1995] HCA 17; (1995) 182 CLR 609; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515.

11.9

Barclay v Penberthy (2012) 291 ALR 608 Court: High Court of Australia Facts: An aircraft carrying five passengers and specialist equipment owned by a corporation crashed due to the negligence of the pilot of the aircraft and an engineer — both employed by an airline company. The company sued the airline charter company for pure economic loss arising out of the loss of their employees, and the specialist equipment. Legal principle: In what circumstances will liability flow for pure economic loss? The court’s decision (application of the legal principle to the facts): The airline charter company was liable. In terms of the basis for liability, a majority of the High Court quoted, with approval, the statement of the trial judge that: [Mr Penberthy] knew the purpose of the flight. He knew that it was a commercial purpose. He knew that the company who employed his passengers was Nautronix. Mr Penberthy knew, therefore, not only that Nautronix was a member of an ascertainable class of commercial users of the aircraft, but that Nautronix was the particular commercial entity which depended upon the exercise of his professional skill as a pilot for the successful performance of the service for which the aircraft was chartered. Of course, it was the case that if Penberthy failed, as he did, to discharge that duty of care, Nautronix was vulnerable in the sense that they were unable to protect themselves from the foreseeable harm of an economic nature caused, in part, by Penberthy’s negligence. There are no other circumstances specially affecting the existence of a duty of care owed by Penberthy, and vicariously by [Fugro], to Nautronix in relation to economic loss suffered by that plaintiff.6

Defective buildings

6

11.10

Another important area of pure economic loss relates to defective buildings. The initial purchaser of a building, who discovers that the building is somehow defective, can, of course, claim according to normal negligence principles.

6. Barclay v Penberthy (2012) 291 ALR 608 at [44].

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In Voli v Inglewood Shire Council,7 the High Court held that builders owe a duty of care to any person who might reasonably be expected to suffer damage, and who does suffer personal injury or property damage, other than in respect of the defective structure itself, as a consequence of their negligent workmanship. The people who have difficulty are, of course, subsequent purchasers. Defects in a building can result in ‘pure’ economic losses to anyone who has purchased the building at a certain price in ignorance of the defect and who is then faced with the prospect of having to ‘shell out’ to fix the building, or selling the building for less than he or she paid for it. The High Court considered the situation faced by subsequent purchasers of defective buildings in Bryan v Maloney.

11.11

Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 Court: High Court of Australia Facts: The plaintiff was the third purchaser of a house. Cracks which developed in the wall of the house seven years after the house was built demonstrated to her that the foundations had been negligently laid. She sued the defendant builder for the cost of repairing the foundations. It is important to note that, while the cracks in the walls made the building less valuable, they did not pose a physical risk to safety. Legal principle: Did the builder of a house owe a duty of care to subsequent purchasers of the house? The court’s decision (application of the legal principle to the facts): The builder may owe a duty of care to subsequent purchasers who rely upon his or her skill to protect them from reasonably foreseeable diminution in value which would result from the presence of latent defects. The High Court based this on special proximity between the parties involving an assumption of responsibility by the builder and known reliance by the purchasers. Four considerations were identified by the High Court as warranting the conclusion that a relationship of proximity existed with the subsequent owner: 1. The house was identified as a ‘connecting link’, it being a permanent structure and a significant investment for a subsequent owner like the plaintiff. 2. It was pointed out that it was foreseeable that economic loss would be likely to result from negligent construction of the house. 3. Mason CJ, Deane and Gaudron JJ said that there was ‘no intervening negligence or other causative event’ (at ALR 171).

7. Voli v Inglewood Shire Council (1963) 110 CLR 74.

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4. The similarities with the relationship between the builder and the first owner as regards the particular kind of economic loss were said to be ‘of much greater significance than the differences to which attention has been drawn, namely, the absence of direct contact or dealing and the possibly extended time in which liability might arise’ (at ALR 172 per Mason CJ, Deane and Gaudron JJ). Significance of this case: While proximity has been abandoned by the High Court, the focus again is on the factors of responsibility and vulnerability. It should also be noted that the class of potential purchasers can reasonably be foreseen, as can the loss of value caused by a latent defect.

Note that there has been substantial legislative intervention in this field. Legislation establishing insurance schemes to protect home owners from building defects in Victoria, New South Wales, Tasmania, South Australia, Queensland and Northern Territory is discussed by Luntz et al.8

Commercial premises 11.12

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Do the principles enunciated by the High Court in Bryan v Maloney extend to subsequent purchasers of a commercial building?9

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; [2004] HCA 16 Court: High Court of Australia Facts: The respondents, a consulting engineering company, designed foundations for a warehouse and offices. The owner of the building subsequently sold the building to the appellants. A year after the purchase, the building was found to be ‘in substantial structural distress’ as a result of problems with the foundations or the material below it. The appellants claimed the cost of diminution in value of the building, on a pure economic loss basis. Legal principle: Are claims in pure economic loss maintainable when the loss claimed is for diminution of value of commercial premises? The court’s decision (application of the legal principle to the facts): The High Court carefully examined Bryan v Maloney9 and pointed out (at [14]) that the decision that a builder owed a duty of care to a subsequent purchaser ‘depended

8. H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, p 907. 9. Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163.

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upon the anterior step of concluding that the builder owed the first owner a duty of care to avoid economic loss of that kind’. On examination of the relationship between the engineer and the original owner in this case, it was not one where the owner entrusted the design of the building to the engineer under a simple ‘non-detailed’ contract. It was a contract ‘in which the original owner asserted control over the investigations which the engineer undertook for the purposes of performing its work’ (at [25]). It follows that, as the anterior step was not satisfied, no duty of care could be owed to a subsequent purchaser. Put another way, the original purchaser was not vulnerable. Vulnerability was 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]). Nor, as it transpired, were the subsequent purchasers able to demonstrate vulnerability. They were unable to prove that the defects could not have been discovered at the time of purchase. Significance of this case: The principles in Bryan v  Maloney extend to commercial premises, not just domestic premises. Vulnerability is an important touchstone of liability.

The subsequent application of Bryan v Maloney and Woolcock Street Investments 11.14

11.15

Now we will examine how both Bryan v Maloney and Woolcock Street Investments have been applied in more recent cases.

Project Company No 2 Pty Ltd v Cushway Blackford and Associates Pty Ltd [2011] QCA 102 Court: Queensland Court of Appeal Facts: The appellant (DDF) entered into a contract with BLL for the construction of an abattoir in Toowoomba. BLL engaged Cushway Blackford and Associates Pty Ltd (CBA) and the third respondent Harwal as subcontractors. CBA supplied electrical design, inspection and certification services. Harwal designed and constructed switchboards for the abattoir. In particular, CBA and Harwal are both alleged to have roles in the design of the main switchboard for the abattoir. Subsequently KRC purchased 100 per cent of the shares in DDF. DDF granted a licence to KRC for it to operate the abattoir. DDF continued to own the land, plant and equipment.

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On 17 June 2005, there was a fire in the main switchboard which caused severe damage. The switchboard had to be replaced. The abattoir could not be used for a period of about five weeks. Significant losses were incurred as a result of the interruption to the business conducted from the facility. DDF alleged that the respondents were negligent in failing to provide proper protection on the switchboard. During the course of 2010, it became apparent to the parties that it was KRC that had suffered some of the losses claimed in the proceeding, rather than DDF. At first instance, the trial judge held that the principle in Bryan v Maloney did not apply to commercial premises. Legal principle: Did the principle in Bryan v Maloney apply to the current case? Decision of the court (application of the legal principle to the facts of the case): The facts in this case were different from either Bryan v Maloney or Woolcock Street Investments v  CDG Pty Ltd. There were two main differences. First, the building remained in the ownership of the original contracting party. Second, there was no structural damage in this case.

Conclusion 11.16 Mendelson10

suggests the High Court is taking an incremental approach to the field of pure economic loss, having as yet failed to establish general principles or tests. She suggests the following requirements and factors as relevant to recovery:

•• the defendant’s knowledge or means of knowledge of the plaintiff as a specific individual or member of a specific class as opposed to a member of an unascertained class; •• control by the defendant in terms of knowledge and conduct; •• vulnerability of the plaintiff to pure economic loss; and •• policy factors generally. Barker and Hinchy11 note: … five principles or ‘salient features’ were identified by McHugh J in Perre v Apand12 as determining whether the defendant owes the plaintiff a duty of care in a pure economic loss case. These features were posed as a series of questions and can be paraphrased as follows: 1. Was the loss suffered by the plaintiff reasonably foreseeable? (reasonable foreseeability); 2. If yes to question 1, would the imposition of a duty of care impose indeterminate liability on the defendant? (indeterminate liability); 10. Mendelson, The New Law of Torts, note 1 above, p 447. 11. K Barker and R Hinchy, LAWS 1002 Learning Guide, University of Queensland, Brisbane, 2007, p 42. 12. Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36.

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3. If no to question 2, would the imposition of a duty of care impose an unreasonable burden on the autonomy of the defendant? (autonomy of the individual); 4. If no to question 3, was the plaintiff vulnerable to loss from the conduct of the defendant? (vulnerability); 5. Did the defendant know that its conduct could cause harm to individuals such as the plaintiff? (knowledge).



Barker and Hinchy suggest that economic loss cases can be usefully analysed using the salient factors approach identified by McHugh J. Which approach, that of Mendelson or that of Barker and Hinchy, do you find more useful? Is there a difference?

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Review

The law has been concerned about the potential scope of liability in respect of claims for pure economic loss. Pure economic loss is loss which is not consequential upon damage to a claimant’s person or property. The general rule is that recovery for pure economic loss is not permitted. An exception has been made where various factors have been satisfied. It is hard to be specific about these factors, but the defendant’s knowledge and the plaintiff ’s vulnerability are key factors.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 8 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 16

Key Cases Barclay v Penberthy (2012) 291 ALR 608 Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 Caltex Oil (Aust) Pty Ltd v  The Dredge Willemstad (1976) 136 CLR 529; 11 ALR  227 Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36 Project Company No 2 Pty Ltd v Cushway Blackford and Associates Pty Ltd [2011] QCA 102 Reinhold v New South Wales Lotteries Corporation [2008] NSWSC 5 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; [1972] 3 All ER 557 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; [2004] HCA 16

Chapter 11 Review Questions 1. What is the difference between economic loss and pure economic loss? 2. Why have the courts taken a more restrictive approach to pure economic loss? 3. What is the general rule in respect of pure economic loss? 4. What, according to Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529; 11 ALR 227 are the prerequisites before recovery for pure economic loss will be permitted? 526

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5. What is the factors approach to answering pure economic loss cases? 6. From where does it derive? 7. What rules apply to the recovery of pure economic loss in respect of defective buildings? 8. Are commercial buildings to be treated in the same way as domestic buildings, in terms of pure economic loss?

Tutorial 11.1: Negligence and economic loss

Internal memorandum From: Guido Markewicz To: Trainee Bob Gentle and Costas Ltd wish to sue Adam Askew for negligence. Advise them on their prospects of success. Please prepare a memo outlining your thoughts in time for a meeting with them tomorrow afternoon. Bob and Adam live in Faringa, an outer Brisbane suburb, and have been neighbours for years. Adam is married and has three adult children, two of whom have moved out of home. His youngest, Frederick, is still at university and lives at home with his parents. Adam received good news one morning. Frederick had received an A in his mid-semester law exam. Adam was so happy he decided to take a trip to his local coffee shop to have a latte to celebrate the good news. Adam sped out of his driveway without maintaining a proper lookout. There was a sickening ‘thud’ as he smashed into Bob’s car. As mentioned, Bob and Adam have been neighbours for years. Their children were at school together and they frequently socialise. This is the fourth such time Adam has hit Bob in his car. After the accident, Bob complained of severe pain in his neck. Adam (whose car was still driveable) took Bob to the hospital where he was seen by a doctor who arranged for an X-ray of his neck. The X-ray showed no fracture (a blessing) but the doctor’s view was that Bob has suffered a softtissue injury (whiplash). This will require the use of a soft collar, analgesics and a course of physiotherapy. Bob’s car, meanwhile, was badly damaged. Quotes on the cost of repairing his car have come in at around the $8,000 mark.

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Due to his neck condition, Bob had to take a week off work and lost $1,000 in salary. His physiotherapy bills amount to $950. His analgesics cost $35. His soft collar cost $25. Bob works for Costas Ltd as a welder. Adam has always known this, and knows that Bob is the only welder working for Costas.Adam and Bob often discuss how hard it is to get additional labour, and how the business stops every year when Bob goes on holidays. It is a time of full employment and Costas Ltd’s business has been ‘flat out’. Following the accident, Costas tried hard to get someone in to replace Bob but was unsuccessful. As Bob was off work, Costas was unable to weld some containers for Dannex, involving a loss of profit of $950.



Tutorial 11.1: Example Answer

Internal memorandum From: Trainee To: Guido Markewicz Re: Bob Gentle and Costas Ltd v Adam Askew Bob could sue Adam using normal negligence principles. Adam, as a fellow road user, owed Bob a duty of care to drive with reasonable skill and care. Failing to keep a proper lookout and speeding breach that duty by falling below the standard of a reasonably competent driver. Damage has been caused to Bob, and that damage is not too remote. Bob could recover from Adam damages for pain and suffering, and any loss of amenity. His special damages would include the cost of medical attention, physiotherapy and missed salary.The cost of repairing the car is also recoverable under normal principles of recovery. The economic losses Bob has suffered are related to damage to his person and property. Costas Ltd’s losses do not relate to any damage to person or property, and are referred to as ‘pure economic loss’. The law takes a restrictive approach to the recoverability of such damages. The general approach is to deny liability for pure economic loss: Spartan Steel & Alloys Ltd v  Martin & Co (Contractors) Ltd.13 Exceptional cases can be made out where the defendant could reasonably see that the specific plaintiff, as against a general class of plaintiffs, will suffer loss as a consequence of his or her negligence: Caltex Oil (Aust) Pty Ltd v The

13. Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27; [1972] 3 All ER 557.

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Dredge Willemstad.14 In that case, the High Court said there were other public policy factors which needed to be considered. These factors were, to Stephen J, a matter of proximity. With the High Court’s move away from proximity, the focus has been on factors. The High Court, in cases like Perre v Apand Pty Ltd,15 has focused on factors like knowledge and vulnerability. Did the defendant know that he or she could cause loss to the plaintiff? Did the plaintiff have a means of protecting himself or herself against the loss?

McHugh J in Perre v  Apand Pty Ltd suggested there are ‘five principles or “salient features” as determining whether the defendant owes the plaintiff a duty of care in a pure economic loss case’. These features were posed as a series of questions and have been paraphrased by Barker and Hinchy16 as: 1. Was the loss suffered by the plaintiff reasonably foreseeable? (reasonable foreseeability). 2. If yes to question 1, would the imposition of a duty of care impose indeterminate liability on the defendant? (indeterminate liability). 3. If no to question 2, would the imposition of a duty of care impose an unreasonable burden on the autonomy of the defendant? (autonomy of the individual). 4. If no to question 3, was the plaintiff vulnerable to loss from the conduct of the defendant? (vulnerability). 5. Did the defendant know that its conduct could cause harm to individuals such as the plaintiffs? (knowledge). Applying the above to the facts at hand, it was reasonably foreseeable that, if Adam did not drive reasonably, he could injure someone and prevent that person from working for another; more so as he has hit Bob so many times before. Limiting the imposition of liability to the employer will not impose indeterminate liability on the defendant. The question of vulnerability is harder to answer on the facts we are given. In some occupations, it is possible to obtain employment insurance. Typically, for example, a professional is protected against losses he or she may suffer if he or she is injured or ill. Such policies are often taken out by lawyers, dentists etc. Is an employer able to obtain such insurance? If so, then the employer (Costas) may have had an opportunity to protect itself, and thus may not be vulnerable. In the absence of the availability of such insurance (note that the occupational insurance referred to earlier covers only the employee, not the employer), then Costas may well be vulnerable. 14. Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529; 11 ALR 227. 15. Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; [1999] HCA 36. 16. Barker and Hinchy, LAWS 1002 Learning Guide, note 11 above, p 42.

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In a time of full employment, Adam must have known that, were he to hit someone who was an employee, he could cause damage to the employer’s business. He certainly would know that if he hit Bob that Costas Ltd’s business would suffer, because he and Bob have been friends for years, and Adam knows that Bob works as the only welder at Costas, and what happens to Costas’s business when Bob goes away on holiday. On balance, then, Costas may be able to recover its losses.

Tutorial 11.2: Economic loss

Internal memorandum From: Guido Markewicz To: Trainee John Robertson, a builder, secured approval from the Manly City Council (MCC) to construct a block of eight luxury flats on the Manly seafront for Seafront Luxury Pty Ltd (SFL). MCC building inspectors signed off on the last report approving the construction (but actually missed completing two earlier interim reports). A year after the flats were completed, cracks have emerged in the balcony walls of three of the second-storey units. Tests have been conducted. It appears that the concrete mix contains too much sand and that the reinforcing rods are 8 mm in diameter (whereas the approved plans specified 12 mm). Extensive repair work will be required (estimates vary between $20,000 and $50,000 per unit). The three second-floor owners have come to us and want to commence proceedings in negligence against MCC, John Robertson and SFL. I want you to prepare a draft email (to the spokesperson for the three, Alex Kemp) setting out our thoughts on the merits of a negligence claim against MCC, Robertson and SFL, and any relevant or related issues that occur to you. Thanks, Guido

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Pure Economic Loss



Tutorial 11.2: Student Example Answer Prepared by: Alex Kemp (2014), updated by Bryce Wilson, UNE School of Law student (2018)

Internal memorandum From: Bryce Wilson To: Alex Kemp et al (DRAFT ONLY) Re: Potential negligence claims against SFL, John Robertson and MCC I have reviewed your legal position regarding the concerns of a group of owners relating to your property, located in the suburb of Manly. There are three potential claims that may be made on your behalf raising a number of quite different issues. Seafront Luxury Pty Ltd (SFL) The group who constructed your property Seafront Luxury Pty Ltd (SFL) owed a duty of care to future owners to undertake the construction in a safe manner. This is in accordance with the plans which were approved by the Manly City Council (MCC). The duty to take this reasonable care arises from the reasonably foreseeable risk of injury to others or damage to property should reasonable care not be taken. The High Court held in Bryan v Maloney17 that a professional builder must take reasonable care to avoid the kind of loss suffered by the plaintiff in that instance. It was held that, with no intervening negligence or other causative event, the proximity between the loss sustained and the builder’s lack of reasonable care was not extinguished. This was either a lapse of time or a change of ownership. In using a concrete mix that consisted of too much sand, and reinforcing rod of an incorrect diameter, SFL has breached the duty of care owed in its construction of the property. Also, SFL has not adhered to the plans, as approved by MCC. Damages have been sustained as a result of this breach. Owners such as your group are of a class of persons that might have been reasonably foreseeable to sustain damages, should a breach of this duty of care occur.18 It may also be argued that you were in the vulnerable position of investing a large portion of your wealth in the property without having the opportunity (or intimate building knowledge) to complete a detailed investigation of the 17. Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163. 18. Chapman v Hearse (1961) 106 CLR 112.

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merits of the construction. It would be beyond your powers of discovery to take precautions against this unknown danger.19 It is possible that the remedial work required to rectify the building problems may be seen as a purely economic loss caused by a combination of negligent acts.The loss that has been sustained by your group, therefore, may be recovered only if there is a high degree of proximity in the relationship between you and the potential defendant. In Sutherland Shire Council v Heyman,20 it was held that in cases of personal injury or property damage, there is sufficient proximity of relationship to give rise to a duty of care should injury to the plaintiff be a reasonably foreseeable consequence of the negligence of the defendant. Added to this, your action does not give rise to indeterminate liability21 — there is an ascertainable class of people affected by the negligence. Liability is only indeterminate when it cannot be realistically calculated.22 The merits of a negligence claim against SFL are particularly strong, regardless of the fact that your case is based on economic loss. John Robertson The potential liability of John Robertson is limited by our understanding of his relationship to SFL.Vicarious liability is the liability imposed on one person for the wrongful act of another due to the legal relationship between them, for example, an employer–employee relationship. There are two threshold questions that must be addressed: 1) was Mr Robertson an employee of SFL or was he working as a contractor; and, if he was an employee 2) was he acting within the scope of his employment? In Stevens v Brodribb Sawmilling Co Pty Ltd,23 the High Court held the employer’s right to control the work done by the employee is of primary importance in indicating whether a relationship of employment existed at the time. We assume that SFL exercised discretion over the work that Mr Robertson performed for them.This is the provision and maintenance of equipment, the hours of work and his remuneration. For example, we assume that he was acting within the scope of his employment, even if he was perhaps doing so in an unauthorised manner.24 If Mr Robertson was acting as an employee of SFL, the prospects of a successful negligence claim against him are the least likely to succeed of your three options. SFL and MCC are more likely than Mr Robertson to have the financial means 19. Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147. 20. Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1. 21. San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340. 22. Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606. 23. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513. 24. Bugge v Brown (1919) 26 CLR 110.

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that your group requires in order to obtain the damages required to support your estimated costs. Manly City Council (MCC) In Australia, the authority with regards to statutory bodies is Sutherland Shire Council v  Heyman,25 in which Deane J formulated a two-stage test for the existence of a duty of care: 1. that loss or damage of some kind to someone such as the plaintiff was a reasonably foreseeable consequence of the defendant’s failure to take reasonable care; and 2. that there was the requisite degree of proximity in the relationship between the defendant and the plaintiff. Duty of care MCC had a duty of care to inspect the property and approve the reports. MCC failed to complete the two interim reports, at which time, presumably, the construction involving the reinforcement rods and concrete work would be far more evident.Your group may wish to pursue them as the statutory authority responsible for these reports.The likelihood of your success will also depend on the applicable statutory provisions. Reliance A public authority is not under a duty of care relating to decisions that involve or are dictated by financial, economic, social or political factors or other constraints.26 However, the majority in Sutherland Shire held that a duty may arise in cases of ‘specific reliance’. For example, when the authority has acted in such a way as to lead the plaintiff to believe that it will exercise its powers for their protection, and that the plaintiff has acted to his or her detriment by reasonably relying on that expectation. Your group has obviously relied upon the building inspection reports given by MCC. Foreseeability In Nagle v Rottnest Island Authority,27 it was held that in encouraging people to take part in a particular activity, the authority had a duty to take reasonable care to avoid possible injuries occurring. MCC would obviously encourage luxury construction of this type in their area. By failing to inspect the construction at the appropriate junctures, MCC has placed the building in the obvious danger of requiring future and ongoing repairs. The most severe case is the causing bodily injury of some type.28 It is reasonably foreseeable that in failing

25. Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1. 26. Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1. 27. Nagle v Rottnest Island Authority (1993) 177 CLR 423. 28. Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263.

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to inspect the building there was a distinct possibility of the work being of a substandard quality. Common law In Pyrenees Shire Council v Day,29 it was held that, when a public authority begins to exercise its statutory powers with respect to a particular subject matter, it may import a common law duty of care. This duty requires the continuation or additional exercise of those powers. MCC has approved the plans for the construction and has signed off on the last report approving the property. It was MCC’s duty to continue to monitor the construction and prepare the interim reports. Exceptions The courts have refused to impose a duty of care on a person for the actions of third parties over whom [they] have no control.30 ‘That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt.’31 The control and knowledge of the occupier is paramount. MCC may argue that, as it was not the occupier, it did not have control over the construction per se, or that while it may have the power to enforce the obtaining of interim reports, it does not have the duty to do so.32 The relevant statutory provisions will be integral to the question of whether MCC will be liable for damages. There will also be a question of whether this is a policy or operational decision. (If it is within the policy sphere of activity, then there will be no duty.) Statutory obligation Presumably, MCC’s obligation to inspect the building is a statutory obligation of some type, but here reference will need to be made to the statute under which the inspection of your premises is required.Traditionally, it was rare for a statute to provide for damages to be awarded in a case such as this. It was more likely that the statute would provide for a penalty for breach against the local authority. However, there are more exceptions to this than there are examples of it, especially where the statutory provision is concerned with safety, and an action for damages may be viable. These exceptions allow for a cause of action, regardless of an indication in the words of the statute to this effect. Although, at this time, the breach has resulted only in damage, the possibilities of potential future safety issues are reasonably foreseeable.

29. Gummow J in Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147, quoting Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459–60. 30. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61 at [43] per Gaudron J. 31. Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61 at [17] per Gleeson CJ. 32. Brennan CJ in Pyrenees Shire Council v Day (1998) 192 CLR 330 at 344; 151 ALR 147 at 155.

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Breach of statutory duty For the action to be successful against MCC for a breach of statutory duty, a number of issues need to be addressed. First, it needs to determine if the provision is for the protection of an identifiable class of persons. The plaintiff must be a member of that class in order to have a right to sue for breach of the statutory duty. This may be inferred from the nature of the risk against which the statutory provision is directed.33 In these circumstances, the statutory obligations would obviously be in order to protect prospective owners of property in the area, a class of people to which your group belongs. Second, the harm suffered must be of a kind against which the statute was directed or no cause of action will arise.The type of injury suffered needs to be of a type that the provision was directed at preventing.34 The harm your group has suffered through the poor construction work and lack of interim reports by MCC is clearly of a kind that the statutory body would be aiming to avoid. Third, the action will only lie against the person on whom the statute has imposed the duty. The duty must have been imposed upon MCC. However, the court held where the statute does not expressly specify the person on whom the duty is imposed, the court may identify the person on whom it was intended to be imposed by reference to the terms of the statute.35 Finally, in reference to the words of the statute, your group will only need to prove that MCC has breached the duty imposed therein.You are not required to prove that there was an alternative or safer method of construction, for instance.36 Therefore, there are a number of different options by which an action may be taken against MCC, depending on the statutory regulations involved. Conclusion In conclusion, it appears that your group would be successful in a negligence claim against either SFL or MCC, or both. Next steps The following items indicate the logical sequence of ‘next steps’ for us to address: •• preparation of a statement of claim against SFL, for negligence in construction; •• a review of the applicable statute(s) with regards to MCC: - their obligations to inspect and penalties for this breach; 33. Read v Croydon Corporation [1938] 4 All ER 631. 34. Mummery v Irvings Pty Ltd (1956) 96 CLR 99. 35. Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36. 36. Galashiels Gas Co Ltd v O’Donnell [1949] AC 275.

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- whether interim reports are optional or mandatory; - the type of risk the statute is intended to address; - the type of injury or harm the statute is intended to address; and - depending on what is revealed from the points above, the preparation of a statement of claim against MCC for breach of statutory duty and/or negligence; •• consideration of whether to bring separate actions or treat SFL and MCC as joint respondents/defendants; and •• consideration of whether John Robertson was acting as an employee or a contractor with regards to possibilities outside vicarious liability. I trust that the discussion above addresses your concerns. Please let me know should you require clarification, or if I can be of further assistance to you. Yours sincerely, Bryce Wilson

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Chapter 12

Legal Professional Negligence Legal practice skill: Acting for lawyers

Learning aims •

Understand that professional negligence principles apply to lawyers, just as they do to doctors and other professionals

•

Appreciate that Hedley Byrne v Heller accelerated the growth of professional negligence claims

•

Understand that, traditionally, solicitors were in a different position regarding negligence claims against them, as compared with barristers

•

Develop an awareness of the United Kingdom trend to broadening notions of barristers’ liability

•

Analyse whether this trend will be adopted in Australia

Background concepts First principles 12.1

The legal profession has undergone rapid change in the last 20 years, and seems destined to continue to change.1 Just two decades ago, Australian law firms were largely state based. They were male dominated and relied on historically stable relationships with clients. Much of that has changed. Law firms have many more female partners, state-based firms merged into national firms, some of whom have merged with international firms, some law firms have incorporated and some are listed on the stock exchange. Some law firms have set themselves up as multidisciplinary practices — solicitors working in the same firm as accountants, for example.

1. See  generally, J Devereux, ‘The Future of Law’ in M Raz, E Loh and J Devereux, Australian Legal Careers Guide, Federation Press, Sydney, in preparation.

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In those jurisdictions with a separate Bar, the changes have been no less remarkable. Senior barristers (traditionally called Queens Counsel (QCs)) have, in some jurisdictions, become SCs — Senior Counsels. QCs, who traditionally only appeared in court assisted by a Junior Barrister, now often appear on their own. As society has become more complex, so too, it seems, has the pervasive role played by lawyers. We hear talk of a more governed society, of legislation dominating our lives, of people becoming more litigious. All of these concepts are central to the ‘lawyering function’ within the broader Australian society. As we saw in Chapters 1 and 4, Hedley Byrne v Heller,2 the 1963 English case, set in train the modern trend of professional liability. Just as doctors, architects and auditors have come under scrutiny for the way in which they carry out their roles, so too, have lawyers. In this chapter we examine recent and emerging trends in the area of the professional liability of lawyers. We will examine the position for: •• solicitors, that is, transaction-based lawyers; and •• barristers, that is, advocates appearing in court. We will look briefly at a United Kingdom House of Lords case and the impact it may have in Australia.

Contemporary issues relevant to lawyers Communication skills 12.2

When we talk of lawyer liability, we pose the scenario that the lawyer is most likely to be sued by his or her own client for falling below the standard expected of a reasonably competent lawyer. It might be due to any number of issues, for instance, that the lawyer: •• •• •• •• ••

missed a deadline and was statute-barred from issuing proceedings; characterised the legal issue incorrectly; lodged defective documents that the court would not allow to be amended; was not prepared in court; or did not follow instructions.

Most complaints from clients about their lawyers involve either: •• delay; or •• poor communication. Now, of course, as a lawyer, you are going to hope that you do a wonderful job on all 250 of your files. You are going to assume that you and your clients get on well and that they would tell you if there was a problem. If a problem were 2. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] 1 AC 465; [1963] 2 All ER 575.

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to arise, you would like to think that it could be resolved quickly and amicably between the two of you. That is the best of all scenarios. However, it may be that the client reports the matter to a law society or ombudsman for formal investigation. It may be that your client goes to another firm of lawyers. It may be that your client sues you for professional negligence, that is, falling short of the standard expected of a reasonable legal practitioner. That last-mentioned scenario is what the cases in this chapter involve: lawyers being sued by their clients. While such matters often end up in court, they invariably start with a breakdown in communication between the lawyer and client. When considering the cases, think about why and how to keep the lines of communication open and to ensure that your client is kept in the information loop. This may also involve (in addition to you and your client) other lawyers and their clients, the court, other third parties such as government agencies, and so forth.

Specialisation 12.3

Another trend in the last 20 years has been the growth of specialisation. Lawyers have become experts in niche areas of practice.There are still those who are general practitioners, but many lawyers will be ‘accredited’ specialists with particular skills and experience. This means that standards have risen along with client expectations. Clients demand expertise and they are prepared to ‘shop around’ for legal advice.They no longer unquestioningly stay with a single law firm; corporate and large clients are likely to have a panel of law firms to do their work. Some may have their own in-house counsel. Many clients expect firms to tender for large complex jobs, and they constantly review their legal services budgets.

Ethical issues 12.4

Ethical demands underpin the lawyer’s relationship with his or her clients. For example, the notion of client confidentiality is strictly enforced, but how does this play out, for example, in relation to the lawyer’s duty not to mislead the courts? Lawyers have several stakeholders to consider, including: •• •• •• ••

clients; the court; other lawyers and their clients; and their firm or partnership.

Paramount, of course, is their duty to the law. Much of the discussion in this chapter is linked to courses in legal ethics and you may find it useful to examine books on ethics in parallel to the issues raised here.3 3. See Y Ross, Ethics in Law — Lawyers’ Responsibility and Accountability in Australia, 6th ed, LexisNexis, Sydney, 2013.

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The solicitor’s duty of care: key legal principles and cases 12.5

12.6

We will start by looking at a case dealing with a lawyer making a basic mistake with the preparation of a client’s will. Hill v Van Erp went to the High Court of Australia. It illustrates the essential legal principles that must be observed and the drastic consequences of ignoring them.

Hill (t/as RF Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 Court: High Court of Australia Facts: The defendant, Mrs Hill, was a solicitor in Brisbane. She prepared a will for a Mrs Currey. Mrs Currey wanted to change her will. She asked her neighbour and friend of more than 10 years, Mr Van Erp, to arrange for Mrs Hill to visit her at home to change the will. Mrs Hill duly visited Mrs Currey at her home for that purpose. Mrs Van Erp was a beneficiary under Mrs Currey’s will; she was described in the will as Mrs Currey’s ‘good friend’. She was left a share as tenant in common (with Mrs Currey’s son, William) of Mrs Currey’s home and she was to be given Mrs Currey’s leather lounge suite, ornate glass tabletop and antique clock. However, Mrs Hill arranged for Mrs Van Erp’s husband to witness the will. Neither a beneficiary under a will nor the beneficiary’s spouse can be a witness to it. That is a cardinal rule of will making. As a result of this basic mistake, Mrs Van Erp was not able to receive anything under the will (according to the Queensland Succession Act 1981, the dispositions to Mrs Van Erp were null and void) and the property went to the residuary beneficiary. An action was brought against Mrs Hill by Mrs Van Erp, as an intended (but disappointed) beneficiary under the will. Because of Mrs Hill’s negligence, the will was considered invalid and the beneficiary did not receive the benefits that Mrs Currey (the testatrix) had intended. Mrs Van Erp sued Mrs Hill in negligence and recovered a judgment in the District Court for over $160,000. The Queensland Court of Appeal dismissed Mrs Hill’s appeal. She took the case to the High Court. Legal principle: This case was considered by the High Court under the general heading of duty of care. Did Mrs Hill, the solicitor, owe a duty to Mrs Van Erp, the intended beneficiary, to ensure that the will would comply with formalities and that the intended beneficiary would receive the intended benefits? Did the solicitor owe a duty to the intended beneficiary? The court’s decision (application of the legal principle to the facts): Six separate judgments were delivered. Five of these judges dismissed Mrs Hill’s appeal, that is, they found Mrs Hill liable in negligence. McHugh J dissented. The case runs to over 61 pages and much of the discussion involved the issue of when a duty of care is owed if it gives rise to economic loss. The finding of a duty in such circumstances is usually problematic. The reasons in this case were as follows: • It was considered that, by finding that the solicitor owed a duty to the beneficiary, it might diminish the duty that the solicitor owes his or her client.

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• There was clearly no contract between the solicitor, Mrs Hill, and the intended beneficiary, Mrs Van Erp. Does this give rise to indeterminacy issues? • The nature of the beneficiary’s loss was clearly economic loss. As we saw in Chapters 4 and 11, economic loss principles cause difficulties for the court. • The court discussed the fact that Mrs Van Erp had not really suffered any genuine loss. As Brennan CJ said, ‘In one sense, Mrs Van Erp has suffered no loss. She simply failed to obtain a benefit to which she had no legal entitlement’ (at ALR 692). Was the nature of the loss, if there was a loss, a mere expectation, which the law did not recognise? • In this case, the majority of the High Court upheld Mrs Van Erp’s claim, and she recovered damages. McHugh J dissented. The majority judgments: The majority judgments were delivered by Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ. (As noted above, McHugh J dissented.) Brennan CJ found liability on the principle that the case was an extension of the Hedley Byrne assumption of responsibility. Dawson J summarised his findings as follows (at ALR 701–2): While the loss Mrs Van Erp has suffered is pure economic loss, the considerations which ordinarily prompt concern about imposing liability for such loss are absent. In the first place, to impose liability upon the solicitor in such a situation is not to raise the prospect of indeterminate liability. An intended beneficiary under a will is a specific, identifiable individual rather than a member of an unascertained class. Nor is the liability to such a person at large. The maximum amount of the damages which might be awarded is fixed by the size of the intended bequest. Indeed, both the beneficiary’s existence and identity and the amount to which he or she is entitled will ordinarily be brought to a solicitor’s attention. Secondly, no question of competitive advantage arises. In appropriate cases that is a consideration which is relevant to the scope of the tort of negligence. As Mason CJ, Deane and Gaudron JJ said in Bryan v Maloney:4 Another consideration is the perception that, in a competitive world where one person’s economic gain is commonly another’s loss, a duty to take reasonable care to avoid causing mere economic loss to another, as distinct from physical injury to another’s person or property, may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage. In this case, the solicitor’s negligence had nothing to do with her obtaining a commercial or competitive advantage and the recognition of a duty of care would not impede the legitimate pursuit of financial gain. Thirdly, the recognition of a duty of care would not supplant or supplement remedies available in other areas and would not disturb any general body of rules constituting a coherent body of law. The only areas of law which require particular attention are the law of succession and the law of contract.

4. Bryan v Maloney (1995) 182 CLR 609 at 618; 128 ALR 163 at 166.

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Toohey J was broadly in agreement with Dawson J. Gaudron J found liability on the basis of the relationship between the solicitor and the disappointed beneficiary, which, at its centre, was characterised as one where ‘one person is in a position to control the enjoyment of another’s legal right’, that is, Mrs Hill could control the fortunes of Mrs Van Erp. Gummow J found liability in tort on the basis of extending the solicitor–client contract between Mrs Hill and Mrs Currey. Significance of this case: A point of significance is that the loss or damage suffered by Mrs Van Erp was ‘pure economic loss’. She did not suffer any personal injury or property damage. This raises important issues: • indeterminacy of the plaintiff class, the time limit and the dollar losses. Indeterminacy, as we saw in Chapter 4, is a notion that Cardozo CJ, the United States judge, brought to prominence in Ultramares Corporation v Touche.5 In Hill v Van Erp, the High Court dismissed the notion of indeterminacy arising; • questions of competitive advantage in economic terms; and • issues concerning the possible disturbance of other areas of the law. The background and context: As with Bryan v Maloney (the negligent builder of Chapter 11), Hill v Van Erp establishes liability in a context beyond an established contractual relationship: • In Bryan v Maloney, a contract existed between the builder and the original owner. • In Hill v Van Erp a contract existed between the solicitor and her client. And yet, in both cases, liability was extended to third parties some way removed from the contractual nexus. These cases illustrate the difficulties of fixing and ascertaining exactly where the court will draw the line between liability and no liability findings. As we saw in Chapter  4, and shall see  again in this chapter, there are factors that have assisted courts to establish a duty of care in novel cases. These include: • the assumption of responsibility by the defendant; • reasonable reliance by the plaintiff; • control exercised by the defendant; • the expertise and knowledge of the defendant; and • vulnerability ‘suffered’ by the plaintiff. When you read the cases, bear in mind these key issues. McHugh J’s dissenting judgment: McHugh J indicated that there were broader implications of a finding of liability in this case, and that the implications were unclear. He said that there was no general duty in law to prevent economic loss to another. He talked of ‘preserving doctrinal integrity’ (at ALR 727).

5. Ultramares Corporation v Touche, Niven and Co 174 NE 441 (1931).

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His central point was that ‘proximity is too indeterminate a doctrine to provide a justification for imposing a duty on solicitors to protect the expected benefits of beneficiaries. So we must look for a principle’ (at ALR 728). Despite his search, he could not find one. He pointed out that to give Mrs Van Erp a remedy in negligence would have an adverse effect on legal insurance premiums (at ALR 728). He also thought a finding of liability ‘must lead to a considerable, perhaps massive, expansion of the law of economic loss’ (at ALR 728). McHugh J also indicated that, if the case resulted in injustice, and ‘if a change to the law is to be made, it should be done by the legislature which can deal with this special case, perhaps by amending the legislation relating to wills, rather than extending the law of negligence in a way that departs from its basic doctrines’ (at ALR 729). Hill v  Van Erp, therefore, resulted in a finding of liability against the solicitor, Mrs Hill. However, in light of McHugh J’s powerful dissenting judgment, it will be interesting to see if this type of factual scenario is re-litigated.

A subsequent case has considered and further applied the principle in Hill v Van Erp.

12.7

Maestrale v Aspite [2012] NSWSC 1420 Court: Supreme Court of New South Wales Facts: The testator was admitted to hospital. One day his son (who was also his carer) took the testator out to attend a social function. Immediately after the function the testator went to see his solicitor. He asked his solicitor to prepare a new will. The effect of this new will would be to increase his son’s share of his estate from 25 per cent to 50 per cent. Though the instructions were taken, the new will was not signed as the solicitor took it away to formally draw it up. In the days following this meeting, the testator’s health deteriorated rapidly. The testator’s son tried, unsuccessfully, to call the solicitor, to alert the solicitor of the testator’s parlous health. The solicitor turned up at the hospital with a new will for the testator to sign. The testator died 10 minutes earlier. Legal principle: Did the solicitor owe a duty of care to a beneficiary under a will? Had the solicitor in this case breached that duty? The court’s decision (application of the legal principle to the facts): Following Hill v  Van Erp, the solicitor did owe a duty of care. He should have

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answered the phone calls made to his office by the beneficiary. He should also have prepared a temporary will for the testator, had it signed and witnessed promptly. Had he done so, the beneficiary would not have suffered the loss he did (the loss of 25 per cent of his father’s estate). Significance of this case: The case extends the principle of Hill v Van Erp. Note that a disappointed beneficiary will not automatically be successful in a negligence action against a solicitor who drafts a will — see  generally, Vagg v McPhee.6

Scope of a solicitor’s duty 12.8

Of course, a solicitor’s duty is not limited to the preparation of wills. A solicitor is employed pursuant to a contract (referred to as a ‘retainer’). He or she has a duty to reasonably carry out the terms of that retainer. But it is important to note that the duty of care owed is wider than simply performing functions under a retainer. The High Court has made it clear that a solicitor has a duty to exceed his or her brief in the retainer if doing so is necessary to avoid a real and foreseeable risk of economic loss to the client.7

An advocate’s duty of care: key legal principles and cases 12.9

12.10

We now turn to the position in Australia of the liability principles applying to court advocates.

Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417 Court: High Court of Australia Facts: This case concerned the liability of barristers to their clients, arising out of alleged negligence in the way they conducted a court case. The three clients/ plaintiffs sued three separate barristers: 1. the barrister who had handled the committal hearing; 2. the barrister who handled the trial; and 3. the barrister who handled the matter on appeal. The plaintiffs had been convicted on a charge of perjury, but had later been successful on appeal to the High Court. Following that successful appeal, the

6. Vagg v McPhee [2013] NSWCA 29. 7. Hawkins v Clayton (1988) 164 CLR 539.

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plaintiffs brought an action against the barristers, alleging negligence; in particular, that the trial barrister had been negligent at trial, and had not alerted the plaintiff to the defence that was available, and as a consequence the plaintiffs were convicted. As Mason CJ said (at ALR 419): The issue in these appeals is whether a Victorian barrister is liable in negligence to his clients who were tried and convicted of perjury, the negligence alleged being his failure to advise them that they had a good defence to the proceedings and his failure to object to certain inadmissible evidence tendered by the Crown. The evidence was essential to the Crown case. Without it the Crown could not have succeeded.

Legal principle: Giannarelli’s case raises the question as to whether barristers should be immune from this kind of legal action. There was a series of authorities in England that established that barristers would not be subject to this kind of action (for example, Rondel v Worsley 8). The effect of those decisions was that barristers did not owe a duty to their clients to conduct the case in a reasonable fashion. That is, barristers were ‘immune from suit’ for their advocacy skills. The practical problem raised by these United Kingdom cases and Giannarelli is that the court, in seeking to establish a principled position, attempted to divide the litigation process into a timeline involving two distinct phases, that is, prior to trial and the trial itself. The principles that emerged were based on this timeline as follows.

Work carried out prior to trial

Trial, that is, performance in court

Solicitors are not immune Barristers are theoretically not Immune

Barristers are immune from negligence suits being brought against them

The problem with this approach is that it does not take account of the ‘grey area’ between the two phases referred to above. For example, what is the situation with work intimately connected with the trial, but not actually involving the trial itself? How is this work categorised? Is it covered by the immunity or not? The court’s decision (application of the legal principle to the facts): In Giannarelli’s case, the High Court upheld the immunity of barristers for their incourt performance. They considered a number of policy factors that led them to find that no duty would be owed by barristers to their clients. First and critically, barristers owe an overriding duty to the court. The barrister owes a duty not only to his or her client, but also to the court. The duty to the court overrides the duty to the client, and may sometimes be to the ‘possible disadvantage of the client’ as Mason CJ wrote (at ALR 421). It is part of the public interest. The nature of the duty owed to the court is that the barrister should not (at ALR 421): • ‘mislead the court’;

8. Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993.

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• ‘cast unjustifiable aspersions on any party or witness’; • withhold documents, even if those documents detract from the client’s case; • keep something in reserve as a ground of appeal; • fail to alert the court if there is some problem with the procedure at trial. The reason for these duties is tied up with the need for the speedy and efficient administration of justice. The significance of this case: It was accepted by the High Court that if the barrister did owe a duty to his client for the in-court performance, this would be potentially inconsistent with the competing duty owed to the court. Recognising that the duty to the court is overriding was the basis for holding that there is no duty owed to the client.

The extent of the immunity in Giannarelli 12.11

The question left open by Giannarelli is trying to define, for practical purposes, the notion of ‘intimate connection’ of matters connected to the trial itself. This takes us back to the timeline issues referred to above.

Australian developments after Giannarelli 12.12

12.13

The issue was again raised in the High Court in the next case, Boland v Yates Property Corporation Pty Ltd. The issue concerned immunity in the context of civil litigation (as opposed to criminal litigation, as had been the case in Giannarelli). However, due to the nature of the court’s findings, the issue is sure to be retested before the court at a later date.

Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575; [1999] HCA 64 Court: High Court of Australia Facts: Mr Boland, a solicitor, acted for Yates Property Corporation Pty Ltd (Yates) in a land compensation claim brought in the Land and Environment Court of New South Wales. Yates sued Mr Boland and also sued the barrister (a QC) and junior counsel. Yates’s claim included: • damages for negligence; • breach of contract (against Mr Boland, the solicitor);

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• breaches of the Trade Practices Act 1974 (Cth); • breaches of the Fair Trading Act 1987 (NSW); and • breaches of fiduciary duties. Legal principle: Were the immunity principles enunciated in Giannarelli’s case to be upheld? The court’s decision (application of the legal principle to the facts): The High Court found that no negligence was established against Mr Boland, the solicitor or the barristers. As Gleeson CJ wrote at [96]: The immunity issue Because there was no negligence on the part of the appellants, (and, therefore, as is conceded, no misleading or deceptive conduct or breach of fiduciary duty) the claims for immunity from suit based upon the decision of this court in Giannarelli v Wraith need not be resolved. Branson J would have upheld such claims had it been necessary to do so. The Full Court of the Federal Court took a different view. Both courts were bound by the decision in Giannarelli v Wraith. On appeal to this court it was submitted on behalf of the respondent that, if the issue of immunity had to be resolved, the court should reconsider Giannarelli v Wraith. Because the issue does not arise, it is inappropriate to deal further with that submission.

Significance of this case: Boland, therefore, is not greatly significant and it will require another case where negligence is found to reopen the Giannarelli decision. In the meantime, the House of Lords in the United Kingdom has provided much food for thought for the Australian High Court.

English developments 12.14

12.15

The House of Lords has overturned barristers’ immunity. The case is Arthur J S Hall & Co v Simons.

Arthur J S Hall & Co v Simons [2002] 1 AC 615; [2000] 3 All ER 673; [2000] UKHL 38 Court: House of Lords Facts: This case raised questions concerning a barrister’s immunity both in terms of civil and criminal cases. Legal principle: Was immunity for in-court work to be maintained? The court’s decision (application of the legal principle to the facts): This House of Lords decision overturned barristers’ immunity both in civil and criminal cases in the United Kingdom.

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As the table below shows, it was clear-cut in the case of civil proceedings; it was more problematic in relation to criminal proceedings with the decision going 4:3 on this issue.

Judge

Immunity of barristers in civil matters

Immunity of barristers in criminal cases

Lord Steyn

No immunity

No immunity

Lord Browne- No immunity Wilkinson

No immunity

Lord Hoffman

No immunity

No immunity

Lord Hope

No immunity vis-à-vis the client, but an immunity in relation to claims by third parties

The immunity should remain

Lord Hutton

No immunity

The immunity should remain

Lord Hobhouse

No immunity

The immunity should remain

Lord Millett

No immunity

No immunity

Significance of this case: Comprehensive reasons were set out for ending the historical immunity of barristers in both civil and criminal proceedings in the United Kingdom. Four main arguments were thoroughly canvassed. They were: 1. the cab-rank rule (that is, that the next available barrister who does the sort of work required by the client takes the next available case, so that no client goes unrepresented); 2. the analogy of the immunity of others who participate in court proceedings such as judges, court officials and witnesses; 3. re-litigation or collateral challenge; and 4. divided loyalty or the duty of the advocate to the court. Each of these arguments will be briefly dealt with in turn. The cab-rank rule: The House of Lords was of the view that barristers would continue to represent clients; that clients would not be in danger of not having legal representation if the immunity were removed. The analogy of the immunity of others who participate in court proceedings: Again, this was given little weight. Protection of finality of decisions: This was discussed more fully; it is the idea that a second wave of ‘complaint actions’ (against barristers) might undermine the

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substantive case against the accused. The court found that this would not be a problem if the substantive case had been finally dealt with and all appeals extinguished. Then, a complaint action could be commenced. That is, the court did not envisage parallel actions running at the same time but following one another as follows:

Criminal trial

The accused is brought to trial

Criminal appeals completed

The accused appeals the conviction

Civil action

In negligence against the barrister, depending on the facts and circumstances

Counsel’s duty to court would not be threatened: The House of Lords rejected this argument as had the High Court in Giannarelli’s case. Confidence in the legal system: The House of Lords was firmly of the view that the public’s faith in the system would be improved by removal of the immunity. They thought it would help to improve standards.

12.16

The House of Lords in Jones v  Keney9 extinguished the immunity which expert witnesses had previously owed to people who had employed them. This decision is arguably consistent with the trend established in Hall v Simons.

D’Orta’s case in the High Court 12.17

12.18

The issue of advocates’ immunity arose in the High Court in 2005.

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; [2005] HCA 12 Court: High Court of Australia Facts: The majority joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ sets out the relevant facts: The facts alleged by the applicant 4. In February 1996, the applicant was charged with rape. He sought legal assistance from Victoria Legal Aid (VLA), a body corporate established by the Legal Aid Act 1978 (Vic). VLA retained the second respondent (Mr McIvor) as the applicant’s barrister to appear for the applicant in the Magistrates’ Court at the committal proceeding to be held under the Magistrates’ Court Act 1989 (Vic).

9

9. Jones v Keney [2011] 2 AC 398.

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5. At the committal proceeding, the applicant, although not bound to enter a plea, entered a plea of guilty. He was committed for trial in the County Court of Victoria. 6. In February 1997, the applicant was presented for trial. On arraignment he entered a plea of not guilty and stood trial. His guilty plea at the committal proceeding was led in evidence. He was convicted and sentenced to three years’ imprisonment. 7. The applicant appealed against his conviction to the Court of Appeal of Victoria. That court (Winneke P, Brooking JA, Vincent AJA) set aside the verdict, quashed the conviction and directed a new trial on the ground that, although evidence of the applicant’s guilty plea at committal had been properly admitted in evidence, the trial judge had failed to give sufficient directions about the use that might be made of the plea. 8. On the applicant’s retrial, evidence of his guilty plea at committal was not admitted. He was acquitted. 9. In 2001, the applicant commenced an action against VLA and the barrister, Mr McIvor, in the County Court. The applicant alleged that he had retained VLA as his solicitor to act on his behalf in defending the charge of rape. (The statement of claim does not allege any consideration for this retainer but that may be ignored. It will be assumed that the applicant alleged that there was a contract of retainer.) He alleged that VLA and the barrister each owed him duties to exercise reasonable skill, care and diligence in acting for him. The pleading is at least consistent with the applicant alleging that the duties were either contractual, or duties of care imposed by law, or both.

The court’s decision (application of the legal principle to the facts): This High Court case retained barristers’ immunity in the aspects of criminal cases in Australia. The immunity covers the trial and committal hearings. The issue remains: what is the extent of the immunity? When is work not connected with the trial process, and thereby beyond the immunity? As McHugh J put it (at [206]), as regards the substance of the central issue posed in D’Orta: ‘It raised the question as to whether the common law of Australia should also abolish the advocates’ immunity in respect of in-court conduct or conduct intimately connected with in-court conduct.’ As the table below shows, the decision was reached by a 6:1 majority, with Kirby J dissenting.

Justice

Paragraphs

Gleeson CJ, 1–92 Gummow, Hayne and Heydon JJ

Immunity of barristers in criminal trials

Basis of decision

Immunity

At [91]: ‘Because the immunity now in question is rooted in the considerations described earlier, where a legal practitioner (whether acting as advocate,

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Justice

Paragraphs

Immunity of barristers in criminal trials

Basis of decision

or as solicitor instructing an advocate) gives advice which leads to a decision (here the client’s decision to enter a guilty plea at committal) which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account’. Reasons for maintaining the immunity were legion and included finality of proceedings, avoiding collateral proceedings, and avoiding abuse of process. McHugh J

93–207

Immunity

At [206]: ‘The decision of the House of Lords in Arthur J S Hall10 departing from the previous course of authority and coming after Giannarelli11 raised a question of great public interest. It raised the question as to whether the common law of Australia should also abolish the advocates’ immunity in respect of in-court conduct

1011

10. Arthur J S Hall & Co v Simons [2002] 1 AC 615; [2000] 3 All ER 673. 11. Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417.

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Justice

Paragraphs

Immunity of barristers in criminal trials

Basis of decision

or conduct intimately connected with in-court conduct’. Kirby J

208–348

No immunity

552

Dissenting judgment. At [270]–[271]: ‘As a matter of law, Giannarelli is confined to holding that a Victorian barrister is immune from liability for negligence in the conduct of his or her client’s case in court during a hearing. 271. Conclusion: no legal obstacle: Negligence in such conduct is not what the present applicant alleges, or has ever alleged, against the barrister, still less against the solicitor employed by VLA. It follows that there is no legal obstacle to this Court’s deciding the extent of the out-of-court liability of those lawyers. Obviously, the decision on that liability will take into account the holding in Giannarelli. However, there are strong reasons of principle and policy why, at the least, that holding should

12.18

Legal Professional Negligence

Justice

Paragraphs

Immunity of Basis of decision barristers in criminal trials not be extended beyond the courtroom door’.

Callinan J

349–388

Immunity

12

12. Rogers v Whitaker (1992) 175 CLR 479.

553

At [387]: ‘The applicant sought to rely upon Rogers v Whitaker.12 He contended that he was not, but should have been, warned that a plea of guilty at the committal could have adverse effects at trial if he sought to withdraw or change his plea. It must have been unmistakably clear to the applicant that the entering of a plea of guilty was ultimately his personal decision and that it would have for him the most serious of consequences. Anyone pleading guilty must have known that. In any event, an allegation of a “failure to advise”, not materially different from the allegation made here, was rejected in Giannarelli v Wraith’

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Torts: Principles, Skills and Application

Significance of this case: The decision is seen as out of step with comparable common law countries which have removed barristers’ immunity. The argument is: why should barristers be immune while other professionals are not?

12.19

Practical difficulty remains as to the ambit of D’Orta’s case: when is the immunity applicable? When is work not so intimately connected, such that the immunity does not apply?

Developments post-D’Orta 12.20 Post-D’Orta, Supreme Court cases have provided some guidance on what matters

are ‘so closely and intimately connected with the proceedings’. Most recently, the High Court has re-affirmed its commitment to advocates’ immunity, and provided clear guidance that advice as to settlement is not covered by the immunity.

12.21

MM and R Pty Ltd v Grills [2007] VSC 528 Court: Supreme Court of Victoria Facts: The applicants were a firm of solicitors who sued clients for recovery of fees. In a counterclaim, the clients alleged professional negligence on the part of the solicitors. The solicitors joined a barrister as a co-defendant. The allegations of professional negligence turned on the question of the transfer of some radio licences. Although originally issued to an individual, that individual transferred the radio licence to a corporation. The individual then applied (without notice to the corporation) to the Australian Communications Authority for return of the licences. The Australian Communications Authority transferred the licences back to the individual. The corporation retained the solicitors to pursue an action in the Administrative Appeals Tribunal seeking to overturn the decision of the Australian Communications Authority. Upon discovering the individual had attempted to lease out one of the licences for 12 years, the corporation, through its solicitors, brought applications in the Supreme Court to restrain the individual. An interim injunction was ordered. The Administrative Appeals Tribunal determined it had jurisdiction to review a decision made by the Australian Communications Authority. The individual appealed to the Federal Court against this decision. Meanwhile, the interim injunction awarded by the court was lifted, allowing the individual to lease the licences. In due course the Federal Court action was dismissed when it was found that, pursuant to an earlier court decision, the Federal Court was held to have no jurisdiction to consider an appeal against an interim (as opposed to final order) of the Administrative Appeals Tribunal.

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The counterclaim alleged two instances of negligence: ••

a failure to appreciate the earlier Federal Court case which made it clear that an appeal to the Federal Court did not lie; and

••

inactivity on the part of the lawyers.

Legal principle: Which of the allegations of negligence were matters ‘so closely and intimately connected with the proceedings’? The court’s decision (application of the legal principle to the facts): The first allegation was one which was intimately connected with the appeal proceedings and therefore fell within the immunity referred to in D’Orta. The second did not.

Gattelaro v Spencer,13 the New South Wales Supreme Court suggested that the following matters would be those which were intimately connected with proceedings:

12.22 In

•• the conduct of a case in court; •• preparatory activities such as the drawing and settling of proceedings and the giving of advice on evidence; •• such matters as interviewing the plaintiff and any other witnesses, giving advice and making decisions about what witnesses to call and not call, working up any necessary legal arguments, giving consideration to the adequacy of the pleadings and, if appropriate, causing any necessary steps to be undertaken to have the pleadings amended; and •• settlement of an action during its progress in court. Most recently, the High Court has clarified the question of what is closely and intimately connected to proceedings, in the context of reaching a settlement.

12.23

Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 Court: High Court of Australia Facts: The appellant was one of two guarantors for the liabilities of a company to a bank. The company defaulted on its obligations, and the bank commenced proceedings against the guarantors. The guarantors and the bank retained the respondent solicitors to defend them. The company owed the bank $3.4 million, but the guarantee was only for $1.75 million. The action against the company and the guarantors was settled on the basis that judgment would be entered into for the full the amount of $3.4 million and, that

13. Gattelaro v Spencer [2010] NSWSC 1122.

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provided that the guarantors made payment of $1.75 million within five months, the balance of the debt would not be enforced. Consent orders were entered into to that effect. The guarantors failed to make the payment. They sued the solicitors alleging the latter were negligent in advising them to consent to judgment being entered against them in the terms of the consent orders, and in failing to advise them as to the effect of the consent orders. The New South Wales  Court of Appeal held that the respondent’s advice was within the scope of the advocate’s immunity because ‘it was intimately connected with the conduct of the guarantee proceedings’. Legal principle: Does advocate immunity extend to the provision of negligent advice which leads to the settlement of a proceeding? The court’s decision (application of the legal principle to the facts): The High Court upheld the existence of advocate immunity, but declined to apply it in this case as it found that the provision of advice leading to a settlement was not so intimately connected with the conduct of a case in court, In particular there was no functional connection between the advocate’s work, and a court making a finding on a matter.

It is important to note that barristers’ immunity is not the only immunity found in court proceedings. In Cabassi v Vila,14 the High Court noted: No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates, or parties in respect of words used by them in the course of such proceedings, or against jurors in respect of their verdict.

The key is that, what is being protected is not so much advocates, but court proceedings.

14. Cabassi v Vila [1940] HCA 41.

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Review The House of Lords in Arthur J S Hall & Co v Simons did not bind the High Court when considering the issue of advocates’ immunity. However, its views were influential as they: • provided an in-depth historical overview of the area; • provided a thorough analysis of the situation in several countries of the world, including Australia; • situated United Kingdom law in the context of its membership of the European Union; and • dealt with and rejected the Giannarelli approach. Arthur Hall is a good example of the growing importance of comparative law approaches.When the issue did, however, come before the High Court, the United Kingdom position, as set out in Arthur Hall, was rejected. United Kingdom domestic law has undergone great change in the wake of European influence so that it is no longer a narrow, national set of laws. For instance, in Arthur Hall, Lord Steyn observed that ‘in countries in the European Union advocates have no immunity’.15 He went on to make an exhaustive comparative analysis including Australia, the United States, Canada, New Zealand, other European countries and so on. Such an internationalist approach is an increasing feature of progressive appellate courts — even allowing for the United Kingdom’s forthcoming BREXIT. The choice confronting the High Court in D’Orta was clear. It was either: • to follow the House of Lords in Arthur Hall and abandon the immunity principle; or • partially maintain the immunity and continue to grapple with the difficult timeline issues that have beset the search for consistent principle, namely: ‘before court’, ‘in court’ and work ‘intimately connected’ with the court process. As Lord Hobhouse observed in Arthur Hall, ‘[o]ne of the problems of any immunity is determining its boundaries’.16 The court further observed in Arthur Hall that there have been great changes in broader contextual issues since the facts of 1967 that gave rise to the decision supporting immunity in Rondel v Worsley.17 Lord Steyn wrote in Arthur Hall:18 The world has changed since 1967. The practice of law has become more commercialised: barristers may now advertise. They may now enter into contracts for legal services with their professional clients. They are now obliged to carry insurance. On the other hand, today we live in a consumerist society in which people have a much greater awareness of their rights. If they have 15. Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 680; [2000] 3 All ER 673 at 682. 16. Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 745; [2000] 3 All ER 673 at 743. 17. Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993. 18. Arthur J S Hall & Co v Simons [2002] 1 AC 615 at 682; [2000] 3 All ER 673 at 683–4.

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suffered a wrong as a result of the provision of negligent professional services, they expect to have the right to claim redress. It tends to erode confidence in the legal system if advocates, alone among professional men, are immune from liability for negligence. It is also noteworthy that there is no obligation on the barrister (or for that matter the solicitor advocate) to inform a client at the inception of the relationship that he is not liable in negligence, and in practice the client is never so informed. Given that the resort to litigation is often one of the most important decisions in the life of the client, it has to be said that this is not a satisfactory position. Moreover, conduct covered by the immunity is beyond the remit of the Legal Services Ombudsman: section 22(7)(b) of the Courts and Legal Services Act 1990. In combination these factors reinforce the already strong case for ending the immunity.

Despite this observation, the High Court in D’Orta opted to maintain the immunity for advocates in the criminal trial context. In the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ, it was noted: 59. First, this Court decided, as long ago as 1963, that it would no longer ‘follow decisions of the House of Lords, at the expense of our own opinions and cases decided here’ [Parker v R (1963) 111 CLR 610 at 632]. The separate development of the common law in Australia over the last 40 years, coupled with the considerable, and now profound, changes in the constitutional and other arrangements to which the United Kingdom is party, such as the various European and other international instruments to which it is, but Australia is not, a party, can only reinforce that view. 60. Secondly, and no less fundamentally, where a decision of the House of Lords is based, as is its decision in Arthur J S Hall v Simons, upon the judicial perception of social and other changes said to affect the administration of justice in England and Wales (or the United Kingdom more generally) there can be no automatic transposition of the arguments found persuasive there to the Australian judicial system. Especially is that so when the decision may well be thought to have been significantly affected by the European considerations to which Lord Millett referred. In addition, of course, account must be taken not only of the fact that the legal profession is organised differently in the several States and Territories of Australia, but also of the fact that in none of those States or Territories is the profession organised in precisely the same way as it is in England and Wales. Further, although in the end we do not think this determinative, the rules to which reference is made in Arthur J S Hall v Simons about abuse of process and summary termination of civil proceedings may differ in some respects from those that apply in some Australian jurisdictions.

The decision poses three problems: 1. It places Australia out of line with contemporary similar courts in other countries. 2. It places advocates in an advantaged position over other professionals, including in-office solicitors. 3. It does not answer the question posed by McHugh J: while it retains the advocates’ immunity in respect of in-court conduct or conduct intimately

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connected with in-court conduct, when is conduct beyond this link and, therefore, not protected by the immunity? A political solution may well prevail. As law firm Minter Ellison notes in commenting on the aftermath of D’Orta:19 Although the Standing Committee of Attorneys General published an options paper in 2005 outlining three options in response to the High Court’s decision in D’Orta, no further changes have been made.



Reading H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 2.6



Key Cases Arthur J S Hall & Co v Simons [2002] 1 AC 615; [2000] 3 All ER 673; [2000] UKHL 38 Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575; [1999] HCA 64 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; [2005] HCA 12 Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417 Hill (t/as RF Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 Maestrale v Aspite [2012] NSWSC 1420 MM and R Pty Ltd v Grills [2007] VSC 528



Chapter 12 Review Questions 1. What type of damage will generally be claimed by a client suing a lawyer? 2. What does the phrase ‘immune from suit’ mean? 3. What justifications have been used to advance an argument that barristers should be ‘immune from suit’? 4. What did the court mean by the expression ‘collateral attack’ in Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417?

19. N Smith, ‘Advocates’ Immunity Revisited’, 27 January 2006, Minter Ellison.

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Tutorial 12: Lawyers Internal memorandum To: Trainee From: Antonia Johnson John Brian, a commercial partner with national law firm Delaney Martin, is being sued in negligence in the New South Wales Supreme Court and his firm wants us to act on his behalf and vigorously defend this claim. The facts are as follows: (a) Delaney Martin acts for Express Insurance Ltd (Express), a general insurer (a business with a market capitalisation of $6 billion). (b) Brian is the lead partner for the Express account. (c) Last year Express purchased Zip Software.com Ltd (Zip), a Sydneybased company. It was willing to pay $800 million for Zip because it had developed a revolutionary software system that the Express board believed had the potential to revolutionise the insurance and re-insurance industry. (d) A key component of the Zip purchase was a due diligence exercise conducted on behalf of Express. Brian had a team of six Delaney Martin people working on it.There were also auditors (from Wilson Trammell, the ‘big 5’ firm) and accountants (from Zwendowsky’s). Brian coordinated the due diligence. They were at the Zip head office for over two weeks. (e) The Zip purchase turned out to be a disaster. Zip, it turns out, is worth nothing like the price paid. Its purchase has hurt the Express share price and company image. (f) Express alleges three particular problems with the due diligence: (i) a patent for the Zip software had only been applied for and was actually in the process of being challenged; (ii) there was an unlitigated unfair dismissal matter by the founder of Zip which was not disclosed in the report; and (iii) the unsecured debts of Zip were nine times those reported in the due diligence final report. Paul Wendowie, the CEO of Express, has said he wants, ‘Brian’s head on a plate over the Zip debacle’. We need to meet with Brian and the national executive of Delaney Martin to go through the statement of claim issued by Express (the document is 108 pages long).

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Working in pairs, please prepare a series of relevant points using appropriate headings to form the basis of an agenda which we’ll need to go through with Brian and the Delaney Martin executive team. I can’t stress highly enough how important this job is for us. Thank you Antonia

Tutorial 12: Student Example Answer Prepared by: Roweena Singh, Law, UNE

Internal memorandum To: Antonia Johnson From: Roweena Singh Date: 14/07/20XX Subject: Express Insurance Ltd v Brian and Delaney Martin — John Brian’s legal position (as per Delaney Martin) I refer to the matter of John Brian of Delaney Martin, law firm in relation to the suit of Express Insurance Ltd (Express). It appears that Brian is a partner of the firm; subsequently the other partners are also potentially liable.20 The relationship between Brian and the insurance company is the issue. The action for the fundamental problems within Zip Software.com Ltd (Zip) that were not reported by Delaney Martin will rely heavily on whether a duty of care can be established. Policy considerations over the nature of the loss will play a prominent role in the suit. Key cases to rely on are Hill v  Van Erp21 and Giannarelli v Wraith.22 1. Damages In relation to the facts, it would appear that Express suffered financial loss. A claim of compensation for pure economic loss is likely. Policy issues that surround this type of damage will be discussed further at point 3 below. A claim for the decline in the company’s goodwill as a result of the damage to its public image may also eventuate. This, however, will be difficult to quantify. It will be subject to expert opinion.

20. This will be subject to whether Brian acted with authority. 21. Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687. 22. Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417.

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2. Solicitor-to-client relationship The relationship between Brian and Express is an established category of case, solicitor–client, as per Hill v Van Erp. However, as Hill v Van Erp was concerned with a third party, the extent to which Brian owed Express a duty of care in relation to the due diligence exercise will be discussed. A duty of care will be established if (i) proximity and (ii) reasonable foreseeability can be formed. Reasonable foreseeability In Hill v Van Erp, it was found to be reasonably foreseeable that an incorrectly drafted will would lead to a beneficiary suffering loss. In the present case, it is also reasonably foreseeable that a misstatement may eventuate in a loss to a requesting party. Proximity Reasonable foreseeability on its own is not enough to give rise to a duty of care.23 A proximate relationship must be established between the two parties. Although there is ambiguity over the current state of proximity as per Hill v Van Erp and Perre v Apand Pty Ltd,24 it will be discussed. In Hill v  Van Erp, an intended beneficiary of a will prepared by a solicitor sued the solicitor for negligently arranging for the beneficiary’s husband to be an attesting witness. The will was invalid; consequently, the plaintiff received nothing upon the death of the testatrix. In Van Erp, the relationship between the two parties was established in terms of (i) control and (ii) dependence: (i) Control: with respect to control, Gaudron J stated that the solicitor, Mrs Hill, ‘was in a position to control whether Mrs Van Erp would acquire the right to have Mrs Currey’s estate properly administered in accordance with the terms of her will’.25 The control the solicitor had was both over her client’s wishes and the access the intended beneficiary had to the client’s estate. Applying Van Erp to the facts, Brian more than likely had similar control over the actions of his client. Delaney Martin was in a position that would determine whether Express would purchase Zip. However, Hill v Van Erp can also be distinguished from the present case on the basis of the extent of the control. In Hill v  Van Erp, the solicitor was in complete control over whether the beneficiary would acquire the estate intended. At the time of the attesting, she was the only person with a legal knowledge of consequences and, hence, had the ability to intervene. In the present case, presumably, Delaney Martin was not the only source of information on Zip 23. Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687. 24. Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606. 25. Hill v Van Erp (1997) 188 CLR 159 at 169 per Gaudron J.

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obtained by Express. Express more than likely had many other options and avenues open to it before making a decision. The control in Hill v Van Erp that gave rise to a duty of care is not the same as that in the present case. (ii) Dependence also plays a prominent part in the ascertainment of a relationship of proximity.26 A client relies upon a solicitor to apply his or her expert knowledge and skill in the performance of work requested.27 In relation to Express, it would appear that the insurance company relied on the due diligence report provided by Delaney Martin. Express more than likely used it as an assessment of Zip’s overall standing and subsequently acted on it. In accordance with the primary case, control and dependence do not clearly appear to give rise to a proximate relationship between Brian and Express. The notion of control can be questioned such that Brian may not have been subject to a duty to take reasonable care in the accuracy of the due diligence exercise. 3. Pure economic loss principles Although pure economic loss is now recoverable as per Hedley Byrne & Co Ltd v Heller,28 questions of indeterminacy and competition in the commercial context are essential when establishing a duty of care. The need to ‘avoid the imposition of liability in an indeterminate amount … to an indeterminate class’29 has stemmed the need for a special direct relationship between a plaintiff and a defendant. In Hill v  Van Erp, it was held that the beneficiary was of a specified class of people and the amount in question was the fixed value of the estate even though the acquisition of the estate was mere expectation and not a genuine loss. Although Express was directly affected by the actions of Delaney Martin, it belongs to an infinite class of people. This is not a case of one beneficiary and a will but shareholders and stakeholders who all have an interest in the company.The awarding of damages would potentially lead to infinite litigation. The amount of damage is also problematic. It is difficult to draw a line from where the initial loss was suffered to the point of its end. The loss is not limited just to the purchase price; Express’s share price and its image were also affected. Quantifying this would not amount to a fixed sum. Indeterminate liability can more than likely be argued. Destroying commercial competition also arises out of claims of economic loss. This considers whether actions are consistent with community standards in relation to what is legitimate in the pursuit of personal advantage.30 26. San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161. 27. Hill v Van Erp (1997) 188 CLR 159 at 185 per Dawson J. 28. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] 1 AC 465; [1963] 2 All ER 575. 29. Hill v Van Erp (1997) 188 CLR 159 at 192 per Gaudron J. 30. Hill v Van Erp (1997) 188 CLR 159 at 192 per Gaudron J.

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This consideration was not an issue in Hill v Van Erp; in the present case it poses a major concern. The transaction between Express and Zip was commercial. Delaney Martin’s actions benefited Zip at the expense of Express. Express purchased Zip at a price higher than its worth. Zip’s personal gain in relation to selling its company was Express’s economic loss. As the courts do not wish to stagnate commercial transactions, this may pose a problem to Delaney Martin. However, in light of further information, this policy issue may be overcome. 4. Standard of care The actions of Brian and Delaney Martin shall be judged objectively, according to the conduct of a ‘reasonable’ solicitor. 5. Advocate’s immunity The immunity of an advocate in relation to negligence needs to be explored. Giannarelli v Wraith established that neither a barrister nor a solicitor may be sued by a client in respect of any act or omission in the course of the client’s case in court or in preliminary decisions affecting the way the case is to be conducted when it is heard. Brian’s alleged negligence did not occur during incourt proceedings. However, it must be determined whether any of the work Delaney Martin performed for Express was in relation to in-court proceedings. In the event of the latter, Delaney Martin may potentially be immune from a negligence action. 6. Breach On the basis of the facts, it appears that Delaney Martin failed to disclose fundamental problems with Zip with respect to the due diligence exercise. The failure to report the status of the company’s patent, the non-disclosure of the unfair dismissal litigation against Zip and the inaccurate reporting of the unsecured debts of the company are all issues that may lead to liability. However, the contribution of each member to the exercise31 may be helpful in determining whether Delaney Martin was entirely at fault over the situation. The fact that Brian headed the operation may, however, be unfavourable to this argument. In relation to a legal breach, no statement can cause loss unless it is relied upon. Express’s reliance upon the due diligence exercise may be questionable. Granted that the company did request the information and utilised it as the key component of its purchase of Zip, but Delaney Martin is not a professional accountancy firm. Although they included auditors and accountants as a part of their operation, a solicitor still coordinated the entire exercise. It can be 31. The facts indicate that the auditors (Wilson Trammell) and the accountants (Zwendowsky’s) were also part of the due diligence exercise.

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argued that a solicitor possesses a certain amount of knowledge over monetary and general book-keeping matters; however, all else considered, a solicitor still remains a solicitor. A solicitor cannot be held to the standard of another professional as per Phillips v William.32 The gravity of the loss appears to be against Delaney Martin.The large amount of money involved constitutes severe loss. The more serious the loss, the more likely it is that a court will find liability as per Paris v Stepney Borough Council.33 The probability of such a loss being incurred is also quite high.The likelihood of not correctly reviewing financial records resulting in a negative outcome is not minute. Unlike the chance of a cricket ball hitting a pedestrian,34 this is highly likely. The aforementioned calculus factors do not appear to be favourable to Delaney Martin; however, the nature of the actual loss as previously discussed appears to be a strong argument. 7. Defences Contributory negligence on the part of Express can be argued. Express’s sole reliance on Delaney Martin appears to be the reason for its loss. If a second opinion had been sought, the outcome may have been very different. Express appears to have contributed to its downfall. This defence is more than likely to succeed. It can also be argued that the time period in which the due diligence exercise was conducted was not adequate for the type of task requested. A little over two weeks did not allow enough time for Delaney Martin to undertake a comprehensive investigation of Zip. This may have been a contributing factor as to why certain aspects of the company were not fully disclosed in the final report. 8. Other issues It may also be worth pursuing Wilson Trammell (auditors) and Zwendowsky’s (accountants) to join the action against Express. Alternatively, proceedings can be issued against these firms for their contribution to the due diligence exercise. 9. Interim conclusion on liability On the basis of the facts, it appears that a duty of care, particularly in relation to policy considerations, may be difficult to establish. Although a factual and legal breach is very much against Delaney Martin, in the absence of a duty of care they more than likely will not be held liable for their actions. 32. Phillips v William [1938] 1 All ER 566. 33. Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42. 34. Bolton v Stone [1951] AC 850.

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10. Next steps Before providing more accurate advice, further information is required. Brian’s knowledge of the problems claimed in relation to the due diligence exercise is vital. Knowledge of the patent and the litigation, in particular, needs to be determined. In regards to the latter, information on the status of proceedings and whether damages have been awarded is also important. Whether the due diligence exercise was the only piece of information used by Express in relation to the purchase of Zip must be established. The contribution of each party to the exercise is also important. An assessment of the economic loss suffered and an assessment of Zip must be undertaken. It may also be worthwhile to ask questions in relation to advocates’ immunity. Once this information and the due diligence final report are obtained, a denial of liability, on the request of Delaney Martin, can be issued. Contact me if you require further research. Regards, Roweena Singh

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Trespass to Land Legal practice skill: Evidence and taking instructions

Learning aims •

Understand the distinction between negligence and intentional torts

•

Know the elements of trespass to land

•

Understand when a trespass will be actionable

•

Understand when a trespass will not be actionable

•

Know the remedies that are available for trespass

Background concepts First principles 13.1

The first section of this book concentrated on negligence and the elements of the tort of negligence. This chapter, however, will deal with a different and less common tort, that of trespass to land. Trespass to land relates to the entitlements that landholders or landowners have in relation to maintaining exclusive possession of their land. Put simply, a trespass to land may occur when a person or thing that does not have exclusive possession of the land enters the land or dwelling unlawfully. In addition, it is necessary for there to be a direct and intentional interference with another’s possession of land for there to be an actionable trespass. Note that the plaintiff does not need to own the land or the title to the land to have exclusive possession, as the aim behind a trespass to land action protects possession rather than ownership. The most obvious example of possession as opposed to ownership is renting a house or unit. In this case, even though the renter or lessee does not own the property, he or she still has the exclusive right to possession of the property.The lessor (or landlord) does not have possession rights to the property while the lease is current, but they do have ownership rights. In essence, the cases and legislation that are referred to in this chapter try to strike a balance between allowing people to maintain exclusive possession of their property while allowing restricted rights to private property to the public as a whole. 567

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The distinction between negligence and intentional torts 13.2

As you may remember, to have a viable negligence action, it is necessary to have some type of damage or injury. In relation to an intentional tort, such as trespass to land, it is not necessary to have quantifiable damage or injury for there to be a viable action in tort. The courts generally refer to this as being actionable ‘per se’. For example, in Dumont v Miller, the plaintiff was successful against a defendant who had ridden through the plaintiff ’s vineyard with a pack of beagles.1 This was the case even though no damage had occurred to the plaintiff ’s property. The other elements of negligence, such as duty and breach, are also not relevant to a trespass to land action. The other distinguishing feature between trespass to land and negligence is that many of the principles relating to trespass to land derived from the common law 200 or 300 years ago. These actions have not undergone the considerable changes or reform that negligence has in recent years. It is also important to note the word ‘intentional’. This term indicates one of the major distinctions between negligence and trespass to land, as intention is generally not a fundamental ingredient in negligence actions.

Taking instructions and advising your client 13.3

There are a number of considerations to take into account when advising your client on a possible trespass to land action. The first thing to remember is that not all entries to land by a party other than the possessor of the land are unlawful. Therefore, you need to consider whether the conduct that is being complained of actually constitutes an actionable trespass. The second thing to be aware of is that this is not a negligence action and, therefore, different considerations apply. Note that it is not necessary for there to be quantifiable damage to have a trespass to land action. Nonetheless, you need to discuss with your client (if he or she is the landholder) whether the action is worth pursuing if there is no quantifiable damage, as only nominal damages would be recoverable. If an injunctive remedy is more appropriate in the case, this consideration may not be in issue. Furthermore, depending on what your client wishes to achieve from the action, it may be more appropriate to pursue this matter under the criminal jurisdiction. For example, if your client wants to keep the other person off the property, a criminal matter may be more appropriate.

1. Dumont v Miller (1873) 4 AJR 152.

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The other considerations that need to be taken into account are the financial capacities of your client. Does he or she want to pursue this matter into the court system? Will a possible defendant have the requisite funds to satisfy a damages payment if that is what is being pursued? Thus, when taking instructions from your client, it is fundamental to manage the client’s expectations in relation to what he or she hopes to achieve from the action.

Evidence 13.4

The other pertinent consideration to discuss with your client is the difficulty of obtaining the requisite evidence to prove trespass to land in some instances. Questions to ask include: were there any witnesses to the trespass or have any insurance claims been pursued in relation to the trespass? Possibly in commercial cases there may be security camera footage. Furthermore, what is the title to the land and who has the best legal interest in the land? Is there evidence and documentation to show this? When taking instructions from your client and advising your client you need to ensure that there is the requisite evidence to either pursue or defend the claim.

Other considerations 13.5

There are several other considerations to take into account when advising your client. First of all, which court is appropriate in the particular case? In most instances, either the Local Court or the District Court would be appropriate in terms of the dollar value jurisdiction of the courts. Limitation periods also need to be considered. Generally, as the interference in a trespass to land action involves property, the limitation period is six years, except in the Northern Territory where it is three years.2 It is imperative the action is instigated in a timely manner to mitigate any limitation lapses.

The key elements of trespass to land 13.6

The following mind map provides a general picture of what is required to have a successful trespass to land action.

2. 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 of Actions Act 1974 (Tas) s 4(1)(a); Limitation of Action Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13.

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Figure 13.1 Directly and intentionally

Have entered or remained upon

Trespass to land

Land that is exclusively possessed by another

What is intentional interference to land? 13.7

Trespass to land is one of the older common law actions.3 The action was derived during a time when both social and political significance were related to property ownership.4 Even though ownership of land is not as socially or politically significant as it was in previous centuries, trespass to land is still a viable and important action. As a society we are still concerned with maintaining the exclusive possession of our property and dwellings. You are no doubt mindful in your day-to-day goings on of avoiding trespassing or entering other people’s land unless it is necessary or lawful. You may never have considered, however, whether going to fetch your ball from your neighbour’s yard is lawful or whether it is lawful to pick flowers for your friend from another’s property. There are many ways in which a trespass to land can occur. For example, entering someone else’s property unlawfully, throwing objects onto another’s property and remaining on another’s property once the entitlement has been revoked can constitute actions that amount to trespass. Fundamentally, however, to establish a trespass action, several elements need to be satisfied. These are that the defendant (or the defendant’s object or animal) must: •• directly and intentionally (or negligently); •• have entered or remained upon; and •• land that is exclusively possessed by another.

3. A Stickley, Australian Torts Law, 4th ed, LexisNexis Butterworths, Sydney, 2016, p 57. 4. Stickley, Australian Torts Law, note 3 above, p 57.

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These principles, however, lead to a number of ambiguities that will be explored in the subsequent discussion. For example, what constitutes directness and who is the legal possessor of the land can be ambiguous.

What is land? 13.8

This may seem like an obvious question to ask, but it is important to have a working definition of ‘land’ in this context. For example, does this term include your vegetable garden, the earth under your house or even the airspace above your house? The courts have defined land in an expansive way. Land has been defined as constituting the actual land and soil below the land as well as the airspace above the land.5 It also includes other fixtures and articles that are attached to the land such as buildings, sheds and even flower gardens.6 We will now go on to consider some of the issues that have been discussed in relation to some of the more contentious issues in relation to what ‘land’ encompasses.

A person’s interest in land 13.9

13.10

In this chapter we are focusing on the civil action relating to trespass to land.The importance that both society and in turn the law place on trespass to land actions is reflected by the fact that trespass to land actions are also statutory offences punishable by fine or imprisonment. In tort, there can also be viable actions in nuisance and negligence where one’s interests in land have been violated. The following case reflects the importance of protecting one’s interests in land.

New South Wales v Ibbett (2006) 229 CLR 638 Court: High Court of Australia Facts: Mrs Ibbett lived in a house with her son, Mr Ibbett, who was pursued by police officers to her house in the early hours of the morning. Mr Ibbett, who police suspected was involved in a driving offence, opened the garage door. As Mr Ibbett was closing the garage door, the officers dived under it and pointed a gun at him while trying to arrest him. Mrs Ibbett entered the garage where a gun was pointed at her while the police officers demanded that she open the door and let the other officer inside. Mrs Ibbett’s son was then unlawfully arrested and his van was searched by the officers.

5. S Blay, A Gibson and B Richards, Tort Law in Principle, 5th ed, Lawbook Co, Sydney, 2009, p 107. 6. Blay et al, Tort Law in Principle, note 5 above, p 107.

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Legal principle: The plaintiff’s interest in exclusive possession of the premises extends to persons present at the premises (at least to family members and others who are in some other bona fide domestic relationship with the owner or possessor of property). Background and context: This case indicates that trespass to land cases can be used to provide a remedy for violation of privacy as well as protecting civil liberties. The court’s decision (application of the legal principle to the facts): The interest of the plaintiff in protecting exclusive possession of the premises was extended to her son as the conduct of the officers to her son may also violate the plaintiff’s right to enjoy exclusive and quiet possession.

Trespass to subsoil 13.11

This chapter will now consider the extent to which an entitlement to land by a possessor extends into the soil of the land. On the face of it, the owner or possessor of land is also the possessor of the subsoil beneath it. This issue was considered in Stoneman v Lyons,7 where it was found that the underpinning of a wall of another building under the adjoining land by the builder was a trespass. The important issue relating to trespass in this context is how far does the entitlement to subsoil extend to? In Di Napoli v New Beach Apartments Pty Ltd,8 it was found that rock anchors that extended into the plaintiff ’s land constituted a trespass. This was the case even though the subterranean space of the plaintiff ’s land could not be used by the plaintiff.Thus, this case suggests that the possessor’s rights to subsoil extend down into the soil to a substantial depth. In contrast to this issue, what is the entitlement that a possessor of land has to the airspace above his or her land? At this point it should be noted that the rights of the possessor of land to airspace is more limited than that of the subsoil given the public interest issues relating to the use of airspace.

Trespass above the ground 13.12

Under common law, the courts have traditionally followed the Latin maxim of usque ad coelum usque ad inferos, which means that he who owns the land also owns the air and sky above it and the soil and depths down below. This meant that a landowner had exclusive use of everything both above and below the surface of the land. Given the advances in aeronautics and science, this maxim has been deemed to be no longer appropriate to modern living. The case that we are about to consider will demonstrate why this is so.

7. Stoneman v Lyons [1974] VR 797. 8. Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52.

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13.13

Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902 Court: Queen’s Bench Division Facts: The defendants ran a business taking aerial photographs of properties, which they offered to sell to the owners. The defendants took a single aerial photograph of Lord Bernstein’s country house in Kent. When the defendants asked Lord Bernstein if he would like to buy a copy of the aerial photograph, he was very offended. Subsequent communication lapses between the plaintiff and the defendant in relation to the photo exacerbated the problem and the tensions between them. Lord Bernstein subsequently pursued Skyviews & General Ltd in a trespass to land action. Legal principle: The right of an owner to airspace above his or her land is restricted to such a height as is necessary to the ordinary use and enjoyment of the land. Griffiths J stated (at QB 488; All ER 907) that: 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 airspace. 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.

Background and context: The main question that was explored in this case was whether the maxim cujus est solum ejus est usque ad coelum, et ad inferos or ‘whoever has the soil, also owns to the heavens above and to the centre beneath’9 was still applicable, given the advancements in science and aeronautics. The court’s decision (application of the legal principle to the facts): Griffiths J found that it was no longer reasonable to state that a landholder owns all of the airspace above his or her property. Therefore, Lord Bernstein’s claim was unsuccessful.

Legal issue

Judge/s

Conclusion

Reasons given

Is the maxim still applicable?

Griffiths J

No

Would lead to absurdity in relation to trespass (that is, every time a satellite passed over, a property trespass could be actionable)

9

9. P Nygh and P Butt, Encyclopaedic Australian Legal Dictionary, LexisNexis Butterworths, Sydney, 1997.

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Torts: Principles, Skills and Application

Legal issue

Judge/s

Conclusion

Reasons given

Does the owner have an entitlement to any of the airspace above his or her property?

Griffiths J

Yes

Necessary to balance the rights of the owner in the airspace above his or her land as well as allowing the general public to make use of the airspace. The rights of the owner are restricted to a height that is necessary for the ordinary use and enjoyment of his or her land

Was there a trespass in this case?

Griffiths J

No

The aircraft did not infringe any rights in the plaintiff’s airspace

Eleven years later, this issue was considered in the Australian context in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd.10 As in Bernstein of Leigh (Baron) v Skyviews & General Ltd, the Supreme Court of New South Wales found that the access of a property holder to airspace was not unlimited. The Supreme Court of New South Wales provided a test to demonstrate in what circumstances landholders have exclusive rights to the airspace above their land.

13.14

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 Court: Supreme Court of New South Wales Facts: The defendant sought the permission of the plaintiff to use part of the adjoining land to erect a scaffold. The plaintiff refused to consent to this unless the defendant paid a substantial consideration or payment. The defendant did not accept the plaintiff’s terms and built a scaffold on his own land. The scaffold

10

10. LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490.

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went into the space over the plaintiff’s land approximately 4.5 metres above the ground. The plaintiff pursued an action in trespass to land. The defendant, however, claimed that there was no trespass, as the scaffold did not interfere with the plaintiff’s use of the property. Legal principle: The test in relation to incursions into airspace is not whether ‘the incursion actually interferes with the occupier’s actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake’ (at 495 per Hodgson J). Background and context: This case considered whether the United Kingdom decision of Bernstein of Leigh (Baron) v Skyviews & General Ltd11 was good law in Australia. The court’s decision (application of the legal principle to the facts): Hodgson J held that there was a trespass as the infiltration into the plaintiff’s airspace was ‘of a nature and at a height which may interfere with any ordinary uses which an occupier may see fit to undertake’ (at 495). Thus, the plaintiff was granted a mandatory injunction requiring the defendant to remove the scaffolding as well as being awarded damages for the trespass.

Legal issue

Judge/s

Conclusion

Reasons given

What is the legal test for finding a trespass in airspace?

Hodgson J

A partially subjective test is used

This depends on whether the incursion is ‘at a height which may interfere with any ordinary uses of the land’

Was an injunction appropriate in this case?

Hodgson J

Yes

Not greatly oppressive to the defendant. The law was relatively clear in this area that a trespass had occurred. The plaintiff was entitled to a mandatory injunction

11

11. Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902.

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Torts: Principles, Skills and Application

Legal issue

Judge/s

Hodgson J Should one person be permitted to use the land of another person for considerable commercial gain, just because it does not cause significant damage to another person’s land?

13.15

13.16

Conclusion

Reasons given

No

Not unreasonable for the adjoining owner to require payment for the use of the land

The next case examines what considerations are taken into account in terms of when a trespass is of a trifling nature.

PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 (2 April 2007) Court: Supreme Court of Victoria Facts: The plaintiff (PCH Melbourne Pty Ltd) wanted to develop their building by constructing a 14- or 15-storey apartment building on it. This building was next door to the MCG Hotel. In 2002, the defendant attached metal cladding to its building. The plaintiff alleged that the cladding infringed on their land airspace by up to 60 millimetres. The plaintiff sought an injunction requiring the defendant to remove the cladding and associated signage to the extent that it encroached on their land. Among other things, the defendant argued that the encroachment of the plaintiff’s land did not amount to a trespass as it was ‘of such a trifling nature’.

12

Legal principle: Justice Smith accepted Hodgson J’s judgment in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd,12 which held that a trespass will be evident if ‘the incursion or the encroachment is at a height or location which “may” interfere with the ordinary use of land’ (at [33]). As the trespass was deemed to be continuing, and based on the particular circumstances of the case, the incursion was not found to be trifling (at [37]).

12. LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490.

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Trespass to Land

Legal issue

Judge/s

Is there a possible Smith J trespass to land/ airspace only if the defendant

Conclusion

Reasons given

No

A trespass may occur if the incursion ‘may interfere with the ordinary use of land’

interferes with the actual use of the land? Can a defendant be liable for trespass to land if the encroachment could be viewed as‘trifling’ orinsignificant?

Smith J

Yes

It depends on the circumstances of the individual case, but if it interferes with the ‘ordinary use of land’ then it can still constitute a trespass

Was an injunction the appropriate remedy in this case?

Smith J

Yes

A court will be reluctant to award damages rather than an injunction ‘where an award of damages would amount to a compulsory sale’. Also, awarding damages would be inappropriate as it would allow the defendant to get the legal right to use the plaintiff’s airspace against the will of the plaintiff

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Note: The Supreme Court of Victoria, Court of Appeal, affirmed the decision of the Supreme Court of Victoria when dismissing the appeal of Break Fast Investments Pty Ltd.13 Note that the exact height that the right to bring an action in trespass to land is a question of fact, which will vary between cases. As a general rule, there may be a cause of action in trespass to land if the height of the intrusion is such as to seriously interfere with the plaintiff ’s ordinary use and enjoyment of the land.

Legislation relating to airspace 13.17

The Civil Aviation (Damage by Aircraft) Act 1958 (Cth) provided that no action for trespass or nuisance lay in respect of aircraft flying over property at a height that was reasonable, taking into account factors such as wind and weather. This Act was repealed and replaced with the Damage by Aircraft Act 1999 (Cth). Sections 10 and 11 of the Damage by Aircraft Act 1999 (Cth) impose on the owner of an aircraft a strict liability to pay damages for any material loss or damage that may be caused by the relevant aircraft. This Act, however, deals only with any physical damage caused to those on the ground if parts of the aircraft fall to the ground. Section 73(1) of the Civil Liability Act 2002 (NSW) provides that material loss or damage that is caused to persons or property on land by an aircraft is trespass and, therefore, damages are recoverable.14

The actions of the defendant 13.18

To ascertain whether the actions of the defendant constitute trespass, it is necessary to look at a number of considerations. These are whether the defendant’s actions were voluntary or intentional and whether the trespass was direct. We will also look at when the actions of the defendant constitute a continuing trespass.

Voluntary or intentional 13.19

The actions of the defendant must be intentional and/or voluntary. Note, however, that the defendant needs only to intend the interference and it is not a requirement that they intended any harm. Thus, a plaintiff can be liable in a trespass to land action even if they did not intend to cause any harm. It is necessary for the defendant to have acted voluntarily. For example, the majority of the High Court found that an epileptic passenger who had a fit and fell onto the tracks at a railway station was not a trespasser as she had gone onto them

13. Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311. 14. See also Civil Liability Act 1936 (SA) s 62; Damage by Aircraft Act 1963 (Tas) ss 3–4;Wrongs Act 1958 (Vic) ss 30–31; Damage by Aircraft Act 1964 (WA) ss 4–5.

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involuntarily.15 Justice Gibbs stated that ‘it has been established for centuries that a defendant does not commit an actionable trespass by going on to a plaintiff ’s land involuntarily’.16 The indifference to the risk of trespass may also be deemed to be enough to find an intention to commit a trespass. This legal principle was recently affirmed in Johnson v Buchanan.17

Directness 13.20

The contact with the plaintiff ’s property must be a direct result of the defendant’s actions. The plaintiff bears the onus of proof to establish this. Any contact which is merely ‘consequential’ on the land will not constitute an actionable trespass. In some cases, it is difficult to ascertain when something constitutes a direct as opposed to a consequential interference with the land.18 It is unnecessary for the defendant to directly enter the land for there to be an actionable trespass. For example, the trespasser may directly cause dirt or soil to be pushed onto the plaintiff ’s land or allow his or her animals (such as cattle) to enter onto the plaintiff ’s land.19 A trespass can also occur when a bullet flies through another’s land.20 Generally, though, directness will be satisfied if there is a close relationship with the defendant’s act so that it is regarded as direct.

Continuing trespass 13.21

We will now go on to examine the situation where a defendant or an object remains upon the property after they are no longer authorised to be there. In this event, if the defendant does not leave or the object is not removed within a reasonable time, this may constitute a continuing trespass. For example, in Konskier v B Goodman Ltd,21 the defendants pulled down part of a chimney in order to repair it, with the permission of the owner and occupier of the adjoining house. The defendants completed the restoration but they left some rubbish on the adjoining rooftop. When the plaintiff later became a tenant of the house, he brought an action for damages as the basement was flooded from a gully choked by the rubbish. The rubbish had been carried down through a drain pipe from the roof after heavy rain. In this case, it was held that the defendants had only a limited licence to the premises and that they were bound to clean up the rubbish after they completed the restorations. Therefore, the conduct of the defendants amounted to continuing trespass.

15. Public Transport Commission (NSW) v Perry (1977) 137 CLR 107. 16. Public Transport Commission (NSW) v Perry (1977) 137 CLR 107 at 132. 17. Johnson v Buchanan [2012] VSC 195. 18. For example, see Southport Corporation v Esso Petroleum Co Ltd [1954] 2 All ER 561 and Gregory v Piper (1829) 9 B & C 591. 19. See, for example, Watson v Cowen [1959] Tas SR 194; Yakamia Dairy Pty Ltd v Wood [1976] WAR 57. 20. Davies v Bennison (1927) 22 Tas LR 52. 21. Konskier v B Goodman Ltd [1928] 1 KB 421.

579

13.22

Torts: Principles, Skills and Application

Trespass ab initio ab initio is an old common law doctrine which stated that those who entered land under authority of law might become a trespasser ab initio (from the moment of entry). If the defendant entered onto the plaintiff ’s land lawfully, but went on to do something unlawful on the land, he or she then became a trespasser from the time of entry onto the property.22 The doctrine applied only in limited situations: when the right to enter was conferred under law, as opposed to a licence by an occupier,23 and misfeasance.24 Where there were grounds to justify the initial lawful entry,25 there was no trespass ab initio. There is some ambiguity associated with the modern-day application of this principle as more recent cases have suggested. It is clear that the entrant becomes a trespasser only when his or her unlawful conduct begins.26 The modern-day application of this principle is usually directed towards protecting individuals from the abuses of authority by public officials.27 Some cases have also suggested that this doctrine no longer exists.28

13.22 Trespass

The plaintiff 13.23

13.24

In relation to interference with land, it is sometimes ambiguous who has the title to sue in a particular case. Possible parties may include a lessee, the title holder of the land, a licensee or even a visitor to the property. The party who has standing to sue is the one who has exclusive possession of the land. Who this will be will differ in each individual case. In some instances, questions such as who has the better title to the land will come into play.

Newington v Windeyer (1985) 3 NSWLR 555 Court: New South Wales Court of Appeal Facts: The plaintiffs were the owners of several properties which fronted an area of land known as ‘The Grove’, which was used for recreation. There was no registered owner for this property. The plaintiffs, however, engaged in all of the usual ownership and maintenance tasks, such as employing someone to mow the

22. The Six Carpenters’ Case (1610) 77 ER 695. 23. A Gibson, L Corbin and S Blay, Torts Law in Principle, 5th ed, Lawbook Co, Sydney, 2009, p 112. 24. The Six Carpenters’ Case (1610) 77 ER 695. 25. Elias v Pasmore [1934] 2 KB 164. 26. Barker v R (1983) 153 CLR 338 per Brennan and Deane JJ. 27. Stickley, Australian Torts Law, note 3 above, p 69. Also see Cinnamond v British Airports Authority [1980] 2 All ER 368. 28. Chic Fashions v Jones [1968] 2 QB 299.

580

13.24

Trespass to Land

lawn and maintain the garden, for a period of 50 years. They also told people who asked that the land was private land. When the defendant started to use the land, the plaintiffs objected and sued the defendant in trespass to land. Legal principle: McHugh JA (with whom Hope JA agreed) held that anyone who has exclusive possession of property has a right to possession of the property and, therefore, the title to sue for trespass to land. This was said to be the case even if the person had wrongfully taken possession of the land. This proposition demonstrates that possession is the very essence of interference to land claims. Background and context: This case demonstrated the test for finding who has the entitlement to the land when there is no registered owner. It also demonstrated that possession is primary in land title claims. The court’s decision (application of the legal principle to the facts): The court held that even though there was no registered owner of the land, the entry by the defendant onto The Grove did constitute trespass. McHugh JA (with whom Hope JA agreed) stated (at 563–4) that: 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.

The principles from Newington v Windeyer were discussed in the two United Kingdom cases, Delaney v TP Smith Ltd29 and Manchester Airport plc v Dutton.30 In Delaney v TP Smith Ltd, the plaintiff had possession of a house under an ineffective lease which did not give right to exclusive possession of land. The defendants, who were the owners of the house, reclaimed possession of the house by forcing the plaintiff off the land. In this case, it was found that if there is contention between one party who has possession of the land in fact and someone who has the legal right to exclusive possession, the latter party would be successful. Therefore, the plaintiff ’s action failed as the legal right to exclusive possession overrode the plaintiff ’s actual possession. 29. Delaney v TP Smith Ltd [1946] KB 393. 30. Manchester Airport plc v Dutton [2000] 1 QB 133 at 150 per Laws LJ.

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Torts: Principles, Skills and Application

In Manchester Airport plc v Dutton, a group of environmental protesters started residing in a wood next to an airport. This wood, which was owned by the National Trust, was under threat as there were plans to build a new runway at the airport. The National Trust had granted the airport owner a contractual licence to cut down trees to aid the expansion process.The plaintiff commenced proceedings against the protesters. In this case, the English Court of Appeal found that a contractual licensee who is not in occupation of the land may claim possession against a trespasser if it is a necessary remedy to give rights of the occupation.31 Thus, these decisions demonstrate that the legal right to possession, as opposed to actual possession, is the fundamental principle. Note that Refina Pty Ltd v Binnie32 distinguished Newington v Windeyer but did not overrule it.

Express and implied licences Consent and licences 13.25

Trespass to land will not be actionable if someone enters land with the consent of the person or people in exclusive possession as the consent will create a licence for the person entering the property. Licences can either be implied or express.

Express licence 13.26

Examples of an express licence are extensive.They include such things as entering the movie theatre after you have bought a ticket or granting permission for your electrician to enter your premises when your lights are not working. In most cases, the express licensee will not be deemed to be a trespasser. It should be noted though that trespass may be committed by a licensee after lawful entry in some cases, such as where a licence is given for one purpose, but the licensee enters the property for a different purpose. For example, in Barker v R,33 the owner of the property asked the defendant to look after the property while he was away. The defendant, however, entered the property and removed all of the plaintiff ’s furniture.Therefore, in this case the defendant was deemed to be a trespasser. Furthermore, when a lawful entrant commits a wrongful act on the land, this may change the lawful entry into a trespass.34 In these situations, there is some ambiguity as to whether both the trespass in its totality and the wrongful act will constitute trespass, or whether only the wrongful act will be actionable by the plaintiff. For example, in Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd,35 the

31. Manchester Airport plc v Dutton [2000] 1 QB 133 at 150 per Laws LJ. 32. Refina Pty Ltd v Binnie [2010] NSWCA 192. 33. Barker v R (1983) 153 CLR 338. 34. Singh v Smithenbecker (1923) 23 SR (NSW) 207. 35. Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584.

582

13.28

Trespass to Land

defendants had entered the plaintiff ’s premises under a contractual arrangement enabling them to collect items or property belonging to the defendants, but they removed some of the plaintiff ’s other goods as well. Barwick CJ and Menzies J held that the defendants were not liable in trespass to land as part of their entry was lawful. Kitto J, on the other hand, found that the defendants’ conduct did include trespass.

Implied licence 13.27

13.28

An implied licence may be evidenced when the circumstances suggest that the entrant can lawfully enter the land. For example, if a passerby notices that the landholder’s gate is open, and subsequently enters the land to tell the landholder about this, the entry may be deemed lawful because of an implied licence. It should be noted, though, that the possessor of the land can revoke this licence or consent at any time. If this happens, the entrant must leave the land within a reasonable time.36 This principle was affirmed in the following case.

Wilson v New South Wales (2010) 207 A Crim R 499 Court: Supreme Court of New South Wales (Court of Appeal) Facts: After the granting of a property seizure order for outstanding traffic offences, two sheriff’s officers attended the appellant’s house. After the appellant, W, told the officers to leave the property, there was a struggle between the appellant and one of the officers. The appellant was then told he was under arrest. The appellant then left the house while the officers went to their car in the street to call the police. When the appellant tried to leave the premises in his car, the sheriffs re-entered the driveway, removed the car keys from the appellant and restated that the appellant was under arrest. Among other causes of action, the appellant sued the state of New South Wales for trespass to land. The primary judge awarded the appellant $33,300 in damages. The state then sought leave to cross appeal on several grounds including the finding that the re-entry onto the land by the sheriff’s officers was unlawful. Legal principle: The licensee must have been clearly told that the implied licence has been revoked for there to be a valid revocation of the licence. The communication must be one that a reasonable person in the position of the licensee or the actual licensee recognises as a revocation. The relevant communication must come from a person who has the authority to revoke the licence.

36. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. Note that Cowell v Rosehill Racecourse Co Ltd was recently affirmed in Wilson v New South Wales (2010) A Crim R 499 at 524.

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Torts: Principles, Skills and Application

The court’s decision (application of the legal principle to the facts): The licensee must have notice that the licence is revoked. The licence was not revoked in this case as the communications from W did not convey the fact that he had the authority to revoke the licence (as the communications between the parties suggested that W’s wife was the owner of the property as opposed to W). It was accordingly found that when the officers entered the front yard to arrest W, the licence had not been revoked. This meant that there was no trespass to land. Background and context: This case affirmed the principles in Cowell v Rosehill Racecourse Co Ltd.37

An implied right to enter was found in the following case even though the entrant was unknown to the occupier.

13.29

Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 Court: High Court of Australia Facts: Two police officers entered onto the driveway of a private house to arrest a disqualified driver. The question for the High Court was whether the police officers committed a trespass by entering the driveway uninvited. Legal principle: The High Court accepted that there was an implied licence for members of the public to enter a private abode for a legitimate purpose such as making contact with the occupier or possessor of the dwelling. The court’s decision (application of the legal principle to the facts): The police officers’ actions did not constitute a trespass as there was an implied licence to enter the open and unobstructed driveway, which had no gate, lock or notice that indicated that entry was not permissible. Background and context: Arguably, one of the reasons why the majority found that the police officers’ actions did not constitute a trespass was because they did not want to adversely affect the day-to-day administration of the criminal law. Furthermore, the court recognised that there needs to be a bridge between private property and the public thoroughfare and that the driveway was deemed to achieve this.

37

37. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.

584

13.29

Trespass to Land

Legal issue Was there an implied licence to enter?

Was there an implied licence to enter?

Judge/s Conclusion Yes Gibbs CJ, Mason, Wilson and Deane JJ (the majority)

Brennan J (dissenting)

Reasons given Will largely be a question of fact but, in some instances, the licence will be implied as a matter of law. Implied licences usually relate to means of access to a property such as a driveway or pathway. A licence will be granted to members of the public to go on the driveway or path for lawful or legitimate purposes (that is, when they want to talk to someone in the house).

This implied licence extends to police officers in the course of their duties A police officer Yes, but has an implied not for an extended time licence to enter but cannot remain (therefore, on the premises not in these circumstances) ‘until his work is done’. Permission to enter can be sought, but it cannot be assumed. Protection of individual privacy would be denied in practice

585

13.29

Torts: Principles, Skills and Application

Legal issue Can the implied licence be revoked?

Judge/s Gibbs CJ, Mason, Wilson and Deane JJ

Conclusion Yes

Reasons given The implied licence can be revoked or removed at any time by an express or implied refusal or withdrawal of it (that is, a locked gate)

Note that Halliday v Nevill was considered in Munnings v Barrett.38 In this case, Cosgrove J noted that Halliday v Nevill should not be used as precedent to suggest that at all times police officers have an implied licence to enter upon people’s driveways. His Honour noted that whether or not an implied licence existed, was a question of fact.

Limitations on the implied licence to enter property 13.30

13.31

The next case also deals with police officers and their rights of entry. It is interesting to note in this case that the police officer was found to be a trespasser.

Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 Court: High Court of Australia Facts: Mr and Mrs Plenty owned and occupied a small farm in South Australia. They were the parents of a 14-year-old girl who was alleged to have committed an offence. A magistrate had issued a summons for her to appear before court. Constable Dillon entered the farm to serve the summons. He was sued for trespass as it was argued that Mr Plenty had withdrawn any express or implied consent for any police constable to enter his farm to serve a summons on his child. The High Court was charged with deciding whether a police officer who has been asked to serve a summons is authorised to enter the land without any implied licence or consent of the landholder. Legal principle: Police officers have rights of entry only in limited circumstances. Mason CJ, Brennan and Toohey JJ illustrated the sanctity of private property when they quoted the Earl of Chatham (at ALR 355):

38. Munnings v Barrett [1987] Tas R 80.

586

13.31

Trespass to Land

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement. So be it — unless he has justification by law.

The court’s decision (application of the legal principle to the facts): The police entry constituted a trespass as it did not fall into any exception to the common law rules of trespass. Background and context: This case demonstrates an implied licence that was revoked by a withdrawal of consent.

Legal issue

Judge/s

Conclusion

Reasons given

Was the police entry lawful?

Mason CJ, Brennan and Toohey JJ

No

Statutory provisions

Can an implied licence be withdrawn?

Gaudron and McHugh JJ

Yes

Can be withdrawn by giving notice of its withdrawal

Can police officers enter people’s premises?

Gaudron and McHugh JJ

Yes, but not in this circumstance

Is lawful if making an arrest, or to prevent a felony or murder. Cannot enter the dwelling merely because he or she suspects something is wrong

No

Public interest and administration of justice issues were not frustrated

Did the police Gaudron and McHugh JJ officer have the right to enter the premises to issue a summons? What is the appropriate remedy?

Mason CJ, Brennan and Toohey JJ

587

Damages

13.32 13.32

13.33

Torts: Principles, Skills and Application

The next case examines how long law enforcement officers can legally stay on another’s property.

Kuru v New South Wales (2008) 236 CLR 1 Court: High Court of Australia Facts: Six police officers attended an incident that was reported as a ‘violent domestic’ between a man and a woman in suburban Sydney. By the time the police arrived the female had left the flat. After some time, the police officers were asked to leave on several occasions by the occupier. When the police did not leave, a violent struggle between the occupier and the police officers ensued. The appellant occupier was then taken to the police station for a number of hours before he was released. The appellant brought proceedings against the state of New South Wales for, among other things, trespass to land. At first instance the appellant was successful and was awarded damages of $418,265. The Court of Appeal held that the state’s appeal should be allowed as the police had both a statutory and common law justification to remain on the premises of the appellant. Legal principle: Once asked to leave, police officers cannot remain on an occupier’s land unless they have common law or statutory justification. Sections 357F–357I of the Crimes Act 1900 (NSW) were examined to determine the powers that the police had to enter a dwelling house in a domestic violence case. In the event that there is any ambiguity in the statute as to how long police officers can remain on a person’s property once asked to leave, the rights of the occupier will take precedence as there is a ‘strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person’s residence’ (at [37]). In terms of a common law justification, the joint majority judgment stated that even though the officers had a common law right to prevent the breach of the peace, once the officers arrived at the scene there was no threat to the peace (at [54]). Background and context: This case determines how long police officers can stay on suspects’ premises after they are asked to leave, without being liable for a trespass.

Legal issue

Judge/s

Conclusion

Reasons given

Statutory justification: In what circumstances could the police officers have remained at the premises after being asked to leave by the occupier?

Gleeson CJ, Gummow, Kirby and Hayne JJ

If the victim of the domestic violence had asked the officers to stay

Based on the relevant section of the Crimes Act 1900 (NSW)

588

13.34

Trespass to Land

Legal issue

Judge/s

Conclusion

Reasons given

Statutory justification: how long were the police officers legally allowed to stay at the premises?

Gleeson CJ, Gummow, Kirby and Hayne JJ

Only the time that it would reasonably have taken to undertake actions that are reasonably necessary such as investigating whether domestic violence has been committed

Section 357H(1) (a) of the Crimes Act 1900 (NSW)

It should be noted that legislation has been enacted to mitigate some of the restrictions that have been put on entities such as the police by the preceding cases. For example, legislation such as s 53 of the Fire and Rescue Service Act 1990 (Qld) states that an authorised fire officer can enter any premises for the purposes of protecting people and property from fire. Personnel from electricity companies are also authorised to read electricity meters under ss 137 and 138 of the Electricity Act 1994 (Qld). Police officers are also allowed to enter premises and remain there for a reasonable time when executing the criminal law.39 The following cases illustrate some further limitations on the implied right to enter in a different context.

13.34

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 Court: New South Wales Supreme Court Facts: A disgruntled customer and a ‘consumer complaint’ reporter entered the premises of the plaintiff with a television crew. They filmed and questioned those present while they were on the premises. The plaintiff sought an injunction restraining the defendants from showing the footage on television.

39. Crimes Act 1914 (Cth) ss 3J(3), 3ZB.

589

13.34

Torts: Principles, Skills and Application

Legal principle: There is an implied invitation for members of the public to enter the premises for bona fide purposes. There are, however, limitations upon any implied right to enter premises. The court’s decision (application of the legal principle to the facts): The implied licence did not extend to the defendants as their purposes were not those that the plaintiffs would have consented to. The defendants were, therefore, trespassers from the moment they entered the premises. The Supreme Court of New South Wales awarded damages but not an injunction. Background and context: Halliday v Nevill40 and Plenty v Dillon41 illustrate the tension between allowing landholders to retain exclusive rights to their properties while allowing the executive and the community access to private property in justifiable circumstances. Lincoln illustrates how the courts have been very cautious with regard to limiting when someone has an implied licence to enter another’s premises.42

Legal issue

Judge/s

Conclusion

Was there an implied invitation for the public to enter the premises?

Young J

In some The implied licence is circumstances limited to members of the public who in good faith are seeking information or wish to be clients ofthe firm

Young J Is an injunction the appropriate remedy in this case?

No

Reasons given

An injunction is appropriate to prevent the publication of a videotape or photograph even though no confidentiality issue is involved. The injunction will only be granted if the publication is unconscionable. Damages were awarded

40. Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331. 41. Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353. 42. P Stewart and A Stuhmcke, Australian Principles of Tort Law, Cavendish Publishing, Sydney, 2005, p 56.

590

13.37

Trespass to Land

13.35

Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319 Court: New South Wales Supreme Court Facts: This case considered an urgent application from the plaintiff, Brighten Pty Ltd, who was seeking an interlocutory injunction to restrain the Channel 9 program A Current Affair from airing a story. The story related to the Fairmont Resort at Leura. The promotional material that had been broadcast depicted the resort in an adverse light as well as suggesting that there was a correlation between the Fairmont Resort and the UK television program, Fawlty Towers. The plaintiff indicated that if the story was aired this would create causes of action in trespass to land among others. The court’s decision (application of the legal principle to the facts): Johnson J held that this case was ‘far removed from the circumstances’ in cases such as Lincoln Hunt Australia Pty Ltd v Willesee.43 Johnson J applied Young J’s test relating to unconscionability in the aforementioned case. His Honour held that there was not a prima facie case of trespass and that the test of unconscionability was not satisfied in this case. His Honour also held that if he was incorrect about this, damages (that is, exemplary damages) would be an appropriate remedy in this case. Therefore, the plaintiff was not granted its interlocutory injunction. Background and context: This case dealt with similar issues to Lincoln Hunt Australia Pty Ltd v Willesee. Note the urgent nature of this application — the hearing commenced at 2 pm and the judgment was delivered at 5.05 pm on the same day.

Limitations on implied rights to enter premises: the revocation of consent 13.36

13.37

There are limitations on the time people can stay on the property if they have an implied licence to enter.

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Court: New South Wales Court of Appeal Facts: The plaintiff had about 70,000 tyres stored on his property. A crew from the television program A Current Affair entered the property through an unlocked

43

43. Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.

591

13.37

Torts: Principles, Skills and Application

gate (generally the gate was locked) with members of the Environmental Protection Agency and the police. The plaintiff was filmed by the defendants who attempted to interview him. The respondent sued in trespass to land seeking damages. Legal principle: An implied licence will be applicable only in certain circumstances. Once an implied licence is revoked, the licensee may become a trespasser. The court’s decision (application of the legal principle to the facts): Although there may be an implication to enter, given that the gate was unlocked, the licence did not extend to filming on the plaintiff’s premises. Therefore, the extent of the implied licence would include only entrants who were there for the purposes of the tyre business or the racetrack. Background and context: The Environmental Protection Agency and other concerned citizens were worried about the environmental impact of this business for some time.

If consent is revoked, when does the implied licence expire? 13.38

Once the landowner revokes the consent, the licensee has a reasonable time to leave the premises as demonstrated in Cowell v Rosehill Race Course Co Ltd.44 In this case, the plaintiff bought a ticket to watch the races at the defendant’s racecourse.The plaintiff was asked to leave and when he refused, he was forcibly ejected from the racecourse.The plaintiff brought an action against the defendant complaining that the conduct of the defendant’s employees constituted battery. Dixon J found that a licensee does not become a trespasser until he or she is given notice that the licence has been revoked. The licensee has a reasonable time to leave the property before he or she becomes a trespasser. If the licensee refuses to leave, the occupier can forcibly remove him or her without being liable for trespass to the person.45

Remoteness of damage in trespass to land 13.39

An intentional trespasser can be liable for the foreseeable consequences of the trespass. For example, in Hogan v Wright,46 the defendant broke the fence down on the plaintiff ’s property by using a bulldozer. The plaintiff ’s horse escaped through the damaged fence and was injured. In this case, the court held that as the injury to the horse was a foreseeable consequence of the trespass, the defendant should be liable. On the other hand, in Mayfair Ltd v Pears,47

44. Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605. 45. Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605 at 631 per Dixon J. 46. Hogan v Wright [1963] Tas SR 44. 47. Mayfair Ltd v Pears [1987] 1 NZLR 459.

592

13.42

Trespass to Land

the defendant parked his car unlawfully on the plaintiff ’s premises. The car caught fire some time later and subsequently damaged the plaintiff ’s building. The defendant, however, was held not to be liable as the fire was not a direct consequence of parking the car.

Remedies for trespass to land Damages 13.40

The normal principles that accompany quantum of damages issues also apply to trespass to land cases. Note though that if a defendant unintentionally trespasses on the land, only nominal damages would be awarded. In essence, the purpose of damages is to put the plaintiff in the position he or she would have been in had it not been for the tort. Essentially, the defendant will be liable for the probable and natural consequences of the trespass.48 Thus, damages may be assessed according to the reduction of the value of the property or the reinstatement cost of the property, that is, to return it to its former condition. Accordingly, the damages awarded will be given according to what is ‘fair compensation’ in the circumstances.49 Aggravated or exemplary damages may be awarded for intentional trespass to land in some cases.50

Injunctions 13.41

In some cases, an injunction will be granted as a form of relief for trespass to land. This form of relief may be granted if it appears that the defendant is merely threatening to trespass on the plaintiff ’s land.51 Case law has established that a prohibitory injunction will apply to most circumstances where there has been a trespass.52 In LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd,53 Hodgson J found that a mandatory injunction may be given to support the plaintiff ’s right to the land if no damage has been caused.

Ejectment 13.42

When the plaintiff has not retained possession of the land, probably the most appropriate remedy is ejection. No damages will be awarded with the action of ejectment itself.

48. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 76 ALJR 163. 49. Evans v Balog [1976] 1 NSWLR 36 at 39 per Samuels JA. 50. Pollock v Volpato [1973] 1 NSWLR 653. 51. C Sappideen, P Vines and P Watson, Torts: Commentary and Materials, 12th ed, Thomson Reuters (Professional) Australia Ltd, Sydney, 2016, p 100. 52. Patel v W H Smith Ltd [1987] 2 All ER 569; LJP Investments v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490; Bendall Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464. 53. LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490.

593

Torts: Principles, Skills and Application

Review Intentional trespass to land, in essence, relates to balancing the rights of individual landowners and holders and the general population. This chapter has explored how the courts have reconciled these two sets of often conflicting rights. In general, possessors will have exclusive rights to the land they possess. There are exceptions to this rule, however, which are notably seen in the rights that the general public has to access the property via a driveway or path for reasonable and bona fide purposes, and in the restriction of airspace to individual landholders.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 20 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 17

Key Cases Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902 Brighten Pty Ltd v Nine Network Australia Pty Ltd [2009] NSWSC 319 Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 Kuru v New South Wales (2008) 236 CLR 1 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 New South Wales v Ibbett (2006) 229 CLR 638 Newington v Windeyer (1985) 3 NSWLR 555 PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 (2 April 2007) Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Wilson v New South Wales (2010) 207 A Crim R 499

Chapter 13 Review Questions 1. Does a plaintiff need to show quantifiable damage to have a viable trespass to land action? 2. What are the elements of trespass to land? 594

Trespass to Land

3. Do landowners own all of the airspace above their land and the soil below it? 4. What are the remedies for trespass to land? 5. In what circumstances did Gaudron and McHugh JJ state that police officers can enter people’s dwellings without their consent in Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353?

Tutorial 13: Intentional trespass to land Internal memorandum From: Guido Markewicz To: Trainee Re: Rights in tort Christopher White, who has recently returned from a European holiday, asked several of his neighbours and friends to take it in turns to feed his cat, bring in his mail and mow his lawn while he was away. He wants us to advise him of any rights that he may have against Anthony Black, Jane Brown and Constable Billings. For the first week of Mr White’s holiday, Mr Black looked after his property. Mr Black went into Mr White’s house during the week to feed Whiskey the cat when he came across some single malt scotch. He decided to take it home and drink it. During this time Mr White’s neighbour Jane Brown decided to erect a sculpture beside his fence.The sculpture hangs over the side of Mr White’s fence by about 50 cm. The sculpture is approximately three metres high. A few days after Mr White returned home from Europe, he was greeted by Constable Billings at his door. Constable Billings wanted to speak to him about some break and enters that had recently happened in the area. Mr White did not want to answer the questions and he asked him to leave. Constable Billings refused to leave until Mr White had given some sort of statement. Do you have any thoughts on Mr White’s rights in tort in relation to these matters? Thanks, Guido

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Tutorial 13: Student Example Answer Prepared by: Kayt Hogan (2014), Law, UNE and revised by Shannon Matchett, Law, UNE (2018)

Internal memorandum From: Shannon Matchett (trainee), Law, UNE To: Guido Markewicz Date: 21/08/20XX Dear Guido, Please see attached my recommendations regarding Mr White. I have addressed the three actions individually with reference to Mr White’s rights in each matter. Regards, Shannon Matchett Trainee White v Black White requested Black enter his home to feed his cat, retrieve his mail and mow his lawn. This agreement created a licence for Black to enter the land for the purposes specified.54 The issue at law is whether Black’s actions invalidated the licence conferred on him by White. In a factually similar case, Barker v R considered stealing where the accused trespasser held a licence to enter.55 In Barker, entry into the property with the intent to steal exceeded the scope of the licence granted and constituted trespass. However, Chic Fashions (West Wales) Ltd v Jones suggests that a legal entrant who performs an unauthorised action once inside may not be a trespasser.56 The entry of Black appears to be within the scope of the licence granted. It was only once inside that his actions exceeded the licence. Consequently, it is likely that Barker would be distinguished and Jones would be persuasive.The outcome of White’s action turns on whether Black had an intent to steal before or after entering the property. White v Brown The issue at law regards the tort of trespass above the ground. Brown has erected a three-metre-high sculpture protruding 50 cm into White’s land.

54. Cody v Martyr (1954) 71 WN (NSW) 109. 55. Barker v R (1983) 153 CLR 338 (‘Barker’). 56. Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299, 313 (‘Jones’).

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Bernstein held a right to airspace extends only to a height ‘necessary for the ordinary use and enjoyment’ of land.57 LJP Investments held that the test is to consider the nature of the incursion.58 The test considers the nature and height and any ordinary uses of the land which the occupier may undertake.59 The length and height of Brown’s protrusion would likely interfere with White’s ordinary use and enjoyment of his land. Consequently, in application of the principles discussed in Bernstein and LJP Investments, a trespass to land has occurred. White v Billings After stating his purpose on White’s land, White requested Billings to leave. Billings refused and remained on the premises. Therefore, it is necessary to consider whether Billings’ entry and continued presence was legal. Halliday v Nevill held that an unobstructed dwelling allows for an implied licence in specific circumstances.60 A condition is that the entrance of the home is attended for the purpose of lawful communication with the occupant.61 However, the owner may revoke this implied licence at any time.62 Plenty v  Dillon held that police officers may attend premises for specific purposes, such as the prevention of crime.63 However, in the absence of a lawful excuse, a police officer must still leave when asked.64 The facts do not indicate any obstruction that would prevent the manifestation of an implied licence for Billings. Billings’ arrival and communication with White was lawful. However, when White requested that he leave, Billings’ implied licence was revoked.65 There was no specific purpose per Plenty v Dillon that exempted Billings from this revocation.66 Consequently, Billings’ continued presence on White’s land constituted the tort of trespass.

57. Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479, 488 (Griffiths J). 58. LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 (‘LJP Investments’). 59. LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 (‘LJP Investments’). 60. Halliday v Nevill [1984] HCA 80. 61. Halliday v Nevill [1984] HCA 80. 62. Halliday v Nevill [1984] HCA 80. 63. Plenty v Dillon [1991] HCA 5. 64. Halliday v Nevill [1984] HCA 80. 65. Halliday v Nevill [1984] HCA 80. 66. Plenty v Dillon [1991] HCA 5.

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Chapter 14

Trespass to the Person Legal practice skill: Classifying torts and managing limitation periods

Learning aims •

Know the elements of battery

•

Know the elements of assault

•

Know the elements of false imprisonment

•

Understand the importance of civil rights and liberties both historically and in contemporary times

Background concepts First principles 14.1

Chapter 13 introduced trespass to land, which is in the same category of torts as trespass to the person. Trespass to the person actions emphasise the importance of personal integrity, liberty and individual safety. The historical importance of trespass to the person actions can be gleaned from the fact that affronts to the liberty of the person were some of the earliest actionable torts. As the name suggests, trespass to the person relates to instances where an individual or individuals affront or trespass on another individual/s. Battery, assault and false imprisonment are the three main trespass to the person actions. Battery relates to an unlawful touching of one person by another; assault relates to an act which causes a plaintiff to apprehend that he or she is about to be battered; and false imprisonment relates to unlawfully and totally depriving another of liberty. It needs to be noted that, as with trespass to land, trespass to the person is actionable per se. Thu the plaintiff does not have to suffer any damage before an action in trespass can be maintained. Note that like trespass to land actions, trespass to the person is not a negligence action, thus the elements of negligence, such as duty of care, breach and damage, are not relevant to trespass to the person. Also note that trespass can give rise to not only a tortious action, but also to a criminal action. When you are reading 599

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the relevant cases, it is necessary to be mindful that there may be issues relating to both civil and criminal actions.The reason why there may be both a criminal and civil cause of action is due to the fact that, historically, there was not as strict a separation between civil and criminal actions as there is now.

Classifying torts 14.2

Before legal practitioners can advise their clients on their legal rights, it is necessary to determine which tort is most relevant to the case at hand. In many instances this will be obvious. In some cases, however, it is not quite so obvious and there may be alternative causes of actions open to a plaintiff. Trespass to the person or intentional interference to the person is not a negligence action, so different considerations from those in a negligence action apply. One of the advantages of pursuing a trespass to the person action, as opposed to a negligence action, is that it is not necessary to prove damage or injury. If the plaintiff has suffered no damage in a trespass case, he or she will receive only nominal damages.1 In some cases, it may be appropriate to bring an action in negligence as well as trespass. Cases that illustrate the interplay between negligence and trespass include McHale v  Watson2 and Letang v Cooper.3

The types of trespass to the person 14.3

There are three main types of trespass to the person, namely: 1. battery; 2. assault; and 3. false imprisonment.

Battery 14.4

Battery involves a direct touching of another without that person’s consent. Any form of touching can constitute a battery. Battery is a direct and intentional interference with the person of another. There are defences to what would otherwise be a battery — including consent or lawful authorisation.

1. The purpose of nominal damages is not to compensate the plaintiff but to recognise that the elements of the tort have been met or that the plaintiff ’s rights have been infringed. This is because if there has not been damage as such, arguably the plaintiff does not need compensation for things such as medical expenses and loss of earning capacity. 2. McHale v Watson (1964) 111 CLR 384. 3. Letang v Cooper [1964] 2 All ER 929.

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Trespass to the Person

Examples of battery 14.5

There are many examples of a battery action. These include cutting off someone’s hair without consent4 or spitting in someone’s face.5 Even shining the light of a camera in the eyes of a hospital patient, thereby causing him injury, has been described as an actionable battery.6

The elements of a battery 14.6

To establish whether there has been a battery, it is necessary to look at a number of elements.

14.7

The first element that we will consider is directness and intention.

Directness and positive acts 14.8

As per the definition of battery that previously provided, the touching needs to be direct and intentional for there to be a battery.

14.9

The concept of what constitutes directness has been the subject of some judicial debate. The classic distinction is explained in Reynolds v Clarke:7 If a man throws a log into the highway, and in that act it hits me; I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case.

Coupled with the need for directness is the principle that only a positive action can constitute a battery. For example, in Innes v Wylie,8 the defendant policeman prevented the plaintiff from entering a room by standing in the doorway. In this case, 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 would not constitute a battery.9 The courts occasionally take a broad view of what can amount to positive act, if there is a duty to do something. For example, in Fagan v  Metropolitan Police Commissioner,10 the accused had accidentally driven his car over a police officer’s foot.When the accused realised that he was on the officer’s foot, he deliberately failed to reverse off it. The majority in this case reached the conclusion that the failure to move off the policeman’s foot constituted a positive act. Thus, it was found that driving the car onto the police officer’s foot and then failing to remove it was part of one positive act. 4. Forde v Skinner (1830) 172 ER 687. 5. R v Cotesworth (1704) 87 ER 928. 6. Kaye v Robertson [1991] FSR 62. 7. Reynolds v Clarke (1726) 93 ER 747 at 748. 8. Innes v Wylie (1844) 174 ER 800. 9. Innes v Wylie (1844) 174 ER 800 at 803 per Denman CJ. 10. Fagan v Metropolitan Police Commissioner [1969] 1 QB 439.

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Are anger or hostility required for there to be a viable action? 14.10

The next question, which has again been the subject of much judicial and academic debate, is whether there needs to be hostility or anger for there to be an actionable battery. Earlier authorities suggested that this was a necessary ingredient. More recent authorities have held it is not. Cole v Turner11 and Wilson v Pringle12 suggested that hostility or anger is a necessary ingredient to battery. In Cole v  Turner, Holt CJ defined a battery as the ‘least touching of another in anger’. Croom-Johnson LJ in Wilson v Pringle also suggested that hostility is an essential element to finding a battery. His Lordship stated that: In our view, the authorities lead one to the conclusion that in a battery there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching. That still leaves unanswered the question ‘when is a touching to be called hostile?’ Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact … Where the immediate act of touching does not itself demonstrate hostility, the plaintiff should plead the facts which are said to do so.13

Other cases, however, suggest that the element of hostility is not necessary to constitute an actionable battery. In Collins v Wilcock,14 a police officer who was attempting to question a prostitute took hold of her arm when she tried to walk away. The prostitute scratched the officer’s hand. She was arrested and the conviction was later successfully appealed. When considering whether these actions constituted a battery, Lord Goff did not find that hostility was a necessary ingredient to a battery. Goff LJ (as he then was) affirmed this stance in Re F (Mental patient: sterilisation)15 where he stated that: 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.

The Australian cases tend to support the proposition that hostility is not a necessary ingredient to battery. This was most recently reflected in Rixon v Star City Pty Ltd. 11. Cole v Turner (1704) 6 Mod 149; 87 ER 907. 12. Wilson v Pringle [1987] QB 237. 13. Wilson v Pringle [1987] QB 237 at 252–3. 14. Collins v Wilcock [1984] 1 WLR 1172 at 1177. 15. Re F (Mental patient: sterilisation) [1990] 2 AC 1 at 73.

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Trespass to the Person

14.11

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 Court: New South Wales Court of Appeal Facts: The plaintiff was playing roulette at the Sydney Harbour Casino. He was playing unlawfully as there was an exclusion order against him under the Casino Control Act  1992 (NSW). Section  85 of the Act provided that it was lawful for a casino employee while ‘using no more force than is reasonable in the circumstances’ to remove an excluded person from the premises. The Act also stated that an employee ‘may detain the suspected person in a suitable place in … the casino until the arrival at the place of detention of a police officer’. Several of the casino employees asked the plaintiff to go with them to an interview room. The plaintiff was detained for more than an hour until the police arrived. He was taken to the police station and charged. The plaintiff alleged that he was subject to unlawful arrest, false imprisonment, assault and battery. The Court of Appeal rejected the unlawful arrest and false imprisonment actions. The accusation of assault and battery was allowed to proceed. The actions that were alleged to give rise to a battery action were an employee’s actions of putting a hand on the plaintiff’s shoulder while asking him to identify himself. The trial judge held that this contact did not constitute a battery as there was not the requisite hostility attached to it. Legal principle: Sheller JA (with whom Priestley and Heydon JJA agreed) stated (at 112–14) that: The placing of the hand on the shoulder could be a battery … However the absence of anger or hostile attitude by the person touching another is not a satisfactory basis for concluding that the touching was not a battery. … No error has been demonstrated which would entitle this Court to interfere with the trial judge’s finding that the touching lacked ‘the requisite anger or hostile attitude’. More accurately, and consistently with her Honour’s findings, it could not be said that the conduct of Mr Sheldon in the circumstances found and clearly for the purpose of engaging Mr Rixon’s attention, was not generally acceptable in the ordinary conduct of daily life.

The court’s decision (application of the legal principle to the facts): Sheller JA found that there was not an actionable battery in this case as, in the circumstances, the methods that were used for engaging the plaintiff’s attention were ‘generally acceptable in the ordinary conduct of daily life’. Significance of this case: This case considered the English authorities to determine whether there needs to be hostility and anger for there to be an actionable battery.

Note that knowledge of the contact by the plaintiff is not necessary before battery will lie.

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Torts: Principles, Skills and Application

There are two main defences to battery that will now be discussed. As they are defences, the onus is on the defendant to prove them.16

Defences to battery 14.12

Battery is not a matter of absolute liability. There are some defences.

Figure 14.1 Consent Defences to battery Contact as an incident of everyday life

Consent 14.13

In Australia, the concept of consent is used as a defence to battery. Therefore, as a general proposition, if the plaintiff consents to the touching, no battery will occur. Mason CJ, Dawson, Toohey and Gaudron JJ in Department of Health and Community Services v JWB and SMB (Marion’s Case)17 stated that ‘consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact’. The plaintiff ’s consent can either be express or implied. In other words, the plaintiff may directly tell the defendant that he or she consents to the touching or the consent may be inferred from the circumstances. One of the most prominent examples of an inferred consent relates to contact that is an incident of everyday life.

Contact as an incident of everyday life 14.14

Our society would be inordinately interrupted and inconvenienced if every act of touching constituted a battery. On a daily basis we inadvertently touch many people. For example, every time we get on a bus, a train or a plane it is almost impossible not to touch someone in some way. Goff LJ (as he then was) stated in Collins v Wilcock that: Although such cases [touching on a crowded bus] are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a

16. Walker v Hamm [2008] VSC 596; White v South Australia [2010] SASC 95. 17. Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 229; 106 ALR 385 at 391.

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Trespass to the Person

general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.18

Thus, there is an implied consent of touching in relation to the ordinary hustle and bustle of everyday life. Other examples of implied consent include circumstances such as ‘children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime’.19

Limits of implied consent or bodily contact in sport 14.15

14.16

One interesting example of consent in relation to trespass to the person relates to sporting actions. Giumelli v Johnston20 and McNamara v Duncan21 illustrate the limits of implied consent in sporting actions.

Giumelli v Johnston (1991) Aust Torts Reports ¶81-085; BC8900184 Court: Supreme Court of South Australia (Full Court) Facts: The plaintiff and the defendant were players in opposing teams in an Australian Rules football match. While the plaintiff had the ball, the defendant collided with him. The defendant raised his elbow into the plaintiff’s cheekbone. This action was outside the rules of the game. The plaintiff sued the defendant in battery. The Full Court of the Supreme Court of South Australia held that the blow constituted a battery. Legal principle: Participants in a football game are taken to consent to the physical force that is within the rules of the game. This rule also applies to ‘commonly encountered infringements of the rules’ (at 68,709–10 per King CJ, with whom Mohr and Prior JJ agreed). This implied consent, however, does not extend to physical violence in contravention of the rules of the game by a player who intends to cause bodily harm to an opposing player (at 68,709–10 per King CJ). The court’s decision (application of the legal principle to the facts): It was found that the defendant’s jumping action, his failure to keep his arm at his side and the fact that the defendant’s elbow struck the plaintiff’s face constituted a sufficient basis for finding that the defendant deliberately thrust his elbow at the plaintiff’s face. This conduct was outside the scope of the implied consent from the respondent’s participation in the game (at 68,709–10 per King CJ). Significance of this case: This case demonstrates the difficulties of where to draw the line of implied consent in sporting cases.

18. Collins v Wilcock [1984] 1 WLR 1172 at 1177. 19. Collins v Wilcock [1984] 1 WLR 1172 at 1177 per Robert Goff LJ. 20. Giumelli v Johnston (1991) Aust Torts Reports ¶81-085; BC8900184. 21. McNamara v Duncan (1971) 26 ALR 584 at 585.

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McNamara v Duncan (1971) 26 ALR 584 Court: Supreme Court of the Australian Capital Territory Facts: The plaintiff, who played Australian Rules football, was injured during a game. He sustained a sharp blow to the head and sued the opposing player in trespass to the person. Legal principle: Consent is a defence to battery rather than an element in the action. Thus, the onus of proof lies on the defendant to prove that the plaintiff consented to the conduct. The court’s decision (application of the legal principle to the facts): The intentional blow was not an acceptable act in the ordinary legitimate game of Australian Rules football. The plaintiff did not consent to receive a blow, contrary to the rules of the game, even though it may be known that such acts may and probably will occur. Significance of this case: This case reiterates the importance of intention in trespass to the person actions. It also discusses the difficulties associated with witnesses’ memories when recounting an incident that had happened more than two and a half years earlier (at 585). Like the former case, it demonstrates the fine line of implied consent within a contact sport.

Also see McCracken v Melbourne Storm Rugby League Football Club Ltd,22 where although the cause of action was in negligence,23 the New South Wales Court of Appeal considered the limits of consent in heavy body contact sports. The expert witness stated that the tackle on McCracken ‘used unreasonably dangerous methods which would be regarded by virtually all NRL coaches, NRL Judiciary and any experienced observers of the game as unreasonably dangerous and which the players … could and should have avoided’.24 This testimony was accepted by the Court of Appeal when they stated that ‘the tackle constituted a gross infringement of the laws of the game and there was no modicum of care in the actions’ of the defendants.25 Again this case suggests that the key issue for consent in the sporting context is whether or not the players have acted within the rules of the game.

22. McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353. 23. Ipp JA (Beazley and Basten JJ agreeing) noted (at [28]) that: ‘It is not without significance that in McNamara v Duncan (1971) 26 ALR 584 … the player based his cause of action on trespass to the person (and not negligence)’. From the preceding paragraph it was insinuated that this was the case as intentional infliction of harm cannot be pleaded as negligence, but can in some cases be pleaded as trespass to the person (at [27]). 24. McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 at [11]. 25. McCracken v Melbourne Storm Rugby League Football Club Ltd [2007] NSWCA 353 at [20].

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Trespass to the Person

Assault 14.18

An assault can be distinguished from a battery in that an assault does not involve a touching. Note that, in the criminal jurisdiction, ‘assault’ is often used as a compendium term which refers to what would either be an assault or a battery in tort. This lack of a clear distinction is reflected in several of the legislative provisions and judgments that are applicable to this area. The elements of an assault are a direct threat by the defendant that causes the plaintiff reasonably to apprehend some imminent contact with his or her person.

Figure 14.2 Direct threat

Causes the plaintiff to reasonably apprehend

Assault

Some imminent contact with his or her person

Case study for defining assault 14.19

The next case will define the tort of assault.

14.20

White v South Australia [2010] SASC 95 Court: Supreme Court of South Australia Facts: Ten plaintiffs, who were also protestors, protesting against the Beverley uranium mine, sued the defendant for damages. The plaintiffs were seeking damages for assault and false imprisonment and for injuries resulting from police officers’ actions. The state of South Australia argued that the arrests and detentions of the plaintiffs were lawful and that no assaults had taken place. Legal principle: For there to be an actionable assault, it was found that there must be a ‘physical act or verbal statement or both by the defendant which directly produces apprehension in the plaintiff that a battery is likely to be committed, whether the defendant intended to put the plaintiff in fear or should have foreseen that result’ (at 363). The defendant does not have to intend to commit the actual battery, but rather if the plaintiff’s apprehension is foreseeable, this is enough to satisfy the intention element (at 365). As the arrests and detentions

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were unlawful, the plaintiffs were assaulted by the words and gestures as well as the apprehension of contact by the defendants. The court’s decision (application of the legal principle to the facts): Each of the plaintiffs was assaulted. The plaintiffs were awarded aggravated and exemplary (apart from one plaintiff) damages. Significance of this case: This case demonstrates the interplay between assault and false imprisonment.

What is reasonable apprehension? 14.21

14.22

‘Apprehension’ refers to the apprehension that an assault will take place. There is no requirement that the plaintiff be put in fear — merely that he or she apprehend that some violence is to ensue.26

Brady v Schatzel (1911) St R Qld 206 Court: Supreme Court of Queensland Facts: Two policeman came to a house to interview a boy. A woman in the house sent the boy to the back of the house. She pulled out a rifle, appeared to load it, and pointed the barrel at one of the policemen, threatening to shoot him. The policeman said he was not afraid, having been used to violence at work. He did, however, apprehend that violence was to ensure. Legal principle: Assault is not dependent upon whether the plaintiff was brave or timid. It is based on whether the victim was put in fear of an assault — that is, apprehended that violence was to ensue. The court’s decision (application of the legal principle to the facts): An assault had been committed. The policeman did apprehend that violence was to ensue.

14.23

Whether an apprehension is reasonable is objectively determined with regard to the circumstances that are apparent at the time of the assault.27 Generally, for someone to have reasonable apprehension, the defendant must have the means of carrying out the actual threat,28 or the apparent ability to carry out the threat.29 Note that if a person was creeping up behind the plaintiff with a knife, this would not constitute an assault as the plaintiff would not have an apprehension of impending violence.

26. Brady v Schatzel (1911) St R Qld 206. 27. Barton v Armstrong [1969] 2 NSWR 451. 28. Stephens v Myers (1830) 172 ER 735. 29. R v Dale [1969] 30 QWN.

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In relation to the concept of reasonableness, the test is whether a reasonable person in the plaintiff ’s position would apprehend imminent physical contact.

What is imminent contact? 14.24

14.25

For an assault to be actionable, there must be a possibility that physical contact will eventuate. If it is impossible for the physical contact to be occasioned, an assault will not be found. This principle is reflected in the following case.

Stephens v Myers (1830) 172 ER 735 Court: England and Wales High Court, King’s Bench Division Facts: The defendant went to a parish meeting that was being chaired by the plaintiff. In the meeting, it was decided that the defendant should be ejected from the parish hall. The defendant said he would rather pull the plaintiff out of the chair than be ejected from the hall. He began to advance towards the plaintiff with his fists clenched. The church warden stopped the defendant’s advance before he was close enough to hit the plaintiff. Legal principle: When Tindal CJ was instructing the jury, he stated: ‘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 735). The court’s decision (application of the legal principle to the facts): The jury found for the plaintiff. Only nominal damages of 1 shilling were awarded. Significance of this case: This case demonstrates how historically significant the church and the functioning of the parish was in 1800s England. It also demonstrates the historical importance of liberty and civil rights. It is probable from the small amount of damages that were awarded that the court did not find the actions and credibility of the plaintiff wholly appropriate.

14.26

14.27

Although the threat must be of imminent physical contact, courts have been prepared to say that, if the threat is ongoing, and it is not clear at what point the threat might eventuate, that threat is of imminent contact.

Zanker v Vartzokas (1988) 34 A Crim R 11 Court: Supreme Court of South Australia Facts: A young woman accepted a lift from the defendant who had been sitting on a bench nearby while she made a telephone call. The plaintiff missed being picked up by her sister, who had driven by while the plaintiff was in the telephone box. The defendant asked whether she needed a lift and she said she did. She

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asked him to follow her sister’s car. When they both got into the car, the defendant accelerated the van. He then offered her money for sexual favours. She rejected his offer. He persisted in asking her for sexual favours and she demanded that he stop and allow her to get out. He continued to drive on and he accelerated. She threatened to jump out, and she opened the passenger’s side door. He accelerated faster and she allowed the door to close. The defendant then said: ‘I am going to take you to my mate’s house. He will really fix you up’. She opened the door, jumped out of the car and landed on the roadside. Legal principle: The question that needs to be considered is ‘how immediate must the threatened physical violence be after the utterance of the threat which creates the fear?’. The court’s decision (application of the legal principle to the facts): There was no indication as to how far away the mate’s house was. White J found that 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 sexual assault was to occur’.30 The analogy of the plaintiff being a ‘mouse to which a playful cat poses a continuing threat of injury or death at a time to be decided by a cat’ was used to indicate the nature of the situation.31 Significance of this case: Did the fact that the threat was to be carried out in the future mean that there was not an assault? Cases such as Barton v Armstrong32 and Rozsa v  Samuels33 were looked at to determine whether there was the immediate, imminent fear of violence in the plaintiff’s mind while they were driving to the mate’s house.

Zanker v Vartzokas was followed in the next case.

14.28

R v Mostyn (2004) 145 A Crim R 304 Court: Supreme Court of New South Wales (Court of Criminal Appeal)

30313233

Facts: The appellant was convicted of offences relating to grievous bodily harm and assault as well as using an offensive weapon to prevent arrest. The grounds for appeal related to the trial judge’s directions to the jury as to the definition of assault, as well as the admitting of evidence statements that were previously made by the appellant. He also appealed against the length of his sentences.

30. Zanker v Vartzokas (1988) 34 A Crim R 11 at 14. 31. Zanker v Vartzokas (1988) 34 A Crim R 11 at 16. 32. Barton v Armstrong [1969] 2 NSWR 451. 33. Rozsa v Samuels [1969] SASR 205.

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Legal principle: A strike against a person, even at such a distance as to make contact impossible, may constitute an assault if it brings about fear of immediate violence in the bearer.34 The court’s decision (application of the legal principle to the facts): McColl JA accepted the Crown’s submissions that ‘the violence threatened to Ms Miner was even more immediate than it was in Zanker,35 because the appellant “had already been violent towards [Ms Miner] in the house and had a short time before come at her in the car”’.36 Significance of this case: Note that this case also applied Barton v Armstrong37 which is discussed below.

Verbal threats and the telephone 34353637 14.29

14.30

Historically, it was accepted that words without any other accompanying gesture were not enough to constitute an assault.38 This proposition, however, was questioned and refuted in the 1960s case of Barton v Armstrong.39

Barton v Armstrong [1969] 2 NSWR 451 Court: Supreme Court of New South Wales Facts: The defendant, who was a high-profile politician, threatened to inflict violence on the plaintiff to get him to sign a deed which gave effect to a number of commercial deals. The plaintiff signed the deed because of the effect that the threats had on him. Some of the threats were made over the phone. One of the legal questions that was in contention was whether the threats could constitute an assault as they were over the telephone. Legal principle: Taylor J examined whether verbal threats over the phone can constitute an assault and stated that it depends on the circumstances: 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

34. R v Mostyn (2004) 145 A Crim R 304 at 316. 35. Zanker v Vartzokas (1988) 34 A Crim R 11. 36. R v Mostyn (2004) 145 A Crim R 304 at 316. 37. Barton v Armstrong [1969] 2 NSWR 451. 38. Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684. 39. Note that the position in Queensland is not clear. Section  245 of the Queensland Criminal Code requires that before there is an assault, there must be ‘a bodily act or gesture’.

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Torts: Principles, Skills and Application

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.40

The court’s decision (application of the legal principle to the facts): Taylor J held that threats over the phone could constitute an assault. Significance of this case: This case shows the impact of modern technologies on historical legal principles. Taylor J said that trespass to the person ‘was developed at a time when means of communication and means of inflicting harm by physical violence were more restricted than they are today’.41 It will be interesting to see  how this principle will be applied in the 21st century, with the advent of mobile phones, internet and email.

Other relevant cases

4041

14.31 In R v Ireland,42 the House of Lords considered whether repeated silent telephone

calls could constitute an assault. Lord Steyn held that, in some circumstances, silent phone calls can constitute an assault. His reasoning included the proposition that ‘[s]he 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’.43 Lord Hope of Craighead also agreed by stating that silent telephone calls are ‘just as capable as words or gestures … of causing an apprehension of immediate and unlawful violence’.44 In 2012, R v  Ireland45 was distinguished in Cooper v  Mulcahy.46 Even though this case related primarily to a splitting of assets family law matter, it also considered trespass to the person issues. Associate Justice Macready stated that in R v Ireland: 47 It was held that an assault might be committed by words or gestures alone depending on the circumstances and that where the making of a silent telephone call caused fear of immediate and unlawful violence the caller would be guilty of an assault. The present case is quite different and there does not seem to be any suggestion of a fear of immediate and unlawful violence. 48

40. Barton v Armstrong [1969] 2 NSWR 451 at 455. 41. Barton v Armstrong [1969] 2 NSWR 451 at 455. 42. R v Ireland [1998] AC 147. 43. R v Ireland [1998] AC 147 at 162. 44. R v Ireland [1998] AC 147 at 166. 45. R v Ireland [1998] AC 147. 46. Cooper v Mulcahy [2012] NSWSC 373. 47. R v Ireland [1997] QB 114. 48. Cooper v Mulcahy [2012] NSWSC 373 at [127].

612

14.34

Trespass to the Person

Self-defence 14.32

14.33

Not all threats of violence will result in a successful assault action. Like battery, consent is a defence to an assault action, as is self-defence.495051

Rozsa v Samuels [1969] SASR 205 Court: Supreme Court of South Australia Facts: The appellant, who was a taxi driver, placed his taxi at the head of a queue of taxis at Adelaide Airport. Drummond, whose taxi had been at the head of the queue of taxis, got out of his taxi and confronted the appellant. The appellant stated: ‘I am here and I am staying here’. Drummond stated that he would punch the appellant in the head. The appellant then threatened Drummond with a table knife stating ‘I will cut you to bits if you try it’. He started to get out of his taxi, but Drummond stopped this by slamming the door. Drummond then ‘backed off’. The appellant was convicted of assault and appealed. Legal principle: Before applying force in self-defence, a person under threat is obliged to take whatever reasonable steps are available to avoid using force. The court’s decision (application of the legal principle to the facts): The appellant could have avoided the threatened force if he had consented to move his taxi.49 Alternatively, he could have avoided getting out of the car and closed the door and locked it. The use of the knife to defend himself went beyond that which is reasonably necessary as a form of self-defence.50 Therefore, he was not justified in defending himself by using the table knife. Significance of this case: Did the defendant’s threat go ‘beyond the ordinary bounds of self-defence’? This case also examined the judgment in Tuberville v Savage51 to investigate whether a conditional threat can constitute an assault.

14.34

Note that what constitutes self-defence in relation to trespass to the person actions has also been considered in other cases. For example, in Zecevic v Director of Public Prosecutions (Vic),52 Wilson, Dawson and Toohey JJ held that the test for self-defence ‘is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal’.53 It is important to note that the test is the same for self-defence, whether or not it is a civil matter or a criminal matter.54

49. Rozsa v Samuels [1969] SASR 205 at 210. 50. Rozsa v Samuels [1969] SASR 205 at 210. 51. Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684. 52. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645. 53. Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661. 54. H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, p 713.

613

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Torts: Principles, Skills and Application

Fontin v  Katapodis55 also considered what the test was for self-defence in assault and battery actions. In this case, there was a confrontation between a customer (Katapodis) and a shop assistant (Fontin). Insults were exchanged before the customer hit the shop assistant with a T square. He raised the T square to hit him again and the shop assistant threw a bit of glass at him. The customer’s hand was injured as he tried to deflect the glass. The justification that was pleaded in this case was that the customer hit the shop assistant with the T square and was about to hit him again.56 The High Court rejected a plea of self-defence from the shop assistant as he could have retreated to avoid more blows.57 The High Court also found that throwing the piece of glass ‘was out of all reasonable proportion to the emergency confronting Fontin’.58

Conditional threats 14.35

In some circumstances, threats are made which are conditional on other events. If the nature of the threat itself indicates that the threat will not be carried out, then there is no assault. Tuberville v  Savage59 illustrates this principle as when T put his hand on his sword and stated that if it was not assize time, he would not take the language from S, the threat was neutralised. It was assize time, therefore no violence was going to be inflicted.

False imprisonment 14.36

The right to freedom and liberty is said to be ‘the most elementary and important of all common law rights’.60 This sentiment was reiterated in Darcy v New South Wales,61 when it was stated by Allsop P that: The question of … 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.

The definition of false imprisonment is a direct act by the defendant that totally deprives the plaintiff of his or her liberty.

55. Fontin v Katapodis (1962) 108 CLR 177. 56. Fontin v Katapodis (1962) 108 CLR 177 at 181 per McTiernan J. 57. Fontin v Katapodis (1962) 108 CLR 177 at 182 per McTiernan J. 58. Fontin v Katapodis (1962) 108 CLR 177 at 182 per McTiernan J. 59. Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684. 60. Trobridge v Hardy (1955) 94 CLR 147 at 152 per Fullagar J. 61. Darcy v New South Wales [2011] NSWCA 413 at [2].

614

14.38

Trespass to the Person

Figure 14.3 Direct act by the defendant That totally deprives the plaintiff

False imprisonment

Of liberty

Was there a reasonable means of escape?

Directness 14.37

False imprisonment must be directly caused.

14.38

Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 Court: Supreme Court of New South Wales Facts: The defendants were the proprietors of a ‘cash and carry’ store at Paddington. The plaintiff was a regular customer of the store. On the day in question, the plaintiff selected some groceries and put them in a suitcase which already contained meat and vegetables purchased elsewhere. After she purchased the groceries, she put one of the items in her handbag as she had run out of room in her suitcase. She was accused by the shop inspector of not paying for two items. The inspector said: ‘You will have to come upstairs to the manager’s office’. She refused to allow the store inspector to search the case. She stated that only a police officer could do this. The shop inspector stated that he wanted charges to be brought against the plaintiff. She was charged and later acquitted. Legal principle: The defendant must directly cause the imprisonment. The court’s decision (application of the legal principle to the facts): The arrest was the act of the defendants as they directly caused the arrest. The defendant store was liable here as the police constable would not have taken the plaintiff into custody but for the manager’s answer to the question: ‘Do you wish us to proceed against this person?’ Significance of this case: This case reflects the importance that was attributed to standing in the community in 1931. This is still an important consideration today, but arguably not to such a strong degree.

615

14.39

Torts: Principles, Skills and Application

14.39 In

14.40

Myer Stores v Soo, the question of the liability of a shop owner was revisited. Myer Stores v Soo [1991] 2 VR 697 Court: Victorian Court of Appeal Facts: The respondent, who had been erroneously identified as being a shoplifter, was reported to two policemen in the defendant’s store, by a store employee. The three of them required the respondent to accompany them to a room for questioning. Legal principle: False imprisonment must involve a total deprivation of liberty. The court’s decision (application of the legal principle to the facts): Requiring a person to attend, against their will and remain in a room undergoing questioning, amounts to false imprisonment as there has been a total deprivation of liberty.

Complete restraint 14.41

14.42

One of the primary elements of trespass to the person is that the plaintiff must be restrained or imprisoned from all directions. Therefore, if there is a way that the plaintiff can reasonably retain his or her freedom, this does not constitute a false imprisonment.

Bird v Jones (1845) 115 ER 668 Court: England and Wales High Court, Queen’s Bench Division Facts: The defendant had placed seats across the Hammersmith Bridge for spectators to watch the Oxford and Cambridge boat race. The plaintiff was thus prevented from crossing the footpath across Hammersmith Bridge. The plaintiff insisted on passing through the cordoned-off area and attempted to climb the fence. The plaintiff was then arrested for breach of the peace on Hammersmith Bridge. During the pleadings, the question arose as to whether there had been an imprisonment of the plaintiff on the bridge before the breach was committed. Legal principle: If a person’s passage is only partially obstructed, this does not constitute false imprisonment. ‘Imprisonment 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 671–2 per Patterson J). The court’s decision (application of the legal principle to the facts): This did not constitute false imprisonment as the plaintiff’s access was cut off in only one direction.

616

14.43

Trespass to the Person

Legal issue

Judge/s

Conclusion

Reasons given

What is false imprisonment?

Patterson J If one person compels another to stay in a given place against his or her will, this will generally constitute imprisonment

Does there need to be total restraint?

Patterson J Yes

If the plaintiff is at liberty to go in another direction, this does not constitute false imprisonment

Does there need to be total restraint?

Coleridge J Yes

Otherwise you will confuse ‘partial obstruction and disturbance with total obstruction and detention’. It is necessary for there to be a boundary that the plaintiff is prevented from passing through

Significance of this case: This case considered whether a restraint prohibiting access in one or several directions constitutes false imprisonment.

Reasonable means of escape 14.43

If the plaintiff has a reasonable means of escaping from his or her imprisonment, this will not constitute false imprisonment as these circumstances do not constitute complete restraint. In Burton v Davies,62 Townley J stated: ‘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’.

62. Burton v Davies [1953] St R Qd 26 at 30.

617

14.43

Torts: Principles, Skills and Application

Whether an escape route will satisfy the reasonable means of escape test will depend upon whether the escape route may lead to endangerment of life or limb.63 For example, in R v Macquarie and Budge,64 a representative of the bank attempted to take possession of Macquarie’s yacht. Macquarie and Budge were not compliant with this attempted possession. The bank’s representative was on the moored vessel and refused to come ashore. On Macquarie’s orders, the engines were turned to full speed ahead and the vessel cast off. The bank’s representative who did not know how to turn the engine off steered the boat out of Darling Harbour. He was later rescued at Lavender Bay. It was found that the bank’s representative had been falsely imprisoned, with Hargrave J stating: ‘Can it be said that where a person is set afloat in a vessel and his only way of escape is by jumping into the water that he is not imprisoned?’

Plaintiff does not have to be physically imprisoned Myer Stores v Soo, discussed above, the respondent was required to attend a room for questioning. This is not the same as being physically restrained — yet the courts held that the facts in that case amounted to false imprisonment.This appears to be a modern application of the finding in the case below.

14.44 In

14.45

Symes v Mahon [1922] SASR 447 Court: Supreme Court of South Australia Facts: A police officer (the defendant) told the plaintiff that he had to accompany him back to Adelaide as he was under arrest for not maintaining his illegitimate child. The plaintiff denied being the said person. The plaintiff met the defendant at the train station and accompanied him to Adelaide (in a different compartment). He then went with the police officer to the police court on a tram, returned to the hotel and then returned to the police court again. During the last visit to the police court, it was found that the plaintiff was not the person cited in the warrant. Legal principle: Murray CJ stated that in a case such as this ‘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’.65 The court’s decision (application of the legal principle to the facts): The Supreme Court of South Australia held that the plaintiff had been falsely imprisoned during the journey as the plaintiff submitted himself to the defendant as he reasonably thought that he had no means of escape.

636465

63. D Baker, Torts Law in Principle, 3rd ed, Lawbook Co, Sydney, 2002, pp 4–14. 64. R v Macquarie and Budge (1875) 13 SCR (NSW) 264. 65. Symes v Mahon [1922] SASR 447 at 453.

618

14.47

Trespass to the Person

Significance of this case: This case considered the concept of imprisonment as it was expressed in Bird v Jones.66

14.46

14.47

For a modern application of the principle derived from Symes v  Mahon, see  Watson v  Marshall and Cade.67 In that case, a man was asked by a police officer to accompany him to a psychiatric hospital. As the man thought he had no choice, and that force might be used to compel him to attend, should he refuse, the High Court found the man had been falsely imprisoned.

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 Court: High Court of Australia Facts: A ferry company displayed a sign instructing their customers that one penny had to be paid upon entering and leaving their private wharf. The plaintiff, who was a barrister, entered the wharf after paying a penny. Upon entering he realised that he had missed the ferry and he therefore tried to leave the premises without paying the penny. After arguing with some of the employees of the ferry company, he left through a small opening through the turnstile. Legal principle: The means by which the plaintiff entered the defendant’s premises were conditional. If a plaintiff is free to leave the premises in one direction, he or she is not falsely imprisoned. The court’s decision (application of the legal principle to the facts): There was no false imprisonment in this case as the plaintiff was free to leave the premises by water or by paying the one penny. He impliedly consented not to depart the premises unless he paid the penny.

Legal issue

Judge/s

Griffith CJ Was the defendant entitled to require the plaintiff to pay the penny before exiting the premises? 6667

66. Bird v Jones (1845) 115 ER 668. 67. Watson v Marshall and Cade (1971) 124 CLR 621.

619

Conclusion

Reasons given

Yes

The entry onto the premises was conditional and the plaintiff agreed to be bound by the conditions

14.47

Torts: Principles, Skills and Application

Legal issue

Did these actions constitute false imprisonment?

Judge/s

Conclusion

Reasons given

O’Connor J Yes

He entered into a contract that surrendered a portion of his liberty for a certain period

O’Connor J No

There was no obligation to make an exception for the plaintiff and allow him to leave the premises without paying the one penny

Significance of this case: This case highlights the intersection between torts and contracts.

14.48

Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 Court: House of Lords Facts: The plaintiff, who was a miner, went down into a coalmine at the start of his shift which ran from 9.30 am to 4.00 pm. He was ordered to do some work, which he refused to do as he claimed it was dangerous. At 11.00 am he requested to be taken back to the surface by the company’s lift. He was not permitted to leave until 1.30 pm. Under the terms of the plaintiff’s oral contract, and the Coal Mines Regulation Act 1887 (UK), he was not entitled to be taken to the surface until the end of his shift. Legal principle: If a person chooses to go into a dangerous place at the bottom of a mine, he or she cannot necessarily compel the owner to bring him or her back up.68 The court’s decision (application of the legal principle to the facts): There was not a false imprisonment in this case as the plaintiff agreed to the conditions of entry before he went down the mine shaft.

68

68. Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 at 71 per Viscount Haldane.

620

14.49

Trespass to the Person

Legal issue

Legal issue

Conclusion

Reasons given

Did volenti non fit injuria apply in this case?

Viscount Haldane LC

Yes

He was aware of the terms and conditions to exit, so it was not false imprisonment to hold him to the conditions to which he had agreed

Was there a statutory right to bring him to the surface when he requested?

Viscount Haldane LC

No

There was no statutory right under the Coal Mines Regulation Act 1887 (UK)

Viscount Was there a right in contract Haldane LC to bring him to the surface when he requested?

No

His right in contract was to come up at the end of his shift

Significance of this case: This case again addresses the interface between contract law, industrial law and tort law. It demonstrates that rights that we may have in one area of law may be mitigated by other rights and obligations.

Does the plaintiff have to be aware of his or her imprisonment? 14.49

Murray v Ministry of Defence [1988] 2 All ER 521 Court: House of Lords Facts: Corporal Davies, who was a member of the Women’s Royal Army Corps, was told at an army briefing that the plaintiff was suspected of the criminal offence of collecting money for the purchase of arms for the IRA. She was asked to go to the plaintiff’s house and arrest her. Davies and several other soldiers arrived at the house at 7.00 am. They entered and searched the house. They did not tell the plaintiff of the arrest until 7.30 am. The plaintiff alleged that she was falsely imprisoned between 7.00 am and 7.30 am.

621

14.49

Torts: Principles, Skills and Application

Legal principle: The House of Lords held that it is possible for someone to be falsely imprisoned without knowing it. Lord Atkin’s quote from Meering v GrahameWhite Aviation Co Ltd69 was cited as authority for this: It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic.

The court’s decision (application of the legal principle to the facts): There was no false imprisonment in this case as it was found to be reasonable to delay orally communicating that the plaintiff was under arrest until they were leaving the house as not doing this may have caused other trouble. 70

Judge/s

Conclusion Reasons given

Did the plaintiff need to be informed that she was under arrest immediately?

Legal issue

Lord Griffiths

No

It was reasonable not to convey the words that accompanied the arrest until leaving the house

Is it necessary for the plaintiff to be aware of his or her loss of liberty for there to be a false imprisonment?

Lord Griffiths

Lord Griffiths No

Knowledge of the loss of liberty is not an essential ingredient to false imprisonment

Significance of this case: This case highlights that terrorism is not a new threat. It also reflects the religious and political tensions that have historically abounded in Northern Ireland. 6970

Note that Murray v Ministry of Defence was appealed to the European Court of Human Rights.71 The appeal, however, was dismissed as the court held there was no violation of the convention in the case.

69. Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53–4 per Atkin LJ. 70. Murray v Ministry of Defence [1988] 2 All ER 521 at 527 per Griffiths LJ. 71. Murray v United Kingdom (1995) 19 EHRR 193.

622

14.51

Trespass to the Person

False imprisonment and the stolen generation 14.50

14.51

One of the more topical issues relating to false imprisonment in recent years is whether or not the fostering of a child of Aboriginal descent without the parents’ consent would constitute false imprisonment. This issue was considered in the Supreme Court of South Australia case South Australia v Lampard-Trevorrow.72 It should be noted that this case related to events that happened between 1957 and 1967, so if the same events were to happen today, the situation would be very different.

South Australia v Lampard-Trevorrow (2010) 106 SASR 311 Court: Supreme Court of South Australia Facts: The plaintiff, an Aboriginal child, was admitted to hospital in late 1957. During his admission, the child was fostered out without the consent of his parents. Section  10 of the Aborigines Act  1934 (SA) said that the Aborigines Protection Board was ‘the legal guardian of every Aboriginal child’. For many years, the plaintiff’s natural parents did not know the whereabouts of their child and it was not until late 1966 that steps were made to reunite the plaintiff with his natural parents. Many issues were discussed in this case, but the issue that is relevant to this chapter is whether or not the plaintiff was falsely imprisoned while under foster care. Bruce Trevorrow, the plaintiff, claimed that his removal from his natural family and his subsequent placement with the Davies family was unlawful. Counsel for the plaintiff submitted that ‘the plaintiff was effectively imprisoned by being controlled in his freedom of movement arising from his foster placement with Martha and not being returned to his parents at Meningie, despite Thora’s (the plaintiff’s mother’s) requests’. His claim for damages related to the loss of cultural identity, depression, alcoholism, poor health, poor relationships and erratic employment. Legal principle: Doyle CJ, Duggan and White JJ stated: ‘In considering the events affecting and surrounding Bruce Trevorrow, it is necessary to bear in mind the different attitudes of the time, and the impact of the belief that part Aboriginal children in particular would be better off if raised by white families rather than their natural families.’73 Total restraint needed to be established for there to be a viable action for false imprisonment. In these circumstances, total restraint was not found because of the age of the child and the subsequent limitations of movement that this puts on the child.

7273

72. South Australia v Lampard-Trevorrow (2010) 106 SASR 311. 73. South Australia v Lampard-Trevorrow (2010) 106 SASR 311 at [13].

623

14.51

Torts: Principles, Skills and Application

The court’s decision (application of the legal principle to the facts): The state was not liable for false imprisonment or wrongful detention as the foster family’s obligation to care for him and his young age were the reasons for the plaintiff’s restraint while in foster care.

Legal issue

Judge/s

Conclusion

Yes Doyle CJ, Does the restraint have Duggan and to be ‘total’ in White JJ nature? Doyle CJ, Was the plaintiff totally Duggan and White JJ restrained in this case?

Does the plaintiff have to be aware of his restraint?

Only to the extent that his age necessitated

No Doyle CJ, Duggan and White JJ

Reasons given This is one of the elements of a false imprisonment case The plaintiff had the same freedom of movement or lack thereof as any child of his age. If this case was classified as a case of total restraint, this could expand the tort into new areas which may have ‘unpredictable consequences’ There is a great deal of authority that supports this proposition

The findings of South Australia v  Lampard-Trevorrow74 were applied in the following case.

14.52

Darcy v New South Wales [2011] NSWCA 413 Court: New South Wales Court of Appeal Facts: This case related to the possible false imprisonment of a person with intellectual disabilities in terms of her placement within a residential home. Ms Darcy became a resident of Kanangra (which houses and treats people with

74

74. South Australia v Lampard-Trevorrow (2010) 106 SASR 311.

624

14.52

Trespass to the Person

developmental or intellectual disabilities) in 1996. She remained a resident of the home for over six years, even though she was unhappy and asked to leave on many occasions. She was not permitted to permanently leave the facility as no other suitable accommodation was available to her. She brought proceedings claiming damages for false imprisonment. The primary judge found that she was not falsely imprisoned during her stay in Kanangra. Legal principle: This case demonstrates that people do not need to be imprisoned (in the usual sense) for there to be false imprisonment. Detaining someone, however, can be justified in some circumstances. The court’s decision (application of the legal principle to the facts): Even though Ms Darcy was detained in the sense that this expression is used in the civil action of false imprisonment, her detention was sanctioned or justified at law. Interestingly, costs were not awarded against Ms Darcy. The New South Wales Court of Appeal did not disturb the allocation of $100,000 in damages that was awarded by the primary judge to Ms Darcy.

Legal issue

Judge/s

Conclusion

Reasons given

Was Ms Darcy falsely imprisoned in Kanangra?

Allsop P

No

She was not held at Kanangra against her will or contrary to the direction of the public guardian. The court is not in a position to comment on the budgetary constraints that were discussed at length within the case

What were the tests for finding false imprisonment in this case?

Whealy JA Could Ms Darcy have left Kanangra at any time and, if she chose to, would she have been prevented from leaving?

625

Even though Ms Darcy was free to leave at times (that is, to visit her mother), she was still required to return to Kanangra at the end of each outing

14.52

Torts: Principles, Skills and Application

Legal issue

Judge/s

Why was there no liability in false imprisonment in this case, even though it was found that Ms Darcy was unlawfully detained at Kanangra?

Whealy JA Her detention at Kanangra was justified as the Public Guardian did ‘at least tacitly consent to her remaining at Kanangra’75

Conclusion

Reasons given The evidence throughout the case documented the reality that there was no real viable alternative for Ms Darcy’s residence at the time that she resided at Kanangra

Significance of this case: This is an interesting case for a variety of reasons. It demonstrates the need for the community and the courts to balance individual liberty of people with disabilities with the reality that funding and the protection of the individual as well as the community as a whole are important.

Third parties and false imprisonment 14.53

14.54

The next issue for discussion is whether or not a third party can be liable for a false imprisonment.

Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 Court: New South Wales Court of Appeal Facts: The plaintiffs were detained and searched at the Ashfield Shopping Mall by two police officers. The police officers suspected that the plaintiffs had attempted to obtain a gift voucher to the value of $500 at a Kmart store by using a credit card that was possibly stolen and, in addition to this, fraudulently tried to obtain a gift voucher worth $1,500 from the nearby Target store. Each of the stores liaised with each other if there was a suspicion of fraudulent use of credit cards. The store manager at Kmart was the person who gave the police officers the information which led to them suspecting the plaintiffs of this activity. After approximately one hour, the plaintiffs were released.

75

75. Darcy v New South Wales [2011] NSWCA 413 at [81].

626

14.56

Trespass to the Person

The plaintiffs contended that the incident had a serious psychological effect on them. They were seeking damages for defamation and false imprisonment. We will only consider the false imprisonment action in this section of the book. Legal principle: The main issue was whether or not a person who gives information to a police officer, who causes another to be wrongly detained, will be liable to the person who is falsely imprisoned. The court’s decision (application of the legal principle to the facts): The appeal was dismissed as it was found that the conduct of the store manager directly led to the detention of the plaintiffs. Their Honours found that it was very unlikely that the store manager mistakenly identified the plaintiffs as the two men who attempted to fraudulently use a possibly stolen credit card to buy gift vouchers at a Kmart and Target store in the same complex.

Legal issue

Judge/s

Conclusion

Reasons given

Did the store manager’s conduct ‘manifest an intention that there be an imprisonment’?

Ipp JA

Yes

The evidence that was given led to this belief as the store manager ‘deliberately and falsely invented the accusations … which led directly to the arrest of the plaintiffs’76

Defences76 14.55

Liability in false imprisonment is not strict. There may be a lawful justification for the restraint (for example, a police officer carrying out a lawful arrest), in which case no liability will lie.

Damages 14.56

The difficulties in relation to quantifying damages for trespass to the person actions is discussed in Cooper v Mulcahy.77 In this case, Macready AJ referred to Walmsley SC DCJ in Varmedja v Varmedja,78 relating to the difficulties that are created when psychiatric injury is alleged as a result of several separate torts relating to trespass to the person (at [277]). By way of example as to how the

76. Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 at [114]. 77. Cooper v Mulcahy [2012] NSWSC 373. 78. Varmedja v Varmedja [2007] NSWDC 385 at [111].

627

14.56

Torts: Principles, Skills and Application

courts determine damages in trespass to the person cases, in Cooper v Mulcahy, Macready AJ held that the defendant did not suffer from post-traumatic stress disorder and that the disability that was apparent would resolve itself (at [283]). He did nonetheless award damages for the assaults and batteries as follows: •• $50,000 for the threat to kill and the battery in 1995; •• $2,000 for the occasion that the defendant was ordered out of the house in 1996; •• $50,000 for the beer incident and the threat to shoot in December 2000; •• $40,000 for the threat to shoot in 2007; and •• aggravated damages of $100,000 were also awarded to the defendant due to the combined effect of the assaults throughout the whole relationship between the defendant and the plaintiff.

Tort reform and trespass to the person 14.57

As is discussed extensively in Chapter 22, tort law has undergone extensive reform in the past decade. In relation to trespass to land actions, Williamson v New South Wales79 interprets s 3B of the Civil Liability Act 2002 (NSW).80 This section states that civil liability will be excluded from the Act if it relates to ‘an intentional act that is done by the person with intent to cause injury’. In the Williamson case, it was held that if the claim fell outside s  3B of the Civil Liability Act, the proceedings would be determined under the general law rather than under the statutory scheme. It was held that the claims relating to false imprisonment and unlawful arrest were not personal injury damages and thus they fell outside the scope and operation of the Civil Liability Act.

79. Williamson v New South Wales [2010] NSWSC 229. 80. It was also found that the Civil Liability Act 2002 (NSW) did not apply to the trespass to the person actions in Cooper v Mulcahy [2012] NSWSC 373 due to s 3B of the aforementioned Act [at 276].

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Trespass to the Person

Review Trespass to the person is an interesting area of the law that relates to an unlawful interference with another’s person. In order to have a successful trespass to the person action it is necessary to establish each of the elements to the action. Unlike negligence cases it is unnecessary for the plaintiff to establish that they have suffered some damage, trespass is actionable per se.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 19 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 11

Key Cases Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 Barton v Armstrong [1969] 2 NSWR 451 Bird v Jones (1845) 115 ER 668 Brady v Schatzel (1911) St R Qld 206 Coles Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299 Darcy v New South Wales [2011] NSWCA 413 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 Giumelli v Johnston (1991) Aust Torts Reports ¶81-085; BC8900184 Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 McNamara v Duncan (1971) 26 ALR 584 Murray v Ministry of Defence [1988] 2 All ER 521 Myer Stores v Soo [1991] 2 VR 697 R v Mostyn (2004) 145 A Crim R 304 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 Rozsa v Samuels [1969] SASR 205 Stephens v Myers (1830) 172 ER 735 South Australia v Lampard-Trevorrow (2010) 106 SASR 311 Symes v Mahon [1922] SASR 447 White v South Australia [2010] SASC 95 Zanker v Vartzokas (1988) 34 A Crim R 11 629

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Chapter 14 Review Questions 1. What are the three main types of trespass to the person? 2. Does there need to be hostility for there to be an actionable battery? 3. Can damages be awarded even if there is no damage or injury in a trespass to person case? 4. Does a plaintiff have to be aware of his or her false imprisonment? 5. Do you think the ratio in Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 would be accepted in contemporary times?

Tutorial 14: Intentional trespass to the person

Internal memorandum From: Guido Markewicz To: Trainee Re: Rights in tort, in relation to intentional interference to the person Susan Sultry was a first-year student at Smith University in New South Wales. One Saturday night she was asked to attend a party at the home of one of her friends. She was having a fabulous time at the party until her ex-boyfriend, Mike Menace, started sending her threatening SMS messages. One of the messages from Mr Menace said ‘meet me at the cinema at 11 pm or else’. Susan Sultry texted him back and said that she would not be able to make it to the cinema that night as she had met a new gentleman friend at the party she was currently attending. Mr Menace wrote back saying ‘I am on my way to get you and your boyfriend’. Mr Menace did not turn up that night at the party as he was called into work. The next day Susan Sultry went into town on the train. Mr Menace was also on the train. He came and stood next to her. While on the train, Mr Menace bumped Ms Sultry several times. Once they were off the train, Mr Menace went up to Ms Sultry and tripped her. He then punched her in the stomach. Ms Sultry sustained only minor injuries. Mr Menace picked Ms Sultry up off the ground and walked her to a nearby café. Ms Sultry told Mr Menace that she wanted to go home and get away from him. When Ms Sultry said this, Mr Menace decided to lock Ms Sultry in the toilet at the café. When Mr Menace pushed her into the toilet, Ms Sultry hit her head and became unconscious. She lay there, unconscious, for several hours. Upon awakening she saw that there was a window in the toilet. She climbed through the window and walked home. 630

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Do you have any thoughts on Ms Sultry’s rights in tort in relation to these matters? Thanks, Guido



Tutorial 14: Student Example Answer Prepared by: Kayt Hogan, Law, UNE

Internal memorandum To: Guido Markewicz From: Kayt Hogan (trainee) Date: 30/08/20XX Re: Susan Sultry In relation to intentional interference with the person, Susan Sultry may be able to bring actions in the torts of assault, battery and false imprisonment against Mike Menace. Assault An assault will occur where a person intends ‘to create in another … an apprehension of imminent harmful or offensive conduct’.81 Importantly, whether or not the threat is carried out is irrelevant.82 In considering what is ‘imminent’, it is not necessary that a threat to carry out harm be immediate, and as such, an apprehension can be formed ‘even if it is made clear that the violence may occur in the future, at times unspecified and uncertain’.83 Consequently, it has been found by Taylor J in Barton v  Armstrong84 that telephone calls threatening serious harm constituted assault; although his Honour conceded that, in general, these sorts of matters should be decided according to the circumstances of the particular case.85 With respect to the facts at hand, it is reasonable to believe that Mike Menace’s threat to ‘get you and your boyfriend’ would create apprehension in Susan Sultry of harmful conduct. By analogy to Barton v Armstrong,86 it would appear that even though the threat was made via text message, it would still constitute a threat of an imminent nature. While we 81. Rixon v Star City Pty Ltd [2001] NSWCA 265 at [58] per Sheller JA. 82. Rixon v Star City Pty Ltd [2001] NSWCA 265 at [56] per Sheller JA. 83. Barton v Armstrong [1969] 2 NSWR 451 at 455 per Taylor J. 84. Barton v Armstrong [1969] 2 NSWR 451. 85. Barton v Armstrong [1969] 2 NSWR 451 at 455 per Taylor J. 86. Barton v Armstrong [1969] NSWR 451.

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do not know from the facts whether it was Mike Menace’s intention to create such a fear of imminent harm, it seems fair to assume that he did. If this is the case, Mike Menace would most likely be found to have committed the tort of assault. Battery A person will be liable for battery if they intentionally and directly inflict unlawful force on another without their consent.87 As such, ‘any touching of another person, however slight, may amount to a battery’.88 Of course, this seems unreasonable given that people may brush past each other in the street while going about their everyday activities, for example, and consequently there is ‘a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life’.89 In these sorts of situations, consent will be implied.90 Taking the case of Mike Menace bumping into Susan Sultry on the train several times, it would appear that this would come under the general exception of ordinary conduct of daily life. It is not unusual for people to bump into others while travelling on a train, and unless it can be shown that Mike Menace deliberately intended to apply force to Susan Sultry’s person, it would be difficult to show that a battery has occurred in this instance. In regard to Mike Menace tripping and punching Susan Sultry, however, it is quite clear that he has committed a battery, as he went directly up to Susan Sultry and intentionally tripped and punched her without her consent. False imprisonment The tort of false imprisonment is committed when a person directly and intentionally restrains another’s liberty without lawful authority.91 The element of restraint here must be total;92 that is, it must be more than a ‘partial obstruction’ of a person’s will.93 Furthermore, a person can be falsely imprisoned without his or her knowledge of it.94 In Lord Atkin’s words, a person ‘can be imprisoned while … asleep, while … in a state of drunkenness, while … unconscious, and while … a lunatic’.95

87. Collins v Wilcock [1984] 3 All ER 374 at 1176–7 per Goff LJ. 88. Collins v Wilcock [1984] 3 All ER 374 at 1177 per Goff LJ. 89. Collins v Wilcock [1984] 3 All ER 374 at 1177 per Goff LJ. 90. Collins v Wilcock [1984] 3 All ER 374 at 1177 per Goff LJ. 91. Ruddock v Taylor [2005] HCA 48 at [140]–[141] per Kirby J. 92. Bird v Jones (1845) 7 QB 742 at 671–2 per Patterson J. 93. Bird v Jones (1845) 7 QB 742 at 671–2 per Patterson J. 94. Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53–4 per Atkin LJ. 95. Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 53–4 per Atkin LJ.

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It appears from the facts that Mike Menace directly and intentionally locked Susan Sultry in the toilet at the café, and it is clear that he did not have lawful authority to do so. There may be some issue, however, in regard to the requirement that restraint be total.There was a window in the toilet, and it seems from the facts that Susan Sultry was readily able to climb out of it, and as such it could be argued that she was only partially obstructed. Arguments, though, could easily go both ways. As Lord Atkin’s comments above demonstrate, it is irrelevant that Susan Sultry was unaware of her imprisonment due to being unconscious. Section 3B of the Civil Liability Act 2002 (NSW) Section  3B(1)(a) of the Civil Liability Act  2002 (NSW) excludes from the provisions of the legislation any acts that are intentional or done with the intent to cause harm. Williamson v New South Wales96 interpreted this section, and it was found that the claims in the case for false imprisonment were outside the scope of the Act. It is uncertain what effect this would have on Susan Sultry’s case, although it seems that an action could lie under the general law anyway. Conclusion In advising on Susan Sultry’s rights in tort, it appears that she has actions against Mike Menace for the torts of assault, battery and false imprisonment, and should be able to claim damages for such matters.

96. Williamson v New South Wales [2010] NSWSC 229.

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Chapter 15

Nuisance Legal practice skill: Understanding proprietary-based tort actions

Learning aims •

Understand the proprietary nature of nuisance claims

•

Appreciate that it is not any interference with another’s use and enjoyment of land that gives rise to a claim in private nuisance, but only unjustifiable interference

•

Understand the factors that a court will consider in determining whether the interference with enjoyment was unreasonable

•

Appreciate the difference between nuisance and trespass

•

Learn the difference between private and public nuisance

Background concepts 15.1

Fans of English literature will recognise how nasty and brutish living conditions can be if they are not appropriately regulated. A brief reflection on, for example, Charles Dickens’s Oliver Twist reveals the squalor that can result. Modern land use regulations and zoning restrictions control and limit the uses to which land may be put. Careful planning avoids residential areas being placed next to noisy or odorous industrial zones. Zoning of land is, however, a relatively modern phenomenon. Before the advent of planning schemes, the common law developed a flexible and accommodating remedy for those who claimed that the use and enjoyment of their land was being interfered with. The claim developed was one of private nuisance. Remedies for private nuisance were mainly twofold: an injunction, to prevent a repeat of the nuisance, and/or damages for the inconvenience suffered by the plaintiff.

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In this chapter, we will examine the basis of a claim in private nuisance, and how it differs from a claim in public nuisance. We will also explain the differences between a claim in nuisance, and one in negligence or trespass to land. 15.2

Private nuisance arises out of property and land law.The key question is whether there is a substantial and unreasonable annoyance caused by defendant B to plaintiff A, reducing, impeding and impacting A’s enjoyment in the land. A has to have an interest in land. On the other hand, B, as the putative tortfeasor, does need to own, be in possession of, or occupy land. The genesis of public nuisance, on the other hand, is criminal law. It is a common law misdemeanour. Public law nuisance is discussed at 15.28 below.

Distinction between trespass, nuisance and negligence Trespass 15.3

Trespass is a direct, intentional interference with the use or enjoyment of land. Thus, the occupier of land is protected against people trespassing onto land, or over it.

Nuisance 15.4

Nuisance is, similarly, a property-based tort. That is to say, the person who may bring a claim for nuisance is the occupier of that land. By contrast with trespass, a person seeking an action in nuisance does not have to prove that the interference was direct or intentional, only that it was an unreasonable interference. Nuisance predominantly deals with indirect harm. Nuisance is, therefore, a more subtle interference with the enjoyment of land which does not disturb the owner’s right to possession of land.

Negligence 15.5

If a person falls below the standard of care expected of a reasonable person, and damage is caused to another to whom a duty is owed, that other person may sue in negligence. There may, therefore, be situations in which actions  in negligence and private nuisance overlap. Goldman v  Hargrave is such a case.

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15.6

Goldman v Hargrave [1967] 1 AC 645; (1966) 115 CLR 458 Court: Privy Council Facts: In February 1961, Saturday afternoon, summertime and about one hundred kilometres east of Perth at Gidgegannup, lightning struck a very tall gum tree on Mr Goldman’s 600-acre rural property. A fire started in the fork of a large gum tree, but it was located high up and hard to access safely, so Mr Goldman called the local fire control officer for the district, who was another farmer, to arrange for an expert to attend to fell the tree. In the meantime, Goldman cleared the surrounding area with a tractor and wet the area with a truck-mounted water barrel of about 1500 litres. The tree was felled by the ‘tree faller’, a Mr Coombs, on Sunday afternoon and as it fell, it brought down another tree. There were then two logs burning on the ground. Believing the logs would burn themselves out and the situation was safe, the court concluded that Mr Goldman did not take sufficient steps to extinguish the burning logs after Mr Coombs left his property on Sunday afternoon or take proper further action to do so in the days following. Sustained hot weather meant the logs were still alight, and some days later on the following Wednesday, fire from the burning logs and pile spread across paddocks to Mr  Goldman’s neighbour and destroyed his house. There was evidence to the fact that Mr Goldman had left the property for lengthy periods after the tree was felled and the two trees were on the ground. The court accepted that Mr  Goldman had acted reasonably until the tree faller arrived, but could have acted more carefully thereafter. Legal principle: Was Mr Goldman liable for the fire which destroyed his neighbour’s house, and in particular his actions from Sunday afternoon to Wednesday? The court’s decision (application of the legal principle to the facts): Mr Goldman was liable, both in negligence and in nuisance. Nuisance, it was said, was founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by them of their own land) which, to a substantial degree, harms another person (an owner or occupier of land) in their enjoyment of their land. Negligence was conduct which fell below the standard of a reasonable person, in dealings with someone to whom a duty was owed, and where compensable damage or loss resulted. Significance of this case: Negligence and nuisance can sometimes overlap. Taylor and Owen JJ held (at [9]): … when the tree in question here was cut down a hazard of a different character was created and it is beyond doubt that the respondent was under a duty to use reasonable care to prevent it causing damage to his neighbours in the countryside. The finding that, in the circumstances prevailing, he failed to discharge this duty with the result that the appellants sustained the damage of which they complain is we think unassailable. We add that on this view it is of no consequence whether his liability rests in negligence or nuisance.

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Nature of interests protected 15.7

Private nuisance protects a broad range of interests. They include: •• protection against physical damage caused, such as by floods or fires. Goldman v Hargrave (above) is a good example; •• protection of the enjoyment of land which might, for example, be interfered with by noise or smells;1 •• protection of ‘support of land in its natural state’: see Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board.2 What happens if someone proposes to construct a building near my home, and the effect will be to interfere with my television reception? Can I sue in negligence? See Hunter v Canary Wharf Ltd,3 where the answer was no. What about my right to privacy? Can I use a remedy associated with nuisance to prevent someone looking into my property? The answer was no: see Victoria Park Racing and Recreation Grounds Co Ltd v Taylor.4

Test of liability 15.8

If my neighbour plays his stereo loudly one night, can I sue him for nuisance? What if he plays his stereo loudly every night? Does it make any difference whether he plays his stereo loudly at 8 pm or at 2 am? The common law attempts to strike a balance between my use of my land, and your use of yours. It does so by taking into account such things as the time, location and nature of the interference.

The general rule 15.9

The general rule is that the law requires ‘give and take’ and ‘live and let live’ between neighbours.5 The plaintiff, in order to be successful, must show that the defendant’s interference was serious and unreasonable.

1. 2. 3. 4. 5.

St Helen’s Smelting Co v Tipping (1865) 11 HLC 642. Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 277 ALR 257. Hunter v Canary Wharf Ltd [1997] AC 655; [1997] 2 All ER 426. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. Bamford v Turnley (1862) 3 B & S 62 at 83–4 per Bramwell B.

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15.10

Harper v Haden [1933] Ch 298 Court: Court of Appeal (UK) Facts: The plaintiff was a shopkeeper on the lower floor of a building. He complained about scaffolding and boarding which had been erected in front of his shop by the defendant. The defendant was having his premises (which were on the upper floor of the same building) renovated. Legal principle: Was the erection of scaffolding and boarding actionable as a nuisance? The court’s decision (application of the legal principle to the facts): The scaffolding and boarding were no more than was necessary. The law required an amount of ‘give and take’ between neighbours. Significance of this case: Nuisance is not an absolute matter, but requires balancing the various rights of adjoining or proximate landholders.

15.11

15.12

The issue seems to be of great importance in high-density living, such as flats or apartment blocks.6

Southwark London Borough Council v Tanner 6 [2001] 1 AC 1 Court: House of Lords Facts: Tenants in adjoining flats claimed that, due to lack of insulation, they could hear the noises made by other tenants. This included noise from television sets, cooking, cleaning, babies crying and the like. They sued for breach of covenant of quiet enjoyment (a proprietary-based contractual remedy) and in nuisance. Legal principle: Would an action in nuisance lie in the case where neighbours were not unreasonably noisy, but nonetheless could be heard in adjoining premises? The court’s decision (application of the legal principle to the facts): Lord Hoffmann said that he did not think that the normal use of a residential flat could possibly be a nuisance to the neighbours. If it were, there would be ‘the absurd position’ that each neighbour, even though behaving normally and reasonably, was a nuisance to the other. His Lordship reasoned as follows: I turn next to the law of private nuisance. I can deal with this quite shortly because it seems to me that the appellants face an insuperable difficulty. Nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the plaintiff’s land. The primary defendant is the

6. Sub nom Southwark London Borough Council v Mills [1999] 4 All ER 449.

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person who causes the nuisance by doing the acts in question. As Pennycuick V.-C. said in Smith v. Scott [1973] Ch. 314, 321: “It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance.” What is the nuisance of which the appellants complain? The sounds emanating from their neighbours’ flats. But they do not allege the making of these sounds to be a nuisance committed by the other tenants. Mr. Goudie Q.C., who appeared for Miss Baxter, said that if necessary he would contend that it was. But I do not think that the normal use of a residential flat can possibly be a nuisance to the neighbours. If it were, we would have the absurd position that each, behaving normally and reasonably, was a nuisance to the other. As Lord Goff of Chieveley said in Cambridge Water Co. v. Eastern Counties Leather Plc. [1994] 2 AC 264, 299: “Liability [for nuisance] has been kept under control by the principle of reasonable user — the principle of give and take as between neighbouring occupiers of land, under which ‘those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action’: see Bamford v. Turnley (1862) 3 B. & S. 62, 83, per Bramwell B.”

Lord Millett said that activities which might otherwise be actionable will be exempt from liability if the acts are shown by the defendant to be necessary for the common and ordinary use and occupation of land and houses, as well as done with proper consideration for the interests of neighbouring occupiers. Significance of this case: The amount of give and take required between immediately adjoining occupiers is likely to be high. That is, the concept of reasonable user is given a broad meaning by the courts.

The sensitive plaintiff 15.13

15.14

Let’s suppose I have acutely sensitive hearing. Does this mean I can sue for nuisance when others might not be able to? In other words, is the test for unreasonable interference subjective or objective?

Robinson v Kilvert (1889) 41 Ch D 88 Court: Court of Appeal Facts: The claimant paper manufacturer sought an injunction to prevent his landlord (who had retained part of the property) from heating the property

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to levels that interfered with his business. The claimant manufactured paper using a process which was significantly disturbed by high temperatures. Paper manufacture in general would not have been affected; but this particular process was unnaturally sensitive to temperature. Legal principle: Is a nuisance action maintainable in these circumstances? The court’s decision (application of the legal principle to the facts): It is not an unreasonable use of land to do something that would not inconvenience the ordinary person, and which would not have interfered with most paper manufacturing processes. Significance of this case: The test for unreasonable interference is objective, not subjective.

15.15

Let’s take the question one step further. Suppose that an ordinary person would be adversely affected by the noise of which I complain, but, because of my super-sensitive ears, the noise is even more irritating to me. Can I sue? The case of McKinnon Industries Ltd v Walker7 from Canada is instructive. It involved sulphur dioxide from one property damaging orchids grown by the plaintiff on a neighbouring property. Orchids are a particularly delicate flower, and easily prone to damage. The Supreme Court of Canada found that the defendant’s behaviour constituted a nuisance and that damage to a delicate species of flower could be compensated. There are, however, limits to the way a ‘delicate plaintiff ’ may be seen, as far as making their case is concerned. In Hill v  Higgins,8 a nature strip which was overgrown was described by the judge as requiring no ‘more than a few minutes with a mechanical edge trimmer or “whipper snipper” to return it to a neat and tidy state’.9 His Honour concluded that: ‘I regret to have to say that [the plaintiffs’] claims of nuisance are a gross overreaction, are quite literally unacceptable and are really a fuss about nothing.’10

Balancing factors 15.16

In balancing the interests of the different neighbours, courts have taken into account different factors. Some of these are discussed below.

7. McKinnon Industries Ltd v Walker [1951] 3 DLR 577. 8. Hill v Higgins [2012] NSWSC 270. 9. Hill v Higgins [2012] NSWSC 270 at [51] per Harrison J. 10. Hill v Higgins [2012] NSWSC 270 at [51] per Harrison J.

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Type of harm 15.17

In contrast to the facts set out in Hill v Higgins referred to above, the law views ‘non-trivial harm’ much more seriously.

15.18

Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683; [1961] 2 All ER 145 Court: Queen’s Bench Division Facts: The defendants had an oils storage and issuing depot. On the premises was a boiler house, out of which emerged two chimneys. These disgorged acid smuts containing sulphate or sulphuric acid. The defendants ran a night shift from 10 pm to 6 am and the noise from the depot reached 64 to 68 decibels. In addition, oil tankers came and went all night. The plaintiff lived in a terrace house in a residential neighbourhood adjacent to the defendants’ depot. The smuts from the chimneys damaged the plaintiff’s clothing, which was hanging on a clothesline, and his car, which was parked on a roadway. Legal principle: In the case of non-trivial interference, what, if anything, needs to be proved to demonstrate unreasonable interference? The court’s decision (application of the legal principle to the facts): As long as the damage is not trivial, liability for nuisance will be established by proof of damage. Significance of this case: Serious damage is likely to be viewed by the courts as unreasonable interference.

Duration, timing and location 15.19

The greater the interference, and the longer the time over which it occurs, the more likely it will be regarded as an actionable nuisance. That is not to say, however, that a nuisance which is short in duration will not be actionable.

Duration

15.20

Munro v Southern Dairies Ltd [1955] VLR 332 Court: Supreme Court of Victoria Facts: The defendants ran a dairy in an outlying Melbourne suburb. Horses used in pulling the milk carts were housed at the dairy. The plaintiff, who lived adjacent to the dairy, complained that the horses were noisy, and the smell from their urine and faeces attracted flies. Legal principle: Did the above facts amount to nuisance?

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The court’s decision (application of the legal principle to the facts): The above facts did amount to nuisance. Sholl J said that the loss of a single night’s sleep from the noise of the dairy would amount to a substantial interference.

Timing 15.21

Something that is unjustifiable in the middle of the night may be perfectly acceptable during the day. So, in Halsey, above, Vale J granted an injunction to restrain the defendants from operating plant and machinery from 10 pm to 6 am. In Seidler v Luna Park Reserve Trust,11 it was held that the roller coaster at an amusement park could only be operated on certain days and at certain hours.To do so outside of these times would constitute a nuisance. The acceptable hours for operation of the roller coaster were held to be on Fridays from 5.30 pm to 10.30 pm, and on Saturdays from 10 am to 11 pm. As was noted in a British case last century, ‘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’.12 In the Luna Park case, it is interesting to note that operation of the roller coaster was not permitted on Sundays. (This case has been superseded by specific legislation which allows for extended operation of the roller coaster without it constituting nuisance.)

Location 15.22

The nature and character of the area may be important in determining whether the defendant is unreasonably interfering with the plaintiff ’s enjoyment. Can you think of some examples? If, for example, a person is living in an industrial zone, he or she presumably should expect some sort of noise. Note that the fact that premises are zoned a particular way is not permission, carte blanche, to indulge in all such activities.

15.23

Pittar v Alvarez (1916) 16 SR (NSW) 618 Court: Supreme Court of New South Wales Facts: The plaintiff, who lived in Darlinghurst (an inner-city suburb of Sydney), brought an action against neighbours. The interference alleged was smoke and soot from ordinary fireplaces used to heat the inside of the premises. Held: No action in nuisance could be maintained. The plaintiff’s ‘inconvenience’ was no more than could reasonably be expected, given the locality. 1112

11. Seidler v Luna Park Reserve Trust (unreported, NSWSC, Hodgson J, 21 September 1995, BC9505507). 12. Sedleigh-Denfield v O’Callaghan (1940) AC 880 at 903 per Lord Wright.

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The plaintiff ‘moving to the nuisance’ 15.24

15.25

If someone buys a vacant lot located near a golf course and then complains of errant golf balls, is it a defence to say that ‘the plaintiff moved to the nuisance’? In other words, by coming towards something known to be a nuisance, has the plaintiff impliedly consented to the nuisance?

Challen v McLeod Country Golf Club [2004] QCA 358 Court: Queensland Court of Appeal Facts: The plaintiff purchased land next to a golf course. She built a home on the land. Over the course of one year, over 525 golf balls flew onto her land. Some of those balls caused damage, including broken tiles and windows amongst other damage to garden ornaments. On one occasion a golf ball struck the plaintiff. Legal principle: Did a plaintiff who came to the nuisance consent to the nuisance? Or should his or her damages be reduced? The court’s decision (application of the legal principle to the facts): An action in nuisance on these facts was successful. Mullins JA noted that even two or three balls a week, with the risk of physical harm or property damage, amounted to material interference with the enjoyment of property. Significance of this case: It was not argued before the court that the fact that the plaintiff came to the nuisance is a defence. The failure to argue the point suggests it is accepted as settled principle that ‘moving to the nuisance’ is no defence.

The purpose of the alleged nuisance 15.26

Is the purpose for which the alleged nuisance is carried out relevant? Is motive relevant? The late-19th-century United Kingdom case of Christie v  Davey13 involved music lessons and musical evenings, or soirees, taking place in a semidetached house (one of two houses side by side, sharing a common wall). The neighbour in the adjoining house complained by letter, but this only worsened the situation. The judge held that the ongoing behaviour was deliberate; its purpose was primarily to annoy and ‘vex’ the plaintiff. Hence the noise did constitute a nuisance.

Public nuisance 15.27

Public nuisance is an interference with some right of the public. According to Romer LJ in  Attorney-General v  PYA Quarries Ltd,14 it requires an act or omission ‘which materially affects the reasonable comfort and convenience …

13. Christie v Davey [1893] 1 Ch 316. 14. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 184; [1957] 1 All ER 894 at 894.

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of a class of Her Majesty’s subjects’. In  PYA Quarries, Denning LJ held as follows:15 [I] say that public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.

Unlike private nuisance, public nuisance is a crime at common law and is a tort. An individual can bring an action in the tort of public nuisance if he or she has suffered particular damage over and above the public in general. In other words, the plaintiff must suffer damage that is different in nature or extent.This is why public nuisance cases are usually brought by the relevant Attorney-General. In Halsey’s case16 (see 15.18 above), the damage to the plaintiff ’s car, which was on the street, was damage of a different extent to that suffered by the public generally, and so amounted to public nuisance.

Difference between private nuisance and public nuisance 15.28

Danuta Mendelson explains that the purpose of an action in private nuisance has always been ‘to protect the right to use and enjoy land; the purpose of public nuisance has always been to safeguard the public from nuisance on, or emanating from, the defendant’s land’.17 As noted at the outset of the chapter, the source of public nuisance is criminal law. It is a common law misdemeanour: •• to act such that the defendant annoys (seriously) the rights of the general public; or •• for unreasonable behaviour to be undertaken by the defendant such that it creates the nuisance (satisfying the fault element). The rights of the public can, and may be, broad in scope. The plaintiff, as a representative of the public group, must show: •• damage which is over and above the general level endured by other members of the public; or •• damage of a particular kind which affects them and their unique circumstances. The Attorney-General in each relevant jurisdiction can commence civil action. The damages sought in such cases can include pure economic loss, which is usually much harder to claim in the context of negligence actions. An example of an Attorney-General bringing action was in the United Kingdom in 1957

15. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 191; [1957] 1 All ER 894 at 908. 16. Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683; [1961] 2 All ER 145. 17. D Mendelson, The New Law of Torts, Oxford University Press, Melbourne, 2007, p 531.

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in Attorney-General v  PYA Quarries Ltd.18 A quarry caused nuisance to ‘Her Majesty’s subjects’. The matters complained of were vibrations, noise and dust. The courts grappled with whether it was a private or public nuisance. Lord Denning, then Master of the Rolls in the Court of Appeal, held it to be sufficiently widespread so as to be a public nuisance.

Highway authorities and nuisance 15.29

What is the position of highway authorities with respect to public nuisance incidents involving roads under their control?

15.30

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; 180 ALR 145; [2001] HCA 29 Court: High Court of Australia Facts: In this case, two appeals were heard together. In the first case, the plaintiff was injured when he was travelling across a bridge maintained by the defendants, and the bridge collapsed. In the second case, the plaintiff was injured when she tripped and fell on a footpath which had eroded away in part. Legal principle: Were the local authorities liable for failing to maintain and repair? Traditionally, local authorities had been granted an immunity from suit for non-feasance, that is, a failure to maintain in such cases. The court’s decision (application of the legal principle to the facts): Public authorities vested with powers for construction, maintenance and repair of roads, bridges and footpaths may be liable in nuisance if they fail to inspect, maintain and repair, irrespective of whether they originally constructed the items or not.

18

15.31

The liability of a road authority in public nuisance is now governed by the Civil Liability Act or relevant act in each jurisdiction except the Northern Territory. The legislation either reverses, or greatly modifies, the law in Brodie. By way of summary, the state of repair and maintenance of highways has gone through three distinct phases: •• Up to 2000 and historically, it was part of the law of nuisance; •• In 2001, the High Court in Brodie v Singleton Shire, subsumed the principles of nuisance law as it related to highways into the general principles of negligence law; and then •• After Brodie’s case in 2001, the state and territory legislatures (except for the Northern Territory) in the early part of the 21st century have enacted legislation to deal with the matter. These essentially reinstate the immunity

18. Attorney-General v PYA Quarries Ltd [1957] 2QB 169.

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from suit for non-feasance from the common law prior to Brodie. The relevant provisions are set out in Table 15.1.

Table 15.1 State or territory Section

Relevant Act

ACT

s 113

Civil Law (Wrongs) Act 2002

NSW

s 45

Civil Liability Act 2002

NT

See  The Law Reform Paper of 2014 recommended that the common law position remain in place in the Northern Territory.

Qld

ss 35, 36

Civil Liability Act 2003

SA

s 42

Civil Liability Act 1936

Tas

s 42

Civil Liability Act 2002

Vic

ss 102, 103 Road Management Act 2004

WA

s 52

15.32

Civil Liability Act 2002

By way of example, set out below are the relevant provisions from New South Wales and Tasmania respectively.

New South Wales 15.33 15.34

The non-feasance of the New South Wales authority is clarified below. Civil Liability Act 2002 (NSW) Section 45 Special non-feasance protection for roads authorities (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a  roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk. 647

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(3) In this section: ‘carry out road work’  means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993. ‘roads authority’ has the same meaning as in the Roads Act 1993.

Tasmania 15.35

The non-feasance of the Tasmanian authority is clarified below. Civil Liability Act 2002 (Tas) Section  42 Special non-feasance protection for failure to carry out road work (1) A public or other authority responsible for carrying out road work is not liable in proceedings in respect of a claim to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the facts creating the particular risk the materialisation of which resulted in the harm. (2) This section does not operate — (a) to create a duty of care in respect of a risk merely because the public or other authority referred to in subsection (1) has actual knowledge of the risk; or (b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section — carry out road work  means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road; road  means any street, road, lane, thoroughfare, footpath, bridge, or place open to or used by the public, or to which the public have or are permitted to have access, whether on payment of a fee or otherwise.

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Review Private nuisance is a proprietary-based claim, which protects the use and enjoyment of land from unreasonable interference. ‘Unreasonable’ is judged by a combination of factors including location and timing. Public nuisance is an interference with some right of the public.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 15 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 14

Key Cases Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; 180 ALR 145; [2001] HCA 29 Challen v McLeod Country Golf Club [2004] QCA 358 Goldman v Hargrave [1967] 1 AC 645; (1966) 115 CLR 458 Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683; [1961] 2 All ER 14 Harper v Haden [1933] Ch 298 Munro v Southern Dairies Ltd [1955] VLR 332 Pittar v Alvarez (1916) 16 SR (NSW) 618 Robinson v Kilvert (1889) 41 Ch D 88 Southwark London Borough Council v Tanner [2001] 1 AC 1

Chapter 15 Review Questions 1. 2. 3. 4.

What is the difference between trespass and nuisance? What is the difference between private and public nuisance? Is anything which causes irritation to neighbours actionable as nuisance? The fact that an area is zoned as industrial means that a person suffering the effects of noise in that area is prevented from suing in nuisance. True or false? 5. What is meant by a person ‘moving to the nuisance’? 6. Is ‘moving to the nuisance’ a defence? 7. How is the Halsey’s case19 an example of private and public nuisance? 19. Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683; [1961] 2 All ER 14.

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8. The fact that a plaintiff is overly sensitive is relevant in two senses to actions in private negligence. What are those two senses? 9. What is the effect of relevant state and territory legislation in relation to civil liability on the High Court decision in Brodie?20

Tutorial 15: Nuisance actions

Internal memorandum From: Guido Markewicz To: James Snodgrassy — trainee Re: Maria No Name We act for Maria No Name. Maria lives in a two-storey, semi-detached house. On the semi-detached side is a house owned and occupied by Mr and Mrs Frannie. On the other side is a golf course which has been there for 10 years, whereas Maria has lived in her house for only two years. Half a kilometre away is Messy Refinery, a crude oil processing plant. Maria bailed me up at the shops the other day and asked me a pile of questions. I said I’d look into it (but, to be honest, it’s been ages since I looked at this area of the law). Don’t worry about the negligence issues. Maria sent me the following email: Hi Guido, Good to see you at the shops the other day.Thanks for offering to help with my problems. I’m pretty much at my wits’ end: (a) Balls from the golf course have now come crashing through our windows 50 times in the last month. I’m terrified my daughter, Tenisha, aged three, will be hit by one. We’ve had a few close calls. I’ve erected a giant fence after getting some advice, but the golf balls are still getting through. I’ve tried to reason with the president of the golf club but he won’t listen. Keeps fobbing me off, saying that I shouldn’t have built a house next to a golf course.

20. Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; 180 ALR 145; [2001] HCA 29.

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(b) Frank and Frances Frannie meanwhile seem to be having their usual fights. I can hear everything.They don’t yell or anything, just that the walls are so thin I can hear their arguments, their TV, when their newborn baby cries, etc. (c) The smells from the refinery seem to be getting worse. Tenisha and I have to stay inside during the day — the smell outside is so bad and gives us both headaches and runny noses. As you know, since my ear implants I have had amazing hearing, and, though no one else can hear it, the squealing from the factory is piercing. I’d be grateful for whatever help or advice you could offer. As you know, I already have advice on negligence issues from Browning and Smith, and you have been kind enough to check that for me, so I won’t trouble you for any more advice on negligence. But isn’t there something else I can do? Thanks, Maria

Your task Could you please prepare a draft letter for Maria, so that I can settle it in the morning? Thanks, Guido

Tutorial 15: Answer Guide This is a broad-based question. You will need to think about the legal issues involved (to bring your boss up to date), and how best to simplify those issues for Maria, who is a layperson. Note that Guido and Maria are not interested in actions in negligence.

Mrs Maria No Name 56 Glenfawning Road Middle of No Where New South Wales 2999 Dear Mrs No Name, Thank you for your recent communication concerning difficulties you are experiencing with your neighbours. We note that you have already received advice from Messrs Browning and Smith as to potential negligence claims you might bring, and are seeking our advice as to any other actions you might have. We think you may have an arguable case in an action called ‘nuisance’ against the golf club and the refinery. Our advice is that no action is maintainable against Mr and Mrs Frannie. 651

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The golf club The action in nuisance protects you from unreasonable interference with the enjoyment of your land. The frequency of interference with your land and the prospect of damage or injury to your daughter suggest the level of interference is unreasonable. We would be happy to write a letter to the club, suggesting that, unless we can reach some agreement, proceedings against the golf club in nuisance will be brought, seeking an injunction and damages. Established case law suggests that the fact that you built a house next to a golf club is no defence to any action you might bring, provided a court finds that the intrusion of the golf balls is an unreasonable interference with your use and enjoyment of your land. The refinery We may need to know more about the nature of the smells emanating from the refinery but, if your enjoyment of your land is being unfairly interfered with, we believe you have a good cause of action in nuisance. In respect of the hearing problems you mentioned, regrettably you will have no cause of action. As your hearing is better than everyone else’s, this means that an ‘ordinary person’ would not have the enjoyment of his or her land unreasonably interfered with. The law in this area does not compensate people with sensitivities different from the ordinary person. Mr and Mrs Frannie Regrettably, you would have no cause of actions against your neighbours either. The courts have been clear that adjoining owners (especially those sharing a wall) have to accommodate some ‘give and take’. If your neighbours’ actions represent no more than normal household noises, then no action will lie. We look forward to your further instructions in the matter. Yours sincerely, J Snodgrassy

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Chapter 16

Breach of Statutory Duty Legal practice skill: Client advice and analysis of causes of action

Learning aims

• Appreciate the increasing significance of statute in tort law • Understand the elements of breach of statutory duty • Understand the complex nature of tort law • Learn how legislation either builds on, or reacts to, underlying common law principles • Explore the overlap between the common law and legislation

Background concepts First principles: the nature of statutes 16.1

Statutes are made by parliament. They represent an entirely different genus of law from common law or judge-made law. Each provides a different source of power. The right of a plaintiff to sue under a statute derives from the statute itself; the right to sue under common law derives from the common law. One is a specific, exactly dated text (the statute); the other an historically informed body of rules and principles (the common law). Statutes take several guises: •• regulations: delegated legislation made pursuant to an Act; •• prohibitions: ‘an order or decree forbidding a specified act or prohibiting acting upon it’;1 •• penal sanctions; and •• Acts of Parliament.

1. P Butt and D Hamer, LexisNexis Concise Australian Legal Dictionary, 4th ed, LexisNexis Butterworths, Sydney, 2011.

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Breach of a statutory provision on the part of a defendant may be used in one of two ways by a plaintiff: 1. to add to the evidence that the defendant was negligent at common law on the basis of owing a duty of care, breaching that duty and, in so doing, causing damage; or 2. to in itself give rise to a cause of action — breach of a statutory duty — which is separate and distinct from a common law negligence claim. A plaintiff seeking damages or relief may plead variously: •• breach of contract; •• breach of a tort (negligence or another tort); and •• breach of statutory duty. There may well be these three options depending on the facts and circumstances. In relation to the statutory breach, the plaintiff and the lawyer need to ascertain whether a cause of action arises for the plaintiff from the statute. This depends on the terms of the statute and the intention of parliament. The plaintiff must show that they are in the contemplated class of protected people, and that the duty set out in the statute applies to them.The content of the duty and whom it covers must be precise as well. Does it apply to the particular defendant? This means that breaches of statutory duty depend on the particular context in each case. They can be akin, depending on the words in the statute, to fault-based negligence or to no-fault strict liability.They are a genus in their own right. It involves a private citizen — the potential plaintiff — interpreting a public document and locating the duty, breach and damage which may be applicable. Statutory causes of action are most often pleaded in the employee context.The defendant can similarly, and as a result, rely on the defences within or made available via the statute. It is a matter of statutory interpretation.

Example: an injured worker 16.2

Take the example of an injured worker. In the new so-called ‘gig economy’, many contracts are setting out ‘contracts for service’ and describing people variously as contractors, as independent contractors and the like. This is so as to avoid vicarious liability as an employer and to avoid providing entitlements like workers’ compensation, superannuation, holiday entitlements and leave loading. The courts have grappled with the distinction between a contract for service  — an independent contractor arrangement versus a contract of service  — an employee relationship. Hence, it is a widespread and practical issue to ascertain, and the incidence of contracts being drafted with clauses indicating it is a contract for service has grown rapidly. An employee plaintiff has several sources of law which need to be investigated, including: 654

16.5

Breach of Statutory Duty

•• the relevant no-fault workers’ compensation provisions; •• the common law; and •• the particular state or territory statute, depending on the context of the accident or loss. Each of these three sources may provide potential relief to the worker.

Workers’ compensation provisions 16.3

The first source of law, being the relevant workers’ compensation provisions, is simply status-based, rather than fault-based. If the plaintiff meets the definition of ‘worker’, he or she is entitled to the no-fault relief afforded by the statutory scheme. For example, in New South Wales, s 9 of the Workers Compensation Act 1987 is relevant: 9 Liability of employers for injuries received by workers — general (cf former s 7(1)(a)) (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.

The common law 16.4

The injured worker will be able to investigate common law aspects of a claim in negligence against an employer. It is a single duty of care comprising several sub-elements, including: •• a safe workplace; •• safe tools and equipment; and •• competent fellow workers.

Statute 16.5

There may be a particular statutory provision that is relevant. Unlike the generic workers’ compensation legislation, it is likely to be a specific statute dealing with a specific issue. The courts have determined that it will need to achieve two things. First, it will refer to a breach issue. Second it will refer to the positive obligations the employer needs to take in order to avoid the breach. The issue in each case is whether the plaintiff can plead the particular provision. For example, work health and safety legislation may provide a particular breach of statutory duty provision together with the types of steps which must be taken. Alternatively, the storage of dangerous goods may be subject to particular legislation or statutory regulation. If it, for example, provides that the occupier must take 655

16.5

Torts: Principles, Skills and Application

all practicable precautions to prevent loss-making events caused by fire, then the courts have confirmed that a private right of action is provided to the plaintiff. Or, if the statute provides that the occupier should not take steps which cause fire, the courts have held this sets out the ends, but not the means. This approach demonstrates the reluctance of courts to interpret a public statute as conferring a private right of action. The main case in the Australian context confirming this analysis is McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd.2

Interplay between courts and parliament 16.6

As we have seen, laws develop in many ways over time. These methods broadly include: •• by categorisation, that is, by seeing cases with a cluster of similar facts; •• by cause of action, that is, by grouping a similar set of facts according to possible claims and remedies available to the plaintiff; •• by analogy, that is, by analysing the similarities between a prior case and a present claim; and •• by contrast, that is, by analysing the dissimilarities and contrasts between a prior case and a present claim.



In the development of the Australian common law system there is an inevitable tension between: •• the creative growth of the law, that is, the ability of the law to break free from the past and become more attuned to the present; and •• the need for consistency and stability afforded by legal working methods or principles such as precedent, stare decisis and the separation of powers doctrine. This is the notion of the law as a system with an interlocking coherence and internal logic, rather than as some free form of discourse and post-modern technique.3 In terms of systems analysis, the courts as conveners of the common law and interpreters of statute are but one player in a wider sphere of official, constitutionally oriented public (that is, state-based) power.4 Courts are one member of the ‘trinity’ along with the executive and the law makers. Thus, we can see there is an inevitable interplay between the entities over time in relation to the system of law represented (refer to Figure 16.1).

2. McDonald (t/as BE McDonald Transport) v  Girkaid Pty Ltd (2004) Aust Torts Reps 81-768; [2004] NSWCA 297. 3. There are, of course, many books on post-modernism. A useful introduction is C Jencks, What is Postmodernism?, Academy Editions, Maryland, 1996. 4. See, for example, A Blackshield & G Williams, Australian Constitutional Law and Theory: Commentary and Materials, 5th ed, Federation Press, Sydney, 2010. This model trinity of public power does not, of course, reflect other key sources of societal power, such as the media, large corporations and financial institutions, among others.

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Breach of Statutory Duty

Figure 16.1 Courts working with statute

1. The executive — initiates and drafts statutes for the attention of parliament/ the legislature

3. The courts — common law: interpret the statutes; seek to determine the law relevant to the particular case

2. The legislature — enacts statutes in increasing amounts. Seeks to limit the role of the courts

Developments in the common law will often lead to changes and refinement in legislation or the production of new legislation. There is, in this sense, a dialogue between the judicial and legislative elements of the separation of powers model.5

Statutory interpretation 16.7

The usual rules of statutory interpretation apply to the provisions of statutes relevant to tortious claims. The primary rule is that the usual and ordinary meaning of the words prevails.6 If there is ambiguity, then the courts need to determine the meaning via either the common law rules or their successors, the relevant statutory rules which act as a guide for the interpretation of the statutes made within the relevant jurisdiction. In Australia, each of the nine jurisdictions has its own interpretation statute. Therefore, a first and vital step is to determine which jurisdiction is relevant to the claim, and which interpretative statute applies.7

5. A recent High Court case reflecting changes in legislation as the direct result of case law is Klein v Minister for Education (2007) 232 ALR 306; [2007] HCA 2. 6. C Cook, R Creyke, R Geddes & D Hamer, Laying Down the Law, 8th ed, LexisNexis Butterworths, Sydney, 2012, Ch 8. 7. See, for example, the practical difficulties that can arise in the context of a motor vehicle accident in terms of ‘choice of laws’. This was comprehensively reviewed in the 2006 High Court case, Sweedman v Transport Accident Commission (2006) 226 CLR 362; 224 ALR 625; [2006] HCA 8. The case involved the possibility of either New South Wales or Victorian law applying. The interpretation of the Queensland statute was reviewed in Davison v Queensland (2006) 226 CLR 234; 227 ALR 1; [2006] HCA 21.

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Commonwealth interpretation statute: Acts Interpretation Act 1901 16.8

The Acts Interpretation Act  1901 (Cth) provides for the interpretation of Commonwealth legislation in the following terms: 15AA Regard to be had to purpose or object of Act (1) In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. 15A Construction of Acts to be subject to Constitution Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

The method of interpreting Commonwealth legislation was recently subject to comprehensive review in the High Court.8

New South Wales interpretation statute: Interpretation Act 1987 16.9

Should a New South Wales statute require interpretation, the courts will apply the Interpretation Act 1987, which provides as follows: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament (1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament. (2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

8. Canute v Comcare (2006) 226 CLR 535; 229 ALR 445; [2006] HCA 47.

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Breach of Statutory Duty

(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.

The High Court recently considered issues concerning statutory interpretation in terms of New South Wales legislation.9

Plaintiff’s case based on breach of statutory duty 16.10

The plaintiff bears the onus of proof and the standard is the balance of probabilities, that is, that the version of events is more likely than not. Mathematically, at least, this equates to a probability of more than 50 per cent. This applies to each of the six elements of the claim. The six particulars, noted by Luntz et al,10 are as follows: 1. The right to the performance of the particular statutory duty that forms the basis of the claim is enforceable by an action in tort. This may be in negligence or some other tort. 2. The duty is imposed, and can be interpreted that way, in respect of this particular defendant. 3. The plaintiff is someone who can claim the protection afforded by the statutory duty. 4. The loss, damage or harm suffered by the plaintiff is within the class or ambit of risks at which the statute is aimed. 5. The defendant was in breach of the duty encapsulated in the statute. 6. The breach of the statute caused the loss suffered by the plaintiff, and for which the plaintiff seeks damages. Each of these elements is fully examined in Davies and Malkin.11 A recent case in which damages were awarded under breach of statute and in common law negligence, as well as the possibly new tort of breach of privacy, is the Victorian County Court decision,Jane Doe v Australian Broadcasting Corporation.12 In this case, the defendants had published information identifying the plaintiff as the victim of a sexual assault. That publication was in breach of the Judicial Proceedings Act 1958 (Vic) s 4(1A) and it caused the plaintiff severe psychological harm. The plaintiff sued for compensation on four grounds: breach of statutory duty, negligence, breach of confidentiality and invasion of privacy. The trial judge found for the plaintiff on all four grounds, although breach of statutory duty was arguably the plaintiff ’s strongest argument.

9. See Nominal Defendant v GLG Australia Pty Ltd (2006) 225 ALR 643; [2006] HCA 11. 10. H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder,Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 10. 11. M Davies and I Malkin, Focus:Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 14. 12. Jane Doe v Australian Broadcasting Corporation [2007] VCC 281.

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Torts: Principles, Skills and Application

What is a breach of statutory duty? 16.11

Breach of statutory duty is a distinct tort from negligence. In order to determine whether or not there has been a breach of statutory duty, it is necessary to look at the relevant statute to determine whether or not an individual, company, employer, etc, has breached a provision of an Act that is relevant to them. In order to determine whether or not there is an action for breach of statutory duty we need to determine: 1. whether a cause of action can be created; and 2. what are the particular aspects of the duty.

Negligence and breach of statutory duty 16.12

A breach of statutory duty is not a negligence action. In some instances, though, a cause of action in both negligence and breach of statutory duty may be brought together. The aim of both breach of statutory duty actions and negligence actions is also the same, as the plaintiff is ordinarily seeking damages. The main difference between the two actions is that for the breach of a statutory duty, the duty can be found and is imposed on the defendant from the relevant legislation, whereas in an action in negligence, the duties are imposed by common law principles. There is some suggestion that breach of statutory duty actions have become more popular since the inception of the restrictive tort reform provisions such as those contained within the Civil Liability Act 2002 (NSW). For example, Gleeson CJ, Gummow and Hayne JJ stated in Slivak v Lurgi (Australia) Pty Ltd that:13 Here, it is the abolition by the South Australian legislation of what would have been Mr Slivak’s common law rights which has enlivened the concededly successful search for a statutory norm of private liability.

Elements of the action 16.13

To establish a cause of action for breach of statutory duty, the plaintiff must prove that: •• •• •• •• ••

the plaintiff has a right to launch an action for breach of statutory duty; the private duty is owed rather than a duty owed to the public in general; the duty is imposed on the defendant; the plaintiff is a person protected by the statutory duty; the harm suffered by the plaintiff is within the class of risks which the legislation refers to; •• the defendant was in breach of the duty; and •• there was damage caused by the defendant. 13. Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at 316.

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Breach of Statutory Duty

Establishing a cause of action for breach of statutory duty 16.14

There are a number of elements that need to be established for there to be a successful action for breach of statutory duty. They are discussed below.

Does the plaintiff have the right to sue? 16.15

Many statutes impose duties, especially in respect to safety. In most cases, however, the legislation does not stipulate that if one of these duties has been breached, the plaintiff may bring an action under breach of statutory duty. In  order to determine whether or not such a cause of action should be allowed, some of the considerations that need to be taken into account are discussed below.

Penalties 16.16

If there is a penalty within the legislation (for example, an employer is required to put fire extinguishers in all offices and a failure to do this will lead to a penalty of $5,000), then the assumption is that the parliament intended that this be the only sanction for a possible breach. In Lord Bishop of Rochester v Bridges, Tenderden CJ stated that:14 … where an Act creates an obligation, and enforces performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.

It should be noted that there are many exceptions to this rule though. For example, if the provision relates to a specific precaution for safety, this rule may be rebuttable: O’Connor v SP Bray Ltd.15 In this case, the Scaffolding and Lifts Regulations (NSW) provided that ‘Safety gear was to be provided for all lifts excepting direct-acting lifts and service lifts in which no person travels’. In O’Connor, it was found that the plaintiff ’s action for breach was successful. The test that was prescribed by Dixon J was: When there is a specific precaution for safety, under the general law of negligence, the defendant is bound to exercise due care. This will give rise to a private action unless there is a contrary intention in the legislation. This test for the exception may no longer be so clear-cut, particularly in industrial or workplace injury cases, as discussed below. Safety 16.17

When a statutory provision is concerned with safety (especially in regards to industrial safety), the courts have been a lot more flexibility in regards to finding a duty of care which gave rise to a private right.Thus, in many instances relating to safety, a court has been inclined to allow a private cause of action

14. Lord Bishop of Rochester v Bridges (1831) 1 B & Ad 847 at 859; 109 ER 1001 at 1006. 15. O’Connor v SP Bray Ltd (1937) 56 CLR 464.

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16.17

Torts: Principles, Skills and Application

under breach of statutory duty even though this intention was not clear under the governing legislation. However, this approach may be changing. As we have seen in Chapter 6, there are now particular restrictions on injured workers’ rights to sue their employer at common law, where they have a right to receive compensation through the no-fault workers’ compensation cover instead.16 Courts may be more cautious about recognising a private cause of action arising from work safety legislation than previously.17 Other considerations that are taken into account are public interest issues.

Public vs private interest considerations 16.18

16.19

An important preliminary consideration will be whether a statute gives a right of action to an individual, or whether it is matter reserved to the State, or the Crown.

Cutler v Wandsworth Stadium Ltd [1949] AC 398 Court: House of Lords Facts: The appellant was a bookmaker who carried on the business of bookmaking on a part of the greyhound racing track at Wandsworth Stadium, which was occupied by the respondents. The bookmaker sued the defendant, the operator of a licensed dog-racing track, for failing to provide him with space at the track where he could carry on business as a bookmaker. The plaintiff alleged that the defendant had breached the Betting and Lotteries Act 1934 (UK) s 11(2)(b), which provided: The occupier of a licensed track … shall take steps as are necessary to secure that, so long as a totalisator is being lawfully operated on the track, there is available for bookmakers space on the track where they can conveniently carry on bookmaking in connection with dog races run on the track on that day.

Section 30 prescribed substantial penalties for breach of s 11. There was a totalisator (mechanical gambling device) at the defendant’s track, but it did not provide the plaintiff with space at the track. A bookmaker brought an action against the occupier of a licensed dog-racing track for breach of the duty imposed by s 11(2). The Court of Appeal, reversing the decision of the trial judge, held that, even if the defendant had committed a breach of s 11(2) by not making available for the plaintiff a space where he could conveniently carry on bookmaking, he had no cause of action against the defendant. The plaintiff appealed.

16. Workers’ Compensation Act  1987 (NSW) and Workplace Injury Management and Workers’ Compensation Act 1998 (NSW). 17. See Luntz et al, Torts: Commentary and Cases, note 10 above, Chapter 10.

662

16.21

Breach of Statutory Duty

Legal principle: 1. Where an Act creates an obligation and enforces the performance in a specified manner, that performance cannot be enforced in any other manner. 2. Whether or not the general rule prevails will depend on the scope and language of the Act and public policy considerations. The court’s decision (application of the legal principle to the facts): Section 11(2)(b) did not confer a private right of action, but was enforceable only by the criminal penalties imposed by the Act. Thus, it was held that there was no reason to interpret the relevant statute as suggesting that the use of the facilities was intended to have any further protection than that available under occupiers’ liability principles. Thus, an action for common law damages was not available in this case.

When is a private duty owed as opposed to a duty owed to the public at large? 16.20

16.21

For there to be a viable cause of action, it needs to be shown that a duty is owed to a private individual rather than the public at large.

Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Court: High Court of Australia Facts: The appellants were two baggage handlers employed by the respondent at Sydney Airport. They were dismissed for pilfering. They claimed their dismissal was in breach of cl 11(a) of the Transport Workers (Airlines) Award 1988, which provided: ‘Termination of employment by an employer shall not be harsh, unjust or unreasonable’. The award was made by the Industrial Relations Commission, in the exercise of a function vested in it by the Industrial Relations Act 1988 (Cth). They also claimed damages for breach of contract and breach of statutory duty. Legal principle: For there to be a viable cause of action, it must be shown that the legislature intended for there to be a private right for an individual to sue. The court’s decision (application of the legal principle to the facts): The High Court rejected both claims for damages. They held that even if the dismissal had been a breach of cl 11(a), the clause was not a term of the contract of employment. The judgments Brennan CJ, Dawson and Toohey JJ18 Having regard to the public aims of the legislation, its scope and purpose is not such as to disclose any intention to benefit or protect employees or any other class of

18

18. Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 425–6.

663

16.21

Torts: Principles, Skills and Application

persons by conferring on them a right of action at common law for breach of an Award obligation. … Even if it were permissible … to seek the creation of a statutory duty giving rise to private rights in the Award itself without regard to the Act, we do not think that as a matter of construction they would emerge. Awards are made in settlement of industrial disputes and represent the degree of compromise necessary to effect such settlements. They are required to be made having regard to the objects of the Act which … extend beyond the interests of the parties to the dispute. The obligations which Awards impose are various and are not wholly for the protection or benefit of any one class of persons, be they employers or employees or the organisations which represent them. … [A]wards … cannot be regarded as conferring private rights enforceable by way of an action for damages. McHugh and Gummow JJ19 The existence of rights conferred by the legislation to recover payments due under Awards and the power of the Court to order payment of penalties tend against the proposition that from the nature, scope and terms of the legislation, there arises the further inference that damages are recoverable. … … 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. 19

Also see X (Minors) v Bedfordshire County Council.20 In this case, the House of Lords dismissed appeals by several plaintiffs who sued public authorities in negligence and breach of statutory duty, alleging they had been injured in the performance of functions imposed on the authorities by statute to protect children from parental abuse (in one group of appeals) or to provide special educational treatment for children with special needs (in another group).

Aspects of the duty 16.22 In

Brodie v Singleton Shire Council, Hayne J stated:21 Ordinarily, the more general the statutory duty and the wider the class of persons in the community who it may be expected will derive benefit from its performance, the less likely it is that the statute can be construed as conferring an individual right of action for damages for its non-performance. In particular a statutory provision giving care, control and management of some piece of infrastructure basic to modern society, like roads, is an unpromising start for a

19. Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 461–2. 20. X (Minors) v Bedfordshire County Council [1995] 2 AC 633. 21. Brodie v Singleton Shire Council (2001) 180 ALR 145 at [326].

664

16.24

Breach of Statutory Duty

contention that, properly understood, the statute is to be construed as providing for a private right of action.

Once it is established that a duty of care is owed and a cause of action is evident, it is imperative to determine what the scope or extent of the duty is. There are a number of rules or foundations that we must look at to determine what the duty is and how far the duty extends. These are: •• that the statutory duty was imposed on the particular defendant; •• that the plaintiff was a member of the protected class; and •• that the type of harm suffered was the same as that envisaged by the legislature. We will now go on to discuss these aspects in more detail. 1. Was the statutory duty imposed on the particular defendant? 16.23

16.24

It is necessary to show that the action lies only against the person on whom the statute imposes the duty. This aspect is clearly demonstrated by the following case.

Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 Court: High Court of Australia Facts: The plaintiff who was a 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. He was suing his employer in the amount of £10,000 in damages, alleging (inter alia) breach of the Navigation (Loading and Unloading) Regulations (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 on the ‘persons in charge’. Legal principle: The points of law that were argued before the court were whether or not reg 31 of the Navigation (Loading and Unloading) Regulations create a civil right of action. If so, can this action be brought only against the person on whom the obligation is expressly imposed by the regulation, that is to say, the person in charge, or against other persons (that is, in this case the employer)? The court’s decision (application of the legal principle to the facts): The main factual issue that needed to be determined by the court was who actually constituted the ‘person in charge’ as stipulated by the Act. The court stated that an employer who employs a supervisor to take charge of the loading of a ship could not be said to be in even indirect control of the people loading and unloading the ship (per Williams J). Thus, it was the supervisor who was in control.

665

16.24

Torts: Principles, Skills and Application

If the plaintiff wanted to bring a claim against an employer, it was necessary to do this under vicarious liability principles.

Legal issue

Judge/s

Conclusion Reasons given

Can the court go outside the intention of the legislature when interpreting statutes?

Williams J

No

This would enlarge the scope and operation of the statute or regulation.

Was the employer liable under vicarious liability?

Kitto and Taylor JJ

No

The statute specifically imposed the obligation on the person in control and not the employer.

Background and context: The effect of this case has been mitigated by s 7 of the Law Reform (Vicarious Liability) Act 1983 (NSW) and ss 5A and 5Q of the Civil Liability Act 2002 (NSW).

2. Was the plaintiff a member of the protected class? 16.25

This is the next issue. To answer this question, it is necessary to again look at the relevant provisions of the statute. For example, if the statute infers that the rights are for the protection of an identifiable class of persons, it is imperative that the plaintiff: •• is a member of this particular class; or •• he or she has a right to sue for breach of the statutory duty. To properly illustrate these points, see Read v Croydon Corporation22 and Pask v Owen.23

22. Read v Croydon Corporation [1938] 4 All ER 631. 23. Pask v Owen [1987] 2 Qd R 421.

666

16.27

Breach of Statutory Duty

In Read v Croydon Corporation, the first plaintiff, a child, contracted typhoid after drinking water supplied by the defendant corporation. An action was brought on behalf of the child as well as for the father because of the expenses that he outlaid during his daughter’s illness. Section 35 of the Waterworks Clauses Act 1847 (UK) stated that ‘pure and wholesome water’ will be available to ‘all the inhabitants of the town … who … shall be willing to pay a water rate for the same’. The father was successful, but the child was not, as the father was a ratepayer and therefore a member of the protected class. 3. Was the type of harm the same as that envisaged by the legislature? 16.26

16.27

The next principle that we need to analyse is the kind of harm that the plaintiff has suffered. This harm must be the same type of harm with which the statute was concerned for there to be a private cause of action.

Mummery v Irvings Pty Ltd (1956) 96 CLR 9 Court: High Court of Australia Facts: The plaintiff entered the defendant’s sawmill to buy some timber. The defendant’s foreman was operating a power-driven circular saw. A piece of wood flew from the saw and struck the plaintiff in the face, causing him severe injuries. The plaintiff sued the defendant, alleging, inter alia, that it had breached the Factories and Shops Act 1928 (Vic) s 59(1)(a), which provided: (1) Every occupier of a factory shall provide guards for — (a) all dangerous parts of the machinery of the factory; (b) all dangerous appliances used in or in connexion with the factory; and (c) all dangerous parts of the factory,

so as to prevent as far as possible loss of life or bodily injury, and shall keep all guards constantly maintained in an efficient state and properly adjusted. (2) Every person who contravenes any of the provisions of this section shall be guilty of an offence against this Act and shall be liable to a penalty of not less than Five nor more than One hundred pounds.

The circular saw did not have a guard attached. Legal principle: The statute was not directed to preventing the kind of harm suffered by the plaintiff. The court’s decision (application of the legal principle to the facts): The High Court held that the plaintiff’s action for breach of statutory duty failed, as the obligation to fence factory machinery under s 59(1)(a) was designed to protect against the risks directly posed by the dangerous parts of the machinery rather than those which were indirectly posed by the machinery, such as dangerous objects flying from the machinery.

667

16.28

Torts: Principles, Skills and Application

Breach 16.28

16.29

Rather than proving as in a common law action that it was reasonably foreseeable that injury would occur, in an action for breach of statutory duty, the plaintiff needs to show that the defendant has breached the duty imposed by the words of the statute.

Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 Court: House of Lords Facts: The respondent was the widow of an employee of the appellants who had died in the course of his employment as the result of the failure of the mechanism of a lift. The failure of the mechanism was an isolated occurrence. Section 22(1) of the Factories Act 1937 (UK) stated that ‘Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained.’ Legal principle: It is necessary to look at the wording of the relevant statute to ascertain whether or not there has been a breach. The court’s decision (application of the legal principle to the facts): It was held in this case that the words of the statute imposed an absolute obligation on the defendant to provide lifts in safe repair. Thus, the plaintiff was not required to show that there was a safer system of work.

Note: Not all statutory provisions impose an absolute obligation or strict liability. The court may infer from the terms of the statute that a lesser duty, such as a duty of reasonable care, is imposed. 16.30

This makes it closer in analysis to a common law type of duty involving evidence of breach. In Waugh v Kippen,24 the High Court considered a Queensland statute, the Factories and Shops Act  1960. An employee was injured moving a steel beam. His claim included a breach of statute. The Act relevantly provided that: 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 injury.

16.31

Waugh v Kippen (1986) 160 CLR 156 Court: High Court of Australia Facts: The case involved an injured worker and the interplay between the breach of a statute which created a criminal offence, and the issue of civil liability in negligence.

24. Waugh v Kippen (1986) 160 CLR 156.

668

16.31

Breach of Statutory Duty

Case extract: This is an appeal by special leave from a majority decision of the Full Court of the Supreme Court of Queensland (Andrews A.C.J. and McPherson J., Derrington J. dissenting) dismissing an appeal from the decision at first instance of Shepherdson J. The action was instituted by the appellant. He claimed damages for negligence and breach of statutory duty in respect of personal injury suffered by him on 7 April 1977 in the course of his employment by the respondents. He was then forty-one years of age and had been employed as a boilermaker and welder by the respondents for about eleven months. 2. The evidence discloses that on 7 April 1977 the appellant was engaged in welding cleats on rolled steel joists described as universal beams. Each beam was between 8.5 and 10 metres long and weighed about 310 kilograms. There were thirty beams in all and he had been occupied on the task for about three weeks. The task required each beam to be lifted by mechanical means on to two steel trestles. Each trestle was about 1.25 metres wide with the top on which the beam rested consisting of a piece of inverted angle iron, thereby presenting as small a surface as possible in contact with the beam. In order to weld the cleats on each beam it was necessary for the beam to be turned four times as it lay on the trestles. This was done by using a steel bar as a lever. The effect of turning a beam was to move it towards one side of the trestle so that it became necessary from time to time to slide the beam back towards the centre of the trestle. This was done by the appellant standing beside one end of a beam and using two hands to pull it towards him. No lifting was involved. The learned trial judge described these manoeuvres as simple tasks. He accepted evidence that levers of the type referred to in the case were in common use and that there was no need for more than one man using such a lever to turn a ten metre long universal beam weighing 310 kilograms. The trial judge also found that the respondents’ foreman, Mr Holder, told the appellant that he could have assistance to turn the beams over; however, the parties now agree that there is no evidence to support that finding. At the same time the evidence of Mr Sehmish, who was employed as a labourer, was to the effect that he assisted the appellant from time to time to turn the beams over and there is no reason to suppose that the appellant was not aware that he could call for assistance if he required it. With respect to the force required to slide the end of a beam across a trestle with a two-handed pull, the report of a survey made in 1980 by an ergonomics group at Surrey University in England established an acceptable limit for such a manoeuvre equivalent to a mass of 45 kilograms for a male person aged between 41 and 50 years, with 50 kilograms as the limit for a male below 41 years of age. The trial judge accepted the evidence of an engineer who estimated that the force employed by the appellant to slide one end of a beam across the trestle with a two-handed pull would be equivalent to a mass of 31 kilograms if the beam was supported by trestles which were placed at the same distance from each end of the beam and would range up to

669

16.31

Torts: Principles, Skills and Application

36 kilograms if the trestles were so placed as to spread the weight of the beam unevenly. These estimates relate to a normal male person having no relevant disability. 3. The appellant testified that on 7 April 1977 he injured his back as he pulled the end of the beam towards him with both hands underneath it in order to centre the beam on the trestle. At the time of this manoeuvre the weight of the beam was distributed evenly on the two trestles, with a trestle placed about three feet in from each end of the beam. The trial judge accepted this evidence although he expressed doubts about the accuracy of the appellant’s statement that at the time of the accident he felt a sharp pain in the lower portion of his back which he said “doubled me up with excruciating pain”. However, his Honour found that, whether there was a sharp excruciating pain or a gradual onset of pain, the result was that the appellant suffered a protrusion in an already degenerate disc in his lower spine.’ The Court went to the claim for breach of statute at paragraphs 8 to 13 inclusive: ‘8. The second limb of the appellent’s claim centred on an alleged breach of the duty imposed on the respondents by cl. 25(1) of Rule 1, the General Rule made under the Factories and Shops Act 1960 (Q.) as amended (“the Act”). That rule, together with cl. 25(2), read as follows: “Weights. (1) A male employee over eighteen (18) years of age shall not be permitted or allowed to lift carry or move by hand any object so heavy as to be likely to cause risk of injury. (2) The maximum weight in kilogrammes which an employee (other than a male employee over eighteen (18) years of age) may be permitted or allowed to lift carry or move by hand shall be in accordance with the following table:AGE MALES FEMALES Under 16 .. .. 14 9 16 to 18 .. .. 18 11.5 Over 18 .. .. .. 16”

The court’s decision (application of the legal principle to the facts): The trial judge, construing cl. 25(1) as imposing an objective test, held that in relation to the action of sliding the beam by hand it was not “so heavy as to be likely to cause risk of injury”. His Honour’s decision was upheld by a majority of the Full Court. 9. The construction of the rule prescribed by cl. 25(1) is not without difficulty. McPherson J., with whose judgment Andrews A.C.J. agreed, was influenced by two considerations in concluding that the rule imposed an objective test in the sense that an employer, whatever his common law duties may be, is required by the rule merely to have regard to the likelihood of risk of injury to the average male employee over eighteen years of age. The first was that a breach of the rule entails liability to conviction of an offence under s. 93 of the Act. We shall return to this question later in these reasons. The second was the fact that cl.  25(2)

670

16.31

Breach of Statutory Duty

plainly does not look to the physical condition of any particular employee. It  simply prescribes the maximum weights that males up to eighteen years of age and all females may be permitted to “lift carry or move by hand”. The risk of injury to a particular employee is immaterial, with the result that if a woman, who by reason of physical disability is susceptible to injury, is permitted to carry weights within the permitted maxima the employer does not offend against the provision notwithstanding the likelihood of injury. 10. With all respect we do not think that it is correct to allow cl. 25(2) to influence the construction of cl. 25(1). Sub-clause (2) is of a subsidiary nature and proceeds by way of setting arbitrary limits to protect the specified classes of employees. Those limits exhibit a modesty which appears to take account of the widely differing physical capacities of adolescents and females over eighteen years of age. The arbitrary character of the rule is no doubt intended to facilitate enforcement. On the other hand, sub-cl. (1) is the primary provision and must be construed in accordance with its plain terms. It covers the vast majority of tasks carried out by employees. The range of circumstances in which those tasks are carried out makes it inappropriate to prescribe an arbitrary limit. An entirely different criterion of industrial safety is postulated, namely, whether the object is so heavy as to be likely to cause risk of injury. This is a criterion the application of which will vary with the circumstances and there is no reason why one of those circumstances should not be the physical capacity or condition of the worker in question. It is true that the rule does not contain the words “to him” after the words “risk of injury”, as does the English counterpart which was the subject of a decision of the House of Lords in Brown v. Allied Ironfounders Ltd. (1974) 1 WLR 527; 2 All ER 135. But the omission of those words cannot lead to a different construction of the rule. They are necessarily implied. The rule is not concerned with the risk of injury to a person other than the male employee over eighteen years of age who is permitted to move the heavy object. 11. A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed “so as to give the fullest relief which the fair meaning of its language will allow”, to use the words of Isaacs J. in Bull v. Attorney-General for New South Wales [1913] HCA 60; (1913) 17 CLR 370, at p 384; cf. also Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pars. 187-191, pp. 137-141. On the other hand, there is the consideration, to which McPherson J. referred, that a breach of cl. 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at p 576 as follows: “The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if

671

16.31

Torts: Principles, Skills and Application

the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams [1935] HCA 62; (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law, 7th ed. (1971), pp 529-534. The rule is perhaps one of last resort”.

In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board (1951) AC 639, per Lord Porter at p 650; John Summers & Son Ltd. v. Frost (1955) AC 740, per Viscount Simonds at p 751; McCarthy v. Coldair, Ltd. (1951) 2 TLR 1226, per Denning L.J. at pp 1227-1228. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation imposed on the employer. The legislature cannot speak with a forked tongue.(bold added) Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd. [1967] HCA 31; (1967) 116 CLR 397), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action.’ 12. Having regard to the dominant purpose of the Act, the meaning of cl. 25(1) is clear. The physical capacity or condition of the individual worker will be relevant in determining the likelihood of the risk of injury. Indeed, the criterion of liability being expressed in terms of “any object so heavy as to be likely to cause risk of injury” itself points away from a purely abstract application. The relevant question then becomes, in the present case, whether the appellant, being a male employee over eighteen years of age, was permitted to move an object so heavy as to be likely to cause risk of injury to him. 13. But of course the rule does not impose absolute liability on an employer. The proscription is in terms of “permitted or allowed”. These words presuppose an awareness, actual or constructive, on the part of an employer that an employee was engaged in moving by hand an object so heavy as to be likely to cause risk of injury to him. In the case of an employee who by reason of physical incapacity is more than ordinarily susceptible to the risk of injury, liability is to be adjudged in the light of what the employer knew or ought to have known of that employee’s incapacity. In Sheen v. Fields Pty. Ltd. (1984) 58 ALJR 93; 51 ALR 345 the Court

672

16.34

Breach of Statutory Duty

considered the construction of cl. 21 of the general rule now under consideration. That rule requires an employer to provide certain eye protection where there is a likelihood of injury to the eyes of an employee. At pp. 95-96 of A.L.J.R.; p. 349 of A.L.R. Gibbs C.J., with whom Mason, Wilson and Dawson JJ. agreed, said: “The likelihood of injury must be judged in the light of the circumstances which are known, or which ought to have been known, to the employer on whom the duty is cast. It would be unreasonable to construe the rule as casting an obligation on an employer to protect his employee from the consequences of his own independent decision to adopt a dangerous method of working which is different from the method he was instructed to adopt unless the employer could reasonably be expected to foresee that the employee might act in this way”.

Although the circumstances in Sheen were different, the same reasoning applies in this case. It would be unreasonable to construe cl. 25(1) as casting an obligation on an employer to protect his employee from a risk of injury of which he neither knew nor ought to have known.

16.32

As it happened in this case, the plaintiff had a pre-existing back condition, and the employer did not know of this. No breach of statute was made out. The case points to the intricacies of statutory interpretation, and the fact that the particular fact and circumstances will need to be carefully analysed in each case.

Causation 16.33

16.34

As in a common law action, it is imperative that the plaintiff prove that the defendant caused the injury. Generally, whether or not there is the requisite causation is a question of fact dependent on ordinary common law principles.

Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615 Court: House of Lords Facts: The employment of a steel dresser exposed him to silica dust emanating from the pneumatic hammer at which he worked and also from swing grinders. No dust extraction plant was known or practicable for use with the hammer but, though the swing grinders were fitted with such equipment, they were not kept free from obstruction and in this respect the factory owners were in breach of their statutory duty under reg 1 of the Grinding of Metals (Miscellaneous Industries) Regulations 1925 (UK). The steel dresser, having contracted pneumoconiosis in the course of his employment, sued his employers for damages.

673

16.34

Torts: Principles, Skills and Application

Legal principle: In order to satisfy causation, it needs to be shown that the negligence of the defendant contributed to the injury. The court’s decision (application of the legal principle to the facts): There was a breach of the duty of care and causation was present.

Legal issue

Judge/s

Judge/s conclusion

Reasons given

Was there a breach of reg 1 of the Grinding of Metals (Miscellaneous Industries) Regulations 1925 (UK)?

Lord Reid

Yes

This was not in contention.

Did the breach cause the respondent’s disease?

Lord Reid

Yes

The employer’s negligence did materially contribute to the disease.

Also see Slivak v Lurgi (Australia) Pty Ltd.25

Defences 16.35

The defences that are relevant to breach of statutory duty are the same as those used in a negligence action. These are volenti non fit injuria and contributory negligence.

Contributory negligence 16.36

Under common law, Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd stated:26 What is all important is to adapt the standard of what is negligence to the fact, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention, which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his preoccupation in what he is actually doing at the cost perhaps of some inattention to his own safety.

25. Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304. 26. Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) at 178–9.

674

16.38

Breach of Statutory Duty

Statutory intervention 16.37

See s 151N of the Workers Compensation Act 1987 (NSW) and ss 5R–5T of the Civil Liability Act 2002 (NSW).

Volenti non fit injuria 16.38 Theoretically, volenti is available as a defence to an action for breach of statutory

duty. But the defence will usually be unavailable where the risk to which the plaintiff consents is the very risk against which the provision is designed to protect: see Imperial Chemical Industries Ltd v Shatwell.27 In New South Wales, the defence is not available in actions to which the Workers Compensation Act applies; however, in a volenti situation, damages may be reduced by a just and equitable amount on the presumption that the worker took insufficient care regarding his or her own safety.28 See Millington v Wilkie.29

27. Imperial Chemical Industries Ltd v Shatwell [1965] AC 656. 28. Workers Compensation Act 1987 (NSW) s 151O. 29. Millington v Wilkie (2005) 62 NSWLR 322.

675

Torts: Principles, Skills and Application

Review We can see that in the domain of breach of statutory duty, there are potentially several elements to a negligence claim. Potential areas

Who establishes?

If established?

If not established?

Common law negligence

The plaintiff

The claim may succeed via this cause of action.

Examine other causes of action.

Breach of statutory duty

The plaintiff

The claim may succeed via this cause of action.

Examine other causes of action.

Specialist issues, for example workers’ compensation

The plaintiff

The claim may succeed via this set of facts, for example if the plaintiff is classified as a worker/ employee, rights may well accrue, for example there is a no-fault right to receive loss of weekly earnings for employees covered by workers’ compensation.

Examine other causes of action in relation to a common law or statutory claim.

Contract

The plaintiff

The claim may succeed via this cause of action.

Examine other causes of action.

A fuller discussion of these issues is found in Luntz et al.30



Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 13 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 10



Key Cases Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422

30. Luntz et al, Torts: Cases and Commentary, note 10 above, Ch 10.

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Breach of Statutory Duty

Cutler v Wandsworth Stadium Ltd [1949] AC 398 Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36 Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 Mummery v Irvings Pty Ltd (1956) 96 CLR 9



Chapter 16 Review Questions 1. What is the basic difference in sources of law between negligence and a breach of statutory duty? 2. What are elements a plaintiff must prove in a breach of statutory duty case? 3. What defences can be used for a breach of statutory duty action?

Tutorial 16: Statutory duty Internal memorandum From: Guido Markewicz To: Trainee Date: 20/11/20XX We act for the Bebchuk Polo Club. On the weekend of the Bebchuk Polo Classic, run by the club, an accident occurred in which a horse from a Morilderie Team member ‘ran amok’ in the final chukka of the contest. Wendy Dawes, a member of the Bebchuk Polo Club, was thrown to the ground and sustained serious back injuries on landing. Wendy is an experienced rider. It turns out the horse from Morilderie was fitted with a non-standard saddle that may be in breach of the rules governing the sport in New South Wales, s 31 of the Equine Sports Act 2005 (NSW), which states that ‘the attendant is required to ensure that all horses are fitted with saddles that comply with the standards set out in section 11 of this Act’. The accident means that the club’s licence to operate may be revoked. Required You need to prepare an urgent note to me outlining: (a) the club’s duty of care; (b) Wendy Dawes’s arguments regarding breach; and (c) the club’s defences to a negligence claim.

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Torts: Principles, Skills and Application



Tutorial 16: Answer Guide Prepared by: Kathleen O’Keeffe

Internal memorandum To: Guido Markewicz From: Kathleen O’Keeffe, Trainee Date: 20/11/20XX Introduction The manner in which to determine whether a breach of statutory duty has occurred is a matter of statutory interpretation. It was expressed by Kitto J in Sovar v Henry Lane Pty Ltd:31 At the outset of every inquiry in this field it is important, in my opinion, to recognise  … that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of the person injured thereby is one of statutory interpretation … It is not a question of the actual intention of the legislators, but of proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances. 32

The statute, which outlines the duty in question, needs to be examined in order to establish whether a duty arose in that matter. After determining whether a duty has been established, it then needs to be examined whether or not there was a breach of that duty and whether the injuries sustained were actually caused by the breach of the duty. Based on the facts, it first needs to be established whether under s  31 of the Equine Sports Act  2005 (NSW) (ESA), the Bebchuk Polo Club owed a duty of care to Wendy Dawes. If it is established that there was a duty owed, then it needs to be determined if the club has breached that duty and whether or not there are any defences available to the club. Duty The duty in a possible breach of statutory duty claim is different to that of establishing a duty under negligence. In order to determine whether a duty arises under a particular piece of legislation, there are a number of elements which need to be satisfied.

31. Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397. 32. Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405 per Kitto J.

678

Breach of Statutory Duty

(a) The duty is an obligation not merely a power In Brodie v  Singleton Shire Council,33 it was determined that when deciding whether a statute gives rise to a duty upon the defendant, two things need to be considered. First, how general the statutory duty was and how wide was the class of beneficiaries. Hayne J stated in Brodie v Singleton Shire Council: 34 … the more general the statutory duty and the wider the class of persons in the community who it may be expected will derive benefit from its performance, the less likely is it that statute can be construed as conferring an individual right of action for damages for its non-performance.

It was held in this case that there was no breach of statutory duty as the statutory provision providing for road maintenance did not constitute a duty because it created too broad a power and also the class of beneficiaries was too great because the class was all road users. This issue was also discussed in X (Minors) v Bedfordshire County Council.35 In this case, it was held that there was a breach of statutory duty as the court found that limited and specific statutory duties were imposed for the protection of a limited class. It was stated that it must be found ‘as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right in action for breach of the duty’. If these two cases are applied to the facts, it can be seen that there may be a duty imposed on Bebchuk Polo Club under s 31 of the ESA. The power does not appear to be too broad and the duty appears to be limited and specific. In contrast with Brodie v Singleton Shire Council,36 the power in this case was to maintain the roads. This is a very broad power, whereas in Bebchuk’s case they had to check the saddles and ensure they comply; this is much more specific. Also, the class of beneficiaries in Bebchuk’s case is limited as it only concerns those riding in the competition.Therefore, it appears that a duty may be found based on this element. (b) Duty is enforceable by tort action rather than some other action Under this element, it needs to be determined that civil action is the avenue of enforcement and that there are no provisions in the legislation which deal with a breach of this section. This means that there cannot be any penalties or alternative methods of enforcement in the relevant statute that deal with a breach of the section in question. Chief Justice Tenderden in Lord Bishop of Rochester v Bridges37 stated: … where an Act creates an obligation, and enforces performance in a specific manner, we take it to be a general rule that performance cannot be enforced in any other manner. 33. Brodie v Singleton Shire Council (2001) 206 CLR 512. 34. Brodie v Singleton Shire Council (2001) 206 CLR 512 at 633. 35. X (Minors) v Bedfordshire County Council [1995] 2 AC 633. 36. Brodie v Singleton Shire Council (2001) 206 CLR 512. 37. Lord Bishop of Rochester v Bridges (1831) 1 B & Ad 847 at 859.

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In Grand Central Car Park Pty Ltd v  Tivoli Freeholders,38 it was found that there was no breach of statutory duty as there was a process in place to lodge objections and the legislation provided notice for remedying complaints. In Byrne v Australian Airlines Ltd,39 baggage handlers sought to enforce an award against unreasonable termination made under the Act. No breach of statutory duty was found as the other provisions of the Act made explicit provision for compensation, and for fines to be paid to private parties. Also, in Cutler v  Wandsworth Stadium Ltd,40 no breach of statutory duty was found because the legislation contained a significant fine for not complying with the relevant sections. However, a breach of statutory duty action was open in Anderson v  Mackellar County Council.41 Even though there was a penalty provision contained in the statute, the court found that the fine was inadequate and that other action should be taken. Based on the facts of Bebchuk’s particular scenario, there appears to be no penalty or remedy contained in the ESA.Therefore, it is most likely to be found that a breach of statutory duty is open. However, if a fine is contained in the statute or some other method for addressing a breach of this section, then if the court finds that this avenue for redress is adequate, a breach of statutory duty will not be open to Wendy. In this case she will need to follow the method contained in the statute. (c) Whether duty is imposed on defendant In order to have a breach of statutory duty action open, it needs to be established that the duty is actually imposed on the defendant and not some other person. Therefore, it needs to be established that the duty in s  31 of the ESA was imposed on Bebchuk Polo Club. In Darling Island Stevedoring and Lighterage Co Ltd v  Long,42 it was found that no vicarious liability was established. The specific individual who caused the damage was found liable. However, s 7 of the Law Reform (Vicarious Liability) Act 1983 (NSW) made an employer vicariously liable for breach of a statutory duty imposed on an employee where the employee is acting in the course of the employment or where the breach is incidental to the carrying on of any business enterprise, undertaking or activity of the employer. Based on the facts, as the incident happened in the course of carrying out of employment and as the attendants did not check the saddles, then it appears Bebchuk Polo Club will most likely be found to be vicariously liable.

38. Grand Central Car Park Pty Ltd v Tivoli Freeholders (1969) VR 62. 39. Byrne v Australian Airlines Ltd (1995) 185 CLR 410. 40. Cutler v Wandsworth Stadium Ltd [1949] AC 398. 41. Anderson v Mackellar County Council (1968) SR (NSW) 444. 42. Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36.

680

Breach of Statutory Duty

(d) Whether the legislation protects the plaintiff from the harm that the plaintiff suffered The final element that needs to be established in order to have a breach of statutory duty action open is that the legislation needs to protect the plaintiff from the harm that occurred. In order to establish this, the aim of the section needs to be determined. In Mummery v Irvings Pty Ltd,43 the plaintiff entered the workshop as a visitor and was hit in the head by wood. The court was asked, for whose benefit was the statute in place? The Factories Act was intended to protect persons from coming into contact with machinery, not to protect persons from articles ejected from machinery. It was also suggested, in obiter, that the Act was intended to protect workers not customers. The plaintiff was not part of the class and therefore no duty could be applied. A similar decision was found in Knapp v Railway Executive,44 where the court found that the benefit of the regulations of gates at crossings was for the road users and not the train drivers. In Gorris v Scott,45 the court found that the sheep pens were to protect against spread of contagious diseases, not losses overboard. Hence, as the sheep were lost overboard, the damages were not covered by statute. The question is whether the damage was caused in the way that the statutory duty was trying to prevent. The facts do not indicate what the Act and s  31 were trying to protect. If it is established that the Act was trying to protect competitors from any harm that could come out of competition, then Wendy would be able to recover damages; however, if the Act was for another reason, for example to protect the crowd from any injuries that could accrue from watching the event, then Wendy would not be able to recover damages from Bebchuk Polo Club. Breach In order to determine whether or not a breach has occurred, it is not a matter of determining whether it was reasonably foreseeable that harm could occur. It is a matter of whether the defendant failed to do what the words of the statute stated needed to be done. The words of the statute need to be examined in order to determine whether there was an absolute duty on the defendant or if a lesser duty, for example a duty of reasonable care, is imposed. In Galashiels Gas Co Ltd v O’Donnell,46 it was held that the wording of the statute imposed an absolute obligation on the defendant. So, by the defendants not providing lifts that were in good and safe working order, they breached their duty under s 22(1) of the Factories Act 1937 (UK). Based on the facts of the client’s case, the wording of s  31 of the ESA appears as though it does give rise to an absolute obligation. By not ensuring that the saddles that were fitted to the horses were those that were standard and approved saddles, then the defendants appear to have breached their duty under this section. However, it is a matter 43. Mummery v Irvings Pty Ltd (1956) 96 CLR 99. 44. Knapp v Railway Executive [1949] 2 All ER 508. 45. Gorris v Scott (1874) LR 9 Exch 125. 46. Galashiels Gas Co Ltd v O’Donnell [1949] AC 275.

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of statutory interpretation, so it will be left to the judge to decide; however, in  looking at previous cases, it seems more than likely that a breach will be found to have occurred. Causation Causation in a breach of statutory duty action is the same as in a negligence matter.47 The plaintiff must prove that the defendant caused the injuries the plaintiff suffered. The facts clearly state that the broken leg and fractured ribs were a result of Wendy’s fall from the horse. Thus, it needs to be established that Bebchuk Polo Club, by allowing the team member from Morilderie to compete on a horse with an unsafe saddle, caused her to sustain the injuries that she did. However, the facts do not indicate whether or not this was the reason for the accident or whether there was another factor which caused the team member to ‘run amok’. If there was another factor, such as the team member riding improperly, then Bebchuk Polo Club may not be responsible. Defences It appears that the main defence that will be available to Bebchuk Polo Club is volenti non fit injuria. This is, that no wrong is done to the person who consents.Therefore, it could be established that Wendy was aware of the risks of competing in a horse-riding event and she continued to compete in it anyway. Conclusion Based on the facts provided, it appears likely that a breach of statutory duty action will be open and that Bebchuk Polo Club will be found in breach of their duty under s 31 of the ESA. Therefore, if this is the case, then Bebchuk Polo Club will be held liable for the injuries that Wendy sustained at the Polo Club. However, there may be the defence of volenti non fit injuria open to Bebchuk Polo Club if they can establish that Wendy was aware of the risks of the sport.

47. Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615.

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Chapter 17

Defamation Legal practice skill: Assessing credibility and the importance of reputation

Learning aims •

Understand the elements of defamation

•

Know what conduct may lead to a successful defamation action

•

Understand the defences relating to defamation

•

Understand the main provisions from the uniform defamation legislation

Background concepts First principles 17.1

Defamation is a complex area of tort law and there are many cases that relate to the area. Due to the extensive nature of this topic, this chapter will not aim to provide an exhaustive examination of this area of law. Rather, this chapter will outline the basic elements of defamation as well as the defences that are available for a defamatory action. The chapter will then consider three areas where defamation actions have been prevalent. Defamation actions are launched in the event that a plaintiff believes that their reputation has been adversely affected by another. Defamation is different to other negligence actions as it relates to the damage that has been caused to another’s reputation. Like negligence actions, though, damages are the main remedy. Defamatory actions were traditionally classified in two ways: •• libel (defamatory statement in written form); and •• slander (defamatory statement in oral form). This distinction has now largely been abolished. Since 2006, the legislation relating to defamation in Australia has been largely unified and the legislation across Australia is now known as the ‘uniform 683

17.1

Torts: Principles, Skills and Application

defamation legislation’. This project of uniform legislation was some 20 years in the making. This slow and steady approach is in contrast to the Ipp Review1 amendments in relation to negligence. The defamation legislation that is relevant to each state and territory jurisdiction is as follows: •• •• •• •• •• •• •• ••

Civil Law (Wrongs) Act 2002 (ACT) (Ch 9); Defamation Act 2005 (NSW); Defamation Act 2006 (NT); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); and Defamation Act 2005 (WA).

The complexity of the area is illustrated by a well-known series of recent cases involving the Hollywood-based, Australian actress Rebel Wilson suing the international magazine publisher Bauer Media in the Victorian Supreme Court in 2017 for several stories the magazine had published in  2015. In the Victorian Supreme Court before Dixon J, Rebel Wilson was awarded approximately $4.5 million, the major component being loss of earnings.2 This was a record payout. The plaintiff then lost a costs battle, and the matter went on appeal to the Victorian Court of Appeal where the original verdict was overturned.3 There has been speculation of an appeal to the High Court.

Defamation legislation — some of the main issues 17.2

The relevant defamation legislation for each state and territory is shown in 17.1 above. The main issues in the state and territory statutory provisions for defamation are as shown below in Table 17.1.

1. Australia. Treasury. Law of Negligence Review Panel. and Ipp, D A, Review of the Law of Negligence: Final Report, Commonwealth of Australia, Canberra, 2002. 2. Wilson v Bauer Media Pty Ltd [2017] VSC 521. 3. Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154.

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17.2

Defamation

Table 17.1 Jurisdiction

ACT

NSW

NT

Qld

SA

Tas

Vic

WA

Objects of the Act

s 115

s3

s2

s3

s3

s3

s3

s3

General law, ongoing relevance of

s 118

s6

s5

s6

s6

s6

s6

s6

Libel/slander distinction abolished

s 119

s7

s6

s7

s7

s7

s7

s7

Judge and jury, in use

ACT4

ss 21 and 22

NT5

ss 21 SA6 and 22

ss 21 and 22

ss 21 ss 21 and and 22 22

s 116 Defamatory matters defined (includes matters on the internet)

s4

s3

s4

s4

s4

s4

Standing of parties

s 122

s 10

s9

s 10

s 10 ‘Left s 10 blank’

s 10

Bodies corporate

s 121

s 10

s9

s 10

s10

s 10

Forum

s 123

s 11

s 10 s 11

Relevant issue:

s8

‘Left s 10 blank’

s 11 s 11 s8

s8

s 11

s4

s 11

Single cause of action

s 120

s8

s7

s8

s8

Further proceedings, court permission

s 133

s 23

s 20 s 23

s 21 s 23

s 23

s 23

Defences open to defendant

s 134

s 24

s 21 s 24

s 22 s 24

s 24

s 24

Justification

s 135

s 25

s 23 s 25

s 23 s 25

s 25

s 25

Contextual truth

s 136

s 26

s 23 s 26

s 24 s 26

s 26

s 26

Honest opinion

s 139B s 31

s 28 s 31

s 29 s 31

s 31

s 31

Privilege

s 138

s 28

s 25 s 28

s 26 s 28

s 28

s 28

Absolute privilege

s 137

s 27

s 24 s 27

s 25 s 27

s 27

s 27

Qualified privilege, Statutory

s 139A s 30

s 27 s 30

s 28 s 30

s 30

s 30

Fair reporting

s 139

s 29

s 26 s 29

s 27 s 29

s 29

s 29

Innocent dissemination

s 139C s 32

s 29 s 32

s 30 s 32

s 32

s 32

Triviality

s 139D s 33

s 30 s 33

s 31 s 33

s 33

s 33

4. Section 22 of the Supreme Court Act 1933 (ACT) abolishes the use of juries in defamation cases. 5. Section 6A of the Juries Act (NT) abolishes the use of juries in defamation cases. 6. Section 15 of the Juries Act 1927 (SA) abolishes the use of juries in defamation cases.

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17.3

Torts: Principles, Skills and Application

Damages for defamation 17.3

In defamation law there are a series of issues relevant to damages which are dealt with relatively consistently across the six state and two territory jurisdictions. Refer to Table 17.2.

Table 17.2 Jurisdiction

ACT

NSW NT

Qld

SA

Tas

Vic

WA

Damages appropriate to the harm to the plaintiff

s 139E

s 34

s 31 s 34 s 32 s 34 s 34 s 34

Non-economic loss is usually limited to $250,000

s 139F

s 35

s 32 s 35 s 33 s 35 s 35 s 35

The defendant’s state of mind is generally not relevant to damages award

s 139G s 36

s 33 s 36 s 34 s 36 s 36 s 36

Exemplary or punitive damages cannot be awarded

s 139H s 37

s 34 s 37 s 35 s 37 s 37 s 37

Factors relevant to mitigation of damages

s 139I

s 38

s 35 s 38 s 36 s 38 s 38 s 38

Damages for multiple causes s 139J of action can be assessed and awarded as a single sum

s 39

s 36 s 39 s 37 s 39 s 39 s 39

Relevant issue:

Alternative dispute resolution (ADR) issues relevant to defamation 17.4

The legislation also encourages ADR techniques and practices. The various jurisdictions deal with the range of ADR issues as follows in Table 17.3.

Table 17.3 Jurisdiction

ACT

NSW NT

Qld

SA

Tas

Vic

WA

Resolving civil disputes without litigation

Pt 9.3

Pt 3

Pt 3

Pt 3

Pt 3

Pt 3

Pt 3

Pt 3

Settlement agreements

s 124 s 12

s 12

s 12

s 12

s 12

s 12

s 12

Relevant issue:

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17.5

Defamation

Jurisdiction

ACT

NSW NT

Qld

SA

Tas

Vic

WA

Relevant issue: Offer to make amends without prejudice

s 125 s 13

s 13

s 13

s 13

s 13

s 13

s 13

28-day limit

s 126 s 14

s 14

s 14

s 14

s 14

s 14

s 14

Contents of the offer to make amends — specified

s 127 s 15

s 15

s 15

s 15

s 15

s 15

s 15

Offer can be withdrawn before acceptance

s 128 s 16

s 16

s 16

s 16

s 16

s 16

s 16

No further claim after completion of process related to offer to make amends

s 129 s 17

s 17

s 17

s 17

s 17

s 17

s 17

The offer to make amends must be reasonable

s 130 s 18

s 18

s 18

s 18

s 18

s 18

s 18

Later proceedings restrict evidence on the offer to make amends

s 131 s 19

s 19

s 19

s 19

s 19

s 19

s 19

Evidence of an apology is s 132 s 20 relevant to the calculation of damages

s 20

s 20

s 20

s 20

s 20

s 20

The objects of the Defamation Act 2005 (NSW) 17.5

In order to demonstrate the provisions of the uniform defamation legislation, this chapter will consider some of the main sections from the Defamation Act 2005 (NSW). This is on the basis of the tables set out above, and the fact that the law is relatively uniform. As set out in s 3 of the Defamation Act 2005 (NSW), the objects of the Act are as follows: •• to promote uniform defamation laws in Australia; •• to make sure that freedom of expression is not unreasonably limited or hindered (especially for matters of public interest); •• to provide effective and fair remedies for people who are defamed; and •• to promote speedy and non-litigious methods of dispute resolution, so that ADR is promoted. 687

17.6

Torts: Principles, Skills and Application

The elements of defamation 17.6

In order to establish defamation, the elements of defamation need to be made out. The main elements are: •• there was a defamatory matter, •• that identified the plaintiff as an individual; and •• and was published to a third person.

What is a defamatory matter? 17.7

Section 6(2) of the Defamation Act 2005 (NSW) states that: This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).

Thus, to determine what is classified as a defamatory matter, it is necessary to look to the common law. Under the common law, courts assess whether the matter has the capacity to injure another’s reputation. 17.8 In Radio 2UE Sydney Pty Ltd v Chesterton,7 the High Court adopted a broad test

for ‘defamatory’. As a general proposition, a person is defamed if a publication causes others to think less of them.8 As was found in Boyd v Mirror Newspapers Ltd,9 a matter or imputation that hurts another’s feelings or pride, but does not lower their reputation, will not be defamatory. Hatred, contempt and ridicule 17.9

The current broad test for ‘defamatory’ encompasses the earlier test, which was ‘exposing the plaintiff to hatred, contempt or ridicule’. This was examined in Ettingshausen v Australian Consolidated Press Ltd.10 In this case, Andrew Ettingshausen, who was a well-known Rugby League player, was photographed nude in the shower. The photograph included a grainy image of his genital area. Hunt J of the New South Wales  Supreme Court held that as the image had subjected the plaintiff to more than a trivial degree of ridicule, a defamation action was made out. Similarly, in Anderson v Gregory,11 the Queensland Court of Appeal found that the plaintiff was exposed to ridicule by a digitally altered photo carrying the imputation (inferred meaning) that the plaintiff suffered from an eating disorder.

7. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16. 8. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [53] per French CJ, Gummow, Kieffel and Bell JJ. 9. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449. 10. Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443. 11. Anderson v Gregory [2008] QCA 419.

688

17.12

Defamation

Shunned and avoided 17.10

Statements that cause the plaintiff to be shunned or avoided can also constitute a defamatory action. This would include imputations that are not derogatory per se, yet they are likely to cause the plaintiff to be excluded from society.12 For example, in Youssoupoff v  Metro-Goldwyn-Mayer Pictures Ltd,13 Princess Irina Alexandrovna, who was the wife of a Russian Prince Youssoupoff, claimed damages for libel as the movie portrayed Princess Natasha being pursued by Rasputin. It was found by Slesser LJ that ‘One may, I 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 harm’. Likewise, in Monson v  Tussauds Ltd,14 the plaintiff was portrayed as a waxwork effigy in the Chamber of Horrors, which was close to other waxwork effigies of murderers. In this case, this portrayal was capable of being defamatory.

The standard of the hypothetical referee 17.11

Whether or not a statement is defamatory will be judged by the hypothetical referee. Brennan J in Reader’s Digest Services Pty Ltd v Lamb stated that: 15 … whether the alleged libel is established depends on 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.

Other judges have criticised this standard (such as Kirby J in Favell v Queensland Newspapers Pty Ltd),16 and it may be a difficult fit with a multicultural pluralist society like that in Australia. However, at the very least it is clear that the standard is an objective one. 17.12

It should be noted that the standard evolves as society evolves. In John Fairfax Publications Pty Ltd v Rivkin, Kirby J stated that: 17 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

12. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16. 13. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581. 14. Monson v Tussauds Ltd [1894] 1 QB 671. 15. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 per Brennan J. 16. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186. 17. John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at 140 per Kirby J.

689

17.12

Torts: Principles, Skills and Application

activity with another adult involves a defamatory imputation … 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.

In Mallick v  McGeown,18 the defendant published material carrying the imputation that the plaintiff was ‘demented’. The jury found this imputation was not defamatory, and the New South Wales Court of Appeal held that the jury’s decision should stand. In the past, allegations of insanity may have caused the sufferer’s reputation to be affected or for them to be shunned or avoided, but at least according to the view of the jury in this case, society’s view has changed with its increased awareness and understanding of mental illness. The natural and ordinary meaning of the words 17.13 In

Harrison v Thornborough, it was stated that:19 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.

Later, in Jones v Skelton, it was stated that: 20 The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred 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 part of the ordinary and natural meaning of words.

Innuendo 17.14

Sometimes the words published take on a defamatory meaning only when combined with extrinsic facts that were not generally known, but were known to at least some of the third parties to whom the statements were published. This is called ‘true innuendo’ or ‘legal innuendo’. Innuendo can also form the basis of a defamation action.

Defamation at law and at fact 17.15

It is necessary to determine whether or not there has been defamation at law and at fact. As the following quotation demonstrates, defamation as a question

18. Mallick v McGeown [2008] NSWCA 230. 19. Harrison v Thornborough (1713) 10 Mod 196 at 198. 20. Jones v Skelton [1963] 3 All ER 952 at 958 per Lord Morris.

690

17.18

Defamation

of law is a matter for the court, whereas defamation as a question of fact is a question for the jury: 21 It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning.

The defamatory matter must identify the plaintiff 17.16

It is necessary for the plaintiff to be able to show that the defamatory statement could be taken by others to refer to her or him. This may occur where the plaintiff ’s name is used, or where sufficient details are given to identify the plaintiff. If the defamatory matter is connected to a group rather than an individual, whether or not an individual can be successful in a defamation action will depend on whether or not the person as an individual is identifiable. In Knupffer v London Express Newspapers Ltd, it was stated that: 22 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 that none of them is conclusive.

Disclaimers 17.17

At the end of many of your favourite television shows, you will see a disclaimer stating that the stories portrayed are fictitious and do not relate to individuals or actual events. Do these disclaimers protect a potential defendant from a defamation action? In some circumstances the disclaimer will protect a potential defendant from liability, but if a reasonable person would still believe that any defamatory material is referring to the plaintiff, the plaintiff may have a successful action in defamation. For more information, see  Australian Broadcasting Corporation v Hanson.23

17.18

Also, where the defendant follows a defamatory statement with a denial, this may not be sufficient to avoid liability for defamation. Ultimately, it will be a question for the jury as to whether the disclaimer or denial cancelled the defamatory sting of the initial statement: Cornes v The Ten Group Pty Ltd.24

21. Jones v Skelton [1963] 3 All ER 952 at 958 per Lord Morris. 22. Knupffer v London Express Newspapers Ltd [1944] AC 116 at 124 per Lord Porter. 23. Australian Broadcasting Corporation v Hanson [1998] QCA 306. 24. Cornes v The Ten Group Pty Ltd [2012] SASCFC 99.

691

17.19

Torts: Principles, Skills and Application

Requirement of publication to a third person 17.19

For a person to be defamed, there must be publication to a third person, rather than just to the plaintiff. In this context it is possible to satisfy this element even if the person who the publication is made towards does not believe it or knows that the defamatory statement is not true.25

What is a publication? 17.20

For an imputation to be defamatory it has to be published in some way. A publication can relate to a number of mediums such as written publications including newspapers or magazines, or television and radio broadcasts, or even informal publications like letters, signs and oral communication. Internet communications, emails, text messages, Tweets, blogs, online publications, websites, YouTube clips and postings on social media, such as Facebook and other social networking sites, can also constitute a publication. All people who have participated in the publication of defamatory material may be liable, although some of these may have a defence of innocent dissemination (see below). Each publication, and each re-publication, creates a separate cause of action.26

17.21

When the publication involves electronic means, the ease and speed with which the publications may occur is greatly increased compared to publication via traditional media. This was seen in Cairns v  Modi,27 where defamatory false allegations of match fixing in cricket were originally sent via Twitter to approximately 60 followers. However, in awarding significant damages, the court took into account the likelihood that the original Tweet had been forwarded, spreading the ‘poison’ widely and rapidly.

Can a dead person be defamed? 17.22

As a general rule the estate or beneficiaries cannot have a successful defamation action against a defendant who has defamed another once dead. The caveat to this rule is if the defamatory matters somehow lower the reputation of the deceased’s living family members. See Krahe v TCN Channel Nine Pty Ltd.28 Section 10 of the Defamation Act 2005 (NSW) states: No cause of action for defamation of, or against, deceased persons A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to:

25. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246. 26. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. 27. Cairns v Modi [2012] EWHC 756 (QB). 28. Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536.

692

17.25

Defamation

(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.

Limitation periods 17.23

The limitation period is generally one year from publication. See Limitation Act 1969 (NSW) s 14B.

Procedure 17.24

The plaintiff may elect for the defamation case to be heard by a jury.29 In a jury defamation case, the judge determines the questions of law, while the jury considers the questions of fact.30 Thus, the judge may consider such issues as: •• the amount of damages; and •• all unresolved issues of fact and law. The jury consider matters such as: •• whether the defendant has published defamatory matter about the plaintiff, and, if so; •• whether any defence raised by the defendant has been established.

Defences 17.25

There are extensive defences to defamation actions. One of the main reasons for this is the need to balance the rights of individual free speech against the need for individuals to protect their reputation. Section 24 of the Defamation Act 2005 (NSW) states that the scope of defences under general law and other law is not limited by these sections, meaning that there are differences between the statutory defences and the common law defences. (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.

29. See Defamation Act 2005 (NSW) s 21. 30. See Defamation Act 2005 (NSW) s 22.

693

17.26

Torts: Principles, Skills and Application

Statutory defences Justification 17.26

Section 25 of the Defamation Act 2005 (NSW) provides: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

Contextual truth 17.27

Section 26 of the Defamation Act 2005 (NSW) provides: 26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (‘contextual imputations’) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

This defence was explained by Simpson J in Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 as:31 … 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 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.

Absolute privilege 17.28

The defence of absolute privilege recognises that in some instances the right to freedom of speech needs to be safeguarded even if it may adversely impact upon another’s reputation.The defence comes into play in judicial and parliamentary proceedings. See s 27 of the Defamation Act 2005 (NSW).

Publication of public documents 17.29

Under s 28 of the Defamation Act 2005 (NSW), it is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in: (a) a public document or a fair copy of a public document; or (b) a fair summary of, or a fair extract from, a public document.

31. Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 at [66].

694

17.33

Defamation

Fair report of proceedings of public concern 17.30

Under s  29 of the Defamation Act  2005 (NSW), it is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

Qualified privilege under s 30 of the Defamation Act 2005 (NSW) 17.31

Under s 30 of the Defamation Act 2005 (NSW) 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.

The court in Chetwynd v Armidale Dumaresq Council stated that: 32 The defence of statutory qualified privilege is not subject to the requirement of reciprocity which applies to common law qualified privilege. The statutory defence is subject to the requirement that the recipient of the publication have an interest or apparent interest in having information on the subject. 17.32

The defence of qualified privilege is defeated where the publication was actuated by malice,33 although publication for reward is not of itself sufficient evidence of malice.34 Under s 24(2) of the Defamation Act 2005 (NSW), the term ‘malice’ carries the meaning attributed to it by cases on the common law defences to defamation (see also 17.36 below): If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.

Honest opinion 17.33

Under s 31 of the Defamation Act 2005 (NSW): (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and

32. Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 at [270]. 33. Defamation Act 2005 (NSW) s 30(4). 34. Defamation Act 2005 (NSW) s 30(5).

695

17.33

Torts: Principles, Skills and Application

(b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent 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. (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the ‘commentator’), other than the defendant or an employee or agent 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. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1) — the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2) — the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3) — the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published.

Innocent dissemination 17.34

Under s 32 of the Defamation Act 2005 (NSW), 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.

Triviality 17.35

Section 33 of the Defamation Act 2005 (NSW) states that 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. 696

17.38

Defamation

King v  McKenzie suggests that the defence usually applied only to limited circumstances such as oral communication.35

Common law defences Absolute privilege at common law 17.36

Defamatory statements made in parliamentary and judicial proceedings can rely on the defence of absolute privilege at common law as well. For example, in Stockdale v Hansard, it was stated that: 36 … 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 reasoning behind this is that: 37 … 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.

Qualified privilege at common law 17.37

The principle behind qualified privilege is that the public as a whole have a right to be informed of proceedings. However, this privilege is qualified as, like absolute privilege, the defence can be rebutted when another element such as malice is evident. Publications that may be covered by the qualified privilege defence are summaries of public documents such as a parliamentary report.38 Other circumstances where qualified privilege at common law may be relevant include industrial circumstances.39

17.38

This common law defence requires the existence of reciprocity — duty and interest: 40 It is a condition of qualified privilege at common law … that the maker of the defamatory statement should have had a duty or interest to make the statement and the recipient of the statement should have had a corresponding interest or duty to receive it.

The defence of qualified privilege may be lost if there is malice involved.41 35. King v McKenzie (1991) 24 NSWLR 305 at 308. 36. Stockdale v Hansard (1839) 9 Ad & El 1 at 114; 112 ER 1112 at 1156. 37. Mann v O’Neill (1997) 191 CLR 204 at 213 per Brennan CJ, Dawson, Toohey and Gaudron JJ. 38. See Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58. 39. See Watt v Longsdon [1936] 1 KB 130. 40. Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 at [257]. 41. See Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30.

697

17.39

Torts: Principles, Skills and Application

Malice 17.39

The common law meaning of malice is relevant to both the common law and the statutory defences of qualified privilege. In Roberts v Bass [2002] HCA 57, it was stated:42 An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term ‘express malice’ is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (‘malice’) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.

Thus, if malice is found, it defeats the defence of qualified privilege as it counters the interest that gives rise to the privilege.

Justification (truth) at common law 17.40

Truth or justification is a complete defence at common law. For this defence to be successful, the matter must be true both in substance and effect. Thus each statement of fact must be substantially true. For example, in Becker v  Smith’s Newspapers Ltd,43 the plaintiff was described as a blackmailer, liar, swindling share pusher and illegal immigrant by the defendant. In relation to the last statement, the plaintiff was awarded £50 (UK) even though all of the other imputations could be justified.

Honest opinion at common law 17.41

This defence allows an opinion or criticism that is honestly held to be voiced. This defence is only valid if it relates to an opinion as opposed to a statement of fact. If the opinion also contains statements of fact within it, the defendant needs to show that the facts as expressed are true and correct.44 Jordan CJ stated in Goldsbrough v John Fairfax & Sons Ltd that: 45 The question really is whether it can be regarded as fair to publish defamatory comments or 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

42. Roberts v Bass [2002] HCA 57 at [75]. 43. Becker v Smith’s Newspapers Ltd [1929] SASR 469. 44. Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259 at 302. 45. Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 534.

698

17.43

Defamation

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.

In addition to this, Kirby J in Channel Seven Adelaide Pty Ltd v Manock stated:46 It is by freedom of discussion, including the expression of unorthodox, heretical, unpopular and unsettling opinions, that progress is often made in political, economic, social and scientific thinking.

For this defence to be viable, the opinion must be in the public interest and be based upon the standard of the reasonable person.The defence of fair comment may be lost where malice is involved.

Freedom of speech under the Constitution 17.42

The High Court in Theophanous v Herald and Weekly Times Ltd47 held that there is protection under the Australian Constitution for freedom of speech in relation to constitutional and political matters. For example, in Roberts v Bass,48 Kirby J stated that during an election campaign there is ‘passionate and sometimes irrational … interchange’ emphasising ‘brevity, hyperbole, entertainment, image and vivid expression’ (at [171]). Thus, as the nature of an election campaign is that political parties and opponents try to discredit each other, it is recognised that there needs to be a qualified privilege attached to these statements.

Consent 17.43

If a potential plaintiff has consented to a publication that has defamatory imputations, then this will be a defence for a potential defendant. Whether or not there has been the requisite consent will be determined as a question of fact. In Ettingshausen v Australian Consolidated Press Ltd, the defendant argued that the plaintiff consented to the pictures being taken of him while he was on tour with a football team.This defence, however, was not successful as Hunt J held that the plaintiff did not consent to the defamatory imputation. His Honour stated that:49 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 consent to the publication of everything which the photograph may show.

46. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [117]. 47. Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104. 48. Roberts v Bass [2002] HCA 57. 49. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at [11].

699

17.44

Torts: Principles, Skills and Application

Offer of amends 17.44

Under ss 13, 14 and 15 of the Defamation Act 2005 (NSW), an offer of amends may be made.

Remedies 17.45

A number of remedies are available for defamatory matters. The main remedy is damages. Injunctions may be ordered in respect of defamatory actions, depending on the circumstances.

Case study: defamation and statutory authorities 17.46

17.47

The following case involves allegation of defamation in respect of a local government council.50

Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 Court: Supreme Court of New South Wales Facts: The plaintiff brought an action against Armidale Dumaresq Council for allegedly publishing defamatory information about him. A Code of Conduct Committee was established in order to investigate matters relating to the alleged unfair dismissal of the Director of the New England Regional Art Museum (NERAM). The plaintiff argued that the defamatory information was published by the distribution of a council meeting agenda, which referred to the Code of Conduct Committee proceedings. Legal principle: In this case, James J found that there was defamation as three of the imputations that were alleged by the plaintiff were ‘likely to cause ordinary reasonable persons to think less of the plaintiff and were therefore defamatory’.50 The plaintiff was unsuccessful in this matter, though, because of the defences that were relevant. The defence of justification was satisfied in this case.

Legal issue

Judge/s

Conclusion

Reasons given

Were the imputations that were made in the report defamatory?

James J

Yes

The imputations would have made a reasonable person think less of the plaintiff.

50. Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 at [236].

700

17.47

Defamation Legal issue

Judge/s

Conclusion

Reasons given

Was the defence James J of justification satisfied?

Yes

All of the imputations were substantially true.

Was the defence James J of absolute privilege satisfied?

No

The publication of the agenda by the council was not for the purpose of investigating any allegation against the plaintiff, so s 27 of the Defamation Act 2005 (NSW) was not satisfied.

Was the defence James J of publication of public documents satisfied?

No

The agenda did not fall within s 28 of the Defamation Act 2005 (NSW).

Was the defence James J of qualified privilege at common law satisfied?

No

It failed in relation to distributing the agenda to members of the public and representatives of the media. It succeeded in relation to the distribution of the agenda to the council staff and the councillors.

Was the defence James J of statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW) satisfied?

Yes

The members of the Code of Conduct Committee and the council had reasonable grounds for believing that the imputations were true and had taken reasonable steps to make sure the material was accurate.

701

17.47

Torts: Principles, Skills and Application

Legal issue

Judge/s

Conclusion

Reasons given

Was the defence James J of fair comment at common law satisfied?

Yes

The findings and conclusions stated in the report are not independent imputations but ‘inferences, conclusions or judgments drawn from other facts’ and therefore come within the defence of fair comment.

Was there malice involved with distributing the agenda?

James J

No

‘I accept that there was some ill-will between the plaintiff and some of the councillors. However, ill-will is not sufficient by itself to constitute malice’ (at [300]).

Was all of the plaintiff’s loss of reputation connected to the publication of the agenda?

James J

No

Other incidents had also contributed to the plaintiff’s loss of reputation.

Case study: defamation and the internet 17.48

The internet has arguably changed defamation actions significantly. One of the primary questions that is now of importance to defamation actions is in which jurisdiction a plaintiff has standing to launch a defamation action when there has been defamatory information uploaded onto the internet.

702

17.49

Defamation

17.49

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Court: High Court of Australia Facts: The appellant, Dow Jones & Co Inc, prints and publishes the Wall Street Journal newspaper and Barron’s magazine. Since 1996, Dow Jones has operated WSJ.com, a subscription news site on the World Wide Web. Information at WSJ. com includes Barron’s Online in which the text and pictures published in the current printed edition of Barron’s magazine are reproduced. On 28  October  2000, Barron’s Online contained an article entitled ‘Unholy Gains’ in which several references were made to the respondent, Mr Joseph Gutnick. Mr Gutnick argued that part of the article defamed him. In particular, Mr Gutnick was concerned about how this article would impact upon his reputation in Victoria where his business quarters were and where he conducted much of his social life. A number of legal issues were analysed within this case. One of the primary issues was whether or not the material was published in Victoria. In relation to this issue, Dow Jones argued that the statements were published in New Jersey and therefore this jurisdiction should be looked at to adjudicate whether or not there was defamation. The defendant argued that if this were not to be the case, publishers would be bound to take account of the law of every country on earth. Legal principle: The High Court held that: … 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 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.51

Therefore, it was the place/s where the defamatory material was downloaded that was the place or jurisdiction that the tort was committed. The court’s decision (application of the legal principle to the facts): Some of the key points from the joint majority judgment were (Gleeson CJ, McHugh, Gummow and Hayne JJ): • It is necessary to strike a balance between society’s interest in freedom of speech and the free exchange of information and ideas, and an individual’s interest in maintaining his or her reputation in society free from unwarranted slur or damage. • It is necessary that the publishers be able to act with confidence, not that they be able to act according to a single legal system.

51. Dow Jones & Co Inc v  Gutnick (2002) 210 CLR 575 at [44] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

703

17.49

Torts: Principles, Skills and Application

• Even though the internet is a very broad means of communication, those using this technology do so knowing of the reach that their information may have. • In relation to material on the World Wide Web, the information is not available in comprehensible form until downloaded onto the computer of a person who has used a web 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. • A claim for damage to reputation will warrant an award of substantial damages only if the plaintiff has a reputation in the place where the publication is made. • Plaintiffs are unlikely to sue for defamation published outside the forum unless a judgment obtained in the action would be of real value to the plaintiff. • In relation to limiting the scale of the problem confronting those who would make information available on the World Wide Web, the spectre that Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe, is seen to be unreal when it is recalled that in all except the most unusual cases, identifying the person about whom material is to be published will readily identify the defamation laws to which that person may resort.

17.50

An internet searching site may be liable in defamation for the results it presents in response to users’ search enquiries. In Trkulja v  Google Inc LLC (No 5),52 Google Inc was sued for defamation due to the way its search engines responded to search queries about the plaintiff. When the plaintiff ’s name was input as a search term, Google Inc’s search results linked the plaintiff ’s name to photos of well-known criminals, thereby creating an (untrue) inference that the plaintiff was also a criminal. Google Inc was found liable for defamation by the Victorian Supreme Court.

Defamation and the media 17.51

This chapter now considers a contemporary case that relates to defamation and television dramas and other media. One area that can be contentious in relation to defamation actions are dramas that are based on real-life events. Wendy Hatfield, who was portrayed in the popular Underbelly series, Underbelly: The Golden Mile, wanted access to the footage that was applicable to her before it went to air on commercial television.Wendy Hatfield was concerned that she

52. Trkulja v Google Inc LLC (No 5) [2012] VSC 533.

704

17.52

Defamation

was going to be portrayed in a defamatory light in the television series. Before the proceedings, Ms Hatfield’s lawyer said that: 53 … if Ms Hatfield’s character is portrayed in the same manner as in the book, it will be defamatory because it will infer she is corrupt and had a sexual relationship with Sydney nightclub owner John Ibrahim while working as a police officer in Kings Cross.

The Nine Network, TCN Channel Nine and Screentime (the show’s production company) refused to show her the material as they argued that this was a breach of privacy.54 The following New South Wales  Supreme Court case considered Wendy Hatfield’s concerns. 55

17.52

Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 Court: Supreme Court of New South Wales Facts: The plaintiff was formerly a member of the New South Wales Police Service. The plaintiff brought an action against three defendants: Channel Nine, the producer and distributor of the series and the production company responsible for making the series. The plaintiff argued that the book, also entitled Underbelly: The Golden Mile, gave rise to a number of defamatory imputations about her. These included: • She achieved promotion in the police service by granting sexual favours. • She is a person of little intelligence. • She was guilty of misconduct in becoming intimately involved with John Ibrahim, who she knew to be a criminal. The plaintiff was concerned that these imputations would also be apparent in the television series and that was one of the reasons why she wanted to gain access to the series or the transcripts before it aired. Legal principle: The court’s power to grant an interlocutory injunction is subject to the special rule which requires the Court to balance the defendant’s right to free speech against the plaintiff’s right to protect her reputation.55

53. ‘Underbelly May Defame Ex-cop, Court Told’ (4 March 2010) at (viewed 20 September 2018). 54. ‘Court Rejects Appeal to see Underbelly’ (9 April 2010) (viewed 20 September 2018). 55. Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 at [97].

705

17.52

Torts: Principles, Skills and Application In addition to this, Harrison J stated that: There can be no basis for a contention that the plaintiff ‘may be entitled to make a claim’ unless she can establish that the defamatory material of which she complains has been published.56

The court’s decision (application of the legal principle to the facts): Harrison  J would not allow either the transcripts or a copy of the series to be released before going to air on commercial Australian television. Furthermore, the defamatory imputations could not be made out until the show went to air. Thus, the publication rule was not satisfied at the time that this case was heard. At the time of the case, the plaintiff did not have a reasonable cause to believe that she may have a cause of action against the defendants. Essentially, before the series was aired, it was impossible to say whether or not there had been any defamatory imputations made against her. Neither a claim for damages nor injunctive relief was granted to the plaintiff in this case.

Legal issue

Judge/s

Conclusion

Does s 75 of the Evidence Act 1995 (NSW) operate in the circumstance of this case to make the transcript inadmissible as hearsay?

Harrison J

No

Which party has the burden of proof to show that a publication has been made?

Harrison J

The plaintiff

Reasons given

56. Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 at [100].

706

17.52

Defamation

Legal issue

Judge/s

Conclusion

Reasons given

Could an injunction be granted to restrain publication of the television series?

Harrison J

No

i) The plaintiff has not yet established that she has a viable case. ii) There is no evidence to suggest that damages may not be an appropriate remedy. iii) There is no prejudice to her that the plaintiff can identify that outweighs the prejudice that may attend a restraint of the proposed broadcast. iv) There is no evidence to establish an actionable defamation at a final hearing.

Background and context: After this show aired on the Nine Network, it was reported in Lawyers Weekly that Wendy Hatfield alleged that the Nine Network and Screentime defamed her during the episode broadcast on 9 May 2010. In the episode, ‘Constable Wendy’ is shown having sex with nightclub owner John Ibrahim while she is dressed in her police uniform: 57 Hatfield, who previously told the Wood Royal Commission that she never had a sexual relationship with Ibrahim, claims Underbelly defamed her by implying she had a sexual relationship with Ibrahim, whom she believed to be a criminal.

According to Lawyers Weekly, Hatfield is seeking special damages as she was not given permission to preview the broadcast before it went to air.58 Allegedly, Screentime and Channel Nine state that the series did not identify Hatfield and that any potentially defamatory imputations were based on fact.59

57. ‘Former Cop Claims Underbelly Defamed Her’, Lawyers Weekly (14 June 2010). Go to , click on ‘News archive’, the year and month, then scroll down to the article title (viewed 15 August 2013). 58. ‘Former Cop Claims Underbelly Defamed Her’, Lawyers Weekly (14 June 2010), note 53 above. 59. ‘Former Cop Claims Underbelly Defamed Her’, Lawyers Weekly (14 June 2010), note 53 above.

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Review Defamation is a distinct area of tort law that relates to damage to one’s reputation. It is relatively difficult to have a successful defamation action, however, because of the elements that need to be satisfied as well as all of the defences that can be relied upon. This chapter has concentrated on three areas where defamation law is relevant. The areas that are covered in this chapter are: defamation and the internet, defamation and the media and defamation and public authorities. Even though these are the areas this chapter focuses on, it should be noted that defamation is relevant to many other aspects of our lives. In Australia, the defamation laws are largely consistent because of the recent uniform defamation legislation. However, because of the new capabilities in terms of technology, determining the relevant jurisdiction for defamation actions can be difficult.

Readings M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 18 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 11

Key Cases Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 Wilson v Bauer Media Pty Ltd [2017] VSC 521

Chapter 17 Review Questions 1. What are the main elements of defamation? 2. What are the statutory defences to defamation? 3. What are the common law defences to defamation? 4. Can a dead person be defamed? 5. How much time can elapse between the defamatory conduct and the plaintiff commencing legal action? 708

Defamation

Tutorial 17: Defamation Internal memorandum To: Kathleen O’Keeffe From: Guido Markewicz We act for Superficial Magazine. Superficial Magazine published an article that outlined the business and personal activities of an Australian soap opera star (Susan Sultry). The magazine stated that the soap star, Susan Sultry, would have been ‘grotesquely ugly’ without the aid of the extensive plastic surgery procedures that she has undertaken. The publication also stated that Susan Sultry has often cheated on her partner of 10 years, Stan Sad, with other women. Shortly after the magazine was published, the article was published on the website. Furthermore, a Facebook page was set up entitled ‘Susan Sultry is an Ugly, Lying, Cheating Lesbian Bitch’. Apparently, Susan Sultry has conceded that she has had plastic surgery, but is denying the other claims that have been made about her. Because of Susan’s success as a soap opera star, she is well known in many parts of the world and in particular she has business interests in London, UK and Sydney, Australia. Advise the managing directors of Superficial Magazine about the legal liability issues that surround this scenario. Also, please advise of any defences that they may be able to rely on.

Tutorial 17: Student Example Answer Prepared by: Kathleen O’Keeffe, LLB Student, University of New England

Internal memorandum To: Guido Markewicz From: Kathleen O’Keeffe Date: 20/11/20XX Re: Liability in relation to articles about Susan Sultry

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Liability in relation to the magazine article The first question to ask is whether the information will be found to be defamatory material. To determine this, the common law needs to be investigated, as s 6(2) of the Defamation Act 2005 (NSW) (DA) states: This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).

In Susan’s case it needs to be determined which segments written about her would be considered defamatory. It was determined in Jones v Skelton that: 60 It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning.

Based on this, it is clear that the decision whether or not material that is published is defamatory is ultimately up to the courts. However, the common law has given an indication of what is likely to be considered defamatory material. In relation to the meaning of the words, it was held in Harrison v Thornborough that: 61 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.

The notion was also expressed in Jones v Skelton that: 62 The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred 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 part of the ordinary and natural meaning of words.

Beaumont J stated in Random House Australia Pty Ltd v Abbott:63 ‘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’.64 Based on this guidance from the common law, it appears that the comments made in the article may be of a defamatory nature. Also, due to her work as a soap star, the comments made about her appearance and her sexual preference could be found as damaging to her reputation.This is important as it was found in Boyd v Mirror

60. Jones v Skelton [1963] 3 All ER 952 at 958 per Lord Morris. 61. Harrison v Thornborough (1713) 10 Mod 196 at 198. 62. Jones v Skelton [1963] 3 All ER 952 at 958. 63. Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224. 64. Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 at [22] per Beaumont J.

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Newspapers Ltd65 that a matter which affects a person’s pride or feelings is not defamatory if it does not have a negative effect on their reputation. Therefore, it appears that if it is found that these comments will have a negative impact on her reputation, and it seems likely that they will, given her occupation, then these comments may appear defamatory. However, the comment in relation to her having plastic surgery will not be found to be defamatory as the facts indicate that Susan has conveyed that that is a true representation. The next question is whether Superficial Magazine is liable for the material if it is found to be defamatory, and the extent of its liability. It was held in Dow Jones & Co Inc v  Gutnick66 that the person who produces defamatory material is responsible for any publication of the material.67 It was also held in this case that every communication of defamatory material to a third party founds a separate cause of action. Gleeson CJ, Gummow, McHugh and Hayne JJ in their joint judgment stated: 68 … the long-established common law rule that every communication of defamatory matter founds a separate cause of action. That rule has found reflection from time to time in various ways in State legislation and it would be a large step now to depart from it.

It is a feature of Australian law that publication occurs not where the material is created but where that material is accessed.This can give rise to more than one publication of any defamatory material in a different place to where it was first made available. Gleeson CJ, McHugh, Gummow and Hayne JJ in their joint judgment in Dow Jones & Co Inc v Gutnick state: 69 … it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act — in which the publisher makes it available and a third party has it available for his or her comprehension.

Therefore, every time a third party accesses defamatory material a new publication occurs, and every time publication occurs a new action is created. The reason for this is because defamation is concerned with the damage that the article causes. Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones & Co Inc v Gutnick stated that defamation: 70 … is a tort concerned with damage to reputation and it is that damage which founds the cause of action … Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it.

65. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449. 66. Dow Jones & Co Inc v Gutnick [2002] HCA 56. 67. Dow Jones & Co Inc v Gutnick [2002] HCA 56. 68. Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [27] per Gleeson CJ, Gummow, McHugh and Hayne JJ. 69. Dow Jones & Co Inc v Gutnick [2002] HCA 56. 70. Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [25]–[26] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

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Therefore, the courts are concerned with dealing with defamation when it affects the plaintiff the most, when it is comprehended by a third person. Based on this distinction in Australian law, it appears that if the comments are held as defamatory, then Superficial Magazine will be held liable for every time a third party reads the article in the magazine. Therefore, in order to determine the amount of damage the article has caused, the number of readers of the magazine needs to be determined. Liability for website publishing In order to determine whether Superficial Magazine will be liable for the publication of the article on the website, examination is needed of whether Superficial Magazine is responsible for the re-publication. It was determined in Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd)71 that a re-publication of defamatory material will give rise to a new cause of action. This means that if it is found that the article that was published by Superficial Magazine is in fact defamatory to Ms Sultry, then Superficial Magazine may still be found liable for the article as it appears on the website.This is because putting the article on the website constitutes a re-publication of the original article. The next question that presents itself is whether or not accessing an article on the internet constitutes a publication. In Dow Jones & Co Inc v Gutnick,72 this issue was raised. It was determined that under Australian law, computer downloads are determined as a publication and an actionable wrong arises every time an individual accesses the material. This was also found in Loutchansky v Times Newspapers Ltd.73 It was also held in Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd)74 that under Australian law re-publications on the World Wide Web are given the same treatment as re-publications communicated through other media. The World Wide Web has been classed as being included in a range of technologies that form media of communication. The same legal principles of defamation apply to defamatory material on the World Wide Web as for other media of communication and the law should remain technologyneutral. Kirby J stated in Dow Jones & Co Inc v Gutnick:75 Generally speaking, it is undesirable to express a rule of the common law in terms of a particular technology. Doing so presents problems where that technology is itself overtaken by fresh developments. … A legal rule expressed in terms of the Internet might very soon be out of date.

71. Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd) [2003] NSWCA 38. 72. Dow Jones & Co Inc v Gutnick [2002] HCA 56. 73. Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805. 74. Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd) [2003] NSWCA 38. 75. Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [151] per Kirby J.

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Callinan J added to this argument when he stated: 76 It may well be that ‘firewalls’ to deny access to the unintended or non-subscribing reader is at present perhaps imperfect. So be it. Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.

He goes on to state: ‘The fact that publication might occur everywhere does not mean that it occurs nowhere’.77 Therefore, it seems that Superficial Magazine will be liable in a separate action for the re-publication of the article on the website. However, an issue that arises with internet publications is that the material can be accessed anywhere in the world, as held in Duke of Brunswick v Harmer.78 Under Australian law, publication occurs when the material is accessed not when it is first made available to a third party. Publication of any defamatory material published on the internet can occur anywhere in the world. This means if someone from London accesses the article on the internet, then a publication of that material has occurred in London. This is important in Ms Sultry’s case as she has a reputation in both Australia and in England and, as the material is on the internet, it is able to be accessed in both jurisdictions. It was held in Dow Jones & Co Inc v Gutnick79 that a plaintiff should be able to bring an action in relation to material published in another jurisdiction where the material was comprehended even if the material was not made available in that jurisdiction. This was also the case in Australian Broadcasting Corporation v Waterhouse.80 It was stated in this case that: 81 … a party who has commenced an action in any one jurisdiction is entitled to recover damages in respect of injury sustained by reason of all the publications of the defamatory material both within and outside the jurisdiction even though the party pleaded only one count in his or her declaration.

The reason for this is, as Gleeson CJ, McHugh, Gummow and Hayne JJ state in Dow Jones & Co Inc v Gutnick:82 … that a claim for damage to reputation will warrant an award of substantial damages only if the plaintiff has a reputation in the place where the publication is made. Further, plaintiffs are unlikely to sue for defamation published outside the forum unless a judgment obtained in the action would be of real value to the plaintiff. The value that a judgment would have may be much affected by whether it can be enforced in a place where the defendant has assets.

76. Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [182] per Callinan J. 77. Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [186]. 78. Duke of Brunswick v Harmer [1849] 14 QB 185. 79. Dow Jones & Co Inc v Gutnick [2002] HCA 56. 80. Australian Broadcasting Corporation v Waterhouse (1991) NSWLR 519. 81. Australian Broadcasting Corporation v Waterhouse (1991) NSWLR 519 at 537 per Samuels J. 82. Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [53] per Gleeson CJ, McHugh Gummow and Hayne JJ.

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Therefore, it appears that Superficial Magazine will be liable for the publication in London as well as in Australia if the article is accessed there. Liability in relation to Facebook page In relation to the creation of the Facebook page, the facts are unclear on the particulars of the creation of this page. Assuming that Superficial Magazine did not create this page, then they are not directly responsible if the page is found by the court to be defamatory towards Ms Sultry. However, if it is established that the Facebook page was created on the basis of the defamatory material in the Superficial Magazine article, then Superficial Magazine may be liable for this. In Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd),83 it was found that re-publication gives rise to a cause of action. However, if the Facebook page contained excerpts from the article, then there is a stronger chance Superficial Magazine will be found liable. In Harris,84 it was also found that liability for re-publication extends to all those who take part in the commission of the tort. Therefore, if someone reproduces the article, the original author is still liable. However, Speight v  Gosnay85 determined that the repetition needs to be the natural and probable consequence of the original publication. Based on these cases, more information is required in order to determine whether Superficial Magazine is liable in this instance; however, it does appear that the possibility is present. Defences The defences that can be claimed in a defamation claim are found in Div 2 of the Defamation Act 2005 (NSW). The first defence that Superficial Magazine could claim is the defence of justification. Section 25 of the Defamation Act states: 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.

As Ms Sultry confirms that she has had plastic surgery, Superficial Magazine, by stating this fact, if the comments are found to be defamatory, may not be held liable in relation to that statement due to s 25 of the Defamation Act. It could be argued that the defence in s 26 of the Defamation Act may also apply in relation to Superficial Magazine’s comments about Ms Sultry’s plastic surgery. The section states: It is a defence to the publication of defamatory matter if the defendant proves that:

83. Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd) [2003] NSWCA 38. 84. Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd) [2003] NSWCA 38. 85. Speight v Gosnay (1891) 60 LJQB 231.

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(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Based on this section, it may be argued that the statement that Ms Sultry would be ‘grotesquely ugly’ without plastic surgery could fit within the contextual imputations of the truthful statement about Ms Sultry having plastic surgery. Superficial Magazine could also try to claim the defence of honest opinion under s 31 of the Defamation Act, which states: (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.

If Superficial Magazine complies with the criteria in this section, then the statements may be found to be statements of opinion rather than fact; however, it seems unlikely that this will be the case. Conclusion Based on the facts, it appears that Superficial Magazine may face liability for some of the statements made about Ms Sultry in their magazine. It may also be found that they are also liable for the article on the internet and for any damage suffered to Ms Sultry’s reputation not only in Australia but also in England as a result of Ms Sultry’s profile in both countries. Also, Superficial Magazine may be liable for the Facebook page; however, more information needs to be obtained to establish that aspect.There are some defences available to Superficial Magazine as found in the Defamation Act; however, these do not apply to all the statements in the article.

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Chapter 18

Intentional Torts Relating to Goods Legal practice skill: Advising on torts relating to goods

Learning aims •

Understand the different causes of actions relevant to interference with goods

•

Understand the advantages of pursuing one particular remedy over another

Background concepts 18.1

In this chapter, we look at the legal actions a person may have if he or she alleges interference with goods.

The difference between ownership and possession 18.2

Although ownership may be considered to be a singular concept, legal analysis assesses ownership as a bundle of rights. Ownership includes the right to possess, sell, hire and use goods. Possession, by contrast, is the right to physically control an item. Strictly speaking, it is composed of two elements: •• animus possidendi (an intention to possess); and •• corpus possessionis (an effective or sufficient level of control). Which rights — those related to possession or ownership — are protected by intentional torts related to goods? The answer is possession.

The three principal causes of action 18.3

There are three causes of action in tort which an aggrieved person might use when complaining about an interference with goods: trespass to chattels, conversion and detinue. While these torts are three separate causes of action, 717

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Torts: Principles, Skills and Application

there is overlap between the torts. This means that the one series of events may give rise to more than one tort.

Trespass to chattels 18.4

Trespass to chattels occurs when there is a: •• •• •• •• ••

direct intentional interference with goods in the possession of another.

The difference between direct and indirect interference was considered in the case of Reynolds v Clarke. In that case it was said:1 … if a man throws a log into a highway and in that act hits me, I may maintain trespass because it is an immediate wrong, but if as it lies there I tumble over it, and receive an injury, I must bring an action on the case.

The English law proceeded to develop on the basis that there was an essential difference between an action in trespass on the one hand and an ‘action on the case’ (ie the predecessor to modern-day negligence) on the other. This was practically important under the writ system, which was very inflexible until the Judicature Act 1875. Essentially, a plaintiff ’s claim had to be classified case correctly from the outset. By way of recapping, the basic contrasts between intentional torts and negligence are set out in Table 18.1.

Table 18.1 The plaintiff’s action against the defendant

Trespass to the plaintiff’s person, goods or land

Action on the case

History

A quasi-criminal offence dating from the 13th century

The precursor to the modern law of negligence

Requires ‘direct’ injury to the person

1. Reynolds v Clarke (1725) 2 Ld Raym 1399; 92 ER 410.

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Donoghue v Stevenson (1932) Established the neighbour principle and modern negligence claims

18.4

Intentional Torts Relating to Goods

The plaintiff’s action against the defendant

Trespass to the plaintiff’s person, goods or land

Action on the case

Example from Reynolds v Clarke (1725)

The example of trespass given in Reynolds v Clarke (1725):

The example of an action on the case given in Reynolds v Clarke (1725):

A person throws a log onto the highway and it hits the plaintiff.

A person throws a log onto the highway. As the log lies on the highway, the plaintiff rides his horse into it, and is injured.

What the plaintiff needs to establish

Requires forcible or violent Requires a set of facts intentional conduct by the giving rise to a claim in negligence upon which defendant. the plaintiff relies.

What of intention on the part of the defendant?

The defendant’s actions are ‘direct’ and actionable per se (in and of themselves).

The defendant’s actions are ‘indirect’ and only actionable if damage results to the plaintiff.

Intention is part of the cause of action and is pleaded by the plaintiff.

Intention on the part of the defendant is not part of the cause of action pleaded by the plaintiff.

Against the person

Modern-day negligence covers many types of claim, including motor vehicle and workplace accidents.

What type of actions are included?

Actions in personam include: • battery; • assault; and • false imprisonment. Re a person’s land (actions in rem) These include: • trespass • nuisance Re a person’s goods • trespass • conversion • detinue

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As noted, the 20th-century post Donoghue v Stevenson witnessed significant expansion in the use of the negligence cause of action.

18.4

Torts: Principles, Skills and Application

The matter was further discussed in the case of Hutchins v Maughan. See below.

18.5

Hutchins v Maughan [1947] VLR 131 Court: Supreme Court of Victoria Facts: The defendant, Hutchins, laid poisoned baits on a section of unfenced land at Balwyn. The plaintiff, Maughan, was droving about 2,000 ewes across the land, assisted by sheepdogs. Two of the plaintiff’s sheepdogs ate the poisoned baits, and died as a result. The plaintiff sued the defendant for trespass to goods, nuisance and damages in negligence. Legal principle: Was the injury to the dogs a trespass to goods? That is, was it: • immediate, direct and intentional (and therefore trespass); or • consequential and therefore an action on the case (or negligence). The court’s decision (application of the legal principle to the facts): The court found that while the dogs were the plaintiff’s ‘goods’, the nature of the act done causing harm to the dogs was indirect, rather than direct. It followed, therefore, that no action in trespass would lie. Herring CJ referred to the English case of Reynolds v Clarke2 (quoted above) and held that the ‘basis of the defendant’s contention was that the injury suffered by the complainant in the present case was not occasioned by but was merely consequential upon the defendant’s act complained of, viz., the laying of the baits, and so was not a trespass’.3 The plaintiff’s proper remedy was by an action on the case, that is, negligence.

18.6

It is important to note that a person must actually be in possession of the goods to sue for trespass. A right to immediate possession is not sufficient.This is clear from the case of Penfolds Wines Pty Ltd v Elliott,4 discussed below. One exception is that it is possible for a person with an immediate right to possession to sue for trespass to chattels where the possession of the person with actual possession has been interfered with.There are three other exceptions relating to franchises, trusts and succession law.

Conversion 18.7

, ,4

2 3

Conversion is a direct, intentional act which is seriously inconsistent with the rights of the true owner. Courts have suggested, in particular, that conversion is doing an act which is inconsistent with a person’s right to possession or right to immediate possession.

2. Reynolds v Clarke (1725) 2 Ld Raym 1399; 92 ER 410. 3. Hutchins v Maughan [1947] VLR 131 at 132. 4. Penfolds Wines Pty Ltd v Elliott [1946] 74 CLR 204.

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Intentional Torts Relating to Goods

Unlike trespass to chattels, a right to immediate possession will found an action in conversion, as discussed in the case below.

18.8

Penfolds Wines Pty Ltd v Elliott [1946] 74 CLR 204 Court: High Court of Australia Facts: Penfolds Wines manufactured wine which was sold in bottles with their name on it. Bottles were to remain the property of Penfolds at all times; purchasers of the wine were required to return the empty bottles to Penfolds. Elliott was a retailer who sold bulk wine by filling empty bottles brought to him by purchasers. Bottles belonging to Penfolds were brought in to Elliott who filled them and gave them to purchasers. Legal principle: Could the defendant sue for trespass or conversion? The court’s decision (application of the legal principle to the facts): As Penfolds were not in actual possession of the bottles, they could not sue for trespass. They did, however, have a right to sue in conversion. This is because they had a right to immediate possession of the bottles as the true owner who had retained ownership in the bottles at all times. The court gave examples of actions that would amount to possession:5 Conversion may take the form of a disposal of the goods by way of sale, or pledge or other intended transfer of an interest followed by delivery, or the destruction or change of the nature or character of the thing, as, for example, pouring water into wine, or cutting the seals from a deed, or of an appropriation evidenced by refusal to deliver or other denial of title.

Model Daily v Whites6 and Milk Bottles Recovery Ltd v Camillo7 are cases where what the plaintiff pleaded, and what was held by the court in each instance to be conversion, was the unauthorised use by the defendant of bottles which were embossed with a statement that they were the property of the plaintiff. 5

Intentional acts and trespass (whether to goods, land or the person) 18.9

One of the elements common to all trespasses (including to goods) is that the act must be intentional, in the sense that the act must be voluntary. It appears that the term ‘intentional’ used with respect to conversion means more than merely voluntary. The act must be both (a) intentional and (b) not negligent, as discussed in the case below.

5. Penfolds Wines Pty Ltd v Elliott [1946] 74 CLR 204 at 229 per Dixon J. 6. Model Daily v Whites (1935) 40 Argus LR 432. 7. Milk Bottles Recovery Ltd v Camillo [1948] VLR 344.

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Torts: Principles, Skills and Application

18.10

Ashby v Tolhurst [1937] 2 KB 242 Court: King’s Bench Division Facts: The plaintiff parked his car in a car park owned and operated by the defendant. One of the car park attendants, who was an employee of the defendant, negligently allowed a third party, a stranger, to drive the car and remove it from the car park. Legal principle: Did the acts of the defendant’s employee amount to conversion of the car? The court’s decision (application of the legal principle to the facts): No conversion of the car was committed by the defendant. The defendant’s employee did not intentionally deal with the car in a way that was inconsistent with the plaintiff’s right to immediate possession. For conversion to stand, the act had to be intentional.

18.11

Later cases have elaborated on this principle.While there has to be an intentional act, the intention does not have to be to dispossess the plaintiff. Conversion may take place as result of a related intentional act. As such, conversion is a tort involving strict liability. For example, where a bona fide purchaser for value intends to and does buy a car that actually belonged to another person (and was in fact stolen), the court has found that the fact that the purchaser did not have any notice of the rights of the true owner is irrelevant. The purchaser is strictly liable, as per the 2006 Victorian Supreme Court finding of Gillard J in Safaris 4x4 Engineering Pty Ltd v Doncaster Motors Pty Ltd.8

Detinue 18.12

The final cause of action is detinue. Detinue is the detention of goods after a demand for their return has been made. Only a person who has an immediate right to possession of the goods can sue for detinue. Detinue offers a major advantage over actions in conversion or trespass. This is because one of the remedies open to a court following a successful claim in detinue is an order that the defendant return the goods to the plaintiff. However, no such order is available in an action for trespass or for conversion. In order to successfully plead in detinue, a plaintiff must show that he or she has made a specific demand for specific goods to be returned to a specific place: Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd.9

8. Safaris 4x4 Engineering Pty Ltd v Doncaster Motors Pty Ltd [2006] VSC 460. 9. Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports ¶81–244.

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18.14

Intentional Torts Relating to Goods

What is the situation where the plaintiff is unable to return the goods? Does this mean an action in detinue will no longer lie? These issues are relevant to the case below.

18.13

John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 Court: High Court of Australia Facts: The plaintiff dispatched goods via the defendant railway company to be carried by rail, and, upon arrival, to be delivered to the order of the plaintiff. While the goods were sent to their correct destination, upon arrival they were either removed by third parties, or delivered by the defendant’s employees to third parties who were not entitled to receive them. The plaintiff served a written demand on the defendant for the return of the goods. The defendant was unable to comply, since it was no longer in possession of the goods. Legal principle: Could the plaintiff maintain an action in detinue on the above facts? The court’s decision (application of the legal principle to the facts): The High Court was comprised of three justices: Starke, Dixon and McTiernan JJ. In a joint judgment, they held that an action in detinue could be maintained. The particular context involved deciphering s 200 of the Railways Act 1928 (Vic), which required that legal proceedings need to be commenced within six months of the ‘act complained of’. The plaintiff had a right to immediate possession, and the claim could not be defeated simply because the defendant was unable to return the goods because of the ‘negligent misdelivery of the goods, after arrival, to persons who were not entitled to receive them’, per Starke, Dixon and McTiernan JJ (at [2]). Would an action in conversion also be successful on the facts in Goulding’s case? The High Court in the case touched on this point when it said ‘[t]he bailee’s default in losing the goods may or may not, according to the circumstances of the loss, involve a conversion, although usually it will mean a breach of contract. But the existence of these causes of action, in any event, is irrelevant to the accrual of the cause of action in detinue.’ per Starke, Dixon and McTiernan JJ (at [7]).

Goods 18.14

All of the above actions apply only to goods. Goods are personal property capable of being owned, and ownership of which is capable of being transferred through delivery.There are outlier areas of the definition which the courts have had to analyse in order to ascertain whether certain items come within the scope of the concept. These include the human body where the common law general rule is there is no property in a human body, a corpse is not capable of being owned: Doodeward v Spence.10

10. Doodeward v Spence (1908) 6 CLR 406.

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As Richard Taylor notes: No other rule of law can claim as macabre a passage through history as the common law rule that there is ‘no property in the human body’. Slavers, grave robbers, grieving widows, freak show exhibitors and harvesters of body parts have featured prominently. The rule is only now coming in from obscurity and assuming growing importance. New uses for the human body, driven by medical advances in IVF, stem cell research, cloning, gene therapy and other like areas, require that we re-examine the efficacy of this rule in its application to modern circumstances.11

Doodeward was an early High Court case, and the court carved out an exception to the common law principle by reference to ‘work and skill’ performed in the particular instance. As Taylor notes: The “work and skill” exception was first applied by the High Court in the1908 case of Doodeward v Spence. The case involved a two-headed foetus preserved in a bottle filled with spirits. The baby had been stillborn 40 years prior to the case coming to court. It had been preserved by the attending doctor, Dr Donahoe, and kept as a curiosity. The foetus was later sold as part of the doctor’s estate to the appellant. The appellant exhibited it for profit until the police seized it and an action was brought by the plaintiff/ appellant for recovery of the foetus. The case “created” an exception where “work and skill” could transform the human body into property. Griffiths CJ recognised “permanent possession” as a property right and used this as a basis to establish the exception. He held that: “I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property”. Without exhaustively defining the circumstances where the human body can be property he further held that: “When a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it.”12

Items commonly regarded as personal property may lose that status in certain circumstances. The law of fixtures declares that ‘what is attached to the soil becomes part of it’.This means that items such as windows, doors, etc, which, if detached, would be regarded as personal property, are, when forming part of a house or other built structure, regarded as part of the land: Finesky Holdings Pty Ltd v Minister for Transport for Western Australia.13 This case involved unauthorised removal of limestone from a limestone quarry. 11. R Taylor, ‘Human Property: Threat or Saviour?’ (2002) 9(4) Murdoch University Electronic Journal of Law at [16]–[17], (viewed 3 November 2018). 12. R Taylor, note 11 above, [16]–[17]. 13. Finesky Holdings Pty Ltd v Minister for Transport for Western Australia [2002] WASCA 206.

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What is the status of a domain name, or an internet provider (IP) address? This is an important matter in an increasingly online economy. The matter was addressed in the case below.

18.15

Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158 Court: Supreme Court of New South Wales Facts: The plaintiff, Hoath, had registered the business name Dragon Net, and the domain name dragon.net.au. His two companies operated using the domain name from 1998 to 2000. One of the companies went into administration and its customer base was sold to one of the defendant’s companies. The business proposal was that the plaintiff’s company and the defendant’s company would merge to form a new company. This did not occur. The plaintiff sued the defendant in conversion and detinue, alleging that they had used the domain name and the IP address without his consent. Legal principle: Could a domain name and IP address be considered personal property? The court’s decision (application of the legal principle to the facts): The domain name and IP address, being intangible property, were not ‘goods’ for the purposes of the law of torts. As intangible property, it was not capable of being possessed. White J in the New South Wales Supreme Court cited Penfold Wines,14 referred to above at 18.8, where the court held ‘that the essence of conversion is the dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel’.15 Hence the ability to possess the property presupposes the ability for someone to dispossess it. Accordingly, no action in detinue, or in conversion, could be maintained for this type of asset. The effect of the case is to make fundamentals of the internet and online economy less certain than they may otherwise have been in the decade or so since this case.

18.16

Issues for the online economy and the practical outcomes of Hoath more broadly are summarised by Jonathon Swil:1415 Issues that domain name licensees should be aware of: • when dealing with your domain name rights, make clear exactly what rights you intend to give to the other party and the conditions under which those rights are given; • if you have built up goodwill in your domain name, you may be able to protect that goodwill by using the tort of passing off if other businesses wrongfully

14. Penfolds Wines Pty Ltd v Elliott [1946] 74 CLR 204. 15. Penfolds Wines Pty Ltd v Elliott [1946] 74 CLR 204 at 229.

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associate themselves with your domain name (although passing off will not be available to protect your IP addresses or AS numbers); • although the court in Hoath assumed that domain names are a form of property, wrongful dealings with any supposed property in domain names cannot, at least at this time, be protected by the tort of conversion, and other proprietary torts. It should be noted that certain policies imposed by the Australian Domain Name Administrator (auDA), which, importantly, were not considered in Hoath, limit the circumstances in which .au domain names (as opposed to .com or other types of domain names) can be transferred. Therefore, if a court were to thoroughly address this issue in the future, it might hold that .au domain names are not in fact property at all. In any event, Hoath and the auDA’s policies show that the ways of dealing with and protecting .au domain names are more limited than, for example, the ways of dealing with and protecting other business assets. Issues that prospective domain name transferees should be aware of [include]: Before dealing with a domain name registrar, know your rights with respect to the domain name you propose to deal with so that you do not represent any false information, otherwise you may be liable under the misleading and deceptive conduct provisions of the Trade Practices Act (and possibly for other actions as well).16

16. J Swil, ‘Protection of domain names — what rights does a licensee have?’ (2006) Computers and Law, September, 4–6, (viewed 3 November 2018).

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Review In this chapter we have seen that there are three tortious causes of action which an aggrieved plaintiff might seek to use in relation to goods: • trespass; • conversion; and • detinue.

Trespass protects against any direct, intentional interference with goods. Conversion protects against any denial of the rights of a person to an immediate right of possession to goods. Detinue protects against a wrongful refusal to return goods.



Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 18 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 11



Key Cases Ashby v Tolhurst [1937] 2 KB 242 Hoath v Connect Internet Services Pty Ltd [2006] NSWSC 158 Hutchins v Maughan [1947] VLR 131 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204



Chapter 18 Review Questions 1. What is the difference between trespass to goods, conversion and detinue? 2. Can a person not in possession of goods sue for trespass? 3. What steps are required to be taken by a plaintiff to ‘trigger’ a claim in detinue? 4. What is the difference between possession and ownership? 5. What are the two elements of possession? 6. What interest in goods is protected by the law relating to intentional torts — possession or ownership?

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Tutorial 18: Intentional interference with goods

Internal memorandum From: Guido Markewicz To: Trainee Alpha is one of the firm’s biggest clients. On 20 December last year, Alpha left his $6,000 Rimini suit with No Name Pty Ltd (‘No Name’). No Name runs a dry-cleaning business. On leaving the suit with No Name, Alpha signed a form which said that any clothing lodged with No Name for cleaning would be available immediately on demand by the person lodging the clothing, no less than 48 hours after the item is left for cleaning with No Name. Alpha says that on 23 December he went to No Name to pick up his suit.They told Alpha they had been unable immediately to locate the suit. On subsequent visits by Alpha to No Name, Clarise, an employee of No Name, says that she thinks that one of No Name’s employees, Fred, gave Alpha’s suit to someone else — but that Fred can’t remember who. Alpha tells us he is beginning to think the various stories he has been told about his suit are all nonsense. He is beginning to suspect that No Name still has his suit and are just hiding it from him. Alpha is seeking our advice on any causes of action in torts he might have. Please prepare a memorandum for me so that I can use it when I discuss the matter with Alpha at a meeting with him this week. Thanks, Guido

Tutorial 18: Answer Guide Alpha should be advised he could sue No Name for intentional interference with goods. Intentional interference with goods sounds in three torts — trespass, conversion or detinue. The three torts are not mutually exclusive. Trespass to chattels is any direct, intentional interference with goods. It is not possible for Alpha to sue in trespass to chattels. He has an immediate right to possession — but this is not sufficient standing to sue in trespass: Penfolds Wines Pty Ltd v Elliott.17 Alpha could only sue in trespass if he was still in possession 17. Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

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of the suit. It is clear that, by leaving the suit to be dry-cleaned, he has parted with possession. In respect of Fred’s actions, we need more information to determine whether Alpha may sue for conversion. Conversion is doing an act inconsistent with a person’s possession or right to immediate possession. It is clear that mere negligence on the part of No Name or their employees is insufficient to sound in conversion: Ashby v Tolhurst.18 If Fred deliberately gave the suit to the wrong person, an action in conversion will lie. Although Alpha obviously does not have possession, he has a right to immediate possession, which is sufficient standing to sue in conversion. Whether No Name has the suit still, or has given it away, an action in detinue will lie against them. Detinue is a wrongful refusal to return possession of goods. In order to trigger such an action, it is important that Alpha makes a specific demand for return of the suit, including specifying to where the goods must be returned, and when. If No Name then refuses to return the suit, Alpha may sue for detinue. It is no defence to an action in detinue for No Name to plead the suit is no longer in their possession: John F Goulding Pty Ltd v Victorian Railways Commissioners.19

18. Ashby v Tolhurst [1937] 2 KB 242. 19. John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157.

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Chapter 19

Occupiers’ Liability Legal practice skill: Advising on risk and liability relating to those who are found to be ‘occupiers’

Learning aims •

Understand the historically informed categories of people on the land or property of the occupier

•

Understand the modern context in which a generalised duty of care is the starting position, subject to the analysis of relevant statutory provisions in each state and territory

•

Practise reading cases and extracting from them, relevant legal principles

Background concepts 19.1

In this chapter we look at the concept of the occupier of land and the person who visits or comes on to that land. Property and land law lie at the heart of the development of the United Kingdom system of common law and equity. The rights of owners and others who are regarded as occupiers have been recognised as a cornerstone of legal history. Australia largely adopted this historical approach, which was then further developed in case law. In order to better understand this area of law, you will be presented with extracts from published court reports and asked to extract from them, relevant legal principles. Reading judgments is the best way to understand the development of the common law.

The concept of being an occupier 19.2

An occupier has the right to determine who can come onto the property. Although ownership like occupier status may be considered to be a singular concept, it can comprise ownership, tenancy and possession. An owner can fence the boundary of their property and distinguish between people coming onto their land lawfully as opposed to unlawfully. The meter reader, local dog 731

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catcher employed by the council, and the postal delivery, along with couriers of all kinds of goods, are regular attendees to properties all over Australia every day. So what of the occupier’s liability for a hole in the ground, an escaping dog, a dangerous fence or a tree with poor foundations? The liability of occupiers is another category of potential negligence where the standard issues have to be established, namely a duty of care, breach, damage and causation. 19.3

What rights to take legal action does the visitor have? What responsibilities does the occupier bear? As with any legal enquiry, we can keep finding subquestions down to fine-grained detail. For example, what type of visitor — lawful or unlawful? Are they present as a paying guest with a ticket or on the premises without authority, and with nefarious intent? Are they a first-time visitor or a regular guest? Similarly, in terms of responsibilities, for what should the occupier be held accountable? Only things they actually know about and are aware of, or things they should know about? Obvious dangers, or only hidden hazards which are not at first obvious?

The stretching of the concept of being a ‘trespasser’ 19.4

As Australian society developed and the population grew rapidly after World War II, some cases came before the High Court which questioned an occupier’s duty of common humanity towards a trespasser. This put the spotlight on the parties involved, and raised a series of issues. While Donoghue v Stevenson, in 1932,1 had given rise to a general duty of care, the practical question remained: what were the limits of the general duty? And how did they interact with the so-called special duties relevant to trespassers, which were somehow lesser in extent and quality, but hard to define? In terms of trespassers for example, the issues were many. Were they child or adult? Were they technically in breach of wandering onto someone’s land, or were they deliberately there with criminal intent to do damage, steal etc? Relevant to the occupier, what was their knowledge of whether trespassing occurred? What resources did they have? Did they provide signs and warnings of hidden dangers and/or obvious dangers? As we have noted, the occupier has the right to exclusive possession of the property and to determine who can come onto their property, but this is inevitably tempered in ‘hard’ cases giving rise to an emotional response and a legal expectation of justice. The next two cases, one from the 1960s and the other from the 1980s, effectively reveal that maintaining a lesser set of special duties was hard to define, impractical to follow, and involved contortions

1. Donoghue v Stevenson [1932] AC 562.

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of plain language. An example of the dilemma is evident from the following passage by Gibbs CJ in the second case, Hackshaw v Shaw2: 17. It seems to me of small importance to deny that a general duty of care may coexist with the special duty which an occupier owes to a trespasser if it is conceded that the relationship of occupier and trespasser may be replaced by another relationship. At any rate it is settled law in this country that the special duty may be replaced by the general duty if the relationship between the parties is not simply that of occupier and trespasser and there are circumstances which give rise to a duty of care.

The following well-known case from 1960 shone a spotlight on the vagary of the issues.

19.5

Commissioner for Railways (NSW) v Cardy [1960] HCA 45; (1960) 104 CLR 274 (25 July 1960) Court: High Court of Australia Facts: The defendant, Commissioner for Railways (NSW), (CR), was the occupier of a large railway yard comprising some 500 acres (about 200 hectares) in then semi-rural western Sydney. The plaintiff, Cardy, a 14-year-old boy, had lived in the neighbourhood as a young child, and after an absence of several years, was back visiting. As a result, he was retracing his childhood playing areas with his younger brother, and walked in bare feet on a patch of ground which had hot coals just below the surface crust. His feet and legs were badly burnt. CR knew that people used the site, and were effectively trespassers, but they did little to nothing about it. The hots coals were a hidden danger; as such, it was not obvious a danger. As Windeyer wrote at [9]: This then was the scene when the plaintiff on 14th November 1953 entered the land. He was then fourteen years and some months old. He had lived with his parents in the neighbourhood for some years before 1947, and had played on the land with other children. The family then went to live for a time in the country. On the afternoon of the day they returned, which was a Saturday, the plaintiff with his younger brother, aged eleven, set out to explore his old haunts. Both boys were clad in bathing trunks and shirts and were barefooted. They went through the open space at the end of Sheffield Street and on to the land. It was of course much changed. The pool that he remembered and much land that had earlier been in a more or less natural state was now buried under the tip. They went along the roadway to the camp for a short distance, and then turned right to the embankment. To see what was above they clambered up what they described as a bank with a surface like grey earth. Actually it was ashes. They got to the top without mishap and walked along the railway there. A little later the plaintiff went to descend at a place some distance from where they had gone up. When he put his weight upon what seemed to him to be a solid bank his feet slipped through the crust on to fire below. With the help of his brother he got out. His feet and ankles

2. Hackshaw v Shaw (1984) 155 CLR 614.

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were very badly burnt. He was for a long time in hospital and has been permanently injured. What was the occupier’s liability to the child plaintiff?

Legal principle: What was the duty owed by an occupier to a trespasser in this circumstance? The court’s decision (application of the legal principle to the facts): The occupier was in breach of their duty to the trespasser in this case. As Dixon CJ wrote (at [8]), the basis of liability was constructed as follows: The rule remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from intentional or wanton harm to him. But it recognizes that nevertheless a duty exists where to the knowledge of the occupier premises are frequented by strangers or are openly used by other people and the occupier actively creates a specific peril seriously menacing their safety or continues it in existence. The duty may be limited to perils of which the persons so using the premises are unaware and which they are unlikely to expect and guard against.

The following extract is taken from Dixon CJ’s judgment: 7. The foregoing decisions of the House of Lords provide a lesson by example in the ways of the law when it evolves principle. The fixed rule that a trespasser comes at his own risk and that only a wilful injury to him is actionable is modified by the assimilation of “reckless disregard of the presence of the trespasser” to wilfulness. It needs no argument to show that reckless disregard of the presence of a man must include not only the case of a man who is there but also of one whose coming is expected or foreseen. But the application of the rule is modified to the point of exclusion by inferring a licence from circumstances notwithstanding the unreality of the supposition that there was any actually consenting mind or will. The process of inference is then transmuted to a different and wider conception, that expressed by Lord Goddard, conduct on the part of the occupier of such a kind that he cannot be heard to say that he did not give a licence. At that point, by precluding the denial of a licence, the law has surely reached the use of fiction, and if now we boldly look at the facts which give rise to the imposition in this manner of the liability it will be but to complete the course of development by a process for which the history of the law furnishes many precedents. It is but to attribute the liability to the constituent elements of the title to the correlative right and to explain why they create it. No doubt there is some conscious acceleration of the process and an open acknowledgment of the course pursued. But it is evident that for want of some rationalization of the kind great confusion, not to say dissatisfaction, as to the state of the law exists. Is there any reason why in Australia the step should not be taken? With respect to licensees and invitees the law has been completely changed in England by the Occupiers’ Liability Act 1957 (5 & 6 Eliz. II, c. 31). What indirect effect the change may have on the practice of inferring, implying or imputing a licence from facts where no actual intention to grant a licence existed and none was expressed, it would be hazardous to prophesy. But it is at least clear that in England to impute a licence is now to place upon the occupier a duty of care measured by a much higher standard. Whatever may be the outcome it involves a distinct point of departure from the law obtaining in Australia. Why should we here continue to explain the liability which that law appears to impose in terms which can no longer command an intellectual assent and refuse to refer it directly to basal principle? (at p285)

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8. Such a recognition of principle by no means involves the imposition upon occupiers of premises of a liability for want of care for the safety of trespassers. What it does is to confine the duty of licensors to its true province, the case of a voluntary or gratuitous grant of an advantage to another consisting in the use of or entry upon premises and to recognize that it is the grant that forms the source of the limited duty. The rule remains that a man trespasses at his own risk and the occupier is under no duty to him except to refrain from intentional or wanton harm to him. But it recognizes that nevertheless a duty exists where to the knowledge of the occupier premises are frequented by strangers or are openly used by other people and the occupier actively creates a specific peril seriously menacing their safety or continues it in existence. The duty may be limited to perils of which the persons so using the premises are unaware and which they are unlikely to expect and guard against. The duty is measured by the nature of the danger or peril but it may, according to circumstances, be sufficiently discharged by warning of the danger, by taking steps to exclude the intruder or by removal or reduction of the danger. It may perhaps be useful to remark that upon the facts of United Zinc & Chemical Co. v. Britt (1) the question whether the neglect to safeguard children from the poisoned pond involved liability would depend upon the likelihood of children entering the premises and using the pond so as to encounter a risk of poisoning and upon the knowledge which the occupier had or ought to have had of the danger and of that likelihood. The doctrine of the decision in Britt’s Case [1922] USSC 62; (1922) 258 US 268 (66 Law Ed 615) has been considered harsh and the decision itself can hardly be justified except on the footing that there was no sufficient reason to think that the pond would be visited by children or that they would be imperilled by the existence of the poisoned pond unless excluded. (at p286) 9. In principle a duty of care should rest on a man to safeguard others from a grave danger of serious harm if knowingly he has created the danger or is responsible for its continued existence and is aware of the likelihood of others coming into proximity of the danger and has the means of preventing it or of averting the danger or of bringing it to their knowledge. (at p286) 10. Upon the facts of the present case the responsible servants of the defendant Commissioner must have been aware of the great likelihood, not to say certainty, of boys and others coming upon the site of the tip. The apparently safe surface concealed a striking danger of a rather dreadful description. No steps to warn those who came or to exclude them or to reduce or avert the danger were adopted. No care of any kind was shown for the safety from the danger of those who frequented the place or were likely to come there. That appears to bring the case within the principle.

Another High Court Justice, Windeyer J, provided a lucid rendering of the facts and of the post-war context. He, too, concluded there was negligence on the part of the CR: WINDEYER J. This case is a further example of “the ever recurring conflict between on the one hand the refusal of the law to allow to a trespasser any right against the occupier in respect of dangers connected with the nature or condition of the premises and on the other hand the imposition by the law of a general duty to conduct one’s affairs with care for the safety of others, a duty of care measured in safeguarding children in accordance with their known disabilities, propensities, habits and customs”: per Dixon C.J. and Williams J. in Thompson v. Bankstown Corporation (1953) 87 CLR, at p 627. We heard again all the cries of that conflict “trespasser” and “licensee”, “implied invitation”, “allurement”, “knowledge of

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danger”, “concealed trap”, “reckless act”. No complaint is made of the summing up of the learned trial judge. It was very clear and, having regard to authorities and the pleadings, correct. But it is said that he ought not to have left the case to the jury, but should have directed a verdict for the defendant. The fundamental question is therefore was there any evidence to support the jury’s verdict. The learned judges who dealt with the matter in the Full Court agreed that there was. Because of this I would, if the issue of fact were a simple one, hesitate to examine the whole matter afresh. But on this appeal the issues of fact became involved with debatable matters of law elaborately argued. It is important to see what the evidence actually disclosed. (at p308) 2. The New South Wales Commissioner for Railways is the owner and occupier of an area of about five hundred acres at Clyde, a populous industrial suburb of Sydney. In its natural state this land sloped generally from the east to the west. There it is flat and low lying, with Duck Creek, a sluggish watercourse running northwards to the Parramatta River, as its western boundary. The northern boundary is the Main Western railway line. At the northwestern corner of the land a footbridge, erected apparently by the Railways, crosses Duck Creek giving access from the land to Clyde railway station nearby. On the eastern side of the land there are railway workshops covering an extensive area. But a great part of the land has no buildings on it. Adjacent to the workshops, but somewhat to the south and running inwards some distance, are some railway lines called the interlocking yard. There from time to time obsolete rolling stock was brought to be dismantled by railway workmen. The land is bounded on the south by the back fences of houses fronting Sheffield Street which ends at Duck Creek. Before these houses were all built the land could be entered from various parts of Sheffield Street. But at the time of the accident the only opening from Sheffield Street that remained was at the end of the street near Duck Creek. There at the end of the line of houses there is a small electric power installation; and between that and the bank of Duck Creek is an open space or gateway giving access to the land. There was apparently no gate there at the date of the accident, or if there was it stood open. Before about 1947 a large part of the land was in a more or less natural state, covered in part with scrub; and with a pool of water in one place. During this period foot tracks were formed by people going to and fro across the land, mainly to Clyde railway station. The footbridge there was freely available to pedestrians. Indeed this was emphasized by a notice there prohibiting its use  by cyclists. At this period, that is speaking generally before about 1947, children were in the habit, especially at week-ends, of playing on the land, roaming over it, paddling or bathing in the water hole, and often playing among the old rolling stock in the interlocking yard. Part of the land towards the north-east was used by the Railways for a rubbish tip. And from about 1947 onwards the depositing of rubbish increased, the rubbish being used as filling for building up the lower portions of the land and generally levelling it. This filling was brought in railway trucks drawn by locomotives along rails laid upon the top of the dump. These were at first moved and extended as the tip grew. Later, instead of moving the rails, a bulldozer was used to spread the contents of the trucks from where their loads were tipped. This tipping of rubbish was a large undertaking. A witness called for the Railway Commissioner gave evidence that some fifteen to twenty truck loads came in each day. A gang of five men was regularly employed emptying the trucks, with the aid of a mechanical unloader, and spreading their contents. An important component of the miscellaneous material thus deposited on the land was ashes, the rakings apparently of fire boxes and furnaces. The rest

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was general debris, including tins and empty wooden cases, brought from railway premises throughout the metropolitan area. The wood could be used as fire wood and some of it was collected for this purpose by adults and children. There was some evidence that at one time children were accustomed to collect wood from the tip while railway employees were working there, they assisting by throwing it out to them from the trucks. But the evidence of this seems to relate to events long before the period with which we are concerned. The children who in more recent times visited the area of the rubbish tip seem to have either done so outside working hours or gone to parts where work was not going on. They were naturally attracted to fossick round the tip, for there could be found discarded articles such as children love to appropriate, old wheels suitable for billy carts and similar treasure. 3. In 1949 a camp for migrant workmen employed by the Railways and their families was established on the northern side of the land near the main line. It was occupied for two or three years or more. To enable tradesmen’s carts and other vehicles to get to it a road was made across the land from the bottom end of Sheffield Street. This deliberately formed road was wider than the existing foot tracks. When first made it was at some distance to the west of the edge of the rubbish tip; but as the rubbish-covered area spread southwards and westwards it came closer to this road, and also, of course, covered the eastern parts of some of the foot tracks. And, according to a railway engineer who gave evidence, the road itself was realigned and remade as the rubbish tip extended. By November 1953 the tip had been extended a considerable distance to the west and south and was then in some places within ten to twenty yards of the then line of the formed road. Because of the westward fall of the land and the levelling of the top of the dump, the surface of the covered area was then much above the level of the road, which thus ran in one part for some distance alongside an embankment about ten feet high. (at p310) 4. Some of the ashes from time to time tipped over this embankment were hot or contained burning coals. Such material may remain red hot below after the surface has cooled. This obviously is the more likely if it be deposited on top of loose combustible material, such as pieces of wood. In the result parts of the embankment, or forward edge of the tip, were alight. In places this might be made apparent by smoke. But elsewhere mounds of ash only banked a fire burning below, so that what appeared to be solid ground was but a crust above a hot-bed. That this is likely to occur must, I would think, be known to any one concerned with furnaces, smelting and industrial ash dumps and to many other people. A  description of conditions resembling those of the present case may be found in the judgment of the Supreme Court of the United States in Union Pacific Railway Co. v. McDonald [1894] USSC 92; (1894) 152 US 262 (38 Law Ed 434), to which the Chief Justice referred during the argument. In this case, as in that, there was nothing to indicate that what appeared to be dead ashes concealed and covered burnign [sic] coals. But, although this may be a not unusual phenomenon, it and the danger it creates are not necessarily something that every schoolboy would know or ought to know. (at p310) 5. Evidence was given for the plaintiff directed to showing that, right up to the time of the accident, the Railway authorities had suffered people to come upon the land, and that to their knowledge children were accustomed to play and to roam there at will. That children did frequent the land, especially at week-ends is beyond doubt. That the road and tracks were for many people a thoroughfare between Clyde railway station and Sheffield Street was also firmly established. The defendant, however, contended that no one except railway employees had any authority to

737

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Torts: Principles, Skills and Application

enter the land; that all others were trespassers; that their presence on the land was resented and that the resentment had been effectively made known. The evidence on this aspect may be summarized: 6. Permits were at one period issued to tradesmen using the road to the migrant fettlers’ camp. The form of these permits was not proved, but they apparently did not give authority to go on to the land but rather to go within the precincts of the camp. They were described in the evidence as permits “to trade within the camp” or “to enter the camp”. And no one it seems was ever prevented for want of such a permit from going over the land to a destination other than the camp. 7. One witness, a foreman in the construction branch of the Railways, gave evidence that he had seen adults and children crossing the area, the children sometimes riding bicycles on the roadway, swimming in Duck Creek and “scrounging” at the bottom of the rubbish tip. He was aware of this scrounging as a common practice. He said that when he saw persons whom he did not know to be railway employees or connected with the fettlers’ camp he would tell them to get off the land. Whether he meant that he systematically warned people off the whole area is not clear. But, whatever action he took, his intervention could only have been spasmodic, for he was stationed at Chullora seven miles away and he visited Clyde only once or twice a week. He had to supervise construction work going on, not only at Clyde, but also at Chullora and at Enfield and Yennora, all of them large areas. Doubtless he was concerned if unauthorized persons lingered near places where work was going on; but it does not appear that he was much concerned with the rest of the land. The ganger in charge of the unloading gave evidence that he kept people off the actual tipping area during working hours. Another witness was one of three men who, working in shifts, acted as watchman one at a time. He gave evidence that he used to warn people off the land. But he admitted he did not interfere with any of those - and they were numerous - who every morning and afternoon went across the land to or from the railway station. Clearly one man could not have patrolled these five hundred acres so as effectually to prevent anyone crossing or to drive off all children playing there. And it seems obvious from the nature of the watchman’s duties that he was not expected to do so. During ordinary working hours he had to be near the workshops. If he then saw anyone on the tip he said he went down to tell them to get off. When work for the day finished he had to close and secure the shops. There were more than twenty-three buildings in the area, for the security of which he was responsible. His interest in the tipping area after work ceased was, as he put it, simply to see that nobody was “poking around down there; there is valuable machinery down there”. He was alluding to the bulldozer and the mechanical unloader. His main concern was, clearly enough, the railway buildings and equipment, rather than the exclusion of the public from the vacant land. He knew that children did play on the tip. “Kiddies,” he said, “take a short cut over the top of the tip or play on the tip”. There was ample evidence of this. (at p312) 8. Another witness was a railway detective inspector. He visited Clyde from time to time. At one period, because of some trouble in the migrant camp, he went there about three times a week. On other occasions he was there to investigate reports of thefts, and sometimes apparently on mere routine visits. But his office was in Sydney, his territory covered all railway workshop premises throughout the metropolitan area; and he was a detective not a sentinel. When he did go to Clyde he said he saw people within the dump area and he ordered them to leave but took no other action against them. He said he had seen children half-way up the side of the dump and

738

19.5

Occupiers’ Liability

also at the bottom, “scrounging and picking over among the debris or rubbish”. He said he told them to get out of the property and “warned them of the danger of being there”. This was a significant statement in so far as it showed knowledge of a danger. But it can hardly be supposed that, if the Railway Commissioner had any duty to warn children of the danger of being there or otherwise to protect them, that duty was discharged by a detective inspector speaking to such children as he chanced to meet on his casual and intermittent visits. 9. This then was the scene when the plaintiff on 14th November 1953 entered the land. He was then fourteen years and some months old. He had lived with his parents in the neighbourhood for some years before 1947, and had played on the land with other children. The family then went to live for a time in the country. On the afternoon of the day they returned, which was a Saturday, the plaintiff with his younger brother, aged eleven, set out to explore his old haunts. Both boys were clad in bathing trunks and shirts and were barefooted. They went through the open space at the end of Sheffield Street and on to the land. It was of course much changed. The pool that he remembered and much land that had earlier been in a more or less natural state was now buried under the tip. They went along the roadway to the camp for a short distance, and then turned right to the embankment. To see what was above they clambered up what they described as a bank with a surface like grey earth. Actually it was ashes. They got to the top without mishap and walked along the railway there. A little later the plaintiff went to descend at a place some distance from where they had gone up. When he put his weight upon what seemed to him to be a solid bank his feet slipped through the crust on to fire below. With the help of his brother he got out. His feet and ankles were very badly burnt. He was for a long time in hospital and has been permanently injured. 10. Another boy, it was proved, had been hurt in the same way a little earlier. But this was not known to the plaintiff, nor so far as the evidence shows, to the defendant. The plaintiff had no warning of the danger of climbing the embankment. He was an intelligent boy who could have understood a warning notice had there been one, and who might have been expected to appreciate the significance of a fence had the tip area been thus separated from the rest of the land. Some evidence was given for the Railway Commissioner of a gate having been placed across the entrance from Sheffield Street in April, 1953, and that notices forbidding trespassing - not warning of danger - had then been erected there. These notices, it was said, were pulled down and the gate was wrenched off and people continued to cross the land. The date when these events occurred was, however, not firmly established. The learned trial judge suggested they may have happened in 1954 - that is after the accident - not in 1953. The plaintiff and his brother said definitely there was no gate at the date of the accident, and there was other evidence supporting this. Counsel for the Railway Commissioner conceded, on this appeal, that the jury could find that when the plaintiff entered the land there was no gate or notice at the place where he entered. The Railway Commissioner’s case was that, gate or no gate, the plaintiff was a trespasser and that that was an end of the matter.

Windeyer J concluded, as follows, regarding the basis of liability: 21. Secondly, are the cases in which, although the plaintiff is a trespasser and the defendant an occupier, the facts attract some category of the law of torts and some concept of duty transcending the special rules concerning the duties of occupiers to entrants: e.g. Thompson v. Bankstown Corporation [1953] HCA 5; (1953) 87 CLR

739

19.5

Torts: Principles, Skills and Application

619. Lynch v. Nurdin [1841] EngR 52; (1841) 1 QB 29 (113 ER 1041) was really a case of that kind. So also are cases in which the negligence alleged lies, not in a failure to care for a person who comes into a place of danger, but in a failure to take reasonable means to warn him of the risk of doing so. No man has a duty to make his land safe for trespassers. But, if he has made it dangerous and the danger he has created is not apparent, he may have a duty to warn people who might come there of the danger of doing so. Whether there be such a duty in a particular case must depend upon the circumstances, including the likelihood of people coming there. But if they would be likely to come, the duty does not, in my view, disappear because in coming they would be trespassing. It is a duty owed to likely comers, to those who would be intruders as well as to those who would be welcome. That there may be such a duty is implicit in the early decisions about spring-guns and dogspikes. Whether a trespasser who was injured could recover or not depended at common law upon whether notice had been given him of the presence of those dangers on the defendant’s land.’

19.6

19.7

The difficulty of maintaining what was becoming a legal fiction — that special duties for trespassers could sit alongside the general principles of the neighbour principle — had been opened by Cardy’s case.The impossibility of it continuing was confirmed by the next case and its unusual facts.

Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (11 December 1984) Court: High Court of Australia Facts: The defendant, a farmer, was the occupier of land in rural Victoria. The plaintiff, a teenage female, was a passenger in a car driven by a trespasser on the farm to steal petrol. As a result, she was a trespasser. The farmer shot her. What was the occupier’s liability? Legal principle: Was the duty owed by an occupier a particular set of responsibilities (a special duty), or was it simply part of the wider, general law of negligence, ie the need to take reasonable care? The court’s decision (application of the legal principle to the facts): The High Court decided once and for all that occupier’s liability was part of the general law of negligence in Australia. This meant the taxonomy and treatment of different classes of visitors was effectively redundant. The neighbour principle applied, and was able to take into account a broad range of facts and circumstances. GIBBS CJ: This is an appeal from a judgment of the Full Court of the Supreme Court of Victoria, which, by a majority (Young C.J. and McInerney J., Gobbo J. dissenting) allowed an appeal by the defendant (the present respondent) in an action brought by the plaintiff to recover damages for personal injuries and dismissed the plaintiff’s cross appeal.

740

19.7

Occupiers’ Liability

2. The circumstances of the case were unusual. The defendant was the owner of a farm at Korong Vale in Victoria. He did not live on the farm but went there to work each day. On the farm there was a petrol tank and pump, installed for the purpose of refuelling any motor vehicles used on the farm. For at least a year before December 1978 the defendant had been plagued by thefts of his petrol. He put expensive locks on the petrol tank, but they were cut off. He wired up the hose, but that did not stop the thefts. He complained to the police but they told him that he would have to get further evidence, such as a description of the car used in the thefts, before they could act. So, after a theft on the night of 3 December 1978, the defendant decided to lie in wait for the thieves. On the night of 10 December, the defendant, accompanied by his wife, hid near the bowser. The defendant was armed with a rifle and a shotgun. His plan was that if a car was driven onto the farm he would fire at it and immobilise it, and in that way discover the identity of the thief. 3. At about 10.00 p.m. on the night one, Cox, driving a stolen car, went to the defendant’s farm. He was accompanied by the plaintiff, a girl of sixteen with whom he was associating. As the car approached the gate leading to the farm, Cox turned off the headlights. The car was stopped, Cox opened the gate and then drove the car (with the lights still off) onto the property and across a paddock and stopped it alongside the petrol tank. Cox got out of the car and began to pump petrol into the car. At this point there arose a conflict of testimony. The plaintiff said that when Cox got out of the car, she also got out and stood beside the front passenger side door. A shot was then fired and she got back into the car and lay down on the front seat. She then felt a burning feeling in her arm. She was not sure when Cox got back into the car. Other shots were fired as Cox drove away. On the other hand, the defendant (whose evidence was in general corroborated by that of his wife) denied that anyone other than Cox got out of the car and said that he did not know that anyone but Cox was in the car that night. It is evident from the jury’s answers that they accepted the defendant’s evidence on those matters. The defendant said that he fired his rifle at the engine of the car from a distance of about 30 yards and that as he did so he called out to the driver to abandon the car. He said that when he fired he could not see anyone in the car. It was a dark night. When asked whether he could see quite clearly through the window of the car, the defendant replied, “I couldn’t see that clear but there was no one there.” Cox then ran around in front of the car and the defendant, who was by now running towards the car, fired a second shot at the car. It was probably this shot that penetrated the car door and struck the plaintiff. Cox got into the car and began to turn it and to put it in motion. The defendant, whose rifle had jammed, then fired a number of shots from the shotgun, flattening a tyre and breaking the windscreen on the passenger’s side of the car. He said that he was a good shot and that had he wished to shoot Cox he could have done so. Cox did not give evidence at the trial. 4. The plaintiff gave evidence that she did not know that the car was stolen or that Cox intended to steal petrol. She did not know why he turned off the lights of the car or why he drove onto the defendant’s land. … 13. In Commissioner for Railways v. Quinlan [[1964] AC 1054] the Judicial Committee rejected the view that a general duty of care can coexist with the limited

741

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Torts: Principles, Skills and Application

duty owed to a trespasser. Their Lordships regarded it as plain that the accepted formulation of the occupier’s duty to a trespasser is intended to be an exclusive or comprehensive definition and said, at p.1074: ... so long as the relationship of occupier and trespasser is or continues to be a relevant description of the relationship between the person who injures or brings about injury and the person who is injured - an important qualification - the occupier’s duty is limited in the accepted terms. It is so limited because the character of trespassing is such that the law does not think it just to require the occupier to speculate about or to foresee the movements of a trespasser ... Their Lordships examined and criticized the judgments in the three Australian cases to which I have referred and said that the passage from the judgment of Kitto J. which I have cited “can be read as suggesting that an occupier owes a duty of care or ‘foreseeingness’ towards a trespasser that is both undefined in extent or content and is inconsistent with the established law ...” (see at p.1080). They made the further comment, at p.1081: ... for the moment it is sufficient to say that their Lordships cannot find any line of reasoning by which the limited duty that an occupier owes to a trespasser can co-exist with the wider general duty of care appropriate to the Donoghue v. Stevenson formula: and, if the relation of occupier and trespasser is to be displaced by ‘some other relation’, as may happen, the grounds upon which that displacement can be held to occur must admit of reasonably precise definition, otherwise the task of charging juries as to what the law requires or allows will become virtually incapable of formulation.

The modern statutory context 19.8

As discussed in detail in Chapter 2, statutory provisions in each state and territory provide a broad-ranging application to potential negligence scenarios. This includes facts, matters or allegations relevant to a claim in terms of the breach of the duty owed by the occupier. There are several causes of action the visitor who has suffered loss may allege, depending on the facts.These include a breach of the general duty of care within the context of occupier responsibility, a breach of statute with, for example, a ticketed, paying guest, and a breach of a statutory duty.

Statutory treatment of occupier’s liability 19.9

Several of the various state and territory legislatures deal with this issue in the sections respectively referred to below in Table 19.1.

742

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Occupiers’ Liability

Table 19.1 State or territory

Section

Relevant Act

ACT

s 168

Civil Law (Wrongs) Act 2002

NSW

Not covered

Civil Liability Act 2002

NT

Not covered

Law Reform (Miscellaneous Provisions) Act 1956

Qld

Not covered

Civil Liability Act 2003

SA

ss 19–22

Civil Liability Act 1936

Tas

Not covered

Civil Liability Act 2002

Vic

ss 14A–14E

Wrongs Act 1958

WA

s5

Occupiers’ Liability Act 1985

The relevant Victorian provision is as follows: WRONGS ACT 1958 - SECT 14B liability of occupiers WRONGS ACT 1958 - SECT 14B Liability of occupiers (1) The provisions of this Part apply in place of the rules of the common law which before the commencement of the  Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them. (2) Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises. (3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. (4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to— (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; 743

19.9

Torts: Principles, Skills and Application

S. 14B(4)(fa) inserted by No. 49/2002 s. 3. (fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication; S. 14B(4)(fb) inserted by No. 49/2002 s. 3. (fb) whether the person entering the premises is engaged in an illegal activity; (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. (5) Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.

The standard of care relevant to occupiers 19.10

The standard of care goes to the question of whether the duty has been breached by the occupier. It is dealt with by the various statutes as shown in Table 19.2.

Table 19.2 State or territory

Section

Relevant Act

ACT

s 168

Civil Law (Wrongs) Act 2002

NSW

Not covered

Civil Liability Act 2002

NT

s9

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Not covered

Civil Liability Act 2003

SA

ss 19–22

Civil Liability Act 1936

Tas

Not covered

Civil Liability Act 2002

Vic

s 14

Wrongs Act 1958

WA

s5

Occupiers’ Liability Act 1985

The relevant Victorian provisions are as follows: WRONGS ACT 1958 - SECT 14A definitions WRONGS ACT 1958 - SECT 14A Definitions In this Part— (a) a reference to the occupier of premises includes a reference to the landlord of premises let under a tenancy (including a statutory tenancy not amounting in law to a tenancy) who— (i) is under an obligation to the tenant to maintain or repair the premises; or 744

19.11

Occupiers’ Liability

(ii) is, or could have put himself in, a position to exercise a right to enter on the premises to carry out maintenance or repairs; and (b) a reference to premises includes a reference to any fixed or moveable structure, including any vessel, vehicle or aircraft. WRONGS ACT 1958 - SECT 14B liability of occupiers WRONGS ACT 1958 - SECT 14B Liability of occupiers (1) The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them. (2) Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises. (3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. (4) Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to— (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (fa) whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication; (fb) whether the person entering the premises is engaged in an illegal activity; (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. (5) Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.

The occupier’s duty to trespassers 19.11

Historically, the status of the person on the premises — lawfully there, or as a trespasser — had a material bearing on the standard of care owed by the occupier. For the most part, the legislation provides generalised standards 745

19.11

Torts: Principles, Skills and Application

relevant to all visitors, rather than setting out standards relevant specifically to trespassers. Refer to Table 19.3.

Table 19.3 State or territory

Section

Relevant Act

ACT

Not covered

Civil Law (Wrongs) Act 2002

NSW

Not covered

Civil Liability Act 2002

NT

ss 9–10

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Not covered

Civil Liability Act 2003

SA

s 20

Civil Liability Act 1936

Tas

Not covered

Civil Liability Act 2002

Vic

Not covered

Wrongs Act 1958

WA

s5

Occupiers’ Liability Act 1985

The relevant South Australian provision is as follows: CIVIL LIABILITY ACT 1936 - SECT 20 CIVIL LIABILITY ACT 1936 - SECT 20 20—Occupier’s duty of care  (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.  (2) In determining the standard of care to be exercised by the occupier of premises, a court shall take into account—  (a) the nature and extent of the premises; and  (b) the nature and extent of the danger arising from the state or condition of the premises; and  (c) the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and  (d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and  (e) the extent (if at all) to which the occupier was aware, or ought to have been aware, of—  (i) the danger; and  (ii) the entry of persons onto the premises; and  (f) the measures (if any) taken to eliminate, reduce or warn against the danger; and  746

19.11

Occupiers’ Liability

(g) the extent (if at all) to which it would have been reasonable and practicable for the  occupier  to take measures to eliminate, reduce or warn against the danger; and  (h) any other matter that the court thinks relevant.  (3) The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.  (4) Subject to any Act or law to the contrary, an occupier’s duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract.  (5) Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care.  (6) An occupier owes no duty of care to a trespasser unless—  (a) the presence of trespassers on the  premises, and their consequent exposure to danger, were reasonably foreseeable; and  (b) the nature or extent of the danger was such that measures which were not in fact taken should have been taken for their protection.

The relevant Western Australian provision is as follows: OCCUPIERS’ LIABILITY ACT 1985 - SECT 5 OCCUPIERS’ LIABILITY ACT 1985 - SECT 5 5. Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.  (2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.  (3) A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).  747

19.11

Torts: Principles, Skills and Application

(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to — (a) the gravity and likelihood of the probable injury; and  (b) the circumstances of the entry onto the premises; and  (c) the nature of the premises; and  (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and  (e) the age of the person entering the premises; and  (f) the ability of the person entering the premises to appreciate the danger; and  (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

The historical approach of case — the United Kingdom influence 19.12

The United Kingdom, as a property-based, hierarchical political and economic system, prioritised the rights of the property-owning class. As such, occupiers owed few duties. Those duties were different for the classification of the visitor. If they were invited (invitees, paying customers with a contract etc), they were owed higher duties than people merely there with implied permission (invitees). And people not there legally (trespassers) were owed next to no standard of care.

The High Court approach — breaking with the United Kingdom approach 19.13

19.14

The key Australian case (dealing with mainstream facts, as opposed to Hackshaw v Shaw) is Australian Safeway Stores Pty Ltd v Zaluzna outlined below.

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Court: High Court of Australia Facts: The defendant, Australian Safeway Stores Pty Ltd, was the occupier of a supermarket in suburban Melbourne. The plaintiff, Mrs Zaluzna, was there (obviously as a paying customer, and an invitee) to buy cheese. The shop floor was wet, she slipped and injured herself. What was the occupier’s liability? Legal principle: Was the duty owed by an occupier a particular set of responsibilities (a special duty), or was it simply part of the wider, general law of negligence, ie the need to take reasonable care?

748

19.14

Occupiers’ Liability

The court’s decision (application of the legal principle to the facts): The court found that occupier’s liability was part of the general law of negligence. As noted earlier, this meant the taxonomy and treatment of different categories of visitor were now largely irrelevant. The majority, comprising Mason, Wilson, Deane and Dawson JJ, wrote as follows: 1. On Saturday 20 January 1979 towards midday the respondent entered what has been described as the “foyer area” of the appellant’s supermarket at Mount Waverley in Victoria, intending to buy some cheese. It was a rainy day and in consequence the vinyl-tiled floor of the foyer area had become wet or moist. Unfortunately, before entering the area of the supermarket where the merchandise was displayed, the respondent slipped and fell heavily on the floor. She sustained personal injury. She sued the appellant in the Supreme Court of Victoria for damages for negligence, alleging both a breach of the general duty of care and a breach of the duty owed by an occupier to an invitee. The action was tried by a judge sitting alone. 2. The learned trial judge ruled that the case was not one in which it was appropriate to look for a duty of care cast in terms of the principles enunciated by Lord Atkin in Donoghue v. Stevenson [1931] UKHL 3; (1932) AC 562, at p 580. In coming to that conclusion, his Honour relied primarily on the decision of the House of Lords in London Graving Dock Co. Ltd. v. Horton (1951) AC 737. He therefore directed himself in accordance with the classic exposition of the invitor’s duty to his invitee as laid down by Willes J. in Indermaur v. Dames (1866) LR 1 CP 274, at p 288, namely, that it was the appellant’s obligation to take reasonable care to prevent damage from unusual danger of which it knew or ought to have known. 3. The trial judge, while recognizing that the moisture on the floor did constitute some kind of hazard to customers, held that it was no more than customers shopping on a wet morning would ordinarily expect. It was not an unusual danger. However, his Honour acknowledged that there might be room for different views about such a conclusion and he therefore proceeded to consider the case on the assumption that there was an unusual danger. His Honour found that the moppingup procedures adopted by the appellant in order to cope with the wet conditions had not been shown to fall short of what was reasonable. He also considered a number of other possible safeguards which it was alleged that the appellant might have undertaken. In the result his Honour found that the appellant was not in breach of the duty of care that would arise on the assumption he had made. He dismissed the respondent’s action. … 10. It must also be remembered that the duty of an occupier to an invitee was articulated by Willes J. in Indermaur v. Dames in 1866. The “plain tenor” of this pronouncement, to adopt the phrase used by Fleming in his text, The Law of Torts (1983) 6th ed., at p.430, is that an invitor’s obligation with respect to dangers on his premises should be measured by the flexible standard of reasonable care, as part of the general law of negligence. Unfortunately it has been treated more as a statutory definition of exclusive application to the occupier of dangerous premises in their relationship to invitees. Yet in Heaven v. Pender (1883) 11 QBD 503, the Court of Appeal was concerned with formulating a duty of care in circumstances where unsound staging had been erected on premises to which there had been an invitation to the plaintiffs to enter, and the case really depended on the duty of

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the owner of the premises to persons so invited. The principle enunciated in that case, although not expressed in terms of the statement of Willes J., was taken up by Lord Atkin in formulating the general duty in Donoghue v. Stevenson. There remains neither warrant nor reason for continuing to search for fine distinctions between the so-called special duty enunciated by Willes J. and the general duty established by Donoghue v. Stevenson. The same is true of the so-called special duties resting on an occupier of land with respect to persons entering as licensees or trespassers. 11. So long as these alternative formulae are retained, courts and others concerned with the application and administration of the law are committed to pursuing the “barren exercise” to which Brennan and Dawson JJ. referred. We are unable to see sufficient justification for their continued recognition. It is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty. What is reasonable, of course, will vary with the circumstances of the plaintiff’s entry upon the premises. We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier’s liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty. Ltd. v. Minister Administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68; (1986) 68 ALR 161 and Cook v. Cook [1986] HCA 73; (1986) 61 ALJR 25; 68 ALR 353, to simplify the operation of the law to accord with the statement of Deane J. in Hackshaw, at pp.662-663: ... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. 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. 12. In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent. There must be a new trial to determine whether the appellant was in breach of that duty. 13. The appeal should be dismissed.

Occupier’s liability and defences 19.15

The main defences put by the defendant will be that the risk was obvious, or that the plaintiff was guilty of contributory negligence. Both of these matters are relevant to the next case. 750

19.16

Occupiers’ Liability

19.16

Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 Court: High Court of Australia Facts: The defendant was the occupier of a supermarket. The plaintiff was delivering bread. There was a heavy bin left in the way by the local council. The plaintiff tried to move the bin on her own, and injured her back. She had actually first hurt her back a couple of weeks before. Legal principle: Was the occupier negligent? Was the plaintiff guilty of contributory negligence? The court’s decision (application of the legal principle to the facts): The court found that the occupier was liable in negligence for not moving the bins left in the way by the local council. It also found that the plaintiff was guilty of contributory negligence as determined in the court below, at the amount of 25%. This meant a reduction in damages of that percentage. The High Court, comprising Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ, provided a detailed factual narrative as follows: 1. In an action brought in the District Court of Queensland, and heard by Samios  DCJ, the appellant, who sustained a back injury while delivering goods to the respondent’s store at Stanthorpe, sued the respondent for damages for negligence. She succeeded, and was awarded damages of $157,991.89. An allegation of contributory negligence was rejected. •

By majority (de Jersey CJ and Williams JA; McMurdo J dissenting) the Court of Appeal of Queensland reversed the primary judge’s finding of negligence and ordered that there be judgment for the defendant in the action

•

The dissenting judge would have upheld the finding of negligence but reduced the judgment by one-third on account of contributory negligence. The primary question in this appeal is whether the Court of Appeal was justified in reversing the primary judge’s finding of negligence. There is also a question as to contributory negligence.

The facts 2. The appellant’s action arose out of an occurrence in late August 1999. She was unable to identify the precise date. She made no complaint to any employee of the respondent on the day. She first sought medical attention about three weeks later. The appellant had previously injured her back, in another work related incident, a week or two before the events with which this case is concerned. Both injuries aggravated a pre-existing degenerative condition. 3. The appellant suffered the injury the subject of this appeal while she was on premises occupied by the respondent. However, the case is not simply concerned with an occupier’s liability for hazards associated with the static condition of premises. The appellant was on the respondent’s premises for a mutual commercial purpose, and was required to conform to certain systems and procedures established by the respondent. The case concerns those systems and procedures, and the risks they involved for persons in the position of the appellant. It is, therefore, necessary to explain the context in which the injury occurred.

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4. The appellant and her husband conducted a bread delivery service in the Stanthorpe area pursuant to a contract with Cobbity Farm Bakeries Pty Ltd. They used two vehicles. The appellant’s husband drove a van, and delivered mainly to small retailers. The appellant drove a truck. She made daily deliveries to Woolworths’ Stanthorpe store. She delivered at some time between 5 am and 5.30 am. The respondent’s store was part of a shopping centre complex. Deliveries were made to a loading dock at the end of a lane. The loading dock led to a storeroom which was under the control of a storeman. There was a roller door between the loading dock and the storeroom. The appellant, like other deliverers of supplies, would reverse her truck along the laneway, and unload her goods onto the loading dock, from where they were taken to the storeroom. 5. The respondent’s storeman was necessarily involved in that process, for the purpose of agreeing upon the quantities delivered, and, no doubt, seeing that they were appropriately stored. The checking of quantities was done on the loading dock. The storeman was often, but not always, in or around the storeroom or loading dock area when the appellant arrived. Sometimes he was elsewhere, and it was necessary to press a buzzer to attract his attention and bring him to the loading dock. On some occasions it took up to 10 or 15 minutes for the storeman to arrive. The appellant could not unload her bread and depart to do her other deliveries without the presence and co-operation of the storeman. Sometimes the appellant’s would be the first of the delivery vehicles to arrive at Woolworths; sometimes others would arrive there before her. If she arrived first, the lane was not wide enough to permit another vehicle to take her place. The appellant was a small woman. Her husband frequently went to Woolworths after doing his first delivery in order to help her unload her truck. Occasionally, he arrived at Woolworths for that purpose before the appellant. 6. In a bay adjacent to the loading dock, there was an area, fenced on three sides, where two industrial waste bins were located. Next to the fenced area was a public parking area. The waste bins, when in use, were placed alongside the loading dock so that Woolworths staff could place waste in them. The bins belonged to the Stanthorpe Shire Council, and were emptied by Council employees on Mondays, Wednesdays and Fridays. The Council truck would reverse up the lane. Council workers would move the bins manually from the fenced area to the lane and place them in front of the loading dock. They would then be emptied mechanically into the Council truck. Routinely, the Council workers would leave the empty bins in the laneway in front of the loading dock without returning them to the fenced area. The bins constituted an obstacle to any delivery vehicle seeking access to the loading dock. 7. The Council truck arrived at varying times between 4 am and 6 am. Whether the Council workers were derelict in their duty to the Council by leaving the empty bins in the laneway, or whether the Council was in breach of some obligation it owed to the respondent, were not questions that were investigated. The respondent’s regular storeman, Mr Frank Thompson, acknowledged that his duties included returning the empty bins to the fenced area. Mr Thompson was away on holidays in August 1999, and his replacement, Mr Bennett, said in evidence that he was “not too sure” whether it was part of his job to move the bins. 8. The evidence showed that the presence of industrial waste bins in the laneway, blocking access to the loading dock, was a long-standing source of friction between

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Occupiers’ Liability

the appellant and employees of the respondent. There was evidence from other delivery drivers, who gave varying accounts of the problem. The bins were large, but were designed to be moved manually. That is how they were moved by the Council employees, the storeman and, not infrequently, delivery drivers themselves. The male witnesses in the case gave evidence of moving the bins without suffering any harm. But they presented a problem to the appellant. 9. What delivery drivers achieved in terms of saving of time by moving the bins is not entirely clear. It was the storeman’s job to move them. A driver could not complete the process of delivery without the presence of the storeman. Even if, as sometimes occurred, the storeman was not present when the driver arrived, and even if there was a delay of 10 to 15 minutes in responding to the buzzer, there was no possibility of the driver getting on with his or her rounds until the storeman arrived. Nevertheless, it is clear that, on occasion, if the storeman was not there when a driver arrived, the driver would move the empty bins back to the fenced area and thus clear the path to the loading dock. The drivers obviously thought this saved them some time. 10. Over the months before August 1999, the appellant and her husband complained to the respondent’s staff and management about the bins being left in the laneway. Mr Frank Thompson said that the appellant’s husband complained to him seven times or more. On 22 May 1999, the appellant noted in her diary: “too heavy for manual moving ... too heavy for me to move by myself.” The appellant’s husband sometimes moved the bins for her. The appellant said that between March 1998 and August 1999 she moved the bins between 20 and 30 times. 11. A week or two before the incident the subject of this litigation, the appellant was attempting to lift a crate of bread in a shed at her home. She had to reach up to the crate. As she was twisting to lower the crate, she felt a pain in her back. The pain subsided. 12. On the day in question the appellant arrived at the shopping complex at about 5.15 am. No other person was present. The roller door between the loading dock and the storeroom was down. No storeman came out. There were empty waste bins in front of the loading dock. The appellant reversed her truck along the laneway towards the loading dock. She then left her truck and attempted to move one of the bins. She attempted to push the bin with her arms, but it would not move. She then brought one of her legs into play and as she pushed again she felt pain radiate down her back and leg. The appellant’s husband arrived. She told him she had hurt her back. He then moved the bins. The two of them unloaded the bread onto the loading dock. An unidentified “store person” then came out of the storeroom, opened the door, and checked the quantity of bread. No complaint was made by the appellant or her husband to the “store person” or anyone else. After unloading they drove off to continue their deliveries.

The High Court then discussed liability issues: Duty of care 23. It was not in question that the respondent owed a duty of care to the appellant, although there was a disagreement about the appropriate formulation of that duty. 24. The status of the respondent as occupier of the land on which the appellant was injured was one aspect of the relationship that gave rise to a duty of care. It gave the respondent a measure of control that is regarded by the law as important

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Torts: Principles, Skills and Application

in identifying the existence and nature of a duty of care. There was, however, more to the relationship than that, and, as was agreed on both sides, the problem was not one that concerned only the physical condition of the respondent’s premises. 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 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). 25. Even in the days when the content of an occupier’s duty of care was defined by reference to fixed categories, within those categories the requirements of reasonableness were affected by a variety of considerations. “The content of the occupier’s duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises.” 26. The purpose for which, and the circumstances in which, the appellant was on the respondent’s land, constituted a significant aspect of the relationship between them. The appellant, in the pursuit of her own business, was delivering goods to the respondent for the purpose of sale in the course of the respondent’s business. To do that, she was required to conform to a delivery system established by the respondent. She was directed by the respondent when, where, and by what method she was to deliver. She was required to arrive between 5 am and 5.30 am, and to drive her truck along the laneway leading up to the respondent’s loading dock. She was required to unload at a designated place, where the goods were to be counted and accepted by the respondent’s storeman. Since the respondent established the system to which the appellant was required to conform, the respondent’s duty covered not only the static condition of the premises but also the system of delivery. Some aspects of what went on were within the independent discretion of the appellant. She was not the respondent’s employee. Within a fairly narrow time frame, she could choose when she made her deliveries. She could choose what kind of delivery vehicle suited her purpose. Decisions about the management of the vehicle, and the method of unloading, were largely left to her. 27. Even so, 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 organization, 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

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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. 28. The essential issue in the case concerns, not the existence or general nature of the duty owed by the respondent to the appellant, but whether there was a breach of duty. 29. The appellant does not complain of a failure to warn her of a risk of which she was unaware. On the contrary, her evidence was that she knew of the risk of injury to herself involved in moving the industrial waste bins that sometimes blocked access to the loading dock, and had complained to the respondent about being exposed to that risk. We are not concerned with a question of the kind that arises where a plaintiff asserts that reasonableness required that a defendant warn of a hazard, and the defendant responds by saying that the hazard was so obvious that no warning was required. 30. Even so, the respondent relies upon the appellant’s knowledge of the risk involved in attempting to move the bins herself. Indeed, the respondent points out that in one respect the appellant’s knowledge was better than that of the respondent, in that the appellant knew, and the respondent did not know, that the appellant had suffered a recent back injury. As is common, questions of degree of risk are involved. Evidently, the bins were designed to be moved manually, and they were moved routinely by Council workers, the respondent’s storemen, and other (male) delivery drivers without injury. Yet the appellant and her husband had told the respondent’s employees that she could not move them safely, and Mr Frank Thompson agreed that she should not be moving them. What was involved was not a risk to everybody, but it was a risk to the appellant, and that was a risk of which the respondent was aware. 31. The principal argument for the respondent is that the risk to the appellant arose, not from the respondent’s delivery system, and the facilities and procedures associated with that system, but from the appellant’s independent and unnecessary conduct in attempting to move the bins herself rather than waiting for a storeman to move the bins for her. This view of the facts is expressed in the passage from the reasons of Williams JA quoted above. Associated with this argument is the proposition that, in truth, the appellant achieved little or nothing by moving the bins. She had to wait for a storeman in any event. She could not leave before a storeman had checked off her delivery. There was no risk of her losing her place in a queue. On this approach, her action was one of pointless impatience. The respondent’s system, it is said, did not oblige the appellant to move the bins, and she achieved little by doing so. 7 cf Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460. 32. To say that the system did not oblige the appellant to move the bins involves some over-simplification. The evidence showed that it was not unusual for delivery drivers, including the appellant, to move the bins themselves. It appears that they believed they were achieving some worthwhile saving of time, presumably because it enabled them to reach the loading dock more quickly, and commence unloading without having to wait for the arrival of a storeman. On a busy delivery run, at an early hour, it was clearly open to the delivery drivers to regard even a modest saving of time as worthwhile. It was open to the primary judge to regard that attitude as reasonable in the circumstances. 33. There was evidence of delays of up to 10 or 15 minutes on the part of storemen when a delivery driver pressed a buzzer to call for a storeman’s attendance for

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the purpose of accepting the delivery. The primary judge found that there was inconsistency between storemen in their responsiveness to the buzzer, and also in their understanding and acceptance of a responsibility to move the bins. He found that there was a reasonable concern on the part of the appellant that she would be delayed for a significant time if she did not move the bins herself. He also found that employees of the respondent, for their own benefit, were prepared to let delivery drivers move the bins rather than do the job themselves. In making those findings, the primary judge had the advantage of seeing and assessing the delivery drivers, including the appellant, and the employees of the respondent. 34. The respondent’s system for receiving deliveries from its suppliers, at least up until the time of the appellant’s injury, left unresolved the problem created by the Council’s method of dealing with the waste bins, that is to say, moving them into the laneway, emptying them, and leaving them obstructing access to the loading dock. That moving the bins could injure a driver of the appellant’s stature was foreseeable, and foreseen; as was the risk that drivers of all sizes might attempt to move the bins in order to reduce delay. The respondent’s employees would move the bins if asked to do so, but there was no procedure that meant they would always move them promptly, or that established that they, and not the delivery drivers, were to clear the access to the loading dock. 35. When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case. To take a commonplace example, in ordinary circumstances a motorist in a city street, approaching a pedestrian crossing, will reasonably assume that the pedestrians assembled on the footpath will observe the lights which control the crossing. Most people drive as though it may be expected that other road users will be reasonably careful. At the same time it is often judged reasonable to expect a motorist to allow for the possibility that some other road users will be inattentive or even negligent. 36. The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community’s standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case, that a warning is either necessary or sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings. 37. The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of

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contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration. 38. There was no sufficient reason for the Court of Appeal to set aside the primary judge’s finding of negligence. The question was whether the respondent had a proper delivery system in place. Such a system should have included arrangements for moving the waste bins left in the laneway by the Council workers in order to clear access to the loading dock. The appellant, and the other delivery drivers, had no responsibility to design, and no power to implement, the delivery system operating on the respondent’s premises. That power and responsibility belonged to the respondent alone. The respondent, in truth, had no system for that particular purpose. In practice, the respondent’s employees either moved the bins themselves or left it to the delivery drivers to move the bins for them, according to the convenience of the respondent’s employees and any other demands upon their time and attention. In the circumstances that prevailed, the respondent knew that, frequently, delivery drivers would move the bins. The respondent knew that not all drivers were capable of doing that without risk of. injury. The reasoning of McMurdo J set out above is persuasive. The primary judge’s finding of negligence should have been upheld. Contributory negligence 39. McMurdo J was also correct to conclude that a case of contributory negligence had been established and that the primary judge had erred in failing so to find. The appellant was aware of the risk involved in moving the bins herself. She had recorded in her diary that they were too heavy for her. She and her husband had complained about the matter. 40. The factors that weighed with the majority in the Court of Appeal, while not sufficient to displace the finding of negligence, were significant for the issue of contributory negligence. In this regard it is important to remember that, in her relationship with the respondent, the appellant was not an employee but an independent contractor. Different considerations arise in the case of contributory negligence on the part of employees. 41. Although some saving in time was achieved by the delivery drivers when they moved the bins themselves, it cannot have been great. Furthermore, in the case of the appellant, not only did she have to wait for the storeman before she completed her delivery, she was also accustomed to waiting for her husband to assist her with unloading and, if necessary, with moving the bins. On the occasion in question, the appellant attempted to move the bins without waiting either for the storeman or for her husband. Furthermore, the appellant knew, and the respondent did not know, that she had injured her back only a few days previously.

Is the occupier liable for the acts of third parties? 19.17

The answer to this particular question, as is so often the case in law, depends of the facts, the factors and the circumstances. These could include the type of third party (lawful or unlawful), the context of the occupier (for example, running a business, or simply being a home owner), the knowledge of the occupier, and the obviousness of the hazard such that the plaintiff needs to look 757

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out for themselves. In a somewhat unusual case in the High Court, the liability of the occupier of a shopping centre was once again tested. The context was a criminal assault in the carpark contiguous to the centre.

19.18

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Court: High Court of Australia Facts: Modbury Triangle was a shopping centre and car park located in suburban Adelaide. The centre contained a video shop (and such shops were common just a couple of decades ago before Netflix and other means of accessing film and entertainment rendered them largely redundant, and somewhat quaint). The video shop was a late-closing business, as was typical of such businesses. The plaintiff was an employee of the video shop, and he shut the shop late on the night in question. There were lights in the car park, but they had been switched off. The employee was badly injured as a result of a criminal assault by three unidentified assailants, who could not be located then or later. The plaintiff sued the shopping centre. He was successful at first instance and on appeal; the defendant shopping centre appealed to the High Court. Legal principle: Could the plaintiff succeed in his negligence claim against the shopping centre? Put in the alternative, was the defendant shopping centre liable to the plaintiff in the particular context of the claim? The contextual facts and circumstances included that it was a claim brought in his capacity as an employee whose workplace was located within the centre, for the criminal damage and injury caused by unknown third parties. The court’s decision (application of the legal principle to the facts): The High Court held in favour of the shopping centre. As such, they overturned the two decisions of the South Australian courts below. They held in particular that the occupier’s duty to take reasonable care to prevent physical injury to this respondent did not extend to a criminal assault by third parties. The following extract from the judgment of Gleeson CJ illustrates the unusual nature of the facts and the point that the neighbour principle did not extend to cover the plaintiff in this case: 1. GLEESON CJ. The first respondent sued the appellant, in tort, for damages for personal injury. The injury was inflicted by three unknown men, one armed with a baseball bat, who criminally assaulted the first respondent in a car park. There is no suggestion that the appellant was vicariously responsible for the conduct of the attackers. The basis of liability is said to be that the appellant was the occupier of the car park; that, at the time of the attack, the car park lights were off; that, in the circumstances of the case, which will be set out in more detail below, the failure to leave the lights on was negligent; that the risk of harm of the kind suffered was foreseeable; and that the negligence was a cause of the harm.

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2. The primary issue argued in the appeal concerns the principle upon which an occupier of land may be liable, in an action for negligence, to a person who, whilst on the land, is injured as a result of the deliberate wrongdoing of a third party. There was also an issue as to causation.

The facts 3. The appellant was the owner of a shopping centre in a suburb of Adelaide, known as the Modbury Triangle Shopping Centre (“the Centre”). The first respondent was employed by Focus Video Pty Ltd (“Focus Video”), which leased premises in the Centre, used as a video shop. The Centre had a large outdoor area for car parking. The video shop faced the car park. Nearby, there were all-hours automatic teller machines. At night, the car park was dark (except for slight illumination from fluorescent lighting on the roof of the verandah facing the car park), unless the car park lights were turned on. There were four lighting towers. They were controlled by timing devices. 4. The video shop closed at 10 pm. The attack occurred at around 10.30 pm on Sunday, 18 July 1993. The first respondent was the only person who remained in the video shop. The only other shop that had been open that night was a chemist shop, which had closed at 8 pm. The first respondent, who was the manager, closed the video shop and walked a distance of about 10 metres towards his car, which was parked in the car park. The car park lights were not on at the time. The first respondent was attacked by the three assailants, and was badly injured. 5. Under the terms of the lease between the appellant and Focus Video, certain services, including lighting of the common areas, were provided at the discretion of the appellant. The car park was one of the common areas. The lease provided that the tenant would be liable to pay a proportion of the cost of certain operating expenses, the other proportions being paid by the other tenants. Those operating expenses included all charges for electricity and lighting in the common areas. 6. Before July 1992 the practice had been to leave the car park lights on until 11 pm. This practice had ceased in July 1992, but in December 1992 the lights were left on until around 10.15 pm for a few weeks over the holiday period, following a request by the co-manager of the video shop. In early 1993, the co-manager, Ms Lehmann, made complaints to the appellant’s representatives about the time at which the lights went off. From the beginning of 1993 until the attack on the first respondent in July 1993, the lights were not left on after 10 pm. There was uncertainty in the evidence as to exactly what time the car park lights were turned off on the night of the attack, and during the period immediately before that night. In opening at the trial, counsel for the respondents said that the evidence would show that, at the relevant time, the lights switched off automatically at about 10 pm. However, the evidence was not so precise, and much of it was expressed in ambiguous terms. The trial judge was not able to make a finding as to exactly when the lights went off. He said: “I accept the evidence of Ms Lehmann that for approximately 12 months the car park lights either did not operate at night or were turned off before 10.00 pm.” The problem is that Ms Lehmann’s attention was directed to the fact that the lights were not on after 10 pm. Since the video shop closed at 10 pm, and the person in charge

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would take some time to be ready to leave, that person would leave the shop at a time when the car park lights were off. Ms Lehmann did not give clear evidence as to whether the lights went off at 10 pm, or at some earlier time, or at different times on different nights. Nobody appears to have mentioned, at the trial, that if the lights were timed to go off at 10 pm, the complaints from the video shop might have been resolved by closing the shop a little earlier. It is understandable that the lights may have been timed to switch off at the closing time of the last shop in the Centre to remain open. That could explain why they went off at 10 pm. It is not easy to understand why they might switch off earlier, or why they might switch off at different times on different nights. The trial judge’s finding on the matter is ambiguous. When, in the course of argument in this Court, the ambiguity was pointed out, senior counsel for the respondents first said that his understanding of the evidence was that on the night in question the lights went off at 10 pm. Subsequently, he said there was no precise evidence about that. The trial seems to have been conducted on the basis that all that mattered was that the lights were not on after 10 pm. The proceedings 7. The respondents sued the appellant in the District Court of South Australia. The second respondent is the wife of the first respondent. She sued for damages for loss of consortium. Damages were agreed at $205,000 for the first respondent and $5,000 for the second respondent. 8. The action was heard before Judge David. He found for the respondents. He said: “I reject the defendant’s argument that because the acts of third parties were involved there can be no duty of care. It has clearly been established by a number of authorities cited to me (although in different circumstances) that there can be a duty of care to prevent damage or injury from the acts of third parties. I also reject the argument that if there is a duty of care by the defendant to the tenants it is for the total security of the tenants and customers and this would entail all of the paraphernalia involving total security. It is argued that such a duty would be far too onerous. In my view the duty of care need not extend that far and I find that there is a duty of care for the security of the tenants and their customers merely concerning security as affected by the lighting of the common area.” 9. As the first respondent was neither a tenant nor a customer, it may be taken that his Honour intended to refer also to employees of tenants. The learned judge was right to assume that there was no material difference between the duty, if any, owed to employees of tenants and that owed to customers of tenants. Since the car park was not closed to the public generally, he might have added a reference to members of the public who simply used the car park for their convenience, such as visitors to a nearby hospital. People who might come to use the automatic teller machines at any hour of the day or night could constitute a further category; or they may have been included as customers. As the learned judge understood, people who lawfully used the car park at night were not only tenants; and, in fact, the first respondent was not a tenant. It may be asked why, if the appellant were responsible for the

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security of all such people, at least in so far as it was affected by the lighting of the car park, the appellant would not have been obliged to leave the lights on all night. A person using an automatic teller machine at 11 pm would be just as likely a target for criminal violence as an employee leaving the video shop at 10.30 pm. 10.  On the issue of causation, the trial judge found that there was “a clear connection between the safe guard of the lighting of the common area being denied to the plaintiff and the attack.” It will be necessary to consider whether, in a context such as the present, a clear connection amounts to causation. 11. There was an appeal to the Full Court of the Supreme Court of South Australia (Olsson, Mullighan and Nyland JJ). The principal judgment was delivered by Mullighan J, with whom the other members of the Court agreed. As to the scope of the appellant’s duty of care he said: “The control and responsibility for the car park, as a common area, remained with the appellant at all times. In my view, it is not a matter of whether the appellant positively assumed responsibility. It always had responsibility and had a duty to take reasonable care to avoid foreseeable risk to persons using the Centre, including those who did so at night to access the automatic teller machines or the Focus Video shop. There can be no question that there was a foreseeable risk of harm to persons using the car park at night if there was inadequate lighting. It was known that persons went to the Centre at night and used the car park to access the ATMs and the video shop. It was a simple measure to avoid that risk by changing a timing device so that the lights on the nearest tower were on at appropriate times. Having considered these matters, the extent of the duty of care was to ensure that sufficient lights were on when workers and customers were at the Centre.” 12.

On the issue of causation, the Full Court agreed with the trial judge.

The duty 13. 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. References to duty of care, breach of duty, and causation provide convenient sub-headings for a judgment, but in many cases the concepts require no further analysis. In other cases, of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense. I do not suggest that is what occurred in the present case. The learned judges identified and addressed the problem that arose, although, as will appear, I disagree with the conclusion they reached. A recitation of facts may not be useful unless it distinguishes between facts essential to the cause of action, particulars, and evidence. Modern pleadings take a form which often blurs

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such distinctions. The rubrics under which issues are organised for discussion may do little to assist the resolution of those issues. Common sense is important, but it is not a substitute for legal analysis when that is required. 14. In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable. 15. The first respondent suffered personal injury, the direct and immediate cause of which was the deliberate wrongdoing of the three men who attacked him. If the attack had occurred in a nearby street, or anywhere other than on land occupied by the appellant, there would have been no possible basis for attributing liability to the appellant. It is the appellant’s occupation of the land on which the attack occurred that is the basis for a claim that the appellant was in breach of a duty of care it owed to the first respondent. The lack of care asserted was an omission adequately to light the place of the attack. The assumption is that leaving the lights on would have prevented the attack. 16. It is not contended that the harm suffered by the first respondent resulted from some defect or danger in the physical state or condition of the car park. This is not a case, for example, where inadequate lighting resulted in the concealment of some dangerous object or condition in the car park, with consequent damage to person or property. 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 people in the position of the first respondent from conduct, including criminal conduct, of third parties. People in the position of the first respondent would include employees of tenants of the shopping centre, visitors to the shopping centre, including customers of tenants, users of the automatic teller machines, and, perhaps, any member of the public using the car park at any time for any lawful purpose. 18. The basis of the duty which, as occupier, the appellant owed in relation to the physical state or condition of the premises was control over, and knowledge of, the state of the premises. 19. The appellant had no control over the behaviour of the men who attacked the first respondent, and no knowledge or forewarning of what they planned to do. In fact, nothing is known about them even now. For all that appears, they might have been desperate to obtain money, or interested only in brutality. The inference that they would have been deterred by lighting in the car park is at least debatable. The men were not enticed to the car park by the appellant. They were strangers to the parties.

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20. In Smith v Leurs, Dixon J said: “It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. 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. It appears now to be recognized that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger.” 21. Control was the basis of liability in Dorset Yacht Co v Home Office, where Lord Morris of Borth-y-Gest, after citing the above passage, said that the case was one of a special relationship involving a duty to control another’s actions. 22. Reliance is sometimes the basis of a duty of care. Here there was no relevant reliance. Why the video shop could not have been closed in sufficient time to enable employees of the shop to walk to their cars before the lights went off (assuming they went off at 10 pm) was not investigated at the trial. There was nothing to prevent the first respondent’s employer from making such arrangements for the security of its employees as it saw fit. The lease did not give the appellant the exclusive right to take measures for the safety and security of employees and customers of tenants. 23. The present is not relevantly a case of assumption of responsibility. The respondents submitted that the appellant assumed responsibility for the illumination of the car park. That submission confuses two different meanings of responsibility: capacity and obligation. The appellant owned and occupied the car park, controlled the lights in it, and decided when they would be on and when they would be off. But the relevant question is whether the appellant assumed an obligation to care for the security of persons in the position of the first respondent by protecting them from attack by third parties. 24. In Kondis v State Transport Authority, Mason J said: “The element in the 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 several circumstances. The hospital undertakes the 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. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton [(1878) 4 VLR (L) 283] the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant’s property. 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 his 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.” (emphasis added).

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25. The fact that, as occupier of the car park, the appellant had the capacity to decide when, and to what extent, it would be lit at night, does not mean that the appellant assumed a particular responsibility to protect anyone who might lawfully be in the car park against attack by criminals. The policy adopted by the appellant as to the hour at which the lights went off suggests that the purpose of the lights was to attract customers, rather than deter criminals. Whether or not that is so, there is nothing in the evidence to suggest that the appellant assumed a responsibility which, at least in the case of employees of tenants of the Centre, might ordinarily be expected to be a responsibility of their employers. It was the first respondent’s employer which decided the hour at which the video shop would close, and what, if any, arrangements would be made for the afterhours security of employees. The argument provides an example of what Gummow J, in Hill v Van Erp, described as “[t]he use of the imprecise and beguiling but deceptively simple terms ‘known reliance’ and ‘assumption of responsibility’.” 26.  Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions. This was explained by Lord Goff of Chieveley in Smith v Littlewoods Ltd [[1987] AC 241]. His Lordship said, with reference to a general duty of an occupier to take reasonable care for the safety of neighbouring premises: “Now if this proposition is understood as relating to a general duty to take reasonable care not to cause damage to premises in the neighbourhood ... then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to  prevent  a third party from causing damage to the pursuer or his property by the third party’s own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage.” (original emphasis) 27.

The same point was made in Perl Ltd v Camden LBC [[1984] QB 342].

28. As Brennan J pointed out in Sutherland Shire Council v Heyman, the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable. Referring to Lord Atkin’s speech in Donoghue v Stevenson, his Honour said: “The judgment of Lord Esher MR in Le Lievre v Gould which Lord Atkin cites makes it clear that the general principle expresses a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third person, or by circumstances for which nobody is responsible.”

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29. The control and knowledge which form the basis of an occupier’s liability in relation to the physical state or condition of land are absent when one considers the possibility of criminal behaviour on the land by a stranger. The principle involved cannot be ignored by pointing to the facts of the particular case and saying (or speculating) that the simple expedient of leaving the car park light on for an extra half hour would have prevented the attack on the first respondent. If the appellant had a duty to prevent criminal harm to people in the position of the first respondent, at the least it would have had to leave the lights on all night; and its responsibilities would have extended beyond that. Furthermore, the duty would extend beyond the particular kind of harm inflicted by the criminals in the present case. It would presumably include criminal damage to property. If the baseball bat had been used, not against the first respondent, but against his car window, or if the car had been stolen, the same principle would govern the case. The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable. 30. There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Ltd. It also appears to be the basis upon which United States decisions relating to the liability of occupiers have proceeded. A leading American textbook states that: The duty to take precautions against the negligence of others ... involves merely the usual process of multiplying the probability that such negligence will occur by the magnitude of the harm likely to result if it does, and weighing the result against the burden upon the defendant of exercising such care. ... There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law. 31.  That does not represent an accurate statement of the common law in Australia. 32.  The factor most commonly taken into account in the United States in determining whether criminal activity was reasonably foreseeable is knowledge on the part of the occupier of land of previous incidents of criminality.

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33. It could not reasonably be argued that the present is such a case. There had been illegal behaviour in the area. A restaurant near the car park had been broken into. During a period of a year before the incident in question, there had been two attempts to break into an automatic teller machine. About a year before the incident, the car window of an employee of the video shop had been smashed. This does not indicate a high level of recurrent, predictable criminal behaviour. 34. It is unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour. It suffices to say two things: first, as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the situation postulated. 35. The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. There was nothing special about the relationship between the appellant and the first respondent. There was nothing about the relationship which relevantly distinguished him from large numbers of members of the public who might have business at the Centre, or might otherwise lawfully use the car park. Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable. 36. The appellant is entitled to succeed upon the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first respondent resulting from the criminal behaviour of third parties on that land. Causation 37. The case provides an illustration of the interrelationship that sometimes exists between questions of legal responsibility and causation. 38. In the Full Court, it was said that common sense indicated that causation was established. However, that was against the background of a previously expressed conclusion that the appellant had a legal responsibility for the security of the first respondent. 39. The issue of causation in the present case arises in circumstances where the objective facts are not disputed, and there is no question about physical cause and effect. The direct and immediate cause of the injuries was the conduct of the three attackers, who were acting independently of the

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appellant. The conclusion that, if the car park lights had been on, the three men would not have attacked the first respondent, may or may not be dictated by common sense. Let it be supposed that it is correct, or at least not such as to warrant interference by this Court. In a case such as the present, it is difficult to see what further role common sense can play. The answer to the question whether, upon that hypothesis, the appellant’s omission was a cause of the first respondent’s injuries depends upon the view that is taken of the appellant’s responsibilities. On the view adopted at first instance, and in the Full Court, the answer may be in the affirmative. But on the opposite view, a different result follows. 40. In Environment Agency v Empress Car Co Ltd [[1999] 2 AC 22], Lord Hoffmann discussed the problem of applying common sense notions of causation in cases involving the intervention of third parties or natural forces. He gave an example of a theft of a car radio, and pointed out that the question whether conduct of the car owner was in some way a cause of the loss might depend upon the view that was taken as to the extent of his responsibility to take care of his property. So it is in the present case. The finding on causation adverse to the appellant can only be justified on the basis of an erroneous view of the nature of the appellant’s duties as occupier. On an accurate legal appreciation of those duties, the appellant’s omission to leave the lights on might have facilitated the crime, as did its decision to provide a car park, and the first respondent’s decision to park there. But it was not a cause of the first respondent’s injuries. Orders 41. The appeal should be allowed with costs. The orders of the Full Court of the Supreme Court of South Australia should be set aside. In place of those orders, the appeal to that Court should be allowed with costs, the judgment of the trial judge should be set aside and the action should be dismissed with costs.

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Review In this chapter we examined the historical United Kingdom-based categories of special duty for occupier’s liability. The High Court grappled with maintaining this dichotomy between the general neighbour principle and the notion of special duties. Ultimately this was not sustainable, and the common law recognised a singular test from which it could extrapolate particular facts and circumstances. As with virtually every other area of tort law, the practical considerations now focus on relevant statutory provision, informed as it is by common law principles.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018, Ch 3 J Edelman and S Degeling, ‘The Future of the Common Law of Torts’ (2010) 22 Australian Bar Review 45 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 7.5

Key Cases Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Commissioner for Railways (NSW) v Cardy [1960] HCA 45; (1960) 104 CLR 274 (25 July 1960) Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (11 December 1984) Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234

Chapter 19 Review Questions 1. Why wouldn’t the traditional categories of visitor relevant to occupier’s liability be appropriate in Australia? 2. What is meant by ‘the generalising tendency’ of the neighbour test or principle from Donoghue v Stevenson [1932] AC 562? See the article by James Edelman and Simone Degeling, ‘The Future of the Common Law of Torts’ (2010) 22 Australian Bar Review 45 at 46. 3. How has this test affected the law in Australia regarding occupier’s liability?

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Chapter 20

Class Actions Legal practice skill: Appreciating the procedural complexities of bringing representative or class actions

Learning aims •

Understand the concept, and growing use, of class actions

•

Appreciate the procedural issues and the overlap, and potential inconsistency, between state and federal rules for bringing the claim

•

Achieve awareness that despite the procedural issues, the underlying case is generally in negligence and relies on the usual components: duty, breach, damage and causation

•

Gain an insight into the use of, and trends relevant to, class action

Background concepts and terminology 20.1

Most actions in tort law involve two parties, that is two individuals: the plaintiff and the defendant. This is simply the most common and least complex of the potential scenarios. There can, of course, be multiple parties to the same proceedings, depending on the facts and circumstances. It depends on the alleged loss-inducing behaviour and the relationship of the plaintiffs to the defendant. Are they, in law, ‘neighbours’ such that a duty of care is owed?

20.2

We could diagrammatically represent the broad categories of potential actions in relation to the number of parties as follows in Figure 20.1.

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Figure 20.1

Legal actions

One plaintiff, one defendant

One plaintiff, several defendants

Several plaintiffs, one defendant

Multiple plantiffs, one or more defendants

Many plaintiffs, in the hundreds or thousands

Class actions — also referred to as ‘mass torts’, and representative or group proceeding

20.3

In this chapter, we look at the concept of class actions where there are multiple plaintiffs, each alleging the same basic facts give rise to their damage. Rather than all of them bringing their own action, it is economically effective that they pool their time, attention, knowledge, resources and wisdom in acting collectively and bringing a single case on a representative basis. This involves the choice of plaintiff X chosen from the many to have their particular allegations tested as being part of the wider class with similar concerns.

20.4

Mass torts or class actions may involve physical, financial or psychological loss. A televised event, such as the Hillsborough football stadium collapse which killed many people, gave rise to many claims for physical and psychological loss. The use of defective medical devices may affect a wide number of people. Financial advice, including superannuation policies, security and loan products, insurance and related items, may affect many people across the nation if they are part of the business of a major bank, for example. Similarly, food and product safety issues can be wide-ranging and impact many people. It is to these types of situations that class actions may prove effective.

20.5

Access to justice has often been restricted by the nature of litigation. It is expensive, psychologically exacting, can involve several years, and may well pit an under-resourced individual against a corporate defendant with very deep pockets. This is a classic case of the ‘David v  Goliath’ myth. Class actions allow the plaintiffs (effectively ‘the many Davids’ as it were) to band together and to effectively seek redress against a large, well-resourced defendant. 770

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Class Actions

The process of bringing class actions in Australia 20.6

The fact that Australia is a federal legal system has a major bearing on the area of class actions. There are, as we have seen, nine jurisdictions: the federal jurisdiction, the six states and the two territories.

20.7

The Federal Court offers class action procedures. This means that a litigant, wherever they are allocated within the federal jurisdiction, can theoretically commence a class action, given there is a ‘class’ etc.

20.8

Alternatively, a class action can be commenced in those states which via their jurisdictions and through their own Supreme Courts, offer state-based rules and processes for commencing class actions.

20.9

There are three states with their own state-based class action rules; there is, of course, the federal jurisdiction too.This makes four potential jurisdictions, each with their own rules, as follows: •• Federal Court: Part IVA of the Federal Court of Australia Act 1976 (Cth); •• New South Wales: Part 10 of the Civil Procedure Act 2005 (NSW); •• Queensland (as from March 2017): The key features of the Queensland ‘representative proceeding’ regime, as set out in Pt 13A of the  Civil Proceedings Act 2011, include that: – there must be at least seven members of the ‘group’ for a proceeding to be commenced; – the action is brought by a single representative on behalf of all members of the group; – the claim must arise out of similar circumstances and raise a substantial common issue of law of fact; and – consent of a person to be a group member is not required; however, all members of the group must be notified of the action and their right to opt out of the group (by a set date) should they not wish to be bound by the judgment or settlement. Interestingly, a representative proceeding may be started in the Supreme Court now even if the cause of action arose before 1 March 2017. However, class actions already on foot in other jurisdictions (such as the action arising out of the 2011 Queensland floods currently in the New South Wales Supreme Court) will not be able to be transferred to Queensland. This change will make it considerably easier for classes to bring actions arising out of negligence in Queensland. Changes to facilitate the new regime have already been made to the Uniform Civil Procedure Rules, and it is expected it will not be long before a practice note setting out the rules

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for the conduct of these matters will be handed down, giving everyone a better idea as to how such matters will be run. •• Western Australia has undertaken a law reform process, which is ongoing.1 20.10

As a result, there may be several actions in progress which deal with the same subject matter as Figure 20.2 shows.

Figure 20.2 Action commenced in South Australia via the Federal Court (Action 1)

A class action, eg commenced against a national business operating all over Australia

20.11

Action commenced in the Victorian Supreme Court (Action 2)

Action commenced in the New South Wales Supreme Court (Action 3)

Action commenced in the Queensland Supreme Court (Action 4)

Given there may, theoretically at least, be several actions in progress which deal with the same subject matter, is this a problem in practical terms? It may be even that several actions are launched within the single jurisdiction of the Federal Court. This seems to be a matter to watch out for, rather than one which is actively causing problems. The following extract refers to a multi-state class action against the ride-sharing service, Uber. A Victorian lawsuit against Uber will be expanded to include taxi and hire car drivers from three more states across Australia. Thousands of people from Queensland, NSW and Western Australia are expected to join the class action over claims they lost business when the ride-sharing giant entered the market without legal approval in 2014. More than 1000 taxi and hire car drivers, operators and licence owners have already registered to join the class action in Victoria, where it was first launched. “This class action will likely be one of the biggest in Australia on any measure,” Elizabeth O’Shea, senior associate at Maurice Blackburn Lawyers, said. “The number of people involved, the potential recovery of compensation for lawabiding operators and licence holders, and no doubt the extent of the fight we are anticipating from the defendants.” The lawsuit is expected to be lodged in the Victorian Supreme Court and if successful the law firm believes Uber could be forced to pay out hundreds of millions of dollars. Rod Barton, president of

1. Law Reform Commission of Western Australia, Representative Proceedings: Project 103 — Final Report, June 2015, available at (viewed December 2018).

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the Commercial Passenger Vehicle Association of Australia, welcomed the news that thousands more drivers will now be involved. “We are glad to have paved the way for these other states to come on board and join this action as a way to hold Uber to account for the damage it caused to our industry,” he said.2 20.12

The Monash University-based academic, Professor Morabito, has analysed class action activity in Australia for the last 25 years; the first such class action took place in 1993 in Queensland. He has, to date, produced five major reports on the field. The executive summary in the fourth of these reports, published in 2016, is as follows: EXECUTIVE SUMMARY KEY FINDINGS • In the first 24 years of operation of the Federal Court of Australia’s class action regime - from 4 March 1992 to 3 March 2016 (“review period”) 370 class actions (“Part IVA proceedings”) were filed. This constitutes an average of 15.4 class actions, and a median rate of 15 class actions, every 12  months since the Part IVA regime came into operation on 4 March 1992. In the first 12 years of federal class actions, 189 Part IVA proceedings were filed. In the second 12 years, 181 Part IVA proceedings were filed. • A total of 78 class actions were filed in the Supreme Court of Victoria on or before 3 March 2016. The Victorian regime was deemed to come into operation on 1 January 2000. A total of 77 Victorian class actions were filed on or before 31 December 2015 providing an annual average of 4.8 class actions in the first 16 years that this regime has been in operation. In the first 8 years of the operation of this regime a total of 22 class actions were filed at an annual average of 2.75 class actions.A total of 55 class actions were filed in the Supreme Court of Victoria in the next 8 years at an annual average of 6.8 class actions. • A total of 19 class actions were filed in the Supreme Court of New South Wales on or before 3 March 2016. The NSW class action regime came into operation on 4 March 2011; thus, in the first five years of this regime an average of 3.8 class actions were filed every 12 months. • Adding together the data for Australia’s three class action regimes, we find that a total of 467 class actions were filed in Australia on or before 3 March 2016. Seventy (15%) of these class actions were competing class actions. These 467 class actions were brought with respect to a total of 303 legal disputes. Thus, in the first 24 years of class actions in Australia 19.4 class actions were filed, on average, every 12 months with respect to, on average, 12.6 different legal disputes. In the last quarter (six years) of this review period, a total of 175 class actions were filed in Australia providing an “annual” average of 29.1 class actions. • The average duration of all the Part IVA proceedings filed on or before 3 March 2016, that were settled pursuant to agreements that were judicially

2. S Wardle, ‘Vic Uber Class Action Goes to Qld, NSW, WA’, The West Australian, 28 November 2018, viewed December 2018, .

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•

•

approved on or before 30 June 2016, was 908 days whilst the median duration was 721 days. Approximately 26% of all settled Part IVA proceedings were resolved within 12 months and 52% were settled within two years. Product liability proceedings were the most “popular” Part IVA proceedings. Approximately 18.3% of all Part IVA proceedings filed in the first 24 years fell into this category. Next were proceedings filed with respect to claims by investors (16.7%), followed by actions filed on behalf of shareholders (14.5%) and actions brought with respect to claims by employees (13.7%). Whilst product liability, industrial and migration class actions dominated in the first 12 years of Part IVA, the next 12 years saw the prominence of investor, shareholder and consumer protection class actions. Maurice Blackburn and Slater & Gordon have represented class representatives in more Part IVA proceedings than any other firm, with 64 class actions each. Thus, one in every three Part IVA proceedings saw the involvement of one of these two firms. The settlement rate for resolved Part  IVA proceedings involving one of these two firms was 78%. With respect to Part IVA proceedings not supported by commercial litigation funders, involving one of these firms, the settlement rate was 76%. The most frequent way in which Part IVA proceedings have been resolved is through settlement. In fact 48.7% of the resolved Part IVA proceedings were settled.The next most frequent outcome of federal class actions has been the discontinuance of the litigation by the class representative.This has occurred in 14% of resolved Part IVA proceedings. The next three ways in which Part  IVA proceedings have been resolved are as follows: the proceedings were summarily dismissed by the court (9.8%); the court discontinued them as Part IVA proceedings (8.2%) and the class representatives discontinued the proceedings as Part IVA proceedings (5.1%). Over 39% of resolved Part IVA proceedings, which were filed in the first 12 years of Part IVA’s operation, were settled. The percentage of settled Part  IVA proceedings was significantly higher for concluded class actions filed over the next 12 years: 62.4%. A total of 73 (19.7%) Part IVA proceedings have received the financial support of commercial litigation funders. In the last six years of the review period, a total of 53 (49.5%) Part IVA proceedings were supported by commercial litigation funders. Approximately 76% of funded Part IVA proceedings were brought on behalf of investors and shareholders. Over 92% of funded Part IVA proceedings were settled. The settlement rate for unfunded Part IVA proceedings was substantially lower: 42.7%. Over 83% of Part IVA proceedings brought during the review period were filed in either the New South Wales  Registry (50.2%) or the Victorian Registry (33.2%). The percentage of Part IVA proceedings filed in these two registries was even higher in the second 12 years of the review period: over 89%.3

3. Prof V Morabito, Monash Business School, An Empirical Study of Australia’s Class Action Regimes — Fourth Report: Facts and Figures on Twenty-Four Years of Class Actions in Australia, 3 August 2016.

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20.13

Figure 20.3 shows how a Victorian class action is typically conducted.

Figure 20.3 Assume lodgment in the Victorian jurisdiction

State jurisdiction

Rules of court: Supreme Court Act and rules, eg of Part 4A Supreme Court Act 1986 (Vic) Process rules: eg Civil Procedure Act 2010 (Vic) requirements

Lodgment of class action: a choice of either

Federal jurisdiction

Process is governed by Part IVA of Federal Court of Australia Act 1976

The types of class action claims 20.14

Professor Morabito’s extensive report analysed the type of claims made, as shown in the extract below:4 Table 3 - Average duration of settled Part IVA proceedings with respect to the five most popular categories of substantive claims

Types of claims

Average duration of settled Part IVA proceedings

Product liability (defective goods and services; mass torts) claims

1,204 days

Claims by investors (other than shareholders)

946 days

Claims by shareholders

931 days

Consumer protection claims

667 days

Claims by employees

310 days

4. Prof V Morabito, Monash Business School, An Empirical Study of Australia’s Class Action Regimes — Fourth Report: Facts and Figures on Twenty-Four Years of Class Actions in Australia, 3 August 2016.

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Table 4 - Types of Part IVA proceedings filed from 4 March 1992 to 3 March 2016

Types of claims

Part IVA proceedings

Product liability (defective goods and services; mass torts) claims

68 (18.3%)

Claims by investors (other than shareholders)

62 (16.7%)

Claims by shareholders

54 (14.5%)

Claims by employees

51 (13.7%)

Consumer protection claims

33 (8.9%)

Claims by persons wishing to reside in Australia

30 (8.1%)

Claims by real estate owners

13 (3.5%)

Claims by franchisees, agents &/or distributors

13 (3.5%)

Claims by borrowers &/or guarantors

12 (3.2%)

Miscellaneous claims

12 (3.2%)

Claims by lessees

6 (1.6%)

Claims by alleged victims of cartels

5 (1.3%)

Claims by alleged victims of racial discrimination in non-migration proceedings

5 (1.3%)

Claims by native title holders

3 (0.8%)

Claims by taxpayers

3 (0.8%)

Critiquing the system of class actions 20.15

To the question,‘is there too much class action activity in Australia?’, the answer seems to be generally ‘no’. As Michael Pelly outlines in an article ‘Expert debunks claims that Australia is a class action haven’:5 A leading academic has debunked the notion that Australia is a class action haven and warned against a push to restrict multiple claims in the courts. Professor Vince Morabito of Monash University says that after the United States, at least four countries are more worthy claimants to the title of the most likely place for a class action than Australia. He says Australia has averaged 21.4 class actions a year since 1992, but is only just returning to 1998-2002 levels.

5. M Pelly, ‘Expert Debunks Claims That Australia is a Class Action Haven’, The Australian Financial Review, 13 July 2018, available at (viewed December 2018).

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Law reform in the area of class actions 20.16

There has been considerable law reform activity at both the state and federal levels.

Federal law reform activity 20.17

On 11 December 2017, Senator the Honourable George Brandis QC, Attorney-General of Australia, provided Terms of Reference to the Australian Law Reform Commission (ALRC) for an inquiry into class action proceedings and third-party litigation funders.

20.18

This discussion paper was released on 31 May 2018. The discussion paper provides 16 proposals and asks 11 questions that focus on the introduction of regulation appropriate for third-party litigation funders and strengthening the role of the Federal Court to further supervise funded class action proceedings.6 The discussion paper set out the following issues: 6. Competing Class Actions Proposal 6–1 Part IVA of the Federal Court of Australia Act 1976 (Cth) should be amended so that: • all class actions are initiated as open class actions; • where there are two or more competing class actions, the Court must determine which one of those proceedings will progress and must stay the competing proceeding(s), unless the Court is satisfied that it would be inefficient or otherwise antithetical to the interest of justice to do so; • litigation funding agreements with respect to a class action are enforceable only with the approval of the Court; and • any approval of a litigation funding agreement and solicitors’ costs agreement for a class action is granted on the basis of a common fund order. Proposal 6–2 In order to implement Proposal 6-1, the Federal Court of Australia’s Class Action Practice Note (GPN-CA) should be amended to provide a further case management procedure for competing class actions. Question 6–1 Should Part 9.6A of the Corporations Act 2001 (Cth) and s 12GJ of the Australian Securities and Investments Commission Act 2001 (Cth) be amended to confer exclusive jurisdiction on the Federal Court of Australia with respect to civil matters, commenced as representative proceedings, arising under this legislation?

The ALRC then invited submissions in response to the proposals, commentary, analysis and questions in the discussion paper. Submissions closed 30 July 2018. The ALRC then noted: Report 134 was delivered to the Attorney-General on the 21 December 2018. Pursuant to s 23 of the Australian Law Reform Commission Act 1996 (Cth), 6. ALRC, Inquiry into Class Action Proceedings and Third-Party Litigation Funders, Discussion Paper 85, June  2018, available at (viewed December 2018).

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the Report is to be tabled in each House of the Parliament within 15 sitting days of that House after the Attorney‑General receives it, at which point it becomes public.7

Victorian law reform 20.19

The Victorian Law Reform Commission undertook a report on litigation funding and group proceedings. The report, titled Access to Justice: Litigation Funding and Group Proceedings, was tabled in the Victorian Parliament on 19 June 2018.8 An extract from the preface to the report provides as follows: Access to justice is a proper and continuing concern for governments, the courts, the legal profession, litigants and the community. On 16 December 2016, the Victorian Attorney-General, the Hon. Martin Pakula MP, referred to the Commission for inquiry and report three issues under the heading ‘Access to Justice’. Significantly, at the outset of the terms of reference their purpose was stated to be ‘to ensure that litigants who are seeking to enforce their rights using the services of litigation funders and/or through group proceedings are not exposed to unfair risks or disproportionate cost burdens’. The three issues were: 1. Whether there is scope for the supervisory powers of Victorian courts or Victorian regulatory bodies to be increased in respect of litigation funders. 2. Whether removing the existing prohibition on law firms charging contingency fees (except in areas where contingency fees would be inappropriate, including personal injury, criminal and family law matters) would assist to mitigate the issues presented by the practice of litigation funding. 3. In respect of group proceedings commenced under the provisions of Part  4A of the Supreme Court Act  1986 (Vic) and similar proceedings, whether there should be further regulation of such proceedings. Each of the three components—litigation funding, contingency fees, and class actions (group proceedings)—does, or has the potential to, contribute to access to justice. Litigation funding reduces the risks to litigants of taking proceedings; removing the ban on contingency fees could introduce another means of doing so; and class actions take advantage of economies of scale. This report, informed by the overarching issue of access to justice and the aim that litigants are not exposed to unfair risks or disproportionate cost burdens, examines the specified issues in the terms of reference, and makes recommendations in respect of each of them.

7. ALRC, Litigation Funding Enquiry, Australian Government, 21 December 2018, available at (viewed December 2018). 8. Victorian Law Reform Commission, Access to Justice — Litigation Funding and Group Proceedings, 19  June 2018, available at (viewed December 2018).

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In relation to litigation funding,the Commission makes recommendations for national regulation of the industry and greater transparency when a litigation funder is involved in proceedings. The Commission does not recommend fixed caps or limits on funding costs; rather, it encourages appropriate court control. In relation to the prohibition on law firms charging contingency fees, the Commission recommends that, in principle and in appropriate areas of law, lawyers should be allowed to charge contingency fees. This is also a matter which should be developed nationally, in the interests of consistency. In relation to class actions, the Commission’s recommendations seek to strengthen the Court’s powers, particularly in ensuring that a successful outcome is not unduly eroded by legal and funding fees. The Commission also makes recommendations to improve efficiency and accountability, which should reduce delays and associated costs, but has concluded that the introduction of a pre-commencement certification requirement is neither desirable nor necessary. The Supreme Court of Victoria has a crucial role in ensuring the just, efficient, timely and cost-effective resolution of the real issues in dispute. In class actions, it has additional broad powers that can be used to protect the interests of class members. Appropriately, the terms of reference, and the Commission’s recommendations, focus on the powers and practices of the Court. On 15 December 2017, the Commonwealth Attorney-General announced that he had asked the Australian Law Reform Commission (ALRC) to inquire into class action proceedings and third- party litigation funders. The terms of reference for that inquiry embrace a number of issues that are considered in this report and reflect the Commonwealth’s broader jurisdiction to regulate the litigation funding industry. The inquiry is to be completed by 21 December 2018. While the Victorian Law Reform Commission has been asked to report on the question of whether lifting the ban on law firms charging contingency fees would assist to mitigate the issues presented by litigation funding, the ALRC has been asked to report on legal costs more extensively, namely ‘the costs charged by solicitors in funded litigation, including but not limited to class action proceedings’. Appropriately, the Victorian Law Reform Commission’s terms of reference focus on the powers and practices of the Supreme Court of Victoria. However, in considering reforms, the Commission has taken into account a number of matters that are also specified in the ALRC’s terms of reference, notably conflicts of interest and cost controls, but necessarily has done so from the perspective of Victoria’s jurisdiction.

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The common procedural form of Australian class action regimes is a valuable basis on which to ensure they evolve in a broadly consistent way. Consistency provides greater certainty for stakeholders, reduces the likelihood of ‘forum shopping’ and encourages national jurisprudence as to important procedural and other issues that arise. However, uniformity is not a necessary end in itself; nor is uniformity necessary if there is national consistency. It is important to recognise that there are differences in the degree to which litigation funders are involved in class actions, and the types of class action being filed in each jurisdiction, particularly as between the Supreme Court of Victoria and the Federal Court.While litigation funders are actively involved in class actions in the Federal Court, they have been involved in only 10 of the 85 class actions filed in the Supreme Court of Victoria since their institution in Victoria on 1 January 2000. While mass tort claims, with their onerous logistical requirements and profound human impacts, have been a significant part of the civil jurisdiction in Victoria, the Federal Court receives a preponderance of shareholder class actions. [footnotes omitted]

The executive summary of the Victorian report provided as follows:9 Terms of reference 1. On 16 December 2016, the Attorney-General, the Hon. Martin Pakula MP, asked the Victorian Law Reform Commission to report on ways to ensure that litigants who use the services of litigation funders or participate in group proceedings (class actions) are not exposed to unfair risks or disproportionate cost burdens. 2. In accordance with the full title of the terms of reference, Access to Justice— Litigation Funding and Group Proceedings, the overarching theme of this report is access to justice. Litigation funding and class actions help plaintiffs overcome two impediments to accessing justice: the cost of bringing proceedings; and the risk that, if the litigation is unsuccessful, the plaintiff will be required to pay the other side’s costs (adverse costs). 3. The potential for litigants to be exposed to unfair risks and disproportionate cost burdens arises from the conditions under which litigation funding is provided, the manner in which class actions operate, and how these two factors affect each other. 4. Litigation funders commonly agree to pay the costs of bringing proceedings and adverse costs if the plaintiff loses, in return for a share of the settlement or judgment amount if the plaintiff wins. In this way, the financial risks and costs are shifted from the plaintiff to the funder. 5. If the litigation is successful, the litigation funder is reimbursed the costs of the proceedings, and receives a share of the recovered amount. The plaintiff must also pay any outstanding costs, such as legal costs that the litigation funder did not pay. The funding fee is usually the largest single cost and the 9. Victorian Law Reform Commission, Access to Justice, note 9 above.

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typical range appears to be between 20 and 45 per cent of the recovered amount, although in some insolvency cases it has been 75 per cent. 6. Class actions create economies of scale that make it cost-effective for individual claimants to take legal action against a well-resourced defendant to recover a small loss. By grouping individual claims from the same, similar or related circumstances, the cost of bringing proceedings can be spread across many claimants. If unsuccessful, the representative plaintiff is liable for both the cost of bringing the proceedings and adverse costs. If successful, the cost of bringing the proceedings, as well as the settlement or judgement amount, is shared among the class members. 7. Large class actions can cost around $10 million to bring, with an adverse costs risk of a similar amount. This is a significant financial burden on the representative plaintiff that is far greater than the value of their individual claim.The disparity has created a demand for litigation funding that, in turn, has fostered an industry. At the same time, class action law and practice in Australia have developed in response to the influence of litigation funders. 8. The Commission has not been asked to investigate whether litigants are being treated unfairly or charged excessively; rather, the report focuses on how to prevent this happening. The terms of reference set out possible reforms to funded proceedings and class actions, and raise the question of whether the existing prohibition on lawyers being able to charge contingency fees should be removed. 9. The Commission’s recommendations are summarised below and set out at page xix. While this report is about funded proceedings and class actions in Victoria, these issues are the subject of ongoing discussion nationally and current review by the Australian Law Reform Commission (ALRC). The recommendations have been informed by the experience of other Australian jurisdictions, but grounded in the context of Victorian circumstances. Litigation funding and class actions in Victoria 10. Class actions may be brought in the Supreme Court of Victoria under a regime set out in part 4A of the Supreme Court Act 1986 (Vic). Related rules and procedures are set out in the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the Court’s practice note on the conduct of class actions. 11. Victoria’s class action regime commenced on 1 January 2000. It is based on Australia’s first class action regime, which was established in 1992 within the jurisdiction of the Federal Court of Australia. The model generally follows the recommendations of the ALRC in its seminal 1988 report Grouped Proceedings in the Federal Court. Similar regimes were introduced in New South Wales in 2011 and Queensland in 2017. 12. As at 10 November 2017, 85 class actions had been filed in the Supreme Court of Victoria. The number each year has fluctuated between zero and 16; the annual average is between four and five. Five were filed in 2017. 13. Approximately two-thirds of the class actions commenced in Victoria settled before trial, leading to the distribution of at least one billion dollars to more than 28,300 class members. The two largest class action settlements in 781

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Australia were secured under Victoria’s class action regime. Neither involved a litigation funder. 14. While actively involved in class actions in the Federal Court, litigation funders have invested in only 10 class actions in Victoria. Eight were claims by shareholders or investors, and half of these were transferred to the Federal Court. 15. It is not known how many types of civil proceeding in Victoria, other than class actions, have involved litigation funders. The plaintiff ’s financial arrangements and costs in these cases are not subject to the same degree of court supervision and public scrutiny as class actions. 16. One funded case that has attracted public attention is a funded claim by trustees for former employees of Huon Corporation Limited against CBL Insurance Ltd (Huon Corporation). The Court found in the trustees’ favour following a protracted dispute between the parties but, once the costs were paid from the amount awarded, the former employees ultimately received nothing. This case was discussed in submissions and consultations and the Commission has used it as an example in the report. Role of the Court 17. The Commission’s recommendations reinforce the role of the Supreme Court of Victoria in safeguarding litigants from exposure to unfair risks and disproportionate costs burdens, and in improving efficiency. 18. In all litigation, the Court has broad powers to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic): to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. 19. In class actions, where the outcome affects class members who have not directly participated in the proceedings, the Court has additional supervisory responsibilities to protect the interests of class members. It also has case management powers to ensure that the class actions are conducted efficiently, which reduces costs and delay for all parties. 20. These responsibilities are heightened in funded class actions.The involvement of a litigation funder creates conflicts of interest and can affect the rights of all class members. Significantly, litigation funding was instrumental in the introduction of closed class actions, which enable class membership to be limited only to class members who have signed funding agreements. It also led to the introduction of common fund orders for litigation funding costs, which allow a funder to obtain a funding fee from every registered class member even if they have not signed a funding agreement. 21. Developments such as these increase the need to ensure that the terms on which funders are involved in class actions, and the relationship they have with the lawyers for the representative plaintiff, are transparent both to the Court and to class members. 22. Similarly, in other funded proceedings where the outcome affects persons who do not directly participate in the proceedings, as occurred in Huon Corporation, there is a need for greater transparency. 782

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23. The Commission’s recommendations affect the Court’s role and powers in protecting the interests of class members in the following ways: • Stronger case management: The Commission recommends own motion powers by the Court to order that a proceeding no longer continue as a class action and to substitute the representative plaintiff with another class member; clearer procedures for managing competing class actions; and a proposal for a cross-vesting judicial panel to manage class actions filed in different jurisdictions. The Commission does not recommend certification because it is unnecessary, would impede access to justice, and had little support in submissions to this review. • Certainty of powers to control costs: The Commission makes recommendations to clarify the Court’s powers to review and vary costs and make common fund orders, in which the Court approves the funder’s percentage share of the settlement or judgment amount.The Commission does not consider that funding fees should be subject to statutory caps. • Better information and support for the Court’s protective role: The Commission recommends statutory principles for settlement approval. Recommendations are made for the Court to consider amending its practice note on class actions to include guidance for the appointment of a contradictor to assess the terms of settlement, or the settlement distribution scheme, on behalf of class members, and to specify the supporting information that must be provided to the Court when settlement approval is sought. The Commission recommends disclosure of the funding agreement to the Court and other parties (after redaction as necessary) in all funded class actions, and to the Court in other funded litigation where a number of disputants are represented by an intermediary. • Better information for class members:  The Commission recommends that the Court, in upgrading its website, consider publishing clear information about class actions generally and specific information about proceedings before the Court, including summary statements on each class action, prepared by the representative plaintiff ’s lawyers. The Commission also recommends that the Court consider drafting standard opt-out and settlement notices in Plain English and publishing them on its website. Responsibilities of plaintiff lawyers 24. In all litigation, lawyers have a fundamental duty to their clients that has contractual, professional and fiduciary dimensions. It applies whether or not a litigation funder is involved. 25. The duty includes responsibilities to avoid or manage conflicts of interest. In class actions, the conflicts of interest that lawyers encounter are more complex than in single- party litigation. For example, there may be differences between the interests of the representative plaintiff when compared to class members or between the class members themselves. These differences may arise due to the different nature of the claim or the harm suffered; they may arise from the different categories of class member (for example, whether funded or unfunded); or they may exist because of the structure of the class 783

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action mechanism, in which the representative plaintiff has responsibilities that class members do not share. They can be exacerbated when a litigation funder is involved, particularly if the funder actively participates in decisions about how the class action is conducted. 26. The Commission does not consider further regulation of the legal profession necessary, as the existing regulation is sufficient to prevent, detect or sanction unprofessional conduct. However, there is no formal recognition of lawyers’ responsibilities when acting for multiple class members or guidance on how to manage the conflicts that arise in class actions. The Commission recommends that professional guidelines be produced for lawyers on their duties and responsibilities to all class members in class actions. 27. Additional measures do not need to be introduced to protect the interests of plaintiffs in other proceedings in which a litigation funder is involved. The plaintiff in single- party cases has direct and ongoing contact with their lawyer, who should advise the plaintiff about the terms of the funding agreement. Unlike class actions, where the funding agreement establishes a tripartite relationship between the funder, lawyer and representative plaintiff, in singleparty proceedings the agreement may be bilateral, between the funder and plaintiff. If a plaintiff in other funded proceedings brings the action on behalf of a number of disputants, the lawyer’s only client will be the plaintiff. Regulation of litigation funders 28. The courts can supervise the involvement of litigation funders in legal proceedings only on a case-by-case basis, but state regulation of litigation funding is not a viable option because a national response is required. 29. While litigation funding has become integral to Australia’s legal system, the litigation funding industry is not regulated. Apart from those listed on the Australian Securities Exchange (ASX), litigation funders in Australia are free from mandatory licensing, financial disclosure requirements, reporting obligations or prudential supervision. A systemic risk for clients of litigation funders is that the funder may not meet its obligations under the funding agreement. 30. The Productivity Commission has recommended that litigation funders be licensed, to ensure that they hold adequate capital to meet their financial obligations. Many contributors to this review endorsed the Productivity Commission’s recommendation and called for stronger regulation by the Commonwealth. 31. In December 2017, the Australian Law Reform Commission commenced an inquiry into whether, and to what extent, litigation funders should be subject to Commonwealth regulation. The report is to be completed by 21 December 2018. In the meantime,Victoria should press for regulation at a future meeting of the Council of Australian Governments. Contingency fees 32. While it is standard practice for litigation funders to charge clients a percentage of the amount recovered if the claim is successful, lawyers are not 784

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permitted to charge on this basis. The Commission was asked to report on whether lifting the ban (except in personal injury, criminal and family law matters and other areas in which contingency fees would be inappropriate) would mitigate the issues presented by the practices of litigation funding. 33. As a matter of principle, the Commission considers that lawyers should be able to charge contingency fees, as it provides another avenue of funding for clients who may be otherwise unable to pursue proceedings due to the cost. While their use should be subject to certain conditions, the need for regulatory controls is not sufficient reason to prevent the ban being lifted. The matter requires national consideration, and the Commission recommends that this be pursued. 34. Notwithstanding the need for national consideration of the issue, the Commission believes there is scope for lawyers to be paid a percentage of the recovered amount in Victorian class actions, where costs are already borne, and paid, in a different manner to other litigation.This would increase competition with litigation funders, which may reduce costs in some cases, and enable claims that are not financially viable investments for litigation funders to be pursued. Implementation National dimensions to class action issues 35. The common procedural form of Australian class action regimes is a valuable basis on which to ensure they evolve in a broadly consistent way. Consistency provides greater certainty for stakeholders, reduces the likelihood of forum shopping and encourages national jurisprudence as to important procedural and other issues that arise. 36. However, uniformity is not a necessary end in itself; nor is uniformity necessary if there is national consistency. It is important to recognise that there are differences in the types of class action being filed in each jurisdiction, particularly as between the Supreme Court of Victoria and the Federal Court: • The Supreme Court has dealt with more mass tort class actions than the Federal Court, and continues to do so. This is the type of claim that the ALRC expected (in its 1988 report) would be brought as a class action. • Large commercial claims, particularly shareholder class actions, which usually attract litigation funding, are more prevalent in the Federal Court. • Litigation funders are far more active in the Federal Court. Over the past five years, the number of funded class actions brought in the Federal Court outnumbered the unfunded class actions. 37. These differences may change over time and it is desirable that innovations continue to develop in a consistent manner across jurisdictions rather than creating, or appearing to create, arbitrary distinctions. The Commission’s recommendations are not intended to entrench current practices, but they are intended to underpin best practice as it is perceived now and may develop in the future. If implemented, they would: • establish express statutory powers for the Court in place of reliance on its discretionary powers 785

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• introduce more prescriptive requirements to provide funding information to the Court and class members • align practices and powers with those in the other jurisdictions with class action regimes to support national consistency. 38. The Commission proposes that the recommendations made in this report be implemented with a view to reinforcing a nationally consistent approach. Court resources 39. The Supreme Court will need to allocate staff to assist in developing and introducing the changes, and implementing them into the future as the Court’s protective role strengthens and it raises its profile as a source of information about class actions generally.The Class Action Coordinators for the Common Law Division and the Commercial Court have responsibilities that are affected by many of the recommendations and may need assistance for their part in responding to them. The Commission recommends that the Court consider appointing legally qualified staff to assist them in implementing the recommendations. 40. All of the changes will benefit from consultation with stakeholders about their introduction. The Commission recommends that the Court consider expanding its class action user group to include individuals with experience in class actions, and consult the group about the recommended amendments to the practice note on class actions, or the production of materials for class members, or any of the other changes that affect the way in which class actions are conducted and managed.

The Victorian Law Reform Commission recommendations were as follows:10 Recommendations [Recommendations in relation to the Supreme Court of Victoria are expressed with the words ‘The Supreme Court should consider,’ rather than as a direct recommendation to act, to acknowledge and signify the independence and standing of the Court.] 1. The recommendations in this report to amend the Supreme Court Act 1986 (Vic) and the Supreme Court of Victoria’s practice note on class actions should be implemented with the aim of advancing the nationally consistent regulation and conduct of class actions. 2. The Victorian Government should advocate through the Council of Australian Governments for stronger national regulation and supervision of the litigation funding industry. 3. The Supreme Court should consider amending its practice note on class actions to require the disclosure of litigation funding agreements to the Court and other parties to class actions in similar terms to paragraph [6] of the Federal Court of Australia’s practice note on class actions.

10. Victorian Law Reform Commission, Access to Justice, note 9 above.

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4. In addition to the introduction of disclosure obligations in class actions, the Supreme Court should consider requiring the plaintiff ’s lawyers to provide the Court with a copy of the litigation funding agreement whenever a litigation funder is involved in a proceeding where a number of disputants are represented by an intermediary. Any funding agreement disclosed to the other party should be able to be redacted to conceal information which might reasonably be expected to confer a tactical advantage on that party. 5. The Supreme Court should consider amending its practice note on class actions to provide that, if a class action is funded by a litigation funder: (a) the representative plaintiff ’s lawyers should notify class members (whether they are actual or potential clients), in clear terms and as soon as practicable, of any applicable litigation funding charges and any material changes to those charges (b) the obligation to notify is satisfied if class members have been provided with a document that properly discloses those charges (c) failure to meet the obligation to notify may be taken into account by the Court in relation to settlement approval under section 33V of the Supreme Court Act 1986 (Vic). 6. The Supreme Court should consider amending its class action practice note to require the representative plaintiff ’s lawyers in funded class actions to provide to the Court, when the writ for the proceeding is filed, a brief Funding Information Summary Statement that accurately sets out litigation funding charges and key conditions in a simplified form, for publication on the Supreme Court’s website. 7. The Attorney-General should propose to the Council of Attorneys-General that the Council: (a) agree, in principle, that legal practitioners should be permitted to charge contingency fees subject to exceptions and regulation (b) agree to a strategy to introduce the reform, including the preparation of draft model legislation that regulates the conditions on which contingency fees may be charged and maintains the current ban in areas where contingency fees would be inappropriate. 8. Part 4A of the Supreme Court Act 1986 (Vic) should be amended to provide the Court with the power to order a common fund for a litigation services fee, on application by a representative plaintiff, whereby the fee is calculated as a percentage of any recovered amount and liability for payment is shared by all class members if the litigation is successful. Approval of a common fund of this type should be subject to the following conditions, set out in legislation or the Supreme Court’s practice note on class actions, as appropriate: (a) An application for the order would be sought from the Court at the commencement of proceedings. (b) The percentage allocated for the fee would be indicated when the application is made but approved by the Court at an appropriate time, most likely at settlement approval. 787

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(c) The litigation services for which the fee is charged should include: all services provided by the law firm; provision for security for costs if required; disbursements; and an indemnity for adverse costs. 9. A certification requirement should not be introduced in Victorian class actions. 10. Section 33N of the Supreme Court Act 1986 (Vic) should be amended to provide the Supreme Court with the power of its own motion to order that a proceeding no longer continue under part 4A. 11. The Supreme Court should consider amending its practice note on class actions to include guidance for the Court and parties on managing competing class actions. The guidance should reflect current practice, as it has developed over time, and allow for the Court to respond flexibly in the circumstances of each case. 12. The Attorney-General of Victoria should propose to the Council of Attorneys-General that a cross-vesting judicial panel for class actions be established. The judicial panel would make decisions regarding the crossvesting of class actions, where multiple class actions relating to the same subject matter or cause of action are filed in different jurisdictions. 13. The Attorney-General of Victoria should seek the agreement of the Attorney-General of New South Wales that: (a) guidelines should be issued to legal practitioners on their duties and responsibilities to all class members in class actions, providing specific direction on the recognition, avoidance and management of conflicts of interest (b) the Standing Committee under the Legal Profession Uniform Law should ask the Legal Services Council to ensure that such guidelines are produced and promulgated. 14. Section  33T of the Supreme Court Act  1986 (Vic) should be amended to empower the Court, of its own motion, to substitute another class member as representative plaintiff, and make other such orders as it thinks fit, if it appears that the representative plaintiff is unable to adequately represent the interests of class members. 15. Part 4A of the Supreme Court Act 1986 (Vic) should be amended to include the principles that govern the exercise of the Court’s power to approve a proposed settlement, currently contained in paragraph [13.1] of the Supreme Court’s practice note on class actions. 16. The Supreme Court should consider amending its practice note on class actions to include guidance for the appointment of an independent representative (commonly known as a contradictor) to assess the terms of settlement, or the terms of the settlement distribution scheme, on behalf of class members. 17. The Supreme Court should consider amending paragraph [13.5] of its practice note on class actions to require the affidavit(s) in support of settlement approval to include the following additional matters: 788

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(a) the time at which settlement funds will be received by class members (b) a mechanism for Court review of disputed decisions of the scheme administrator where the settlement involves complex individual assessments (c) the application of the terms of any litigation funding agreement to the settlement, if approved (d) how class members will be kept informed of the settlement distribution scheme, including measures to ensure the ease of accessibility of these communications for class members (e) the proposed measures that are being taken, in the settlement distribution scheme, to ensure a just, efficient, timely and cost-effective outcome for class members. 18. The Supreme Court should consider specifying in its practice note on class actions that scheme administrators report to the Court: (a) on a six-monthly basis, or other period as determined by the Court, regarding the performance of the settlement distribution scheme, including the costs involved and the distributions made (b) at the completion of the settlement distribution scheme, outlining the distributions made to class members, the time taken for such distributions, the amounts charged each class member for distribution, and any outstanding amounts that were unclaimed by class members, including what was done with these outstanding amounts. 19. Part 4A of the Supreme Court Act 1986 (Vic) should be amended to specify that the Court has the discretion to make any orders in relation to the distribution of money remaining after settlement distribution. 20. In revising the pages on its website about class actions, the Supreme Court should consider ensuring that they contain the following: (a) current and clear information on class actions generally as well as on proceedings before the Court (b) links to the Class Action Summary Statement (Recommendation  23) and, if applicable, the Funding Information Summary Statement (Recommendation 6) for each class action (c) standard form opt-out and settlement notices (Recommendation 21). 21. The Supreme Court should consider drafting Plain English standard form opt-out and settlement notices, in consultation with the Victoria Law Foundation, and publish these on the Court website. 22. The Supreme Court should consider amending its practice note on class actions to: (a) specify that opt-out notices and settlement notices should, where possible, follow the standard form notices published on the Supreme Court’s website (b) incorporate guidelines for preparing opt-out notices consistently with those contained in the Federal Court practice note on class actions.

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23. The Supreme Court should consider amending its practice note on class actions to require the representative plaintiff ’s lawyers: (a) to provide the Court, when the writ for the proceeding is filed, with a brief Class Action Summary Statement for publication on its website (b) at the same time, or before, make the Class Action Summary Statement available to class members (whether they are actual or potential clients) through, for example, publication on the representative plaintiff ’s lawyers website. 24. Part 4A of the Supreme Court Act 1986 (Vic) should be amended to provide the Court with specific power to review and vary all legal costs, litigation funding fees and charges, and settlement distribution costs to be deducted from settlement amounts to ensure that they are fair and reasonable. 25. The Supreme Court should consider amending its practice note on class actions to provide guidance for the appointment of an independent costs expert by the Court to assist in the assessment of legal costs and litigation funding fees. This should take into account the guidelines contained in the Federal Court practice note on class actions relating to the use of costs experts. 26. The Supreme Court should consider amending its practice note on class actions to specify that, at the first case management conference, the Court, in exercising its powers under section 65A of the Civil Procedure Act 2010 (Vic), may ask the representative plaintiff ’s lawyers to provide a memorandum of estimated legal costs and disbursements of proceedings to the Court. 27. Part 4A of the Supreme Court Act  1986 (Vic) should be amended to specify that the Court has the power to approve a common fund order, on application by a representative plaintiff, whereby all costs of proceedings are shared by all class members if the litigation is successful. 28. Section 33ZD of the Supreme Court Act 1986 (Vic) should be amended to specify that the Court may not order a class member to provide security for costs. 29. Part 4A of the Supreme Court Act 1986 (Vic) should be amended to specify that in making an adverse costs order, or a security for costs order in class actions, the Court may take into account, among other factors: (a) the function of class actions in providing access to justice (b) whether the case is a ‘test’ case or involves a novel area of law (c) whether the class action involves a matter of public interest. 30. The Supreme Court should consider expanding the class action user group to include individuals with experience in class actions, either as a class member or a representative plaintiff, particularly to consult on the implementation of the Commission’s recommendations on Court powers, procedures and services. 31. The Supreme Court should consider providing additional legally qualified staff to support the role of Class Actions Coordinator in the Common Law Division and the Commercial Court in implementing the Commission’s recommendations and managing the ongoing responsibilities arising from them for the Court. [footnotes omitted] 790

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Class actions — a case study 20.20

In February 2008, Victoria experienced the Black Saturday bushfires. Several class actions emerged. The Murrindindi case is one such class action and the issues, process and settlement are referred to the extract below from Section A of a report produced by Maurice Blackburn Lawyers [footnotes omitted]:11 The Kilmore East – Kinglake Bushfire Class Action The claim In the Kilmore East – Kinglake Bushfire Class Action (Kilmore Class Action), the Lead Plaintiff, Carol Matthews, brought a claim for compensation on behalf of herself and more than 5,000 registered group members, for the loss and damages they suffered as a result of the Black Saturday Kilmore East – Kinglake bushfire. The Defendants in this action were Ausnet Electricity Services Pty Ltd (formerly SPI Electricity), Utility Asset Management (UAM), and the State Parties: the Secretary to the Department of Environment and Primary Industries, the Country Fire Authority and the State of Victoria. A 16-month trial began in March 2013 and concluded in June 2014. It remains the largest civil trial ever conducted in the Supreme Court of Victoria to date. The court-approved settlement After the conclusion of evidence and submissions in the trial, but before any decision was handed down by the Court, the plaintiff and the defendants agreed on terms for a settlement of the class action for the sum of $494,666,667.00. At the time that the settlement agreement was reached, the settlement amount was estimated to be lower than the value of the total losses suffered by the claimants in this class action. At the time of settlement it was estimated, based on statistical modelling, that claimants stood to recover approximately 70% of assessed losses for personal injury and dependency claims and approximately 30% of assessed losses for ELPD.These percentages are referred to as ‘recovery rates’. Final recovery rates could only be calculated once the claims of all claimants had been assessed. The decision to settle for less than the full value of the total losses suffered by the claimants was based on the plaintiff ’s lawyers’ opinions that the settlement amount offered by the defendants was fair, just and reasonable and that it was in the interests of the claimant group as a whole for the settlement to be reached rather than to risk waiting for judgment on the trial which could have resulted in an all or nothing outcome for claimants. Claimants in the class action were able to object to the proposed settlement and several pursued objections to the proposed settlement amount. Ultimately, Justice Osborn of the Supreme Court of Victoria rejected those objections and held the settlement amount to be fair, just and reasonable for the claimant group as a whole, in light of the risk that the claim against the defendants could wholly fail and group members could receive nothing.

11. Maurice Blackburn Lawyers, Kilmore East – Kinglake & Murrindindi – Marysville Black Saturday Class Action Settlement Administrations: Final Report, 2018, available at (viewed December 2018).

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The settlement was approved by Justice Osborn of the Supreme Court of Victoria on 23 December 2014. Under the terms of the settlement, the settlement sum was split into two funds: 1) The personal injuries fund; and 2) The property damage fund. The personal injuries fund was only to be shared among registered personal injury and dependency claimants, whilst the property damage fund was only to be shared among registered ELPD claimants. Individual losses for each claimant thus had to be assessed and compensation was awarded by reference to the sum ‘total losses x recovery rate’. As part of the settlement approval process, Justice Osborn also approved the Settlement Distribution Scheme (the SDS). The SDS is discussed below. Maurice Blackburn Lawyers The settlement was approved by Justice Emerton of the Supreme Court of Victoria on 27 May 2015. Under the terms of the settlement, the settlement sum was split into two funds: 1) The personal injuries fund; and 2) The property damage fund. The personal injuries fund was only to be shared among registered personal injury and dependency claimants, whilst the property damage fund was only to be shared among registered ELPD claimants. Individual losses by each claimant thus had to be assessed and compensation was awarded by reference to the sum ‘total losses x recovery rate’. The Settlement Distribution Schemes Court approval of the Settlement Distribution Schemes As part of the settlement approval process in each of the Kilmore East – Kinglake and the Murrindindi – Marysville Bushfire Class Actions, the Court also specifically considered and approved a proposed Settlement Distribution Scheme (the SDS). The SDS established the assessment process by which all group member claims were required to be individually assessed. The assessment process established by the SDS in each of the Kilmore and Murrindindi Class Actions were substantially identical. This allowed the two settlement administrations to be conducted simultaneously, permitting economies of scale and efficiencies to be built into the assessment process. The Murrindindi – Marysville Bushfire Class Action The claim In the Murrindindi – Marysville Bushfire Class Action (Murrindindi Class Action), the lead Plaintiff, Dr Katherine Rowe, brought a claim for compensation on behalf of herself and more than 2,000 group members, for the 792

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loss and damages they suffered as a result of the Black Saturday Murrindindi – Marysville bushfire. The Defendants in this action were AusNet Electricity Services (formerly SPI Electricity), UAM, and the State Parties and a trial was scheduled to begin on 4 February 2015. The court-approved settlement Prior to commencement of the trial, the plaintiff and the defendants agreed on terms for a settlement of the class action for the sum of $300,000,000.00. At the time of settlement it was estimated, based on statistical modelling, that claimants stood to recover approximately 70% of assessed losses for personal injury and dependency claims and approximately 60% of assessed losses for ELPD claims. The decision to settle for less than the full value of the total losses suffered by the claimants was based on the plaintiff ’s lawyers’ opinions that the settlement amount offered by the defendants was fair, just and reasonable and that it was in the interests of the claimant group as a whole for the settlement to be reached rather than to risk pursuing a trial all the way until judgment which could have involved the incurring of significant legal costs and resulted in an all or nothing outcome for claimants. Claimants to the class action were able to object to the proposed settlement and several pursued objections to the proposed settlement amount. Ultimately, Justice Emerton of the Supreme Court of Victoria rejected those objections and held the settlement amount to be fair, just and reasonable for the claimant group as a whole, in light of the risk that the claim against the defendants could wholly fail and group members could receive nothing. Registered Claims Kilmore Class Action In the Kilmore Class Action the total number of claims were: a) 1,905 personal injury and dependency claims; and b) 9,174 economic loss and property damage claims. Murrindindi Class Action In the Murrindindi Class Action the total number of claims were: a) 425 personal injury and dependency claims; and b) 2,479 economic loss and property damage claims. Combined Total Across both class actions the total number of claims were 13,983 claims comprising: a) 2,330 personal injury and dependency claims; and b) 11,653 economic loss and property damage claims. By way of comparison, it is worth considering the statistical reporting of civil claims in the County Court of Victoria and the Supreme Court of Victoria. 793

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The County Court published a note on its website showing the number of civil claims commenced from 1997 until 2012. That note confirms that the number of civil claims commenced in the County Court in the decade up to 2012 was approximately 6,143 per year. The Supreme Court tabled its Annual Report for 2014 – 2015 in Parliament on 8 December 2016 which details that during the 12 month period of the report, there were 2,619 cases commenced in the Common Law Trial Division. Hence, the combined total number of claims across both Kilmore and Murrindindi represented more than double the number of claims usually commenced in the County Court in a given year, and approximately five times the number of cases commenced in the Common Law Trial Division of the Supreme Court of Victoria in the financial year 1 July 2014 to 30 June 2015. [footnotes omittted]

Class actions and their intersection with negligence claims 20.21

As we have noted, a class action has the same essential elements as a simple allegation of negligence.The plaintiff needs to establish that a duty of care is owed, and that they have suffered damage caused by the breach of duty by the defendant. Duty of care may not necessarily be established, given the context of the case. The High Court has grappled with formulating a test for duty in these difficult or boundary cases involving novel facts. This occurred in the context of a class action in the next case, where for the lead or representative plaintiff, establishing that a duty was owed proved as fraught as has occurred in other contexts.12

20.22

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; 194 ALR 337; 77 ALJR 183 (5 December 2002) Court: High Court of Australia Facts: In December 1996, Mr Ryan, the plaintiff, consumed oysters grown in the New South Wales-located Wallis Lake near Forster by the defendant company, Graham Barclay Oysters Pty Ltd (GBO). Mr Ryan’s relative had purchased the oysters. (This is similar to Donoghue v  Stevenson,12 where the friend of the plaintiff purchased the ginger beer.) As a result of eating the oysters, Mr Ryan became very ill, and contracted the hepatitis A virus. This was due to the oysters being contaminated as the result of very heavy recent rains running into the lakes. These types of storm events were liable to cause runoff, and for pollution running into the lake to considerably increase. Mr Ryan sued three defendants: the GBO companies, the local council, and the state of New South Wales. He also alleged breach of federal law, so the case was heard in the Federal Court. The CBO companies accepted liability for selling a defective product.

12. Donoghue v Stevenson [1932] AC 562.

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Legal principle: Did the two levels of governments, ie the state of New South Wales and the relevant local council owe the consumer, Mr Ryan, a duty of care? The case against New South Wales and the council were cases against the crown, and the alleged facts were that the state of New South Wales had been guilty of failing to act, that is of misfeasance. In particular, the issue at stake was whether the crown should have taken proactive steps to prevent this type of occurrence. The court’s decision (application of the legal principle to the facts): The court found that a duty of care on the part of the state of New South Wales, or on the part of the local council, was not made out in this case. The court considered the factual history of the oyster industry which had been the subject of a large degree of self-regulation by the industry participants, including GBO. There had also been ‘a continuing debate about the appropriate boundaries between government regulation and industry self-regulation’. ([22], Gleeson CJ). As such, the state and local council had not exercised a sufficient degree of control over the industry such as to establish a duty of care. The relevant aspects of the judgment of Gleeson CJ are set out below: 1. GLEESON CJ. The principal facts, the nature of the proceedings, and the relevant legislative provisions, appear from the reasons for judgment of Gummow and Hayne JJ (“the joint judgment”). 2. In December 1996, Mr Ryan consumed oysters that a relative had purchased from the companies described in the joint judgment as the Barclay companies. The oysters, which had been grown in Wallis Lake, near Forster, were contaminated. In consequence, Mr Ryan contracted the hepatitis A virus (“HAV”). The circumstances of the contamination are explained in the joint judgment. Heavy rainfall over a period in November 1996 had increased the risk of pollution of the lake from a number of sources, and had resulted in cessation of harvesting for four days. In February 1997, an HAV epidemic was notified, and on 14 February 1997 Wallis Lake growers ceased harvesting for the season. 3. In seeking to assign legal responsibility for the harm he suffered, Mr Ryan blamed the growers and distributors of the oysters (the Barclay companies), the Great Lakes Council (“the Council”), which was the local government authority that exercised regulatory functions, including functions designed to protect the environment, under the Local Government Act  1993 (NSW) (“the Local Government Act”), and the State of New South Wales (“the State”). Claims were also made under the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”) against the Barclay companies. That is how the case came to be litigated in the Federal Court. The Trade Practices Act claims were not directly in contest in this Court. 4. In the present appeals, the principal issue in relation to the claims against the Council and the State was whether there was a duty of care of such a nature that any act or omission shown to have been causally related to Mr Ryan’s injury constituted a breach. In relation to the claims in tort against the Barclay companies, the existence of a duty of care was accepted; the principal issue was whether a breach had been established. 5. It is convenient to deal with the claims against the various defendants in the following sequence: the State; the Council; the growers and distributors. There

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are important differences between claims made against the State and the Council, on the one hand, and those made against the Barclay companies, on the other. A consumer of food suffered personal injury because the food was unfit for human consumption. His case against the growers and distributors of the oysters is essentially a straightforward product liability case. He sued the producers and suppliers of the product, the form of contamination being such that it was not reasonably discoverable upon any intermediate inspection. The existence and content of a duty of care was not in contest. But the nature of the case against the other defendants is far less obvious. The consumer is suing the government; local and State. He seeks to make the government directly liable. Originally there were attempts to establish tortious conduct on the part of persons, authorities or instrumentalities, for whom, or for which, the State might be vicariously responsible, but those attempts failed on the facts, and have not been pursued in this Court. The allegations now pressed against the State, and the Council, do not involve allegations of carelessness in the exercise of a statutory power. The complaint is not about acts, but about omissions. In the particular circumstances of the case, the issues, raised by this assertion of direct governmental liability in negligence, include what are, in the final analysis, issues of justiciability. 6. Citizens blame governments for many kinds of misfortune. When they do so, the kind of responsibility they attribute, expressly or by implication, may be different in quality from the kind of responsibility attributed to a citizen who is said to be under a legal liability to pay damages in compensation for injury. Subject to any insurance arrangements that may apply, people who sue governments are seeking compensation from public funds. They are claiming against a body politic or other entity whose primary responsibilities are to the public. And, in the case of an action in negligence against a government of the Commonwealth or a State or Territory, they are inviting the judicial arm of government to pass judgment upon the reasonableness of the conduct of the legislative or executive arms of government; conduct that may involve action or inaction on political grounds. Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. At the centre of the law of negligence is the concept of reasonableness. When courts are invited to pass judgment on the reasonableness of governmental action or inaction, they may be confronted by issues that are inappropriate for judicial resolution, and that, in a representative democracy, are ordinarily decided through the political process. Especially is this so when criticism is addressed to legislative action or inaction. Many citizens may believe that, in various matters, there should be more extensive government regulation. Others may be of a different view, for any one of a number of reasons, perhaps including cost. Courts have long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of governmental conduct where such complaints are political in nature. 7. In Brodie v  Singleton Shire Council, I took the view that the non-feasance rule which previously applied to highway authorities was an aspect of a wider problem concerning the manner in which the law should relate the public responsibilities of persons or bodies invested by statute with a power to manage public facilities, including the responsibility to apply public funds for that purpose, and the rights of citizens who may be affected by the manner

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in which those responsibilities are exercised. In that case, three members of the majority expressly accepted that it may be proper and necessary for a court to decide whether the priorities of a local council in dealing with road repairs in various locations were reasonable. The decision in the case required that view. Even so, the scope for judicial examination of the reasonableness of governmental spending priorities was not held to be, and cannot be, at large. Raising and spending money for road repairs involves setting priorities, not only between parts of the road system, but also between all the claims upon an authority’s resources, and between the interests of taxpayers and those of road users. My view remains that setting priorities by government for the raising of revenue and the allocation of resources is essentially a political matter, and that, if the reasonableness of such priorities is a justiciable issue, that can be so only within limits. The way in which the case against the State and the Council is put in the present appeals squarely raises the wider problem mentioned above. 8. The claims against the State and the Council in the present case are based on non-feasance. Expressed in broad terms, they are that the State government, and local government, could and should have done more to prevent the outbreak of HAV. The potential political content of that statement is obvious. It may mean that the oyster industry was under-regulated; or that the local or State government should have introduced more stringent policies to control pollution; or that inadequate resources were devoted to protecting the quality of Wallis Lake as against other aspects of the environment. Expressed in legal terms, the complaint requires specification of a duty of care, breach of which was a cause of Mr Ryan’s illness. Accepting that local government authorities, and State governments, have responsibilities for public health and safety, those responsibilities are owed to the public. Mr Ryan must establish that the State, and the Council, owed a duty of care to him, as a consumer of Wallis Lake oysters. If such a duty exists, then presumably a similar duty is owed to all consumers of all potentially contaminated food and, perhaps, to all persons whose health and safety might be affected in consequence of governmental action or inaction. What is the content of the duty owed to Mr Ryan, or to oyster consumers? If it is not possible to answer that question with reasonable clarity, that may cast doubt on the existence of the duty. These are matters for separate consideration in relation to the State and the Council. 9. One thing is clear. Reasonable foreseeability of harm of the kind suffered by Mr Ryan, whilst a necessary condition for the existence of a duty of care on the part of the Council or the State, is not sufficient. In the case of a governmental authority, it may be a very large step from foreseeability of harm to the imposition of a legal duty, breach of which sounds in damages, to take steps to prevent the occurrence of harm. And there may also be a large step from the existence of power to take action to the recognition of a duty to exercise the power. Issues as to the proper role of government in society, personal autonomy, and policies as to taxation and expenditure may intrude. Even where a statute confers a specific power upon a public authority in circumstances where mandamus will lie to vindicate a public duty to give proper consideration to whether to exercise the power, it does not follow that the public authority owes a duty to an individual, or a class of persons, in relation to the exercise of the power. In the case of both the State and the Council, it is failure to exercise those powers, not negligence in the manner of their exercise, that is said to constitute the breach.

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10. There is a further question which goes principally to the issue of causation, but which also reflects upon the issues of duty and breach. Let it be supposed that it is fair to say that both the Council and the State could have done more to seek to prevent the HAV outbreak. It does not follow that what they could, and should, have done, would have prevented the outbreak, or the harm to Mr Ryan. The evidence suggests that, where oysters are cultivated in areas of intensive human occupation and activity, there is always a risk of contamination. Depending upon exactly what it is said should have been done by the Council or the State, short of prohibiting the cultivation of oysters in Wallis Lake altogether, there may be difficulty in showing a causal relationship between the alleged shortcomings of government and the injury to Mr Ryan. This difficulty was one reason for the failure to establish tortious conduct on the part of persons or bodies for whom the State or the Council might have been vicariously responsible. 22. It emerged from the evidence that, for some years before 1996, there had been, within government and industry circles in New South Wales, a continuing debate about the appropriate boundaries between government regulation and industry self-regulation. 23. In April 1992, an Advisory Committee drafted for the Minister for Health Services Management a report entitled “New South Wales  Oyster Quality Assurance Program”. It supported a large measure of industry self-regulation, with government involvement. It included the following: ... inherent in the move towards industry self regulation is a consideration of the role of government agencies, particularly the NSW Health Department because the Minister for Health is charged with a responsibility for protecting the public’s health and has appropriate regulations under the Food Act to ensure that foods which reach the consumer are indeed fit for consumption. In short, irrespective of any industry endeavours it is the NSW Health Department that makes the final judgement about the product and has the powers to impose penalties. ... if the industry can achieve via self regulation a situation whereby its product meets the desired standards and offers a high degree of assurance to the public then the active role of government must be greatly reduced with consequent savings to the public purse. It is hoped that government will recognise this and respond accordingly by fostering the quality assurance objective. In the Advisory Committee’s view, non-participants however few or many they may be, negate the whole concept of a quality control program and will almost certainly compromise its integrity at some stage. It is recommended therefore that the government amends purification plant permit conditions so that all oysters treated in plants be cultivated, harvested and purified in accordance with an approved quality assurance program. ... As an incentive for industry to meet the costs of quality assurance programs, oysters produced under a quality assurance program could be appropriately endorsed.

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The endorsement is made through the quality assurance program and not the NSW Health Department, enhancing industry self-regulation and quality assurance program integrity. 24. In February 1994 a report to the Minister recorded: The NSW Oyster Quality Assurance Program is based on a concept of industry self-regulation at the estuary level, with a minimum of central supervision. 25. An Advisory Committee made further recommendations as to the detail of a Quality Assurance Program. A Ministerial paper to Cabinet in November 1994 stated: 4.14 The QAP is to be industry run and industry funded. Funding for the program is required at three levels: (i) to pay for meat testing prior to marketing the oysters - this is required now and, as now, will be funded by the individual oyster farmer; (ii) to pay for the environmental testing required by, and any other costs associated with, the estuary-based program - it is proposed that these funds will be collected at the local level by the local committee responsible for developing and implementing the program; (iii) to pay for statewide co-ordination of the estuary based programs and other costs associated with the QAP - it is proposed that this requirement would be met through an ‘annual contribution’ required from all oyster farmers by Regulation made under Section 156 of the Fisheries Management Act 1994. 26. Other evidence to like effect is set out in the reasons of Lindgren J. It demonstrates that the nature and extent of State government involvement in oyster quality control was a matter of policy, that it received attention at the highest levels, that it had substantial budgetary implications, and that it involved government concern to encourage an important primary industry. 27. This demonstrates two things. First, the proposition that the State government had substantial managerial control over the oyster industry is, at best, an oversimplification. Secondly, the proposition that the State had a legal duty of care, owed to oyster consumers, obliging it to exercise greater control (and, presumably, to permit less industry self-regulation) takes the debate into the area of political judgment. By what criterion can a court determine the reasonableness of a government’s decision to allow an industry a substantial measure of self-regulation? 28. This is not a case where past experience, in New South Wales or elsewhere, had demonstrated the inadequacy of a quality assurance program to which the State was a party. It was, of course, known that there were risks to consumers, which was why there was a need for a quality assurance program in the first place. But such knowledge does not warrant a conclusion that the State, as a body politic, directly owed a legal duty to consumers to increase the level of regulation of the industry, or to exercise, to a greater extent, the powers of control available to it. 29. However, there is one respect in which there was said to have been a negligent failure to exercise a specific power. 30. The Fisheries Management Act 1994 (NSW), by s 189, empowered the Minister to impose a prohibition, called a fishing closure, in relation to the taking of fish

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under an aquaculture permit if satisfied that the area was in such a condition that the taking of fish ought to be suspended, or that the fish were, or were likely to be, unfit for human consumption. The power was conditioned upon the existence of a certain state of satisfaction. No such state of satisfaction existed at any time relevant to the present proceedings. The Minister cannot have been under a legal duty to impose a fishing closure for the reason that, in the state of affairs that existed, he had no power to do so. 31. Kiefel J considered that, if the Minister had been properly informed, the rainfall in November 1996 must have given him reason to be concerned about the fitness for human consumption of Wallis Lake oysters. She said that “the State thereby came under a duty to exercise its powers and prohibit harvesting until the Minister could be assured of the likelihood of the oysters’ fitness for consumption”. 32. It is necessary to distinguish between a public duty, enforceable by mandamus, to give consideration to the exercise of a power, and a legal duty, owed to a citizen, to exercise the power. It is a duty of the second kind that is here asserted. Bearing in mind past experience, and industry practice, as known in November 1996, it is not entirely clear what her Honour had in mind as to the information the Minister would have had if properly informed, or from whom that information might have been expected to come. It appears that her Honour aggregated the sources of information potentially available to “the State” rather than the information actually before the Minister. And “reason for concern” is not the statutory condition for the existence of the power given by s  189. More fundamentally, however, the legislative grant to a Minister of a power to impose a fishing closure if satisfied of certain matters did not subject the State to a legal duty of care, owed to the plaintiff, or consumers of Wallis Lake oysters. It may be accepted that the reasonableness of a decision to exercise the power of closure would be a justiciable issue, and that the potential for judicial review of such a decision on public law grounds exists. But it is the existence of a common law duty of care that is presently in question. The power given by s 189 is a power to protect the public, not a specific class of persons. Similar powers, covering a wide range of activities, are given to Ministers and government authorities in the interests of public health and safety. A legislative grant of power to protect the general public does not ordinarily give rise to a duty owed to an individual or to the members of a particular class. 33. The duty of care upon which the case against the State was based was not made out.

20.23

Damages awards are based on putting the plaintiff as near as possible back in their pre-accident position. The challenge is that in looking to redress the wrong, the court is expected to make assessments of future lives and events. This type of prognostication can be difficult in the case of a singular plaintiff; take for example, the 20-year-old whose injuries prevent them working again. This is a fraught exercise in seeking to assess the future of 40 years hence. A class action involving multiple plaintiffs and their circumstances magnifies this notion of estimating the future. As a result, courts within the class action context refer to the range of permissible damages, or damages which are acceptable as fair and reasonable. The next case considers the issue of what is within the range of fair and reasonable damages. 800

20.24

Class Actions

20.24

Thomas v Powercor Australia Limited [2011] VSC 614 (5 December 2011) Court: Supreme Court of Victoria, Beach J Facts: This case involved a class action arising out of another one of the Black Saturday bushfires of February 2009, which occurred near the town of Horsham in western Victoria. Beach J had to determine whether the proposed damages was fair and reasonable. Legal principle: Were the proposed damages regarding the class action within the acceptable range? The court’s decision (application of the legal principle to the facts): Beach J found they were ‘finely balanced’ (Beach J at [18]), but met the test of being fair and reasonable, as per the extract below: Beach J: Introduction 1. On 7 February 2009, Black Saturday, a bushfire started near the intersection of the Horsham-Remlaw Road and Remlaw Station Road, some 7½ kilometres west of Horsham. Over about eight hours, the fire burnt approximately 2,500 hectares. It destroyed 13 homes and many farm buildings and other structures. There was widespread loss of crops, pastures, livestock, yards, fences, trees, smaller vegetation and farm and other equipment. The Horsham Golf Club clubhouse was destroyed and its grounds were razed. 2. Laurence Peter Thomas, the plaintiff, lives and farms a property with his wife at West Road, Drung. Some parts of his property were damaged or destroyed in the fire. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff commenced a group proceeding, or class action, on behalf of all those who suffered loss of or damage to property as a result of the fire. The fire was caused by a live power conductor coming into contact with vegetation. The conductor, the line of which it was a part and the pole upon which the line was supported were all owned and maintained by Powercor Australia Limited, the defendant. The claim against the defendant was pleaded in negligence, nuisance and breach of statutory duty (s 75 of the Electricity Safety Act 1998). 3. On 5 September 2011, the trial of this proceeding commenced before J. Forrest J, sitting in Horsham. The trial proceeded for five weeks. At the close of the fifth week, terms of settlement were provisionally agreed between the parties and the trial was adjourned. At the time of the adjournment, the lay evidence had been completed but expert evidence, which was being given by nine witnesses concurrently, was continuing. It was estimated by the parties that the completion of that concurrent evidence and the closing addresses would require a further five to eight days of hearing. 4. Terms of settlement of the proceeding have now been executed by the plaintiff and the defendant. The essential terms of the settlement agreement provide for a settlement of 55% of each claimant’s losses assessed according to certain principles either agreed, or to be determined by the Court, plus penalty interest (from the date of issue of the proceeding) plus party-party costs. Section 33V of the Supreme Court Act provides that a group proceeding may not be settled without the approval of the Court. This is the application for the approval of the settlement of this proceeding.

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The settlement agreement 5. The settlement agreement provides for a payment of 55% of each claimant’s losses, together with penalty interest from the date of issue of the proceeding plus party-party costs. These costs include the costs of each assessment. The settlement agreement deals comprehensively with, amongst other things, the amount of the settlement, the notification of claimants, claims assessment procedures, claims assessment principles, the payments of claims and mutual releases. Whilst it is not necessary to set out all of these terms, it is necessary to refer to the claims assessment principles set out in the settlement agreement. 6. The claims assessment principles agreed between the parties are set out in clauses 5.1 to 5.4 of the settlement agreement. Those clauses provide: “5.1 Save as provided in clause 5.2 below, all issues regarding the assessment of losses will be determined by the Court, and the principles fixed by the Court or agreed in clause 5.2 (‘Assessment Principles’) shall be applied in accordance with this agreement to the claims of all PGMs [participating group members/claimants]. 5.2 The following special provisions for the assessment of PGMs’ losses shall apply: (a) garden/amenity trees (ie, over 4m tall) will be assessed at $1100.00 per tree; (b) farm/utility trees will be assessed at $100 per tree; (c) non-tree vegetation (ie, under 4m tall, eg, shrubs, bushes, lawns) to be valued at retail price to replace; (d) the questions whether work completed by the labour of a PGM or by volunteers is compensable, and the measure of any such compensation, are to be determined by the Court, save that if the Court determines the work is compensable and is to be measured by an hourly labour rate the rate is agreed at $25.00 per hour, and it is further agreed the rate shall only be payable upon delivery of a statutory declaration from the PGM verifying (as a best estimate where necessary) the hours applied in performance of the work; (e) the losses of the Horsham Golf Club; (i) will be paid as to 55% of their assessed value plus interest; but (ii)  will not be assessed in accordance with the Assessment Principles but rather referred to mediation to be completed within 120 days after Court approval or if the mediation is not successful then referred to the trial Judge for determination. 5.3 The appendix to this agreement titled ‘Appendix 1 – Principles for the Assessment of Compensation’ forms part of this agreement and subject to clauses 5.1 and 5.2 is part of the Assessment Principles. 5.4 If during the implementation of the claims assessment procedure Maddens or Powercor become aware of a category of loss not addressed by the Court in its determination of the plaintiff’s damages claim or by clause 5.2 above, the parties shall make reasonable efforts to agree the principles for assessing that loss but absent agreement may apply to

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the Court for a determination of the issues of principle regarding the compensability and measurement of losses in that category and the principles so determined shall form part of the Assessment Principles.” 7. Appendix 1, referred to in clause 5.3, is in the following terms: “APPENDIX 1 (in addition to the principles enunciated in clause 5 of the Settlement Agreement) PRINCIPLES FOR THE ASSESSMENT OF COMPENSATION 1. Fencing 1.1 The Group Member to establish the nature and amount of the fencing replaced; 1.2 A material cost of $4,591 per kilometre for fencing replaced; 1.3 A labour cost for fencing replaced if incurred and paid by the Group Member of $2,800 per kilometre. 2. Loss of stockyard 2.1 The Group Member to establish the extent of fire damage to stockyard. 2.2 Materials used to repair or replace the stockyard will be paid by the Defendant at cost incurred and paid. 2.3 Labour will be paid at cost if incurred and paid by the Group Member. 3. Pasture and crop loss 3.1 The Group Member to establish the loss. 3.2 A cost of agistment of sheep at $0.30/head/week. 3.3 A cost of agistment of cattle at $4.00/head/week. 3.4 Purchase of hay at cost as incurred and paid. 4. Repairs to house, barn, bridge, front gate and any other items damaged by fire 4.1 The Group Member to establish the item lost or damaged and extent of loss or damage. 4.2 The Group Member to be paid material and labour costs incurred and paid to repair or replace. 4.3 Any betterment to be excluded. 4.4 If the item is not replaced or repaired, then payment will be on diminution in value. 5. Shed contents 5.1 The Group Member to establish the items lost or damaged. 5.2 The Group Member to be paid the material and labour costs incurred and paid to repair or replace items lost. 5.3 Any betterment to be excluded. 5.4 If the item has not been replaced or repaired, then any payment will be based upon diminution in value. 6. Farm machinery 6.1 The Group Member to establish the items lost or damaged. 6.2 The Group Member to be paid the material and labour costs incurred and paid to repair or replace items lost.

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Torts: Principles, Skills and Application

6.3 Any betterment to be excluded. 6.4 If the item has not been replaced or repaired, then any payment will be based upon diminution in value. 7. Water supply 7.1 The Group Member to establish the extent of damage to water supply caused as a consequence of the fire. 7.2 The Group Member to be paid for materials and labour incurred for replacement and paid by the Group Member. 7.3 Any betterment to be excluded. 8. Consequential losses – livestock trading 8.1 The Group Member to quantify loss of livestock trading. 8.2 Any quantification provided to be accompanied by financial records for the calendar years 2007 and 2008. 8.3 Loss of profit on livestock trading will be allowed in principle subject to quantification and established legal principles of proof of loss and recoverability. 9. Livestock 9.1 The Group Member to provide details of loss of livestock and market value of livestock at date of loss. 9.2 The Defendant will pay market value of livestock at date of loss.” 8. Whilst clauses 4.3, 5.3, 6.3 and 7.3 of Appendix 1 provide in respect of the items covered by those clauses that “any betterment to be excluded”, I was informed by the plaintiff’s counsel that the parties agreed that a claimant would not, as a matter of ordinary principle, be entitled to recover as damages costs incurred in erecting replacement infrastructure to the extent that the new infrastructure involved “adding any extras” (to use the words of Lord Denning in Harbutt’s Plasticine Limited v Wayne Tank & Pump Co Limited) [[1970] 1 QB 447]. The parties are agreed that the question of principle as to what constitutes “betterment” is one of the matters which the trial judge will rule on following the delivery of this judgment. The parties having left the betterment issue to the trial judge obviates the need for me to give it any further consideration. The principles to be applied 9. Much has been written concerning the principles to be applied when considering an application for the approval of a proposed compromise of a group proceeding. In Australian Competition and Consumer Commission v Chats House Investments Pty Ltd [(1996) 71 FCR 250; 142 ALR 177], Branson J said, in dealing with s 33V(1) of the Federal Court Act: “The purpose intended to be served by s 33V(1) is obvious. It is appropriate for the court to be satisfied that any settlement or discontinuance of representative [group] proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent.” 10. In this case, the Court must be satisfied that the proposed compromise is in the interests not only of the plaintiff, but also all group members who will be bound, if the compromise is approved, including those who are not represented by the plaintiff’s solicitors, Maddens.

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Class Actions

11. In Wheelahan v  City of Casey [[2011] VSC 215], Emerton J summarised the approach taken by Goldberg J in Williams v FAI Home Security Pty Ltd (No 4) [(2000) 180 ALR 459] and Jessup J in Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Limited (No 2) [[2006] FCA 1388; (2006) 236 ALR 322] in the following terms: “In Williams v FAI Home Security Pty Ltd, Goldberg J described in general terms the task of the Court on an approval application: Ordinarily the task of a court upon an application such as this, is to determine whether the proposed settlement or compromise is fair and reasonable, having regard to the claims made on behalf of the group members who will be bound by the settlement. Goldberg J referred to a number of matters that the Court will take into account in determining what is fair and reasonable. The matters referred to by his Honour were the amount offered to each group member, the prospects of success in the proceeding, the likelihood of the group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding if continued to judgment, and the attitude of group members to the settlement. Jessup J, in Darwalla Milling Co Pty Ltd v Hoffman-La Roche Ltd, observed that his review of subsequent judgments of the Court under s 33V did not disclose any pattern of systematic consideration of these matters in the way, for example, of a checklist, and that the case before him involved specific problems and issues which no predetermined list could ever hope to anticipate. He also commented that those factors threw little light on the proper resolution of the rather difficult inter se issues that arose in the proceeding before him.” 12. Emerton J then said: “It is true that in practice every case must be dealt with on its own merits, and by reference to specific factors which might raise serious doubts as to fairness and the like. However, although in the present matter the ‘inter se issues’ – that is, the way in which the settlement sum is to be distributed among group members – is one of the principal issues of concern, the Williams factors provide useful guidance, and I propose to assess the reasonableness and fairness of the settlement by reference to those factors, although I do not propose to use them as a checklist.” 13. With respect, I agree with the approach adopted by Emerton J in Wheelahan. The Williams factors are a useful guide, but the application for approval must involve consideration of the specific factors relevant to this proceeding which might raise issues as to the fairness or appropriateness of the proposed compromise – either between the parties, or between the plaintiff and individual group members. 14. In Darwalla, Jessup J described the “practical judicial approach” by the Court to be to identify any features of a settlement that are obviously unreasonable or unfair, a task which would come more easily to a court than the obverse one of assessing the reasonableness and fairness of the settlement in an environment generally devoid of negative indications. Hence, where some group members object to a settlement and state their reasons for objecting, such reasons will provide a convenient focus by reference to which the court will decide matters of fairness

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Torts: Principles, Skills and Application

and reasonableness. However, in the present case, no group member has come forward to object. Indeed, to the contrary, the evidence suggests there are no group members who oppose the settlement. 15. Whilst the absence of any objection by a group member results in there being no “convenient focus” as referred to by Jessup J, this cannot distract the Court from the task of critically evaluating the proposed compromise in all respects. That said, the absence of objection to the proposed settlement (which settlement has been extensively advertised) is a relevant factor to be taken into account in favour of its approval. 16. In any group proceeding, there are a number of potential outcomes that might be regarded as fair and reasonable, both between the parties and between the plaintiff and group members. In Darwalla, Jessup J expressed the view that it is not the court’s function under s 33V to second guess a plaintiff’s advisers as to the answer to the question whether the plaintiff ought to have accepted the defendant’s offer: “The court’s function is, relevantly, confined to the question whether the settlement was fair and reasonable. There will rarely, if ever, be a case in which there is a unique outcome which should be regarded as the only fair and reasonable one. In settlement negotiations, some parties, and some advisers, tend to be more risk-averse than others. There is nothing unreasonable involved in either such position and, under s 33V, the court should, up to a point at least, take the [plaintiffs] and their advisers as it finds them. Neither should the court consider that it always knows more about the group members’ businesses than the [plaintiffs], or more about the actual risks of the litigation than their advisers. So long as the agreed settlement falls within the range of fair and reasonable outcomes, taking everything into account, it should be regarded as qualifying for approval under s 33V.” Prospects of success 17. As part of this application, I was provided with the trial transcript and an electronic copy of all of the documentary exhibits tendered at trial. Additionally, the plaintiff tendered a confidential advice from the plaintiff’s trial counsel. This advice dealt comprehensively with, amongst other things, the issues of liability, the plaintiff’s prospects of success and the appropriateness of the proposed compromise. 18. Having considered the evidence given up to the point when agreement was reached and the opinion of the plaintiff’s trial counsel, I have formed the view that on the question of liability, the proceeding was finely balanced. In my view, the plaintiff would have established the cause of the fire he contended for and that the defendant owed a relevant duty to each group member. The central question was the issue of breach. In my view, this was (and was always going to be) finely balanced in the sense that it is as likely as not that the plaintiff would have succeeded on this issue. Even if it could be said that the plaintiff was marginally in front on this issue, it could not be said that his case was so strong as to take the proposed 55% settlement out of the range of possible settlements which the Court ought to consider as fair and reasonable. That said, having considered the evidence and the advice of the plaintiff’s counsel, I am of the view that 55% represents a fair and reasonable compromise having regard to the plaintiff’s risks with respect to liability. The claims assessment principles 19. It was submitted on behalf of the plaintiff that the proposed compromise involved no discount for “quantum risk” as such. That is, the quantum of each claimant’s

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Class Actions

losses is to be assessed according to principles either agreed between the parties or adjudicated by the Court. The quantum thus fixed is then payable at the agreed rate of 55% of the assessment (plus the interest and costs to which I have already referred). Nevertheless, the claims assessment principles involve elements of compromise between the parties. For example, garden/amenity trees over four metres tall will all be assessed at $1100 per tree. These elements of compromise need to be examined. 20. Having examined these issues, it is sufficient to say that insofar as the claims assessment principles involve a compromise between the plaintiff and the defendant, I am satisfied that the various compromises are within the ranges of results open on the evidence. Further, in respect of some issues, there is a “swings and roundabouts” element to the compromise in the sense that some of the agreed amounts to be allowed may be too low in some cases, but these are just as likely (as the plaintiff’s counsel submitted) to be offset by corresponding cases where the relevant allowance is generous to the same extent the other way. 21. A further matter to take into account on these issues is that the claims assessment principles will almost certainly allow for claims to be paid at an earlier point in time, and without the need for more costs to be incurred in conducting mini-trials on issues that have now been agreed. These cost and time savings are in the interests of the plaintiff and group members. For these reasons I am satisfied that the claims assessment principles are fair and reasonable as between the parties, and in the interests of group members. Is the settlement fair and reasonable between group members? 22. The present settlement may be contrasted with many other group proceeding settlements where the defendant (or defendants) offer a sum of money to be split between group members and a sum of money for costs. In such cases, there are often real issues as to the appropriateness of the method and mechanism by which amounts are to be divided between group members or particular classes of group members. 23. In the present case, the offer to pay 55% of the assessed value of each claim, together with penalty interest and party-party costs (including the costs of each assessment) means that, by definition, the plaintiff and group members will each receive an amount that is fair and reasonable by reference to the amounts received by each other group member. Unlike some other group proceedings, this is not a case where any group member has come along and complained that his or her interests have been compromised in the interests of providing more generous treatment to other group members. 24. Having considered the issues, I have come to the conclusion that a settlement involving a fixed percentage of group members’ losses, together with penalty interest and costs is fair and reasonable as between the plaintiff and group members. However, it remains necessary to consider four specific matters: (a) the fairness of the claims assessment principles as between group members; (b) the separate treatment of the Horsham Golf Club; (c) the question of costs; and (d) closing the class. Fairness of the claims assessment principles between group members 25. It is possible that the application of the claims assessment principles may be more generous in respect of one group member than they are in respect of another.

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Torts: Principles, Skills and Application

However, it is, as I have said, to be noted that no group member has made any such complaint. Further, on the evidence, it cannot be said that any of the claims assessment principles manifest a more generous approach to any particular class of group members than any other class of group members. For the same reasons I consider the claims assessment principles to be fair and reasonable between the parties, I consider them to be fair and reasonable between the plaintiff and group members. The claims assessment procedures will facilitate the ultimate finalisation of the proceeding at an appropriately reduced cost. This is, as I have said, in the interests of all group members. [footnotes omitted]

Some current questions concerning class actions 20.25

The following extract from a report by law firm Ashurst provides a useful overview of some current key issues relevant to class actions in Australia.13 Does the Court have to approve any settlement? Yes. Once proceedings have commenced, any settlement with the class representative requires the approval of the Court. The Courts have described the task of approving settlements as an onerous one particularly where the application is not opposed. The Court will consider whether the proposed settlement is a fair and reasonable compromise of the claims of the class members.  There have been instances in which class action settlements have not been approved. In one such instance, ASIC intervened in and successfully challenged a first instance decision to approve a proposed settlement by the Federal Court. In that appeal decision, the Full Court of the Federal Court held that while there was no issue with the overall proposed settlement, the proposed distribution of the settlement sum between group members was not fair and reasonable to all group members. What is third party litigation funding? Lawyers and law firms are restricted in their ability to fund class actions because they are precluded from entering into contingency fee arrangements whereby they charge fees based on a percentage of their client’s recovery in litigation. Attempts by lawyers to become involved in funding without contravening this rule have generally been unsuccessful. This restriction does not apply to non-legal entities and consequently commercial organisations, known as third party litigation funders, have been set up to fund class actions. Litigation funders enter into an agreement, primarily with the representative party, to pay the legal costs of the representative party and to accept liability to pay the respondent’s costs if the class action is unsuccessful. In return, if the claim is successful, the funder receives its money back together with a share of the amount awarded which is normally between 20% and 40%

13. Ashurst, Class Actions in Australia, Quickguides, 9 March 2017, available at (viewed December 2018).

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depending on the size of the case, the timing of the settlement and the costs incurred. According to the Federal Court of Australia Case Management Handbook, “litigation funding has proven to be the life-blood of most of Australia’s representative proceeding litigation at Federal and State level.” Third party litigation funding has been criticised as allowing someone with no direct interest in the actual dispute to conduct and control the litigation and has been the subject of numerous legal challenges. However, in 2006, the High Court of Australia effectively gave its stamp of approval to litigation funding in  Campbells Cash and Carry Pty Ltd v  Fostif Pty Ltd  (2006) 229 CLR 386. Following this decision, the Australian litigation funding market has grown and nearly all major class actions are now funded by a third party. The market has been dominated by IMF Bentham Limited but there are a number of other funders, both domestic and overseas-based operating in Australia, for example, Comprehensive Legal Funding LLC, Hillcrest Litigation Services Limited and International Litigation Funding Partners Pte Limited. Other types of private funding that are encountered in class actions include: • funding by entities which are related to or closely associated with the claimant law firm; • funding by the lead plaintiff or a subset of the group of claimants; and • joint funding through agreement between insurers and third party litigation funders. Does the “loser pays” rule apply? The “loser pays” rule generally does apply but successful respondents can only obtain cost orders against the applicants (ie the class representatives).The Court is not permitted to make an adverse costs order against the remaining class members. It is common for litigation funders to meet cost orders made against class representatives and to provide security for costs (where sought by respondents). In other words, independently funded class actions enable class representatives to avoid exposure to costs orders. Can the Court stop a class action? The Court has the power to order that a proceeding no longer continue as a class action where it is satisfied that it is in the interests of justice to do so, for any one of the following reasons: • the costs incurred if the proceedings were to continue as a group are likely to exceed the costs incurred if there were separate proceedings; • the relief sought could be obtained by other proceedings; • the class action proceedings will not provide an efficient and effective means of dealing with the claims; or • it is otherwise inappropriate to bring the claims as a class action. [footnotes omitted]

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Torts: Principles, Skills and Application

The future of class actions in Australia 20.26

In a rapidly developing regulatory landscape for litigation, and a willingness by plaintiffs to seek redress collectively, class actions looks set to continue to grow in number and scale. Victoria, New South Wales and Queensland have the mechanisms, as does the Federal Court, to conduct such claims. Key questions concerning the funding of clams, their complexity, and their closure or settlement will continue to be central features of the debates and law reform processes. In addition, the potential conflict of several synchronous claims will be a key matter informing efficient litigation processes and client concerns. These pivotal issues will require negotiation, reform and settlement within the complex system of nine potentially competing jurisdictions.

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Class Actions

Review In this chapter we have looked at some of the key features of class actions. They have been available in Australia for some 25 years. Their use is now well established; there are, however, major issues still at play. As a result, it is an active, complex area of tort law.



Reading Federal Court website has comprehensive information on class actions, available at (viewed December 2018) Law Reform Commission of Western Australia, Project 103 — Final Report: Representative Proceedings, June 2015, available at (viewed December 2018) H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017, Ch 7.4 Maurice Blackburn, Class Actions, available at (viewed December 2018) Prof V Morabito, An Empirical Study of Australia’s Class Action Regimes — Fourth Report: Facts and Figures on Twenty-FourYears of Class Actions in Australia, Monash Business School, 3 August 2016, available at (viewed December 2018) Prof V Morabito, An Empirical Study of Australia’s Class Action Regimes — Fifth Report: The First Twenty-FiveYears of Class Actions in Australia, Monash Business School, available at (viewed December 2018) (This is a global class actions exchange website and forum conducted by Stanford University.) Queensland Courts website has comprehensive information on class actions, available at (viewed December 2018) Supreme Court of New South Wales website has comprehensive information on class actions, available at (viewed December 2018) Supreme Court of Victoria website has comprehensive information on class actions, available at (viewed December 2018)

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Key Cases Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; 194 ALR 337; 77 ALJR 183 (5 December 2002) Thomas v Powercor Australia Limited [2011] VSC 614 (5 December 2011)



Chapter 20 Review Questions 1. How long have class actions been available in Australia, and in which jurisdictions? 2. What are main areas of class action activity? 3. What are the trends in terms of the use and efficacy of class actions?

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Chapter 21

Tort Law in Practice Legal practice skill: Insights into some of the main practice areas relevant to tort law Acknowledgment: The authors thank the members of the firm Maurice Blackburn for their valuable insights and expertise, in particular to Ms Danielle Leo, Senior Associate, Road Accident Injury Specialist, for her input to the section on motor vehicle litigation, and to Ben McIlwain, Associate, WorkCover Specialist, for his input to the section on WorkCover.

Learning aims •

Understand the practical nature of tort law

•

Examine some of the basic practicalities through the prism of three practice areas

•

Gain an overview of three particular practice areas being motor vehicle accidents, workers compensation, and torts relevant to sport law

Background concepts 21.1

In this chapter, we look at the some of the practical and practice-based issues relevant to certain areas of tort law.This builds on the approach in Chapter 20, which looked at class actions.The demands and challenges of practice are to do one’s best for the client, while upholding ethical standards as a public officer of the court.

21.2

The law, among its many roles, provides a system of classification, and of ‘taxonomy’ or naming. It is a system of organising and seeing the world. It classifies concepts, factual scenarios and processes. It has a set of definitions and related descriptions; think, plaintiff, defendant and duty of care, for example, in the context of tort law. Historically, the law has developed via these guiding principles.

21.3

The law as a system of advice provided by lawyers to clients is similarly divided into various components.The role of the lawyer can be divided into three basic components: advisory work, transactional work and litigious proceedings, as Figure 21.1 illustrates. For lawyers involved in torts, the main area of work is 813

21.3

Torts: Principles, Skills and Application

likely to be in the areas of litigation and alternative dispute resolution (ADR). Figure 21.1 illustrates the basic dichotomy between transactional (non-litigious work) and ADR/litigation.

Figure 21.1 For example, advising on risk mitigation strategies

Advisory and transactional-type work

For example, in house safety policy development

Tort law ADR including arbitration Litigious issues and resolving disputes

Settling negligence claims Litigation

The modern statutory context The main torts-based legislation 21.4

The statutory context is critical in terms of the analysis of a torts problem in legal practice (and in terms of studying law). The factual scenario giving rise to the claim may mean that several possibilities are relevant. It may be that: •• the main Civil Liability Act or its equivalent in each state and territory is critical and provides the first point of analysis; •• particular no-fault legislation is applicable, for example in workers’ compensation claims; •• particular subject matter legislation is relevant; •• the common law is relevant in terms of the claim as a primary consideration, for example in terms of intentional torts; or •• he common law is relevant in terms of providing particularity and meaning to a statutory provision. There may be several causes of action which are pleaded by the plaintiff depending on the scenario giving rise to the loss. These include negligence, other torts, breach of contract and breach of statutory duty.

The relevant civil liability legislation for each state and territory 21.5

The Acts in Table 21.1 are the headline or main pieces of legislation in respect to the provision of civil liability. Two of the Acts retain their original dates; 814

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Tort Law in Practice

the others have dates reflecting the Ipp Final Report.1 All have been amended as a result of the Ipp Review.

Table 21.1 State or territory

Relevant Act

ACT

Civil Law (Wrongs) Act 2002

NSW

Civil Liability Act 2002

NT

Personal Injuries (Liabilities and Damages) Act 2003

Qld

Civil Liability Act 2003

SA

Civil Liability Act 1936

Tas

Civil Liability Act 2002

Vic

Wrongs Act 1958

WA

Civil Liability Act 2002

These Acts need to be read in conjunction with particular contextual Acts within the relevant jurisdiction. These Acts relate to various subject matter including, for example, motor vehicle accidents, workers’ compensation claims, occupier’s liability and defamation. There may be other relevant legislation, depending on the jurisdiction and the facts and circumstances. Particularity is the touchstone so as to provide advice which is relevant to the client, and is accurate and informative. The client can then provide instructions or choose options based on that advice. For each of the tables, given the details and complexity of the provision and subsections, reference is made to the main sections, and these should be specifically referred to in each case. The scope and coverage of the civil liability legislative regime for each state and territory 21.6

Table 21.2 below shows the relevant headline Act for civil liability in each state and territory.There are then seven categories for particular accident or claim contexts. For example, the two main contexts are injuries at work (workers’ compensation) or as a result of vehicle accidents and incidents (motor vehicle accidents).There are additional contexts, as set out in the table.The effect of these contexts is that many years of potential application of the headline Acts are excluded or modified within a given state or territory. This means, as a matter of statutory interpretation, that a potential claimant and their legal adviser, must locate the relevant statutory starting position for the particular factual scenario on which a claim may be based.

1. Australia. Treasury. Law of Negligence Review Panel. and Ipp, D A, Review of the Law of Negligence: Final Report, Commonwealth of Australia, Canberra, 2002.

815

Relevant section of Act

s 41(2) Civil Law (Wrongs) Act 2002

s 3B Civil Liability Act 2002

s 4 Personal Injuries (Liabilities and Damages) Act 2003

s 5 Civil Liability Act 2003

s 4 Civil Liability Act 1936

s 3B Civil Liability Act 2002

s 45 Wrongs Act 1958

s 3A Civil Liability Act 2002

State or territory

ACT

NSW

NT

Qld

SA

Tas

Vic

WA

Table 21.2

816 Excluded

Excluded

Partially excluded

Excluded

Partially excluded

Motor accidents

Excluded

Excluded

Excluded

Excluded

Excluded

Excluded

Excluded

Workplace claims

Excluded

Excluded

Excluded

Intentional acts

Excluded

Excluded

Excluded

Sexual assault or related misconduct

Excludes asbestos inhalation

Excluded

Excluded

Excluded

Excluded

Dust diseases

Excluded

Excluded

Excluded

Excluded

Excluded

Smoking or tobacco product claims

Civil aviation claims are excluded

Other exclusions

21.6 Torts: Principles, Skills and Application

21.6

Tort Law in Practice

The Queensland Act in Table 21.2 above provides an example of the matters excluded: Civil Liability Act 2003 5 Civil liability excluded from Act (1) This Act does not apply in relation to deciding liability or awards of damages for personal injury if the harm resulting from the breach of duty is or includes— (a) an injury for which compensation is payable under the  WorkCover Queensland Act 1996, other than an injury to which section 36 (1) (c) or 37 of that Act applies; or Example: A worker employed under a contract of service with a labour hire company is injured at the premises of a host employer while driving a defective machine. The worker pursues claims for damages for civil liability against the labour hire company, the host employer and the manufacturer of the machine. The worker suffers a number of injuries but only 1 of them is accepted as an injury under the WorkCover Queensland Act 1996, section 34. This Act does not apply to any of the claims for damages. (b) an injury for which compensation is payable under the  Workers’ Compensation and Rehabilitation Act  2003, other than an injury to which section 34 (1) (c) or 35 of that Act applies; or (c) an injury that is a dust-related condition; or (d) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke. An example from the Table 21.2 above for this issue is provided by the New South Wales Act: CIVIL LIABILITY ACT 2002 - SECT 3B Civil liability excluded from Act 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person—the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody),

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(b) civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989—the whole Act except sections 15A and 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products—the whole Act except section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (d) civil liability relating to an award to which Part 6 of the Motor Accidents Act 1988 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e) civil liability relating to an  award  to which Chapter  5 of the  Motor Accidents Compensation Act  1999  applies (including an  award  to and in respect of which that Chapter  applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the  Transport  Administration Act  1988)—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e1) civil liability relating to an award to which Part 4 of the Motor Accident Injuries Act  2017  applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents, (f) civil liability relating to an  award  to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies—the whole Act, (g) civil liability for compensation under the  Workers Compensation Act  1987, the  Workers Compensation (Bush Fire, Emergency and Rescue  Services) Act  1987, the  Workers’ Compensation (Dust  Diseases) Act  1942  or the  Anti-Discrimination Act  1977  or a benefit payable under the Sporting Injuries Insurance Act 1978—the whole Act, (h) civil liability for financial assistance for economic loss under the Victims Rights and Support Act 2013—the whole Act. (2) The following provisions apply to motor accidents: (a) Divisions 1-4 and 8 of Part 1A (Negligence), (a1) section 15B (Damages for loss of capacity to provide domestic services), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies, (b) section 15C (Damages for loss of superannuation entitlements), except in relation to a motor accident to which the  Motor  Accident Injuries Act 2017 applies, (c) section 17A (Tariffs for damages for non-economic loss), (c1) section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (d) Division 7 (Structured settlements) of Part 2, 818

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(e) (f) (g) (h)

Part 3 (Mental harm), section 49 (Effect of intoxication on duty and standard of care), Part 7 (Self-defence and recovery by criminals), Part 8 (Good samaritans).

(3) The regulations may exclude a specified class or classes of civil liability (and  awards  of damages in those proceedings) from the operation of all or any specified provisions of this Act. Any such regulation may make transitional provision with respect to claims for acts or omissions before the commencement of the regulation.

The relevance of time limits for issuing proceedings 21.7

Legal advice must consider the time limits within which claims may be brought. These are critical threshold issues to consider on behalf of the plaintiff. States and territories each deal with this suite of issues in the legislation shown in Table 21.3.

Table 21.3 State or territory

Relevant Act

ACT

Limitation Act 1985

NSW

Limitation Act 1969

NT

Limitation Act 1956

Qld

Limitation of Actions Act 1974

SA

Limitation of Actions Act 1936

Tas

Limitation Act 1974

Vic

Limitation of Actions Act 1958

WA

Limitation Act 2005

The main practice areas of no-fault schemes Motor vehicle accidents: no-fault schemes 21.8

Each state and territory has its own legislative response to this area of the law (refer to Table 21.4). The practical complexities are such that there is not a uniform definition of the basic and important concept: what is a motor accident?

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Table 21.4 State or territory

Year of no-fault scheme

Relevant Act(s) now covering the area

ACT

2014

The Lifetime Care and Support (Catastrophic Injuries) Act

NSW

1999

Motor Accidents Compensation Amendment Act

2006

Motor Accidents (Lifetime Care and Support) Act

1979

Motor Accidents (Compensation) Act 1956

NT Qld

See note below

SA

2013

The Motor Vehicle Accidents (Lifetime Support Scheme) Act

Tas

1974

Motor Accidents (Liabilities and Compensation) Act 1973

Vic

1973

Transport Accident Act 1986

WA

2016

Motor Vehicle (Catastrophic Injuries) Bill 2016

For Queensland, the following applies: To successfully claim against another person for personal injury or property damage caused by a motor vehicle accident in Queensland, you must be able to show another person was at fault—it is not sufficient to show the other person was insured. Different laws apply in the other states. If an accident occurs in another state, the law applying in that state will govern your claim. If a person is convicted of a criminal offence as a result of a motor vehicle accident (e.g. driving under the influence of alcohol, driving without due care and attention), this can be used as evidence in a civil claim but is not necessarily proof of negligence. Can property damage and personal injuries be claimed separately? The nature and extent of any property damage caused by a motor vehicle accident is usually readily apparent and can be easily assessed and quantified. On the other hand, the extent and consequences of a person’s injuries may not be obvious for some time after the accident. It is possible to pursue separate claims for property damage and personal injuries. In all likelihood, the property damage insurer will not be the same entity as the CTP insurer. In any event, care needs to be taken to ensure a decision in the first 820

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case does not bind the parties in any subsequent case. For example, a badly injured claimant would not necessarily want a 50/50 apportionment of liability in a related property damage claim to automatically apply to their personal injuries claim. Consideration of these issues can be very complicated and should be referred to lawyers specialising in these types of claims.2

Matters relevant to practice in motor vehicle accident-related work 21.9

The following is a series of questions and answers relevant to the area of motor vehicle accident law, with input provided by Danielle Leo, Senior Associate of the national law firm, Maurice Blackburn, who works in the Sunshine, Melbourne office. Please note that the answers, therefore, provide a Victorianbased practice context. 1. What is the starting point of your investigation? When a person comes to you after being involved in a transport accident, it is important to get as much detail as possible while the memory is still fresh. This includes: • • • • • •

all details of the other vehicle/s involved such as the vehicle registration, make and model of the car; details of anyone who may have witnessed the accident, the aftermath, or who may have spoken to our client immediately before or after the event; details of the circumstances of the accident, including photographs and diagrams drawn; a complete list of all their injuries, including those that have since resolved; details of all their treaters, both past and present; and details of their employment history.

2. What witness statements do you get and why? As time goes on, memories fade. Memories can also become tarnished by what we hear from others. It is therefore important to get witness statements as soon as possible after the event. Witness statements should be obtained from anyone who has been listed on the police report as a witness. The client should also be asked to identify if there was anyone else who is not on the report who may have been a witness. For example, an accident may have occurred outside somebody’s house while they were mowing the lawn. Further, witness statements are not limited only to those who saw the accident. There are situations which require us to obtain statements from those who saw our client before or after the collision, a comparable employee or a lay witness such as a partner who has seen the affects the injuries have had on the person.

2. Caxton Legal Centre, Claiming Compensation After a Motor Vehicle Accident, Brisbane, 2018, viewed December  2018,  .

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Torts: Principles, Skills and Application 3. What proof of expenses should plaintiffs claim? The Transport Accident Act allows a person who has an accepted claim to be entitled to the following benefits: • • • •

medical and like expenses; loss of earnings benefits; impairment benefit (if assessed at 11% or more whole-person impairment); and common law compensation (if the person can establish they have a serious injury and the accident was caused through someone else’s fault).

4. What is the legislation you refer to? The main legislation we refer to is the Transport Accident Act 1986. However, this jurisdiction requires knowledge of many other pieces of legislation, including but not limited to the Limitations of Actions Act  1958, County Court Civil Procedure Rules 2018 and the Civil Procedure Act 2010. 5. What are the main forms you use? There is a Transport Accident Commission (TAC) claim form; however, this is mostly completed over the phone when a person lodges a claim. Other forms are available on the TAC website in digital form and include travel expense and pharmaceutical benefits forms. 6. Who do you confer with from the other side?  In most situations, it will be a legal representative of the TAC. However, if the accident involved an interstate registered vehicle, then the legal representative will change depending on who the insurer of the vehicle was. Further, in matters where there is a crossover with another scheme, for example WorkCover, the representatives will change again. 7. What are the main time limits? There are many important time limits to be mindful of in TAC matters. These include, but are not limited to: • • • •

twelve months to challenge a decision made by the TAC; twelve months to lodge a TAC claim. In limited circumstances the TAC has discretion to accept a claim up to three years; six years to bring a claim for common law compensation or an impairment benefit; and two years to claim medical expenses.

8. What are the biggest challenges in running these claims? The most difficult claims are generally those involving unidentified vehicles. These matters are heavily defended, which is why getting as much evidence to begin with is extremely important. These cases often rely heavily on the plaintiff’s credit. As a result, a person’s history must be thoroughly investigated to ensure there is no suggestion of dishonesty or fraud in their past. If there is, this can have a significant impact on their case.

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9. Are there any other matters of interest about these cases? Transport accidents do not discriminate. They affect people of all ages and backgrounds. The exact same injury to two people can have completely different consequences. It is important to spend the time with your client to drill down as much as possible the consequences that they face on a day-to-day basis. It is also important to remember that a person may have a TAC claim even if they were not ‘involved’ in the accident. They may have witnessed the accident, or the direct aftermath of the accident, and suffered a psychological injury as a result.

The authors thank Maurice Blackburn and acknowledge the contribution of Danielle Leo, Senior Associate, Road Accident Injuries Specialist – Personal Injury Law, Maurice Blackburn Lawyers.

Workers’ compensation: no-fault schemes 21.10

Workers’ compensation is an example of no-fault schemes operating in each state and territory of Australia, and at the Commonwealth level. There are no fewer than 12 key pieces of legislation (see Table 21.5), so the search for consistency, for national uniformity, is very elusive. The common law may still be relevant via claims in negligence, depending on the context. The legislation requires a person to: •• satisfy the test of being an employee; •• have suffered an injury, loss or disease which is dealt with in the relevant legislation; and •• show there is sufficient connectivity or nexus between the loss-inducing event and the status of employment.

Table 21.5 Jurisdiction: Commonwealth, state or territory

Relevant Act

Commonwealth

Safety, Rehabilitation and Compensation Act 1988 Military Rehabilitation and Compensation Act 2004 Seafarers Rehabilitation and Compensation Act 1992

ACT

Workers Compensation Act 1951

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Jurisdiction: Commonwealth, state or territory

Relevant Act

NSW

Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

NT

Return to Work Act 2015

Qld

Workers’ Compensation and Rehabilitation Act 2003

SA

Return to Work Act 2014

Tas

Workers Rehabilitation and Compensation Act 1988

Vic

Workplace Injury Rehabilitation and Compensation Act 2013

WA

Workers and Injury Management Act 1981

Matters relevant to practice in workers’ compensation Workers’ compensation claims 21.11

How do you determine whether someone is an employee, as opposed to independent contractor? The totality of the relationship between the parties must be considered. Factors that may change a worker’s status from contractor to deemed employee include: •• •• •• •• ••

performing work are under the direction or supervision of another entity; being ‘tied’ exclusively or predominantly to the one ‘employer’; being asked to perform defined or regular hours; having tools, uniform or equipment supplied to them by the ‘employer’; performing work under similar conditions as other members of staff who are defined as workers; and •• being paid periodically and according to time worked rather than being paid per job and only for the tasks carried out. Independent contractors can also be deemed to be ‘employees’ of a principal business provided they meet the legislative requirements, and at least 80 per cent of the services provided by the individual are provided to the same principal. The following is a series of questions and answers relevant to the area of WorkCover, with input provided by Ben Mcllwain, Associate and Workcover Specialist of Maurice Blackburn, Sunshine, Melbourne office. 824

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1. What is the starting point of your investigation? It is vital to get a full and detailed description of the circumstances of the injury from the injured worker as soon as possible. Information should be sought in relation to the precise location, date and time of the incident as well as the mechanism of how the injury occurred and the names and contact details of any witnesses. Incident reports, statements to investigators, photos and video footage should also be obtained if in existence. A complete summary of all injuries sustained as well as all medical treaters seen  by the client should also be taken, as well as a comprehensive history of any pre-existing injuries and the worker’s employment history, including any contract of employment. 2. What witness statements do you get and why? Clients should be asked at the initial consultation to supply the names and contact details of anyone who witnessed the injury (or the lead-up to the injury) or can attest to relevant working conditions at the time of the injury. As it may be a number of years before a common law claim commences, it is important to get these contact details early in a claim as people lose contact with each other over time and memories fade. 3. What proof of expenses should plaintiffs claim? Plaintiffs should claim: • • • •

medical and like expenses (including treatment, medication, home help and travel); weekly payments of compensation; impairment benefit lump sum (if assessed at 10% or more whole person impairment); and common law compensation (if the worker can establish they have a ‘serious injury’ according to the legislation and the injury was caused by the negligence of their employer or a third party).

4. What is the legislation you refer to? The main legislation referred to in WorkCover claims in Victoria is the Workplace Injury Rehabilitation and Compensation Act  2013 (for injuries suffered on or after 1 July 2014) and the Accident Compensation Act 1985 (for injuries suffered pre-1 July 2014). 5. What are the main forms you use? A WorkCover ‘Worker’s Injury Claim Form’ should be completed by the worker and given to the employer as soon as practicable after the date of injury. Even if a worker is unsure as to the seriousness or permanency of their injury, this form should still be completed in order to protect future potential compensation entitlements should their condition worsen over time. 6. Who do you confer with from the other side? We confer with WorkCover insurers and self-insurers in relation to matters involving medical and like expenses, weekly payment claims and impairment benefit claims. If we issue court proceedings in relation to these claims, or if we commence a common law claim, we will then deal with solicitors from approved WorkCover panel firms.

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7. What are the main time limits? A WorkCover claim form should be submitted by the injured worker as soon as possible after the date of injury. The WorkCover insurer then has 28 days to accept or reject the claim. An Accident Compensation and Conciliation Service (ACCS) ‘Request for Conciliation Form’ must be lodged within 60 days of a worker receiving a decision about their claim that they wish to dispute. There is no time limit within which an impairment benefit claim can be lodged; however, there is a six-year time limitation from the date of injury to commence a common law claim. 8. What are the biggest challenges in running these claims? The most challenging aspect of WorkCover claims is building a case for negligence against the defendant(s) in common law claims. These claims are vigorously contested by defendant solicitors and the circumstances of injuries are rarely clear-cut. It is therefore crucial to begin compiling evidence, such as witness statements and photos, as soon as possible. Engaging an expert and conducting a site visit at the earliest opportunity also assists in putting together a strong case for negligence. A worker’s legal representative should also be fully aware of their client’s history, in particular any issues that may negatively affect their credit should the matter proceed to court. 9. Are there any other matters of interest about these cases? In recent years there has been a large increase in the number of WorkCover claims submitted by workers who claim to have been exposed to bullying and harassment in the workplace. These claims are often rejected and can be difficult to dispute. In order for a claim to be compensable, a number of criteria need to be met: • • • •

The worker must have suffered a diagnosable psychological injury. The injury was caused by the inappropriate behaviour of colleagues or management. The injury did not arise as a result of performance management or ‘reasonable management action’. The injury did not arise as a result of a clash of personalities.

The authors thank Maurice Blackburn and acknowledge the contribution of Ben McIlwain, Associate, WorkCover Specialist, Maurice Blackburn Lawyers, Sunshine, Melbourne.

Tort law practice relevant to sports law 21.12

Sports law is a growing area of legal services provision, advice and expertise. It is now commonplace for firms to have sports law specialists. Sports law covers a wide gamut of legal areas, including contracts, intellectual property, corporate and organisational governance, risk management, discrimination law and litigation. 826

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Arguably the best-known book globally on sports law is a United  Kingdom book by Adam Lewis QC and Jonathon Taylor, Sport: Law and Practice.3 It is a magnificent and comprehensive tome at nearly 2,000 pages. Australian-based books on the area include David Thorpe, Antonio Buti, Chris Davies and Paul Jonson, Sports Law,4 and Deborah Healey, Sport and the Law.5 A useful case summary book is by Angelo Veljanovski, LexisNexis Case Summaries: Sports Law.6 21.13

It is in terms of litigation and ADR that tort law is most relevant to sports law. This includes the issue and settlement of claims for sports-based injuries involving various torts, notably negligence. Figure 21.2 provides an overview of the main areas of sports law.

Figure 21.2 For example, sports governance Advisory

Advising on risk mitigation strategies

Club rules

Player contracts

Competition selection criteria

Broadcasting rights

Transactional Sports law

Intellectual property issues Negligence for injuries sustained, eg Agar v Hyde ADR including arbitration

Litigious issues

Potential criminal assault on the field of play?

The issue of liability in negligence for catastrophic injury occurring on the field in the course of play was examined by the High Court. 3. A Lewis and J Taylor, Sport: Law and Practice, 3rd ed, Bloomsbury Professional, Haywards Heath, 2014. 4. D Thorpe, A Buti, C Davies and P Jonson, Sports Law, 3rd ed, Oxford University Press, South Melbourne, 2017. 5. D Healey, Sport and the Law, 4th ed, UNSW Press Ltd, Sydney, 2009. 6. A Veljanovski, LexisNexis Case Summaries: Sports Law, 2nd ed, LexisNexis, Chatswood, 2011.

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Torts: Principles, Skills and Application

Agar v Hyde (2000) 201 CLR 552 Court: High Court of Australia Facts: The case involves the sport of rugby union. The facts refer to two different matches played within New South Wales. One match was in suburban Sydney, and the second in the regional city of Wagga Wagga. In each case, a young male of late teenage age was rendered a quadriplegic as the result of being caught in a very awkward position in the scrum. A scrum is where six or so players lock arms and crouch down, and then ‘engage’ when the referees announces the right moment. The ball is then thrown in and needs to come out via the use of feet. The ‘hooker’ is the person in the middle of the three-person front row, and charged with hooking the ball out behind him or her to the next row etc. The force and weight of the scrum will be considerable. The players in these positions are called forwards, and are usually very strong, muscular and heavy athletes. If the two opposing scrums or packs engage too soon, this can put player safety at risk, particularly the front row of each side. The pack can corkscrew, depending on the relevant weight and strength of the combined packs. It is a high-stakes moment when the packs engage, or the scrum sets, because the six players in the opposing front rows are literally going head to head. Legal principle: Was the International Rugby Board (IRB), which controls the rules of the game, liable in negligence for the injuries sustained by the two respective players? The court’s decision (application of the legal principle to the facts): The court found that the IRB was not negligent. It did not owe a duty of care to the players. The IRB lacked the necessary control or proximity relevant to events taking place on fields all over the world and wherever rugby is played, including New South Wales. The game is a dangerous contact sport, and players are aware of this. To allow a duty of care to exist and for negligence claims to be pursued would result in an indeterminate number of potential claims. The following reasons were provided in the case: 1. GLEESON CJ. These appeals raise the question whether a member of the board of a voluntary sporting association, which has the capacity to make and alter the rules of a sporting contest, is under a legal duty of care to players in relation to the risk of injury. 2. The appellants were individual members of the Board (or, in the case of one appellant, a corporation which was a member of the Union) of an international Union, formed in relation to the sport of rugby football. One of the functions of the International Rugby Football Board (“the Board” or “the IRFB”) was to frame and interpret the rules of the sport, called the “Laws of the Game”. The Board met once a year, usually, although not invariably, in London. The individual appellants attended annual Board meetings as representatives of national member unions. 3. The respondents are both men who, whilst playing the sport in local competitions in Australia, suffered serious injury. At the time of their injuries they were aged 19 and 18 respectively. They have sued various people, and organisations, (including the respective match referees, and local authorities involved with the control and management of the sport), in respect of those injuries, for damages for negligence. The present appeals are not concerned with those claims.

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4. The respondents contend that the rules in force at the time they suffered their injuries were such that they were exposed to unnecessary risk. The  particular deficiencies in the rules, of which complaint is made, are said to relate to the formation of scrums. 5. Fundamental to the claims made against the appellants is the contention that, by reason of the capacity of the Board to make and change the rules of the game of rugby football, each appellant owed a duty of care to all players of the sport, including the respondents. The content of that duty was formulated in oral argument as a duty to take reasonable care in monitoring the operation of the rules of the game to avoid the risk of unnecessary harm to players. In the course of further argument, the reference to monitoring the operation of the rules was altered to taking reasonable care to ensure that the rules did not provide for circumstances where risks of serious injury were taken unnecessarily. 6. In the argument for the respondents, references to “injury” were often made as references to “serious injury”. On any view, the injuries suffered by the respondents were serious. However, if there is a duty of care related to risk of injury, there is no reason in principle to limit it to serious injury, and there are practical difficulties in seeking to do so. Depending upon the circumstances, what might be a minor injury to one person might have serious consequences, physical or economic, for another. It may be that the risk of injury from playing rugby football is so obvious, and the occurrence of injury to players so common, that unqualified references to injury were regarded as forensically embarrassing. Whether a solution can be found in the concept of “unnecessary risk” is a matter that will be considered below. 7. The existence of the asserted duty of care forms the central issue in these appeals. The context in which the issue arises, and the facts of each case, are explained in the reasons for judgment of other members of the Court.

Having crisply set out the facts, the Chief Justice provided the following analysis: 10. The question which arises is not whether those who are, in one way or another, concerned with making, altering, and interpreting the rules of the game of rugby football are, or should be, interested in the safety of players. They would probably all agree that they should be, and would probably all maintain that they are. It is common ground that, from time to time, rules are changed with considerations of safety in mind. What is in issue is not a matter of moral obligation, or social responsibility, but a legal duty of care, breach of which might result in liability in damages to any participant in the sport, anywhere in the world, for any injury suffered in consequence of the breach. 11. The Court of Appeal pointed out that claims for damages by people engaged in sport are not novel. Their Honours said (omitting references to authorities): “After all, opposing players can already sue each other for intentionally and negligently inflicted injuries; they can sue the referee for negligent failure to enforce the rules; and the sports administrator that dons the mantle of an occupier assumes well-established duties of care towards players, spectators and (in the case of golf clubs) neighbours. A duty of care is not negated merely because participation in the sport is voluntary.” 12. Whilst declining to express any concluded view, especially in the light of the significance of issues of policy which it was thought would require elucidation and examination at a final hearing, the members of the Court of Appeal (Spigelman CJ, Mason P and Stein JA) identified control and reliance as the key to any potential duty of care. They said:

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“There are clear indications that the IRFB saw itself as the law-giver for the sport of rugby and that it regarded the safety of players as an important factor. Serious injuries are not uncommon. There is evidence of assumption of control by the members of the IRFB board and tenable allegations of reliance by players of the sport. This is arguably the basis of an assumption of responsibility giving rise to a prima facie duty of care, albeit one that may be relatively easy to discharge. The class of potentially affected persons may be very large, but it is finite and readily identifiable.” 13. It will be necessary to return to the nature of the control which is here said to exist. It is to be noted, however, that it is not control of the kind that might exist where the participants in the risky activity concerned are subject to legal compulsion, or are in a relationship involving protective care of a parental or educational kind. We are not dealing, for example, with children playing compulsory sport at school, or with people in an employer-employee relationship. We are concerned with adults participating voluntarily in amateur sport. The concept of control requires closer analysis in a context such as the present. 14. Voluntary participation in a sporting activity does not imply an assumption of any risk which might be associated with the activity, so as to negate the existence of a duty of care in any other participant or in any person in any way involved in or connected with the activity. That, however, is not to deny the significance of voluntary participation in determining the existence and content, in a given case, or category of cases, of an asserted duty of care. 15. People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports. A great deal of public and private effort, and funding, is devoted to providing facilities for people to engage in individual or team sport. This reflects a view, not merely of the importance of individual autonomy, but also of the public benefit of sport. Sporting activities of a kind that sometimes result in physical injury are not only permitted; they are encouraged. Sport commonly involves competition, either between individuals or teams. A sporting contest might involve body contact where physical injury is an obvious risk, or the undertaking by individual competitors of efforts which test the limits of their capabilities in circumstances where failure is likely to result in physical harm. Rules are of the essence of sporting competition. Individuals, or teams, wishing to compete must agree, personally or through membership of some form of association, upon the rules which will govern their competition. In the case of rugby football, as in the case of many other sports, there are layers of voluntary associations, from a local to an international level, which provide facilities for individuals who wish to enjoy the game to participate in contests, and which, as part of providing those facilities, make, amend, interpret and enforce the rules of the game. Making and changing the rules may require giving weight to many considerations, some conflicting. It is not in dispute that they may include considerations relating to the safety of participants in the sport. It is at this point, and in this context, that the question of a legal duty of care arises. 16. The Court of Appeal said that the IRFB is a law-giver, and controls the game. The appellants are sued as individuals; and the essence of the respondents’ complaints is that the Board did not change the rules which were in force at the time of the matches in which they were injured. The  respondents claim that the rules about scrummaging which were then in force, (and, by inference, the rules as they had

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been in force for a long time), required amendment in the interests of the safety of players. No individual appellant could amend the rules. No individual appellant controlled the game internationally. No individual appellant was a law-giver. The most that can be said is that each appellant was one of a number of participants in a process by which, from time to time, the rules of the sport at an international level could be made and changed. There were other participants in the same process who have not been sued, but that simply serves to emphasise that it is individual responsibility that is in question, even though it is said that the appellants had that responsibility as members of a group. To speak of persons who were sent once a year to London, as representatives of national unions, as controlling a game of football played in a Sydney suburb, or a country town, by reason of their collective capacity to alter the international rules, is to speak of a remote form of control. 17. The content of the suggested duty is elusive. Reasonableness is the ultimate test, but reasonableness can only be determined in a context. The obligation, it is argued, is to see that the rules of the game do not expose players to unnecessary risk of serious injury. The risk of young men having their necks broken is a matter to be taken seriously; but some would say the same about other, and lesser, risks associated with rugby football. The game is based on activities such as tackling, scrummaging, rucking and mauling which, by the standards of most members of the community, are obviously dangerous, and which regularly result in injuries which many people, even if not all footballers, would regard as serious. By reference to what standards are such risks to be classified as necessary or unnecessary? What is an unnecessary risk in an inherently dangerous sport? When an obviously risky activity is engaged in, voluntarily, for pleasure, by an adult, how does a court determine whether a certain level of risk is unnecessary? 18. The qualification, “unnecessary”, is of critical importance to the respondents’ argument. If it were removed, the contention would be manifestly implausible. But ideas of what is an unnecessary risk in playing a sport vary widely. It is probably the case that most people in the community would not play rugby football, and would regard any possible pleasure associated with the game as being outweighed by the risk of injury. Even amongst enthusiasts, there would be differing views as to the degree of risk that is acceptable. Individuals playing in the one match might have different levels of risk they are personally willing to accept. There are sports, including some codes of football, which carry much less risk of injury to players than rugby football. There is no objective standard by reference to which it is possible to decide that a given level of risk involved in rugby is acceptable, but that beyond that level, it is “unnecessary”. The high degree of subjectivity of an assessment as to what level of risk inherent in the sport, as played according to a certain set of rules, is unnecessary, is a factor which weighs against a conclusion that there is a legal duty which, in its practical application, depends upon such an assessment. Furthermore, the risks involved in playing a body-contact sport arise from various sources. A risk might be inherent to an individual player with a particular vulnerability. Or it might result from the vigour with which an opponent, or a team-mate, plays. It cannot be the case that all avoidable risks have to be eliminated. The only way to avoid risk of injury is not to play. No doubt the rules of the game could be altered in many respects to make it safer, but people who enjoy playing, or watching, rugby football have other priorities. 19. Although the Court of Appeal denied that this would be a case of indeterminate liability, the extent of the potential liability is confined only by the number of people who choose to play the sport anywhere in the world. According to the Bye-Laws of the IRFB, at the relevant time, the first of the stated purposes for which the Board

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existed was to determine and safeguard the principles relating to amateurism in rugby football. Such an amateur sport may be played in many countries, in widely different circumstances, ranging from organised competitions to casual games, by people of different ages, physical abilities, vulnerabilities, and degrees of skill, enthusiasm, recklessness and courage. It is said that there is a duty, in relation to the rules of the sport, to take reasonable care to protect them all against unnecessary risk of injury. For practical purposes, the liability is indeterminate. 20. It cannot be denied that, to paraphrase the words of Lord Atkin in Donoghue v Stevenson, players of rugby football are so closely and directly affected by what the IRFB does that members of the Board ought to have them in contemplation as being so affected, but neighbourhood in that sense is not the issue in the present case. Of course, the rules of the game affect the players of the game. It is equally clear that the rules will expose the players to the risk of injury in the sense that they will lay down the conditions of a physical contest in which some people are likely to be hurt. In that respect, harm is foreseeable. It does not follow that the members of the Board were under a legal duty of care to the players of the game of the kind presently alleged. No existing category of case in which a duty of care has been held, in this Court, to exist, covers the present. That is not determinative, but it is significant. The Australian cases in which a duty of care has been found to exist in a sporting context are distinguishable from the present, and no attempt is made to argue that they are directly in point. 21. The Court of Appeal said that, if a duty exists, its foundation is the combination of control and reliance. As appears from what has been said above, the control attributed to the members of the Board was remote from the respondents, and extended only to participating, or having the capacity to participate, in a process of laying down the conditions of a sporting contest in which people might voluntarily engage. As to reliance, the sporting contest involved an obvious risk of injury; a risk that would be affected by a number of factors, including the attitudes, capacities, and propensities of individual players, which are beyond the influence of the appellants. The suggested duty is of uncertain content. The liability sought to be imposed upon people in the position of the appellants is practically indeterminate in extent. 22. In Donoghue v Stevenson, Lord Macmillan said: “In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life.” 23. I am unable to accept that the circumstances of life in this community are such that the conception of legal responsibility should be applied to the relation which existed between the appellants and all people who played the game of rugby football and were, on that account, affected by their action or inaction in relation to the rules of the game. Undertaking the function of participating in a process of making and altering the rules according to which adult people, for their own enjoyment, may choose to engage in a hazardous sporting contest, does not, of itself, carry with it potential legal liability for injury sustained in such a contest.

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The joint judgment of Gaudron, McHugh, Gummow and Hayne JJ provides the following analysis of why the imposition of a duty of care was unsuccessful: Autonomy and responsibility 88. Mr Worsley makes no allegation of any breach of the laws of the game. If there was no breach of the laws, Mr Worsley would have no claim against his opponents. Each participant in the match was adult and must be taken to have consented to the application of physical force in accordance with the laws of the game. And not only would there be no actionable trespass in the opposing team doing what it did, there is nothing which would suggest that any player conducted himself, in playing within the laws of the game, so as to have broken any duty of care which he owed to the respondent. 89. If that is so, why should the law-makers be liable when the player who inflicted the injury is not? If the laws of the game define the conduct to which an adult participant consents, the law-makers should not be liable because they could have made the activity that the participant chose to undertake less dangerous. The absurdity of this proposition is highlighted by the fact that, in many activities, the danger is part of the activity’s attraction. The participant may therefore not have chosen to engage in the activity at all if it was less dangerous. 90. The decision to participate is made freely. That freedom, or autonomy, is not to be diminished. But with autonomy comes responsibility. To hold that the appellants owed a duty of care to Mr Worsley would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime. It would do so because it would deter those who fulfil the kind of role played by the IRFB and the appellants in regulating that pastime from continuing to do so lest they be held liable for the consequences of the individual’s free choice. The choices available to all would thus be diminished. 91. Separate questions may arise about school age children whose decisions are made or affected by others but those questions need not be considered in this case. 92. We consider that it is not arguable that the appellants owed the respondents a duty of care. It follows that it is not necessary to consider the limitation questions which were argued. It is as well, however, to say that we doubt the appellants’ contention that if a limitation period has run, and the party whose claim is prima facie barred has applied for extension of time, or indicated an intention to do so, it would nevertheless be right to set aside service of process overseas without first having decided whether an extension should be allowed.

The complexities of sports participation 21.15

Participating in sports reflects a number of factors. These include: •• •• •• •• ••

age of the participants; skills, qualifications and experience of coaches and other staff; nature of the sport as individual, high contact etc; whether there are contracts of employment or related payments; rules and the process for their amendment; 833

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•• enforcement and oversight of the rules, including during matches and events; and •• rules and expectations of the competition in which the sport takes place. 21.16

Sports law is increasingly offered as a suite of boutique services by specialist law firms, or as a specialist section within larger firms. It is somewhat similar to family law in that it covers a wide range of services, from advice, documentation preparation, through to ADR and litigation. There is a sports law peak body, the Australia and New Zealand  Sports Law Association (ANZSLA). As the ANZSLA website notes: ‘Formed in 1990, ANZSLA now has a membership that includes lawyers, administrators, academics and government representatives; though membership is open to anyone with an interest in sport.’7 ANZSLA oversees a sports law journal and has an annual conference. It is a dynamic, growing area of the law, and of tort law.

7. .

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Review In this chapter we have looked at three areas of legal practice relevant to tort law.These are motor vehicle claims, workers’ compensation and negligence law in the context of sports law.

Reading M Davies and I Malkin, Focus: Torts, 8th ed, LexisNexis Butterworths, Sydney, 2018 D Healey, Sport and the Law, 4th ed, UNSW Press Ltd, Sydney, 2009 A Lewis and J Taylor, Sport: Law and Practice, 3rd ed, Bloomsbury Professional, Haywards Heath, 2014 H Luntz, D Hambly, K Burns, J Dietrich, N Foster, G Grant and S Harder, Torts: Cases and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2017 D Thorpe, A Buti, C Davies and P Jonson, Sports Law, 3rd ed, Oxford University Press, South Melbourne, 2017 A Veljanovski, LexisNexis Case Summaries: Sports Law, 2nd ed, LexisNexis, Chatswood, 2011

Key Case Agar v Hyde (2000) 201 CLR 552

Chapter 21 Review Questions 1. What are the basic differences between the various types of legal tasks, in particular, advisory work, transactional and litigation? 2. Does Australian tort law practice demonstrate a neat delineation between no-fault and fault-based practice? 3. How would you characterise sports law? As niche? As a full legal service delivery? Or in another manner? 4. What key issues will affect the delivery of legal services by lawyers to clients in the next decade?

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Research in Torts Legal practice skill: Efficient research of legal problems

Learning aims •

Understand how to use Boolean logic and proximity operators to build a search statement

•

Locate commentary contained in secondary sources such as legal encyclopaedias and legal journals

•

Use a case citator to find case law

•

Locate up-to-date legislation

Learn by doing 22.1

The best way to develop legal research skills is by doing legal research. This chapter provides a practical guide on where and how to look for information. It is designed to get you started on a research task quickly. It focuses on selected online resources and the instructions end at the search button, leaving you free to explore the results on your own.

Constructing searches 22.2

Developing good database search skills will help you throughout your time at  university and beyond. It takes some skill to use legal research databases effectively and the databases themselves vary greatly. However, there are some techniques that can be applied to all databases that will help save time and get better results.

Boolean logic 22.3

It is important to keep in mind that most of the databases used for legal research are specialist databases. Many feature Google-like single search box interfaces. 837

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However, to get the best results from these databases, the user may need to use Boolean operators when constructing a search. These operators are: •• AND — use to narrow a search by adding additional terms. For example, negligence AND medical would find records that contain both terms; •• OR — use to widen a search by adding alternative terms. For example, weapon OR firearm would find records that contain either term; •• NOT — use to narrow a search by excluding terms. For example, surgery NOT cosmetic would find records that contain the first term without the second; •• “ ” — use quotation marks to search for an exact phrase. For example, “contributory negligence” would find records that contain this exact phrase; •• ( ) — brackets may be used in more complex search statements to group terms together. They are especially useful when used with OR to group alternative terms together within a search. For example, (smoke OR fumes) AND nuisance will find records that contain either word, smoke or fumes, and the word nuisance; and •• ! — use wildcards to fill in for unknown letters in a word. For example, negligen* would find negligence, negligent, negligently etc. Some databases use * while others use ! — check the help link within the databases to find out which to use.

Combinations of Boolean operators can be used to create precise searches. For example: “volenti non fit injuria” AND (football OR rugby OR soccer) This search would locate records that contain the phrase volenti non fit injuria and refer to one or more of those sports.

Proximity operators 22.4

Boolean operators are sufficient when searching indexes, but for full-text databases, narrower (more specific) searching is often required. Whereas AND only requires that terms be in the same record, proximity operators can be used to specify that terms appear in the same paragraph or even the same sentence. For example, traffic w/p accident w/p injury w/p compensation would find records where all four terms appear in the same paragraph of text. The proximity operators vary from database to database, so check the help link within the database to find out which to use.

Natural language searching 22.5

Many databases offer natural language searching.This Google-style approach does not require the use of Boolean operators. Instead, a search may be entered as a collection of keywords, phrases or even as a question. For example, a user of Lexis Advance might enter a question such as Does an employer owe a duty of care to their employees? Lexis Advance will analyse the question and attempt 838

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to interpret its meaning by identifying the key terms used.This type of searching can be a good way to begin researching a topic. The results returned, even if not always precisely on point, will almost certainly inform further searches.

Primary and secondary sources 22.6

The sources used in legal research can generally be divided into primary and secondary. Primary sources are documents such as case law and legislation. They are documents which state what the law is. Secondary sources such as journal articles, encyclopaedias and textbooks often explain or discuss primary sources. Their explanatory nature means that they can be a great starting point for legal research.

Books 22.7

Textbooks are a wonderful, and sometimes overlooked, source of information. Check  your reading guide to see  which books are recommended by your lecturer. Search your library catalogue by keyword, explore the e-book entries in the catalogue or browse the shelves. In libraries that use the Moys classification system, the books on tort law can be found from KN30 to KN39. In the Dewey system they will be at 346.9403.

Legal dictionaries 22.8

Legal dictionaries are a great place to start research.They can help to shed light on the meaning of words and clarify concepts. It is almost always worth taking the time to consult a legal dictionary when beginning a research task. Choose a dictionary published in Australia to ensure that the definitions provided and primary sources cited are relevant. The Encyclopaedic Australian Legal Dictionary, published by LexisNexis, is available online to subscribers. It contains over 25,000 definitions, many with references to relevant case law and legislation. Use quotation marks to search for an exact phrase. If unsure of the exact phrase, then use a proximity operator to connect the words. For example, contributory /2 negligence will find any records where both terms appear within two words of each other.

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When using a dictionary, you will almost always be looking for a definition of a word or phrase, so remember to use the Defined Terms box. Other legal dictionaries are available. For hard copy, search your library catalogue or browse the reference section of your library.

Legal encyclopaedias 22.9

A legal encyclopaedia aims to provide the researcher with a concise summary of Australian law. Arranged by subject, they provide commentary with extensive references to legislation and case law.They are a great place to begin when researching an unfamiliar area of law. In Australia, there are two leading legal encyclopaedias: Halsbury’s Laws of Australia published by LexisNexis and The Laws of Australia published by Thomson Reuters. Both exist in hard copy and online for subscribers.This section will concentrate on the online format.

Halsbury’s Laws of Australia 22.10

As with many other online resources, there are two ways to locate information in Halsbury’s: the user may either search or browse.

Searching Halsbury’s 22.11

It is important to keep in mind that Halsbury’s is an extensive work. In hard copy it constitutes dozens of volumes, so it is essential to have a clear idea of exactly what it is that you are looking for. The advanced search in Halsbury’s allows users to take a number of different approaches to locating information including searching: •• •• •• ••

across the entire text or specific parts of the text; for references to a specific piece of legislation; for references to a case; or only the headings of paragraphs.

To search the text of Halsbury’s 22.12

It is possible to search Halsbury’s and other analytical material by using the single search box on the Lexis Advance home screen. However, the easiest way to search the encyclopaedia is to click on Halsbury’s in the publications pane and then select Go to Advanced Search. A search may be conducted using either Boolean and proximity operators or natural language. 1. Choose the field to search.The Terms box will provide the broadest search because it will search across every field in the database. The other search boxes conduct a narrower search by limiting the search to particular fields within the database. 840

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2. Enter a search statement and click on Search.

“standard of care” /10 profession! The search shown above uses quotation marks to find the phrase ‘standard of care’ within 10 terms of words that begin with profession by using the proximity operator /10 and the wildcard operator !, for example profession, professions, professional. Similar results can be obtained by conducting a natural language search. The search may be formulated as a question such as: What standard of care applies to professionals?

To browse Halsbury’s 22.13

Browsing the table of contents is equivalent to flipping through the pages of the hard-copy version. It is a good way to gain an understanding of how Halsbury’s is structured and the extent of the information that it contains.

Browsing the table of contents 22.14

1. Choose Halsbury’s Laws of Australia from the Publications pane. 2. Select View Table of Contents. 3. Browse the listing but be aware that this is a table of contents, not an index. It is the equivalent to flipping through pages.

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The last entry in the table of contents is a consolidated index. It is the equivalent of using an index in a hard-copy publication and provides all the benefits of editorial input such as grouped subheadings and see also references.

Putting it all together — using Halsbury’s Laws of Australia for a tort law research task 22.15

Imagine that you have been asked to find commentary on what the requirements are for establishing a duty of care with respect to mental harm. Begin by establishing the key elements that will make up the search.The task is essentially a subject search, so you will be looking for text where all these words and phrases appear in the same paragraph. The search below uses the proximity operator /p to locate any paragraph within Halsbury’s that contains: 1. the phrases ‘duty of care’ and ‘mental harm’ by using quotation marks; 2. any words that begin with requirement by using the wildcard operator !, for example requirement or requirements; and 3. any words that begin with establish by using the wildcard operator !, for example establish, established, establishing or establishment.

The search will locate at least one paragraph that contains commentary on the subject as well as references to relevant legislation and case law.

The Laws of Australia Halsbury’s, the user may either search or browse the contents of The Laws of Australia. Before searching any database, especially a full-text database like The Laws of Australia, it is essential to have a clear idea of what it is that you are looking for. This will help you to decide whether you need to search or browse.

22.16 Like

The search screen in The Laws of Australia allows the user to take a number of different approaches to locating information, including searching: •• across the entire text or specific parts of the text; 842

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•• for references to a specific piece of legislation; •• for references to a case; and •• for a legal principle. Each paragraph in The Laws of Australia has a heading that contains a proposition or legal principle.

To search the text in The Laws of Australia 22.17

1. Click on The Laws of Australia search template. Choose the field to search. The Free Text search option will provide the broadest search by searching across every field in the database. The other search boxes conduct a narrower search by limiting the search to particular fields within the database. 2. Enter the search terms. 3. Click on Search.

Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, . Accessed October 2018.

The above search will locate any records where the phrases ‘implied terms’ and ‘fitness for purpose’ occur, in any order, within 20 words of each other. When searching for phrases, they must be enclosed within quotation marks. The number following the / symbol is used to specify how close together the phrases must be.

To browse The Laws of Australia 22.18

1. Click on the plus symbol next to the table of contents subject headings that appear to the left of the advanced search options. 2. Continue to browse down through the hierarchical table of contents until you reach the paragraph level. Paragraphs are identified by a paragraph number. 3. If unsure of where to begin browsing, try a keyword search of the table of contents. Enter a word or phrase in the table of contents search box on the left of the screen above the table of contents and click on Search. Browse the document paths retrieved to see  where you might begin browsing.

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Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, . Accessed October 2018.

Putting it all together — using The Laws of Australia for a tort law research task 22.19

Imagine that you have been asked to locate commentary that discusses the legal principles that are relevant to the following scenario. A man took his suit (chattel) to his local dry cleaner. When he returned to collect the suit, it could not be found. A few days later, after the man lawfully demanded the return of his suit, the owner of the dry cleaning business said that he no longer had the suit in his possession. Find commentary that discusses whether an action in detinue might be taken. Begin by establishing the key elements of your search. The task is essentially a subject search. Remember that each paragraph in The Laws of Australia has a heading that contains a proposition or legal principle. You must construct a  search to locate any records within The Laws of Australia where the words ‘chattel’, ‘possession’ and ‘detinue’ appear in the legal principle field.

Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, . Accessed October 2018.

Journals 22.20

Journals are professional or academic serials (magazines) that are published at regular intervals. Some law journals focus on a particular subject area. For example, the Torts Law Journal is an Australian publication that publishes articles on the subject of tort law. Other journals, such as the Australian Bar Review, publish articles on a wide range of topics, including torts. Articles in law journals provide the researcher with analysis and discussion of legal issues.They offer expert opinions and interpretations of the law. 844

22.24

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Article title

Year

Volume

Issue

Journal title

Craig Brown, ‘Apology Legislation: Oiling the Wheels of Tort’ (2009) 17 (3) Tort Law Review 129, 130.

Starting page

Pinpoint reference to a page within the article

Locating a journal in hard copy in a library 22.21

Library catalogues contain records for all the journal titles that they hold in hard copy on their shelves. Most libraries also catalogue their online collections as well. However, traditional library catalogues do not contain records for the articles contained within the journals. So when using a catalogue to locate a copy of the journal article cited above, it is necessary to search for the title of the journal, Tort Law Review in this example. The catalogue record will provide the location where the journal can be found in hard copy and often where it can be found online. Once located, you would then need to browse or search within the journal for the article.

Federated search engines 22.22

Federated search engines usually feature prominently on university library homepages. They offer Google-like, single-box, simultaneous searching of many of the library’s databases. The wide-ranging search that they offer can be very useful, especially if you are looking for the social, economic and political background to legal issues. However, it is important to note that most federated search engines do not search the major legal databases. When looking for legal information, it is necessary to search the relevant legal databases individually and directly.

Legal journals databases 22.23

Legal journals databases are useful tools that allow users to locate articles quickly by searching the contents of many journals simultaneously. Some journals databases contain the full text of the articles, some are only indexes and others, like AGIS, are a combination of the two.

AGIS 22.24

AGIS (Attorney-General’s Information Service) is the leading legal journals database in Australia. It is an index of Australian and New Zealand legal journals articles from 1975 to the present. It contains records of articles published on all 845

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aspects of law, including torts. AGIS allows the user to search across hundreds of different journals and locate articles in a number of ways, including by: •• •• •• ••

author; title; subject; or jurisdiction.

Once the record of an article is found, AGIS provides the user with information about the article including: •• •• •• •• •• ••

title; author; citation; a list of the cases referred to in the article; a list of the legislation referred to in the article; and an abstract summarising the article.

Many of the more recent records will have the full text of the article attached. Where it is not, most libraries will provide a link back to their catalogue or other journal-finding system to assist users to find the full text elsewhere.

To locate a journal article by author name 22.25

At least to begin with, it is good practice when searching by name to only search by surname. The way the first name of an author is used may vary over time and from one database to another. For example, an author with the name John Devereux might appear as J Devereux or John Devereux. 1. Choose Advanced Search. 2. Enter a surname into the uppermost search box. 3. Choose Author from the drop-down menu immediately adjacent to the Search box. 4. Click on Search.

Source: Reproduced with permission of RMIT Training Pty Ltd for screenshots from . Accessed October 2018.

To locate a journal article by title 22.26

Unlike a library catalogue, AGIS contains both the titles of the journals and the titles of the articles that are published within journals. 1. Choose Advanced Search. 846

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2. Enter the title of the article into the Search Query box. If you are confident that you know the exact title, enter it within double quotation marks. If not, or if the title is long, enter the main words from the title with the Boolean operator AND between each word or a combination of the two, as shown in the example below. 3. Choose Title from the drop-down menu immediately adjacent to the Search Query box. 4. Click on Search.

Source: Reproduced with permission of RMIT Training Pty Ltd for screenshots from https://search. informit.org. Accessed October 2018.

To locate a journal article by subject 22.27

Compared to the journal articles that they index, the records in AGIS are very concise. While the records in AGIS do contain a subject field, in most instances it is better to search across all the fields. That way a search will benefit from information held in the title, subject, abstract and other fields. 1. Enter the search terms into the Simple Search Query box. It is essential to use Boolean operators. Remember that you are searching an index. Try to think of what words and phrases might appear in records describing the articles being sought. 2. Click on Search. For example, the search statement below would find articles about the duty of care owed by hotel and club operators to their customers.

Source: Reproduced with permission of RMIT Training Pty Ltd for screenshots from . Accessed October 2018.

Note that the Boolean operator OR is used in connection with round brackets to group alternative terms together.

Putting it all together — using AGIS for a tort law research task 22.28

Imagine that you have been asked to find legal journal articles that discuss the interpretation of vicarious liability, in particular in instances involving harassment in the workplace. The task is essentially a subject search. Begin by identifying the key elements that will make up the search. Consider what words and phrases might be used 847

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in AGIS to describe such articles. Use Boolean operators and wildcards to find all likely alternatives. For example, instead of ‘workplace’, use a statement like (work* OR employ*). This will broaden the search to locate records that contain: •• work or works or worked or working or workplace etc; OR •• employed or employee or employer or employment etc.

Source: Reproduced with permission of RMIT Training Pty Ltd for screenshots from . Accessed October 2018.

The search shown above will locate a number of articles on the topic. Look at the records located and, if necessary, adjust your search. Include any important descriptive words using AND and OR.

Other legal journal databases 22.29

•• CaseBase: Primarily a citator, CaseBase can also be used as a journal index. It is especially useful for locating journal articles that refer to cases. •• Australian Public Affairs (APA-FT): A broader database than AGIS, it indexes articles on current affairs, economics, humanities, literature, politics and social sciences as well as law. •• Lexis.com: A United States-based database that contains over 1,000 full-text journals and law reviews mostly from the United States, United Kingdom and Canada. •• TR Westlaw: Similar coverage to Lexis.com with over 1,000 full-text journals and law reviews. It also provides access to the Legal Journals Index (UK). •• AustLII: Perhaps best known for its case law and legislation databases, AustLII also has a large collection of full-text law reviews from Australia and New Zealand.

CCH IntelliConnect 22.30

CCH is a legal publisher that produces a collection of tort law resources including: •• Australian Medical Liability Commentary; •• Australian Medical Liability Cases; •• Australian Tort, Personal Injury, Health and Medical Law Tracker;

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•• Australian Torts Cases; •• Australian Torts Legislation; and •• Australian Torts Commentary. Australian Torts Commentary is particularly useful for tort law researchers. It offers a practical approach and its commentary has links to legislation and case law.

To search the text in CCH 22.31

It is possible to search across all the content in CCH. However, it will often be more efficient to limit a search to a particular subject area or publication. 1. A list of the subject areas available is displayed on the left of the screen. 2. Click to tick the box next to Torts and Personal Injury Law. This will ensure that the search only includes publications in this subject area. 3. Alternatively, click on the plus symbol next to Torts and Personal Injury Law and then click to tick the box next to Australian Torts Commentary. This will ensure that the search includes only the selected publication. 4. Enter search terms in the search box at the top of the screen. 5. Click on Search.

Source: Product CCH IntelliConnect by Wolters Kluwer. Reproduced with permission of CCH Australia Limited, . Accessed October 2018.

The proximity operators in CCH are: w/sen — to locate terms that occur within 20 words of each other (roughly the same sentence); and w/par — to locate terms that occur within 80 words of each other (roughly the same paragraph).

Browsing the table of contents 22.32

1. 2. 3. 4.

A list of the subject areas available is displayed on the left of the screen. Click on Torts and Personal Injury Law. Click on a publication title. Continue clicking on the table of contents headings within the publication. This is the equivalent of flicking through pages in a hard-copy publication.

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Browsing the index 22.33

1. 2. 3. 4. 5.

A list of the subject areas available is displayed on the left of the screen. Click on Torts and Personal Injury Law. Browse to the table of contents of a commentary publication. One of the last entries in the table of contents is the index. Click on the letters to begin browsing the index. This is the equivalent of using an index in a hard-copy publication and provides all the benefits of editorial input such as grouped subheadings and ‘see also’ references.

Source: Product CCH IntelliConnect by Wolters Kluwer. Reproduced with permission of CCH Australia Limited, . Accessed October 2018.

Using roadmaps 22.34

Roadmaps are topic summaries. They provide a single-page overview of commentary, key cases and legislation. They also provide links to the relevant parts of the full-text commentary for when greater detail is required. Roadmaps are especially useful, not just for obtaining an overview of a topic, but also as an alternative to using the index and table of contents. 1. 2. 3. 4.

Enter search terms in the search box at the top of the screen. Click on Search. Click on By Document Type in the sidebar and then select Roadmaps. Select a relevant roadmap.

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Source: Product CCH IntelliConnect by Wolters Kluwer. Reproduced with permission of CCH Australia Limited, . Accessed October 2018.

Putting it all together — using CCH for a tort law research task 22.35

CCH publications and databases are often very useful for finding answers to practical questions. Imagine that you have been asked to find out if exemplary damages are available in defamation matters. You wish to find some commentary explaining this point as well as the legal authorities for it. Begin by establishing the key elements of your search. The task is essentially a subject search. To answer the question, you will need to find any paragraphs within Australian Torts Commentary that contain the phrase exemplary damages and the word defamation.

Source: Product CCH IntelliConnect by Wolters Kluwer. Reproduced with permission of CCH Australia Limited,. Accessed October 2018.

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Source: Product CCH IntelliConnect by Wolters Kluwer. Reproduced with permission of CCH Australia Limited, . Accessed October 2018.

The search above will locate any paragraphs within the selected publication (Australian Torts Commentary) that contain the term defamation and the phrase ‘exemplary damages’. It will locate at  least one paragraph that answers the question. Alternatively, you could find the answer just as quickly by using the index to Australian Torts Commentary. Browse to the index entry in the table of contents. Then in the index look under D for defamation then for a subheading for exemplary damages. For important research tasks, you may wish to use both searching and browsing to ensure that you locate all the relevant information within a database.

Case law 22.36

Case law is made up of the decisions of a court consisting of a single judge or a number of judges. Significant cases may be published in a law report series and are known as ‘reported judgments’. Most law report series are available online and in hard copy. Those judgments which do not get reported (published) are known as ‘unreported judgments’.

Case citations 22.37

A case citation has five elements and generally follows the order of — case name, year, volume number (of law report), abbreviation of the law report and starting page number. Plaintiff or appellant

Year

Volume

Pinpoint reference to a specific page of the judgment

Rogers v Whitaker (1992) 175 CLR 479, 483.

Defendant or respondent

Abbreviation for report series

Page number where the case begins

Todorovic v Waller (1981) 150 CLR 402 In round bracket ( ) citations, the year is not essential for locating the case. 852

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Macpherson v Kevin J Prunty & Associates [1983] 1 VR 573 In square bracket [ ] citations, the year is essential as the report series either does not have a volume number or, as in this instance, begins with volume 1 each year. Watts v Turpin (2000) Aust Torts Reports 81–544 Cases published by CCH have a slightly different citation style. Numbers such as 81–544, as shown above, are references to paragraphs. These numbers are displayed at  the bottom of the page in CCH reports. Numbers that do not include a hyphen are references to page numbers. These numbers are displayed at the top of the page in CCH reports. McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC 107 (22 February 2005) This citation is called a medium neutral citation. This method of citation was developed to accommodate referencing unreported judgments. In the example above, 2005 is the year that the case was decided; NSWSC stands for the New South Wales Supreme Court; 107 is the number of the case.

Unreported judgments 22.38

An unreported judgment is a judgment that has not been published (reported) in a law report. All judgments are unreported to begin with as it takes time for them to be published.While some judgments will be published in many different law reports, most will never be published and will remain unreported.

Alternative or parallel citations 22.39

Often an important case may be reported (published) in more than one series of law reports. For example:

Vairy v Wyong Shire Council (2005) 223 CLR 422; 80 ALJR 1; 142 LGERA 387; 221 ALR 711; [2005] Aust Torts Reports 81–810; [2005] HCA 62; [2006] ALMD 1241; [2006] ALMD 1449; [2006] ALMD 1445; [2006] ALMD 1446 The judgment has been reported in many law reports. Where available, use the authorised reports series; these are officially approved versions.

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Authorised reports for the High, Federal and Supreme Courts 22.40

Table 22.1 Court

Law report

High Court

Commonwealth Law Reports CLR

Abbreviation

Federal Court

Federal Court Reports

FCR

Supreme Court of New South Wales

New South Wales Law Reports

NSWLR

Supreme Court of Northern Territory

Northern Territory Law Reports

NTLR

Supreme Court of Queensland

Queensland Reports

QdR

Supreme Court of South Australia

South Australia State Reports

SASR

Supreme Court of Tasmania

Tasmania Reports

TasR

Supreme Court of Victoria

Victoria Reports

VR

Supreme Court of Western Australia

Western Australia Reports

WAR

Abbreviations 22.41

Abbreviations are used to identify the law report series in which a judgment has been published. In the case of unreported judgments, an abbreviation for the court is used. Some useful tools for looking up abbreviations are: •• Australian Guide to Legal Citation — available in hard copy and online, it contains a useful listing in the appendix of the most commonly used abbreviations. See  (accessed October 2018); •• FirstPoint (WestlawAU) — Click on Help —FirstPointTable of Abbreviations; •• CaseBase (Lexis Advance) — Support Panel — Browse the Help Index – CaseBase Abbreviations; and •• Cardiff Index to Legal Abbreviations — see  (accessed October 2018) — a comprehensive and easy-tosearch database of abbreviations from over 295 jurisdictions around the world. 854

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To begin with, the abbreviations in case citations can look cryptic, but they do provide the tort law researcher with useful information about a case in addition to where it may be found. For example: •• Jurisdiction:The Australian Law Reports (ALR) publishes only judgments from federal jurisdictions. •• Court:The Commonwealth Law Reports (CLR) only publishes judgments of the High Court of Australia. •• Subject: The Australian Torts Reports (Aust Torts Reports) publishes judgments from state and federal courts on the subject of torts.

Locating case law using a case citator 22.42

A case citator is a tool that allows users to locate case law and useful information about that case law. It provides an index to and summary of case law. It allows its user to search across jurisdictions and time to locate cases. Of course, it is possible to search case law directly without using a case citator. Case law is available online in full text in various databases. The problem for the researcher is that the structure of these databases, their coverage and the layout of the judgments themselves varies. This makes searching difficult, time consuming and adds greatly to the risk of not finding the judgments being sought. Case citators solve the problem of having to search multiple databases containing judgments in inconsistent formats. They do this by providing the researcher with a single database that contains consistently structured and formatted descriptions of judgments. Although the case citator databases do not contain the full text of judgments, they do provide links to where they are available online or, at  the very least, a citation that would allow the researcher to locate the judgment in hard copy. In Australia, there are two leading commercially produced case citators and one that is available for free from AustLII. All have their own strengths and subtle differences.

CaseBase 22.43 CaseBase

is an Australian case citator. Produced by LexisNexis and available online to Lexis Advance subscribers, it is one of the most popular legal databases in Australia. It offers extensive coverage of reported and unreported decisions in the federal jurisdiction as well as all Australian states and territories. For the researcher, CaseBase offers two great benefits: it allows cases to be located relatively easily and provides useful information about cases. 855

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CaseBase allows the researcher to locate cases in a number of ways, including by: •• •• •• •• •• ••

name; citation; subject; jurisdiction; court; or judge.

Once the record of a case is found, CaseBase provides the researcher with information about the case including: •• citation (often linked to the full text of the case); •• a list of any decisions that have subsequently considered the case; •• details of any journal articles that refer to the case, a great strength of CaseBase; •• a list of cases that were considered by the judge(s); •• a list of any legislation that was considered in the case; •• a summary of the case or headnotes; and •• any words or phrases that were considered in the case.

To locate a case by name 22.44

1. Click on CaseBase Cases in the publications pane and then select Go to Advanced Search. 2. Enter the party names into the Case Name field. Use the Boolean operator AND between each name. Suggested party names will appear below the Case Name field based upon the information entered. 3. Click on Search.

To locate a case by its popular name 22.45

Sometimes important or high-profile cases, especially those that receive media attention, come to be known by a popular name. Often the name has nothing to do with the actual party names. For example, Grant v Australian Knitting Mills

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is more popularly known as the ‘Woollen Underwear Case’. Its ability to locate cases by popular name is a great strength of CaseBase. 1. Click on CaseBase Cases in the publications pane and then select Go to Advanced Search. 2. In the Case Name box, enter the popular name of the case, for example woollen underwear case. 3. Click on Search.

To locate a case by its citation 22.46

1. Click on CaseBase Cases in the publications pane and then select Go to Advanced Search. 2. Enter the citation into the Citation field. Don’t include any brackets or non-essential information. For example, to locate Commissioner for Railways v Halley (1978) 20 ALR 409, simply enter 20 alr 409. 3. Click on Search.

To locate cases that consider a piece of legislation 22.47

1. Select CaseBase Cases in the publications pane and then click on Go to Advanced Search. 2. In the Legislation Title field, enter the name of the Act or Regulation. As you type, a list of matching names will be offered for selection. It is often a good idea to make use of such lists as they help to eliminate spelling and typographical errors. 3. Enter the section number or regulation in the Provision Number field. 4. It may also be useful to limit the search by jurisdiction. 5. Click on Search.

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To locate cases that consider a word or phrase 22.48

1. Select CaseBase Cases in the publications pane and then click on Go to Advanced Search. 2. Enter the word or phrase into the Words & Phrases Judicially Considered field. Always use quotation marks when searching for a phrase.This helps to ensure that only records containing that exact phrase will be retrieved. 3. Click on Search.

To locate cases by subject 22.49

It is often easier to use secondary sources, such as books and journal articles, to find case law on a particular subject, especially when looking for the most significant cases. However, CaseBase may also be used. The example below shows how a researcher might locate cases where disabled children have sought damages for ‘wrongful life’.

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1. Select CaseBase Cases in the publications pane and then select Go to Advanced Search. 2. Enter the search terms into the Catchwords/Summary field. 3. In the example below, the search uses the wildcard character ! and will locate any case where the Catchwords or Summary fields in CaseBase contains: Any words that begin with disab, for example, disabled, disability etc. AND Any words that begin with child, for example, child, children etc. AND The phrase ‘wrongful life’

Putting it all together — using CaseBase for a tort law research task 22.50

The real power of CaseBase comes from being able to search multiple fields at once. This allows the researcher to be very specific when searching. Imagine that you have been asked to find out if there are any Victorian cases handed down in the last 20 years, which consider the duty of care owed by club and hotel owners to police attending disturbances at their premises. Begin by identifying the key elements that will make up the search. The task requires a search of subject, jurisdiction and date. Next establish which fields within CaseBase will contain the information being sought and the search terms to be used. Catchwords/Summary: duty of care, clubs or hotels, police Jurisdiction:Victoria Date: last 20 years

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Note that the search shown above uses the Jurisdiction and Judgment Date fields to narrow the search. It will locate at least one case: Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447. The CaseBase record provides the citation, allowing the case to be located in hard copy, as well as a link to view the full text online. It also adds value to research by providing additional information about the case, including a list of cases that have subsequently considered it and journal articles that have referred to it. It is an excellent starting point for research into the case and the question of the duty of care owed.

FirstPoint 22.51

FirstPoint is an Australian case citator produced by Thomson Reuters that is available online to subscribers. It evolved from two eminent hard-copy publications, the Australian Case Citator and the Australian Digest. Its extensive coverage of the federal jurisdiction and all Australian states and territories extends as far back as 1825 for significant reported cases. FirstPoint offers all the benefits that a case citator brings to case law research. Like CaseBase it allows the researcher to locate cases in a number of ways including by: •• •• •• •• •• ••

name; citation; subject; jurisdiction; court; and judge.

Once the record of a case is located, FirstPoint provides the researcher with information about the case including: •• •• •• •• •• ••

citation (often linked to the full text of the case); a list of any decisions that have subsequently considered the case; details of journal articles that refer to the case; a list of cases that were considered by the judge(s); a list of legislation that was considered in the case; a summary or digest of the case (this is a particular strength of FirstPoint); and •• any words or phrases that were considered in the case. The FirstPoint search screen is very similar to the one in CaseBase and the records themselves are structured in a similar way.

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To locate a case by name 22.52

1. Enter the party names into the Case Title/Party Name field. It is good practice to use the Boolean operator AND between each name, but it is not necessary as FirstPoint uses it by default. 2. Click on Search.

To locate a case by citation 22.53

1. Enter the citation, excluding brackets and non-essential information, into the Citation field. For example, to locate Vairy v Wyong Shire Council (2005) 223 CLR 422, you need only enter 223 clr 422. 2. Click on Search.

To locate cases that consider a piece of legislation 22.54

1. Enter the name of the legislation into the Legislation Cited (Title) search box. 2. Enter the section number, if required, into the Legislation Cited (Provision) search box. 3. Click Search.

Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, .

To locate cases that consider a word or phrase 22.55

1. Enter the word or phrase into the Words and Phrases field. Always use quotation marks when searching for a phrase. If unsure of the exact composition of the phrase, enter the main words separated by AND. 2. Click on Search.

To locate cases by subject 22.56

There are two ways to use FirstPoint to locate cases by subject. The researcher may either search or browse.

To search: 1. Enter the search statement into the Case Summary/Digest field. 2. Click on Search. 861

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For example, the search statement below would locate judgments about liability for the negligence of others, third party contractors in particular. Note that the multiple character wildcard ! is used to ensure that both the singular and plural forms of contractor are found.

Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, . Accessed October 2018.

To browse: 1. Subject headings are displayed on the left hand side of the FirstPoint search screen. 2. Scroll down through the list of heading to Torts. 3. Click on the plus icon next to Torts.

Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, . Accessed October 2018.

4. Browse the subject index by clicking on the plus icons until you reach the required heading. 5. Click on the subject heading name. The records of matching cases will be displayed. 6. Click on Refine Your Search on the left of the screen to filter the results by subject, date or jurisdiction as required.

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Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, . Accessed October 2018.

Browsing in this way can be particularly useful when you are unsure of what words to use in a search.

Putting it all together — using FirstPoint for a tort law research task 22.57

Imagine you heard mention in class of an important case that concerned the relationship between negligence and criminal activity. However, you did not note down the party names or the citation of the case. All you know is that it was heard during the 1990s in the High  Court and involved two young men who stole a car and took it for a joy ride. The driver crashed the car. His passenger, and partner in crime, sought to recover damages from the driver. The court considered whether the driver owed a duty of care to his passenger. Use what you know to locate the record of the case in FirstPoint, the full text of the case and journal articles that discuss it and might assist you to understand the significance of the case. Begin by identifying the key elements that will make up the search. The task requires a search of subject, court and date. 863

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Digest: negligence, duty of care, illegal activity, car theft Court: High Court of Australia Date: 1990s You also know that the case was a significant one, so it is likely that the FirstPoint record will contain a detailed digest (summary) and a list of journal articles about the case. Significant cases usually get written about.

Source: Reproduced with permission of Thomson Reuters (Professional) Australia Limited, . Accessed October 2018.

Note that the Year and Court fields have been used to narrow the search. It will locate at least one case: Gala v Preston (1991) 172 CLR 243. Click on FirstPoint in the results list. The FirstPoint record includes a link to the full text of the case and a digest of the case confirming its subject. A long list of journal articles that discuss the case, indicating it is of some significance, and links to relevant commentary in The Laws of Australia can be found under the Related Documents tab.

LawCite 22.58

LawCite is a free case citator created by AustLII. At first glance, it appears to be very similar to the two commercially produced citators, CaseBase and FirstPoint, but it differs in some important ways. Unlike the commercial citators who use editors to create their records, the records in LawCite are automatically generated. LawCite also differs in that it has a wider international focus. Like its commercial citator cousins, LawCite allows the researcher to locate cases in a number of ways including by: 864

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•• •• •• •• ••

name; citation; jurisdiction; court; and legislation considered.

Because the records in LawCite do not include a digest or summary, it is not possible to search for decisions easily by subject. Once the record of a case is located, LawCite provides the researcher with information about the case including: •• citation — LawCite records are linked to the full text of cases when they are available on AustLII or partner websites, otherwise it will usually list the name of the commercial database from which they may be obtained; •• a list of any cases that have subsequently referred to the case; •• a list of journal articles that refer to the case with links to the full text of the articles; •• a list of the legislation cited in the case; and •• details of the cases and articles that were considered in the case.

Source: Reproduced with the permission of AustLII, . Accessed October 2018.

To locate a case by name 22.59

1. Enter the party names into the Parties fields. Leave the Use Synonyms box checked. It will ensure that alternative spellings and abbreviations are

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factored into the search. For example, a search for ASIC will find Australian Securities and Investments Commission. 2. Click on Search.

To locate a case by citation 22.60

1. Enter the citation into the Citation field. The LawCite search engine is very forgiving and will generally find cases whether or not punctuation and brackets are entered. 2. Click on Search.

To locate a case by court and jurisdiction 22.61

This field would usually be used to narrow a search by limiting it to a particular jurisdiction. 1. Enter the name of the jurisdiction. Boolean operators can be used to search for more than one, for example United Kingdom OR Canada. 2. Click on Search.

To locate a case by the legislation considered 22.62

1. Begin typing the full name of the legislation into the Legislation Considered field. 2. If known, enter the section number to narrow the search. 3. Click on Search.

Putting it all together — using LawCite for a tort law research task 22.63

Tort law textbooks frequently refer to cases heard in the United Kingdom. Imagine you have been reading about a House of Lords case where the mother of a murdered woman alleged police negligence. The case is Hill v Chief Constable of West Yorkshire.You wish to see if any Australian cases have subsequently referred to the UK decision and quickly find an Australian legal journal article that discusses the case. The key to this problem is to recognise that the information being sought will all be contained on the record of the UK case in LawCite. Begin by identifying the key elements that will make up the search. The task requires a search of jurisdiction, court and party name. Next establish which fields within

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LawCite will contain the information being sought and determine what search terms are to be used. Jurisdiction: United Kingdom Court: House of Lords. Either include this in the search or look for it in the search results. Party names: Hill and Chief Constable of West Yorkshire.When unsure about a party name, just use a couple of its keywords.

Source: Reproduced with the permission of AustLII, . Accessed October 2018.

The LawCite record contains the details of Australian cases and journal articles that have subsequently referred to Hill v Chief Constable of West Yorkshire.

Legislation and delegated legislation 22.64

The term ‘legislation’ typically refers to Acts of Parliament, but in its widest sense, it also includes delegated legislation. The term ‘delegated legislation’ refers to Regulations and rules created pursuant to an Act of Parliament. Both types of legislation, and associated documents, are published in hard copy and are available online.

Legislation citations 22.65

A legislation citation consists of up to three elements and follows the order of name, jurisdiction and sometimes a pinpoint section  or regulation number.

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Jurisdiction

Pinpoint reference to a section within the Act

Civil Liability Act 2003 (Qld) s 34. Regulation Name Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 (Vic) r 4.01 Jurisdiction Pinpoint reference

Locating legislation 22.66

As always in legal research, it is important to have a clear idea of what you are looking for. Begin by thinking about jurisdiction. Is it federal or state legislation? Next consider what form the legislation takes. Is it a Bill, an Act or a regulation? Finally, what is the name of the legislation? If you find that you cannot answer most of these questions, then the best strategy, in order to avoid wasting time, is to turn to secondary sources such as textbooks, legal encyclopaedias and legal journal articles. The commentary in secondary sources may help you find answers to these questions and therefore a clearer understanding of what it is that you are looking for.

Types of legislation 22.67

•• Bills — proposed Acts. A Bill becomes an Act only after it is passed by Parliament and receives Royal Assent. Always check s  2 of an Act to see when it comes into force. •• Principle Acts and Regulations — legislation that stands on its own. It usually deals with a discrete subject area. •• Amending Acts and Regulations — legislation that exists to make changes to other pieces of legislation. They are not intended to be read on their own. •• Numbered or sessional legislation — principal and amending legislation as it was when created. Not updated to include any subsequent amendments made. •• Reprinted or consolidated legislation — principal legislation that has been updated to include amendments.

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Legislation is frequently amended 22.68

If the research task requires the use of current legislation, then it is vital to use consolidated versions.These should incorporate all the amendments made.The notes section at the back of the Act or Regulation provides a useful history of amendments made. Generally speaking, numbered or sessional legislation should only be used for tasks that require you to see an Act or Regulation as it was when it was first created or view amendments in isolation. In all other circumstances you should use a consolidated version.

Where to find legislation 22.69

Legislation is available online in full text on AustLII, government websites and commercial publisher websites. Most university libraries will provide access to the government and free websites and at least one of the commercial publisher databases.

Government websites 22.70

Available for free, these websites provide access to full-text, up-to-date legislation within a single jurisdiction. They all have different interfaces. If the research task involves more than one jurisdiction, it is easier and faster to use AustLII or a commercial publisher database.

Commonwealth of Australia

Australian Capital Territory

New South Wales

Queensland

South Australia

Tasmania

Victoria

Western Australia

AustLII () 22.71

Available for free, AustLII provides access to legislation from all Australian jurisdictions using a single interface. Users are able to browse or search across single or multiple jurisdictions simultaneously.

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Commercial publisher databases 22.72

Available to subscribers, these databases provide access to full-text, up-todate legislation. Unlike the government websites, they provide access to the legislation of all Australian jurisdictions. These databases offer sophisticated search and browsing functions. The most popular of these databases are: LawNow — available from LexisNexis; LawOne — available from TimeBase; and Lawlex — available from SAI Global (partly free).

To locate legislation by name and jurisdiction 22.73

Legislation is available in full text on all three of the commercial databases as well as AustLII and the official government legislation websites. In this example, AustLII is used to locate the Family Law Act 1975 (Cth). When the name and jurisdiction of an Act or Regulation is known, it is usually faster and easier to locate it by browsing rather than searching. 1. Choose Cth from the list of jurisdictions. 2. Scroll down to the Commonwealth Legislation heading and click on Commonwealth Consolidated Acts (consolidated Acts include amendments). 3. Select the letter F. 4. Click on Family Law Act 1975.

To locate legislation by subject 22.74

It is often faster and easier to use secondary sources to discover what legislation covers a particular subject area. Legal encyclopaedias are very useful in this regard as they are arranged by subject and will usually reference relevant legislation.Alternatively, some legislation databases, such as Lawlex (), have subject indexes to legislation. The subject index in Lawlex, like other databases, requires the user to begin by choosing a broad subject heading and then select from narrower subheadings. In addition, it is possible to limit browsing by jurisdiction. In the example below, Victorian accident compensation legislation is being browsed. Note that ‘accident compensation’ is included under the broader subject heading of ‘transport’. 1. Click on the Browse Legislation link. 2. Select a jurisdiction, eg Victoria. 3. Choose a broad subject heading from the Category drop-down menu, eg ‘transport’. 4. Select a narrower subject heading that falls within the broad subject of transport from the subcategory drop-down menu, eg ‘accident compensation’. 5. Click on Browse. 870

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Source: Reproduced with permission from SAI Global Ltd.

No matter what source is used for legislation, it is vital to check that it is up to date. Always check to see when the legislation was last updated.

Finding out more about legislation 22.75

There are two main sources of information available to the researcher seeking more information about a piece of legislation. Secondary sources, described earlier in this chapter, such as legal journal articles and legal encyclopaedias, can provide useful commentary and analysis.The other main source is extrinsic materials. These documents, created as part of the law-making process, can be very useful when trying to interpret and understand a piece of legislation. These documents include: •• Explanatory memorandum — a clause-by-clause guide to a Bill (sometimes called ‘explanatory notes’). •• Second reading speech — at the second reading stage, the Member of Parliament responsible for the Bill gives a formal speech which outlines the intent of the Bill. The speech, reported in Hansard, can be used to assist in the interpretation of the legislation. •• Bills Digest — a brief background report on Bills introduced into the Commonwealth Parliament that is prepared by the Commonwealth Parliamentary Library. •• Parliamentary committees — these exist at both the federal and state level. They conduct inquiries and frequently have Bills referred to them. Their reports are available on government websites and are sometimes linked to from legislation databases and websites.

To locate an explanatory memorandum and second reading speech 22.76

Many of the databases and websites listed above provide links to these explanatory memoranda and second reading speeches. In the example below, 871

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Lawlex is used to locate the explanatory memo and second reading speech for the Civil Liability Act 2002 (WA). 1. Browse to Lawlex. 2. Enter the name of the Act in the Quick Search field (do not include the year). 3. Select WA for the jurisdiction and click Go. 4. Click on the title of the Act in the search results. 5. Links to the explanatory memorandum and second reading speech are located under the Related Links heading.

Source: Reproduced with permission from SAI Global Ltd.

Note that the links to the explanatory memorandum and second reading speech are displayed on the record of the Act. Second reading speeches and explanatory memoranda may also be accessed via parliamentary Hansard websites and AustLII respectively.

Putting it all together — using TimeBase for a tort law research task 22.77 Full-text

searching is possible on all 12 of the legislation databases mentioned above. It is sometimes necessary to search legislation in full text in order to:

•• find a definition; •• find legislation that deals with a particular subject or situation; and •• find where a word or phrase is used in legislation. Imagine that you have been asked to locate a Western Australian Act that deals with the liability of a good Samaritan who assists at the scene of an accident while intoxicated by alcohol. Begin by identifying the key elements that will make up the search. The task requires a search of Western Australian legislation. It will require proximity operators to be used to locate legislation where the search terms occur close together. 1. Select the Search option in the top menu bar. 2. Enter the key terms into the Search Terms box using a proximity operator between each term, eg Samaritan /10 alcohol /10 liability will search for legislation where the three terms occur within 10 words of each other. 872

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3. Choose Western Australia from the Jurisdiction drop-down menu. 4. Click Search.

Source: The presentation ‘look’ and ‘feel’ of the information presented is the subject of copyright. ©TimeBase Pty Ltd 2018.

The proximity operator in TimeBase is similar to those used in many other databases. The terms being sought are separated by a backslash and the number following the / symbol dictates how close together the terms must be. In the example above, all three terms must appear within a 10-word range. It is always good practice when searching an unfamiliar database to check its help screen to ensure that you are using the correct search operators.

Conclusion 22.78

The best way to develop legal research skills is by doing legal research. The advice in this chapter about how and where to look for information seeks to establish a foundation that can be built upon by experience. The sooner you start using legal research databases, the better. The time you spend exploring them will quickly pay dividends. There are many other resources available to help you. Search your library catalogue or browse the shelves at  KL 155 for books on legal research and, while you are there, ask if there are any legal research classes being run by the library and pick up some library guides.

873

Index References are to paragraph numbers A Assault …. 14.1, 14.3 conditional threats, where .… 14.35 defences .… 14.32 self-defence .… 14.32–14.34 definition .… 14.19–14.20 elements .… 14.18 direct threat .… 14.19–14.20 imminent contact .… 14.18, 14.24–14.28 reasonable apprehension .… 14.18, 14.21–14.23 intentional tort .… 1.1 verbal threats over telephone .… 14.29–14.30 repeated silent telephone calls .… 14.31 Australia Act 1986 (Cth) effect of .… 1.12, 1.34, 1.35 Australian Capital Territory statutory framework calculus of negligence .… 2.14 causation .… 2.16 Civil Law (Wrongs) Act 2002 .… 1.54, 2.5, 21.5 exclusions .… 2.6, 21.6 scope and coverage .… 21.6 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39–2.40, 9.29 additional care to third party .… 9.30 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70 contributory negligence .… 9.87 dependants of deceased .… 9.73 defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30

intoxication .… 2.29 obvious risk .… 2.32 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55, 21.8 workers’ compensation .… 2.9, 9.59, 21.10 obvious and inherent risks .… 2.15 occupier’s duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31 reasonable foreseeability .… 2.13 time limits for issuing proceedings .… 21.7 Australian courts independence, path to .… 1.13 Australian Law Reform Commission (ALRC) .… 1.33

B Battery .… 14.1, 14.3, 14.4 defences .… 14.12–14.17 consent .… 14.13 contact as incident of everyday life .… 14.14 limits of implied consent or bodily contact in sport .… 14.15–14.17 elements .… 14.6–14.11 anger or hostility, whether require .… 14.10–14.11 direct and positive acts .… 14.8–14.9 examples .… 14.5 intentional tort .… 1.1 Breach of duty of care concept of .… 3.2 defendant with ‘special skills’, where .… 5.41

875

Torts: Principles, Skills and Application

Breach of duty of care — cont’d factual breach .… 3.8, 5.12 first principles .… 5.1 games, sports and other activities, in .… 5.38–5.40 justifiability/social utility .… 5.28–5.31 legal breach .… 3.9, 5.13 legislative provisions .… 5.14–5.17 medical surgeons, where .… 5.41–5.42 practical alternatives open to defendant .… 5.23–5.25 children involved, when .… 5.26–5.27 probability of injury to plaintiff .… 5.18–5.20 seriousness of consequences of injury .… 5.21–5.22 standard of care .… 5.2 determination of .… 5.3 objective model – reasonable person test .… 5.4–5.5 time period, relevant .… 5.32–5.35 use of statistics at trial .… 5.36–5.37 Breach of statutory duty action for .… 16.11 elements .… 16.13 Acts Interpretation Act 1901 .… 16.8 aspects of duty .… 16.22 duty imposed on particular defendant, whether .… 16.23–16.24 harm that envisaged by legislature, whether .… 16.26–16.27 plaintiff member of protected class, whether .… 16.25 background concepts .… 16.1 causation .… 16.33–16.34 cause of action .… 16.1 defences .… 16.35 contributory negligence .… 16.36–16.37 volenti non fit injuria .… 16.38 establishing cause of action .… 16.14 penalties .… 16.16 plaintiff ’s right to sue .… 16.15 safety .… 16.17 injured worker example .… 16.2 common law .… 16.4 statute .… 16.5 workers’ compensation provisions .… 16.3 interplay between courts and parliament .… 16.6 negligence and, comparison of .… 16.12 onus of proof .… 16.10 proving breach .… 16.28–16.32

public vs private interest considerations .… 16.18–16.19 statutory interpretation .… 16.7–16.9 whether private duty owed .… 16.20

C Case analysis approach .… 3.20 Causation ‘but for’ test .… 8.4–8.9 child plaintiffs .… 8.31–8.32 drawing of inferences .… 8.11–8.15 elements .… 8.3 extent of injuries .… 8.29–8.30 factual .… 8.1–8.2 first principles .… 8.1 problem of multiple sufficient causes multiple causes of injury to plaintiff – novus actus interveniens .… 8.16–8.18 multiple contributing causes .… 8.19–8.20 multiple successive causes .… 8.21–8.22 reasonable foreseeability .… 8.26 foreseeable damage, types of .… 8.27 remoteness and, interplay of .… 8.26 remoteness of damage .… 8.24 early approaches .… 8.25 reasonable foreseeability and, interplay of .… 8.26 Wagon Mound cases .… 8.25, 8.26 res ipsa loquitur .… 8.23 scope of liability .… 8.1, 8.33 statutory provisions .… 8.10 Child sexual abuse national redress scheme .… 2.12 Children defendants, as .… 5.8–5.9 plaintiffs, as .… 5.10–5.11 Civil liability legislation see also by state and territory decision tree .… 1.53 state and territory .… 1.54 Class actions activity, analysis of .… 20.12, 20.15 background concepts .… 20.1–20.5 case study .… 20.20 court settlement approval .… 20.25 court’s power to stop .… 20.25 current key issues .… 20.25 damages awards .… 20.23–20.24 fair and reasonable, range of .… 20.24 future of, in Australia .… 20.26

876



Index

law reform federal .… 20.17–20.18 Victorian .… 20.19 ‘loser pays’ rule, application of .… 20.25 negligence claims, intersection with .… 20.21–20.22 physical, financial or psychological loss .… 20.4 process in Australia .… 20.6–20.13 simultaneous actions .… 20.10 test for duty of care .… 20.21–20.22 third party litigation funding .… 20.25 types of claims .… 20.14 Uber ride-sharing service, action against .… 20.11 use of .… 1.48, 1.49 Compensation aim of .… 1.22 legislation decision tree when seeking .… 1.53 Contributory negligence .… 7.2–7.3 child plaintiffs, where .… 7.16–7.17 motor vehicle cases .… 7.6–7.8 special considerations .… 7.9 anticipation of breach by others .… 7.12–7.13 sudden emergencies .… 7.10–7.11 work context .… 7.14–7.15 standard of care attached to .… 7.33–7.35 statutory provisions .… 7.18–7.19 threshold issues .… 7.4–7.5 Conversion see Interference with goods Crimmins v Stevedoring Industry Finance Committee .… 1.1

D Damage concept of .… 3.2 damages, distinguished from .… 3.10, 9.5 types .… 3.10 Damages aim of .… 1.21–1.25, 3.13–3.14, 9.2 amount payable .… 9.1 assessing .… 9.12 award of .… 3.12, 9.2 classification .… 9.6 aggravated .… 9.9 compensatory .… 9.11 contemptuous .… 9.8 exemplary .… 9.10 nominal .… 9.7 compensation issues and insurance factors .… 3.15–3.19 motor vehicle accidents .… 3.16

877

property damage .… 3.17 workers’ compensation issues .… 3.18 contributory negligence, where .… 9.86 damage, distinguished from .… 3.10, 9.5 element of the claim, as .… 9.5 fault-based scheme, arguments for .… 9.51 general .… 3.12, 9.12–9.14 life expectancy, predicting .… 9.64–9.65 no-fault schemes .… 9.4, 9.50, 9.63 arguments for .… 9.52 motor vehicle accident .… 9.55–9.58 National Disability Insurance Scheme .… 9.60–9.62 workers’ compensation .… 9.59 non-pecuniary .… 3.12, 9.12, 9.15, 9.42 contingencies .… 9.48–9.49 loss of amenity and enjoyment of life .… 9.43 loss of expectation of life .… 9.47 methods of assessing loss .… 9.44 pain and suffering .… 9.45–9.46 pecuniary .… 3.12, 9.12, 9.15, 9.17 benevolent payments, where .… 9.40–9.41 hospital, medical and care expenses .… 9.18–9.30 additional care to third party .… 9.26–9.27, 9.30 gratuitous services .… 9.21–9.23 hospital or living-at-home expenses .… 9.19–9.20 legislative reform .… 9.29–9.30 market versus actual costs .… 9.24–9.25 loss of earning capacity .… 9.31–9.39 allowance for contingencies .… 9.34 collateral benefits .… 9.39 discount rates .… 9.36 expenses incurred in order to earn .… 9.33 loss of ability to earn money .… 9.35 net or gross income .… 9.32 quantum of .… 9.5 special .… 3.12, 9.12–9.14 statutory reform (NSW) discount rates .… 9.92 economic loss .… 9.91 non-economic loss .… 9.90 trespass to land, where .… 13.40 trespass to person, where .… 14.56 types .… 9.16 wrongful birth and wrongful life .… 9.66 wrongful death .… 9.67–9.85 apportionment .… 9.85

 Damages — cont’d contributory negligence .… 9.87–9.89 dependants actions .… 9.68, 9.73–9.85 estate’s action .… 9.68–9.72 long service leave accrual .… 9.84 non-pecuniary losses .… 9.77–9.78 possibility of surviving spouse remarrying .… 9.80 succession of property .… 9.82 survivor’s earnings .… 9.81 value of dependency .… 9.79 wage and overtime accrual .… 9.83 Defamation alternative dispute resolution .… 17.4 background concepts .… 17.1 case studies .… 17.46–17.50 common law defences .… 17.36–17.44 absolute privilege .… 17.36 consent .… 17.43 freedom of speech under Constitution .… 17.42 honest opinion .… 17.41 justification .… 17.40 offer of amends .… 17.44 qualified privilege .… 17.37–17.38 malice, where .… 17.39 damages .… 17.3 dead person, of .… 17.22 defamatory matter .… 17.7–17.10 defamation at law and at fact .… 17.15 hatred, contempt and ridicule .… 17.9 innuendo .… 17.14 natural and ordinary meaning of words .… 17.13 shunned and avoided .… 17.10 standard of hypothetical referee .… 17.11–17.12 defences .… 17.25–17.44 elements .… 17.6–17.21 history .… 17.1 identifying plaintiff .… 17.16 denials .… 17.18 disclaimers .… 17.17 internet and .… 17.48–17.50 jury trial .… 17.24 limitation periods .… 17.23 media and .… 17.51–17.52 procedure .… 17.24 remedies .… 17.45 statutory authorities and .… 17.46–17.47 statutory defences .… 17.26–17.35

Torts: Principles, Skills and Application

absolute privilege .… 17.28 contextual truth .… 17.27 fair report of proceedings of public concern .… 17.30 honest opinion .… 17.33 innocent dissemination .… 17.34 justification .… 17.26 publication of public documents .… 17.29 qualified privilege .… 17.31–17.32 triviality .… 17.35 uniform defamation legislation .… 17.1–17.5 objects .… 17.5 Defences contributor negligence see Contributory negligence first principles .… 7.1 obvious risks .… 7.2, 7.26–7.27, 7.36–7.38 statutory provisions .… 7.28–7.32 recreational activities inherent risks .… 7.36–7.39 risk warnings .… 7.40–7.41 volenti non fit injuria – voluntary assumption of risk .… 7.2–7.3 background issues .… 7.20–7.22 statutory provisions .… 7.23–7.25 Detinue see Interference with goods Donoghue v Stevenson court’s decision .… 4.14 negligence liability, test for .… 1.4–1.6 ‘neighbour’ principle .… 1.4, 1.5 reflection and review .… 4.15 significance .… 1.3, 1.5, 1.6, 4.18 Dorset Yacht Co Ltd v Home Office non-feasance .… 1.6 Duty of care alcohol, where service of .… 4.55–4.56 Australian approach latest .… 4.35–4.40, 4.46 rise of proximity .… 4.31, 4.46 background concepts .… 4.1 breach of see Breach of duty of care concept .… 1.2, 3.2, 3.3, 3.7 importance of .… 4.19–4.21 establishment .… 1.2 existence of .… 4.22–4.25 implications .… 4.45 history .… 4.2 cases leading to Donoghue v Stevenson .… 4.5–4.10 Donoghue v Stevenson .… 4.13–4.15, 4.18

878



Index

pre-Donoghue v Stevenson .… 4.3–4.4 United States influence .… 4.11 incrementalism .… 3.4, 3.5, 4.46 indeterminacy, notion of .… 4.21 landlords and criminal assault .… 4.51–4.54 liability for defective structures .… 4.41–4.44 no duty exists, where .… 4.26–4.28 predicting future of .… 4.47 psychiatric damage, in context of see Psychiatric damage reasonably foreseeable, meaning of .… 4.16–4.17 salient features .… 2.6, 3.4, 4.46 statute, influence of .… 4.57–4.58 statutory authority, claims against .… 4.48–4.50 three-stage approach .… 4.33–4.34 two-stage approach .… 4.29–4.30, 4.46

E Economic loss consequential .… 11.1 pure see Pure economic loss Economic paradigms .… 1.10

F False imprisonment .… 14.1, 14.3, 14.36 awareness of imprisonment .… 14.49 complete restraint .… 14.41–14.42 defences .… 14.55 definition .… 14.36 directness .… 14.37–14.40 physical imprisonment not required .… 14.44–14.48, 14.52 reasonable means of escape .… 14.43 stolen generation and .… 14.50–14.51 third parties and .… 14.53 ‘Fordism’ .… 1.10

G Goods inference with see Interference with goods Grant v Australian Knitting Mills neighbour principle .… 1.6

H Hedley Byrne & Co Ltd v Heller & Partners Ltd professional liability, establishment of .… 1.3, 1.7–1.8, 4.40, 12.1 High Court role .… 1.34

HIH Insurance Group collapse .… 1.33

I Intentional tort goods, related to see Interference with goods negligence and, distinction between .… 13.2, 13.3, 18.4–18.5 Interference with goods causes of action .… 18.3 conversion .… 18.7–18.11 intentional and not negligent .… 18.9–18.11 right to immediate possession .… 18.7–18.8 detinue .… 18.12–18.13 trespass to chattels .… 18.4 direct and indirect interference, difference between .… 18.4–18.5 possession of goods .… 18.6 goods, definition .… 18.14 domain name status .… 18.14–18.16 human body, whether property in .… 18.14 law of fixtures .… 18.14 intentional acts .… 18.9 ownership and possession, difference between .… 18.2 Ipp Review legislative changes, reaction to .… 1.38–1.48, 1.55 origins .… 1.36 terms of reference .… 1.37

K Kilmore East – Kinglake Bushfire Class Action .… 20.20

L Law Council of Australia Ipp Report, reaction to .… 1.39–1.40 Lawyer negligence advocates duty of care .… 12.9–12.11 Australian developments .… 12.12–12.13 client and court, to .… 12.10 English developments .… 12.14–12.16 immunity .… 12.17–12.23 developments post D’Orta .… 12.20–12.23 D’Orta-Ekenaike v Victoria Legal Aid .… 12.18 background concepts .… 12.1 duty of care .… 12.5–12.8

879



Torts: Principles, Skills and Application

Legal person meaning .… 1.1 Legal practice alternative dispute resolution .… 4.101–4.102 options .… 4.103 changing face of .… 12.1 client-focused .… 4.93 communication skills .… 12.2 defendants, acting for .… 4.95 ethical issues .… 12.4 High Court litigation, recent .… 6.65–6.66 legal knowledge .… 4.91 litigation process .… 4.99–4.100, 4.124–4.125 alternative dispute resolution .… 4.101–4.103 appealing decision .… 4.122–4.123 assessing merits of litigation .… 4.104–4.105 evidential issues .… 4.107–4.109 main litigation steps .… 4.110–4.121 prognosis of merits of case .… 4.106 plaintiffs, acting for .… 4.95 professional/specialist skills scenarios .… 4.98 skills and competencies .… 4.94 specialisation .… 12.3 working in legal system .… 4.92

M Medical negligence background concepts .… 10.1 battery .… 10.2, 10.4–10.6, 10.11–10.13 consent as defence .… 10.5–10.6 causes of action .… 10.2 consent to medical treatment .… 10.7–10.10 child .…10.8–10.9 overriding refusal (Vic) .… 10.13 understanding .… 10.10 legislative developments .… 10.26 negligence .… 10.2 Bolam case .… 10.19, 10.22 diagnosis, in .… 10.27–10.29 material risks .… 10.36–10.37, 10.39 medical standard of care .… 10.14 notion of expertise .… 10.15–10.16 overview .… 10.18 post Rogers v Whitaker developments .… 10.24 practical lessons for litigator .… 10.38–10.39 Rogers v Whitaker .… 10.20, 10.22 lessons for litigator .… 10.21 treatment, in .… 10.30–10.35 trends .… 10.23 tasks performed by medical practitioners .… 10.2–10.4, 10.17

wrongful birth .… 10.41 case law .… 10.42–10.43, 10.45–10.46 legislative provisions .… 10.44 wrongful life .… 10.47–10.48 Harriton v Stephens .… 10.48 Motor vehicle accident compensation issues and insurance factors .… 3.16 damages .… 9.55–9.58 defences contributory negligence .… 7.6–7.8 law in practice .… 21.9 negligence scenario .… 4.97 statutory framework .… 2.8, 9.55–9.58 Australian Capital Territory .… 2.8, 9.55, 21.8 New South Wales .… 2.8, 9.55–9.56, 9.58, 21.8 Northern Territory .… 2.8, 9.55, 21.8 Queensland .… 2.8, 9.55, 9.57, 21.8 South Australia .… 2.8, 9.55, 21.8 Tasmania .… 2.8, 9.55, 21.8 Victoria .… 2.8, 9.55, 21.8 Western Australia .… 2.8, 9.55, 9.57, 21.8 Murrindindi – Marysville Bushfire Class Action .… 20.20

N National Disability Insurance Scheme (NDIS) impact of .… 1.46, 1.51 National Disability Insurance Scheme Act 2013 (Cth) .… 2.11 objects .… 2.11, 9.60 requirement to seek compensation .… 9.61–9.62 Negligence action basic elements .… 1.32, 3.1–3.11 parties to .… 4.95 analysis .… 1.31 breach of statutory duty and, comparison of .… 6.12 categories of cases .… 4.97 cause of action .… 1.1 changing environment .… 1.11 claim .… 1.15, 1.30 basic elements of .… 3.1–3.2 damage see Damage damages, award of see Damages duty of care see Duty of care breach of see Breach of duty of care history .… 1.3

880



Index

intentional tort and, distinction between .… 13.2, 13.3, 18.4–18.5 Ipp Review see Ipp Review lawyer see Lawyer negligence legal concepts general litigation principles .… 1.16 negligence principles .… 1.17 liability growth .… 1.9 test for .… 1.4–1.6 meaning .… 1.1, 1.26–1.30 medical see Medical negligence motor vehicle accident scenarios .… 4.97 nuisance and, distinction between .… 15.5–15.6 principles .… 1.2 questions and answers .… 1.26–1.31 scenarios .… 4.96–4.97 scope .… 1.1 ‘slip and trip’ cases .… 4.97 trespass to person and, interplay between .… 14.2 workers’ compensation scenarios .… 4.97 New South Wales statutory framework calculus of negligence .… 2.14, 5.17 causation .… 2.16, 8.10 Civil Liability Act 2002 .… 1.54, 1.55, 2.5, 21.5 exclusions .… 2.6, 21.6 s 5B(1) .… 5.15, 5.16 s 5B(2) .… 5.17 scope and coverage .… 21.6 class action procedure .… 20.9 consent to medical or dental treatment of child .… 10.9 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39– 2.40, 9.29 additional care to third party .… 9.30 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 statutory reform .… 9.90–9.92 wrongful death .… 9.70, 9.72 contributory negligence .… 9.87, 9.89 dependants of deceased .… 9.73

defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28, 7.18–7.19, 7.33–7.35 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32, 7.27–7.32, 7.38 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31, 7.20, 7.23–7.25 interpretation statute .… 16.9 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 medical liability .… 10.26 wrongful birth .… 10.44 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55–9.56, 9.58, 21.8 workers’ compensation .… 2.9, 6.62–6.64, 9.59, 16.3, 21.10 obvious and inherent risks .… 2.15 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31–15.34 reasonable foreseeability .… 2.13 remoteness of damage .… 8.24 risk warnings .… 7.40–7.41 time limits for issuing proceedings .… 21.7 trespass by aircraft .… 13.17 trespass to land actions .… 14.57 New South Wales v Ball .… 1.44–1.45 Northern Territory statutory framework calculus of negligence .… 2.14 causation .… 2.16 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39– 2.40, 9.29 additional care to third party .… 9.30

881



Torts: Principles, Skills and Application

Northern Territory statutory framework — cont’d intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70 contributory negligence .… 9.87 dependants of deceased .… 9.73 defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55, 21.8 workers’ compensation .… 2.9, 9.59, 21.10 obvious and inherent risks .… 2.15 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 Personal Injuries (Liabilities and Damages) Act 2003 .… 1.54, 1.55, 2.5, 21.5 exclusions .… 2.6, 21.6 scope and coverage .… 21.6 professional standards .… 2.18 public authorities highway authorities .… 2.23, 15.31 reasonable foreseeability .… 2.13 time limits for issuing proceedings .… 21.7 Nuisance background concepts .… 15.1 balancing factors .… 15.16 duration, timing and location .… 15.19–15.23 plaintiff  ‘moving to nuisance’ .… 15.24 purpose of alleged nuisance .… 15.26 type of harm .… 15.17–15.18 highway authorities .… 15.29 legislative intervention .… 15.31–15.35

negligence and, distinction between .… 15.5–15.6 private .… 15.1, 15.2 nature of interests protected .… 15.7 public and, difference between .… 15.28 remedies .… 15.1 public .… 15.2, 15.27–15.28 private and, difference between .… 15.28 reasonable user, concept of .… 15.12 sensitive plaintiff .… 15.13–15.15 subjective or objective test, whether .… 15.13–15.15 test of liability .… 15.8 serious and unreasonable .… 15.9 trespass and, distinction between .… 15.3–15.4

O Occupiers’ liability acts of third parties, whether liable for .… 19.17–19.18 defences .… 19.15–19.16 High Court approach .… 19.13–19.14 history .… 19.1 occupier, concept of .… 19.2–19.3 statutory context .… 19.8–19.11 trespasser concept of being .… 19.4–19.5 special duties for, whether .… 19.5–19.7 United Kingdom influence .… 19.12

P ‘Post-Sonyism’ .… 1.10 Professional liability background .… 1.7–1.8, 4.98, 12.1 lawyer liability see Lawyer negligence medical liability see Medical negligence Psychiatric damage nervous shock .… 4.63 Australian definition .… 4.65 direct sensory perception requirement .… 4.68–4.70 limiting liability for .… 4.64 ordinary fortitude requirement .… 4.73–4.74 physical impact requirement .… 4.66–4.67 sudden shock and normal fortitude requirement .… 4.71–4.72 psychiatric condition, recognisable .… 4.75–4.78 psychiatric harm intentional infliction of .… 4.83–4.88 Wilkinson v Downton .… 4.84

882



Index

public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 medical liability wrongful birth .… 10.44 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55, 9.57, 21.8 workers’ compensation .… 2.9, 9.59, 21.10 obvious and inherent risks .… 2.15 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31 reasonable foreseeability .… 2.13 right to enter property .… 13.33 time limits for issuing proceedings .… 21.7

what is .… 4.60–4.62 statutory reforms .… 4.79–4.82 Pure economic loss consequential economic loss, contrast with .… 11.1 damages, limiting .… 11.2 defective buildings .… 11.10–11.11 Bryan v Maloney .… 11.11 application of .… 11.14–11.15 commercial premises .… 11.12–11.13 legislative intervention .… 11.11 Woolcock Street Investments Pty Ltd v CDG Pty Ltd .… 11.13 application of .… 11.14–11.15 general rule .… 11.3–11.4 breakaway cases .… 11.5–11.9, 12.6 meaning .… 11.1 requirements for recovery .… 11.16

Q Queensland statutory framework calculus of negligence .… 2.14 causation .… 2.16 Civil Liability Act 2003 .… 1.54, 1.55, 2.5, 21.5 exclusions .… 2.6, 21.6 scope and coverage .… 21.6 class action procedure .… 20.9 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39–2.40, 9.29 additional care to third party .… 9.30 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70 contributory negligence .… 9.87 dependants of deceased .… 9.73 defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32

R Reasonable foreseeability .… 8.26 foreseeable damage, types of .… 8.27 remoteness and, interplay of .… 8.26 ‘Reasonable person’ test children as defendants, where .… 5.8–5.9 drivers, as applied to .… 5.6 objective model .… 5.5 Recreational activities liability for harm suffered .… 7.36 risk warnings and legislation .… 7.40–7.41 Remoteness of damage .… 8.24 early approaches .… 8.25 reasonable foreseeability and, interplay of .… 8.26 Wagon Mound cases .… 8.25, 8.26 Research AGIS (Attorney-General’s Information Service) .… 22.24 locating article author name, by .… 22.25 subject, by .… 22.27 title, by .… 22.26 use of, for torts law research task .… 22.28 Australian Guide to Legal Citation .… 22.41

883

 Research — cont’d Australian Torts Commentary .… 22.30 books .… 22.7 Cardiff Index to Legal Abbreviations .… 22.41 case law .… 22.36 abbreviations .… 22.41 alternative or parallel citations .… 22.39 authorised reports for High, Federal and Supreme Courts .… 22.40 case citations .… 22.37 locating, using case citator .… 22.42–22.63 unreported judgments .… 22.38 CaseBase .… 22.41, 22.43–22.50 abbreviations, looking up .… 22.41 locate case citation, by .… 22.46 legislation considered, by .… 22.47 name, by .… 22.44 popular name, by .… 22.45 subject, by .… 22.49 word or phrase, by .… 22.48 use of, for torts law research task .… 22.50 CCH IntelliConnect .… 22.30–22.35 browsing index .… 22.33 browsing table of contents .… 22.32 searching text .… 22.32 use of, for torts law research task .… 22.35 using roadmaps .… 22.34 Encyclopaedic Australian Legal Dictionary .… 22.8 federated search engines .… 22.22 FirstPoint .… 22.41, 22.51–22.57 abbreviations, looking up .… 22.41 locate case citation, by .… 22.53 legislation considered, by .… 22.54 name, by .… 22.52 subject, by .… 22.56 word or phrase, by .… 22.55 use of, for torts law research task .… 22.57 Halsbury’s Laws of Australia .… 22.9–22.15 browsing .… 22.13 table of contents .… 22.14 searching .… 22.11–22.12 use of, for torts law research task .… 22.15 journals .… 22.20 legal journals databases .… 22.23 AGIS (Attorney-General’s Information Service) .… 22.24–22.28 other databases .… 22.29 locating hard copy .… 22.21 LawCite .… 22.58

Torts: Principles, Skills and Application

locate case citation, by .… 22.60 court and jurisdiction, by .… 22.61 legislation considered, by .… 22.62 name, by .… 22.59 use of, for torts law research task .… 22.63 learn by doing .… 22.1, 22.78 legal dictionaries .… 22.8 Defined Terms box .… 22.8 legal encyclopaedias .… 22.9 legislation and delegated legislation .… 22.64 amendments .… 22.68 citations .… 22.65 finding more information about .… 22.75 locate .… 22.66 explanatory memorandum and second reading speech .… 22.76 name and jurisdiction, by .… 22.73 subject, by .… 22.74 types .… 22.67 where to find .… 22.69–22.72 AustLII .… 22.71 commercial publisher databases .… 22.72, 22.77 Government websites .… 22.70 primary and secondary sources .… 22.6 searches, constructing .… 22.2 Boolean operators .… 22.3 natural language searching .… 22.5 proximity operators .… 22.4 The Laws of Australia .… 22.9, 22.16–22.19 browsing .… 22.18 searching .… 22.17 use of, for torts law research task .… 22.19 TimeBase use of, for torts law research task .… 22.77

S Separation of powers .… 16.6 Social developments .… 1.14 ‘Sonyism’ .… 1.10 South Australia statutory framework calculus of negligence .… 2.14 causation .… 2.16 Civil Liability Act 1936 .… 1.54, 1.55, 2.5, 21.5 exclusions .… 2.6, 21.6 scope and coverage .… 21.6 consent to medical or dental treatment of child .… 10.9 damages aggravated .… 2.43

884



Index

discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39–2.40, 9.29 additional care to third party .… 9.30 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70, 9.71 contributory negligence .… 9.87 dependants of deceased .… 9.73 defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 medical liability wrongful birth .… 10.44 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55, 21.8 workers’ compensation .… 2.9, 9.59, 21.10 obvious and inherent risks .… 2.15 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31 reasonable foreseeability .… 2.13 time limits for issuing proceedings .… 21.7 Sports law breach of duty of care .… 5.38–5.40 law in practice .… 21.12–21.16 limits of implied consent or bodily contact .… 14.15–14.17 negligence cases .… 21.14

sports participation, complexities of .… 21.15 Statutory framework Adeels Palace Pty Ltd v Moubarak .… 2.2–2.3 airspace legislation .… 13.17 analysis of torts problem .… 2.4 background concepts .… 2.1 breach of see Breach of statutory duty child sexual abuse national redress scheme .… 2.12 class action procedure .… 20.7, 20.9 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39–2.40, 9.29 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70–9.72 dependants of deceased .… 9.73 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 interpretation statute .… 16.8 liability exclusions .… 2.6 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 matters for plaintiff to establish .… 2.13–2.16 calculus of negligence .… 2.14, 5.14 causation .… 2.16 obvious and inherent risks .… 2.15 reasonable foreseeability .… 2.13 nature of .… 16.1 no-fault schemes .… 2.8–2.10, 9.63 criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55–9.58 National Disability Insurance Scheme (NDIS) .… 2.11, 9.60–9.62 workers’ compensation .… 2.9, 9.59, 21.10

885

 Statutory framework — cont’d other matters depending on facts, circumstances and context .… 2.17–2.23 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31–15.35 state and territory headline Acts .… 1.54, 1.55, 2.5 time limits .… 2.7 Stolen generation trespass to person, whether .… 14.50–14.51

T Tasmania statutory framework calculus of negligence .… 2.14 causation .… 2.16 Civil Liability Act 2002 .… 1.54, 1.55, 2.5, 21.5 exclusions .… 2.6, 21.6 scope and coverage .… 21.6 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39–2.40, 9.29 additional care to third party .… 9.30 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70 contributory negligence .… 9.87, 9.88 dependants of deceased .… 9.73 defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 making a claim .… 2.24

Torts: Principles, Skills and Application

wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 medical liability wrongful birth .… 10.44 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55, 21.8 workers’ compensation .… 2.9, 9.59, 21.10 obvious and inherent risks .… 2.15 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31, 15.35 reasonable foreseeability .… 2.13 time limits for issuing proceedings .… 21.7 Tort law background concepts .… 1.1–1.2 common law .… 1.1, 1.9, 1.34 contemporary issues .… 1.12–1.14 High Court litigation trends .… 4.89 historical perspectives .… 1.3–1.11 law reform .… 1.33–1.47 new complexity .… 1.49–1.52 now and in the future .… 1.55–1.56 practice, in background concepts .… 21.1–21.3 modern statutory context .… 21.4 main torts-based legislation .… 21.4 relevant state and territory civil liability legislation .… 21.5–21.6 motor vehicle accidents – no-fault schemes .… 21.8–21.9 sports law .… 21.12–21.16 time limits for issuing proceedings .… 21.7 workers’ compensation – no-fault schemes .… 21.10–21.11 research see Research statute law .… 1.1, 1.9, 1.35, 1.53–1.56 see also Statutory framework tort, meaning of .… 1.18–1.20 Trespass to chattels see Interference with goods Trespass to land actionable trespass, whether .… 13.3 advising client .… 13.3–13.5 airspace, legislation concerning .… 13.17

886



Index

background concepts .… 13.1 consent, revocation .… 13.36–13.37 expiry of implied licence where .… 13.38 continuing trespass .… 13.21 damages .… 13.40 defendant, actions of .… 13.18 directness .… 13.20 voluntary or intentional .… 13.19 ejectment .… 13.42 elements .… 13.6 evidence, required .… 13.4 exclusive possession, protection of .… 13.1 injunctions .… 13.41 intentional interference .… 13.7 intentional tort and negligence, distinction between .… 13.2, 13.3 land above the ground, trespass .… 13.12–13.14, 13.16 definition .… 13.8 protection of person’s interest in .… 13.9–13.10 subsoil, trespass to .… 13.11 legislative reform .… 14.57 licences .… 13.25 express licence .… 13.26 implied licence .… 13.27–13.29 legislation, relevant .… 13.33 limitations on .… 13.30–13.31, 13.34–13.35 police officers, where .… 13.32–13.33 limitation period .… 13.5 nuisance and, distinction between .… 15.3–15.4 plaintiff exclusive possession of land .… 13.23–13.24 remedies .… 13.40–13.42 remoteness of damage .… 13.39 trespass ab initio .… 13.22 trifling nature, when of .… 13.15–13.16 Trespass to person assault see Assault background concepts .… 14.1 battery see Battery damages .… 14.56 false imprisonment see False imprisonment negligence and, interplay between .… 14.2 reform .… 14.57

V Vicarious liability common law principles .… 6.43 ‘course of employment’ test .… 6.10

authority given to employees .… 6.11–6.13 ‘frolic’ cases .… 6.14–6.20 acting in spite of express prohibition .… 6.16–6.17 employee acting for own benefit .… 6.18–6.19 employer/employee relationship .… 6.6–6.9, 6.22 control test .… 6.23–6.24 departure from .… 6.29, 6.34–6.35 independent contractor, compared to .… 6.22, 6.28 indicia test .… 6.31 organisation test .… 6.30 threshold test .… 6.25–6.27 elements involved .… 6.2 first principles .… 6.1 High Court litigation, recent .… 6.65–6.66 historical perspectives .… 6.3 hospital and health professional context, in .… 6.45–6.46 independent contractors .… 6.21, 6.24 employer/employee relationship, compared to .… 6.22, 6.28 Stevens v Brodribb principles .… 6.26, 6.32–6.33 intentional criminal acts and .… 6.39–6.40 joint and concurrent liability .… 6.58–6.61 non-delegable duties .… 6.47 Commonwealth and school attendees .… 6.49–6.50 contractual entrance and invitees .… 6.57 dangerous substances and activities on premises, where .… 6.54–6.55 hospital and patient .… 6.48 maintaining fences and preventing stock straying .… 6.56 provision of safe system of work .… 6.51–6.53 recent workplace accident cases .… 6.36–6.38 social context, in .… 6.41–6.42 Workers Compensation Act 1987 (NSW) .… 6.62–6.64 Victoria statutory framework calculus of negligence .… 2.14 causation .… 2.16 class actions .… 20.13, 20.19 consent, overriding refusal of .… 10.13 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44

887

 Victoria statutory framework — cont’d gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39–2.40, 9.29 additional care to third party .… 9.30 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70 contributory negligence .… 9.87 dependants of deceased .… 9.73 defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55, 21.8 workers’ compensation .… 2.9, 9.59, 21.10 obvious and inherent risks .… 2.15 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31 reasonable foreseeability .… 2.13 time limits for issuing proceedings .… 21.7 Wrongs Act 1958 .… 1.54, 1.55, 2.5, 21.5 exclusions .… 2.6, 21.6 scope and coverage .… 21.6

W Western Australia statutory framework calculus of negligence .… 2.14 causation .… 2.16 Civil Liability Act 2002 .… 1.54, 1.55, 2.5, 21.5

Torts: Principles, Skills and Application

exclusions .… 2.6, 21.6 scope and coverage .… 21.6 class action procedure .… 20.9 damages aggravated .… 2.43 discount rate .… 2.42 exemplary/punitive .… 2.44 gratuitous services .… 2.41 hospital, medical and care expenses .… 2.39–2.40, 9.29 intoxicated plaintiff, where .… 2.45 mental harm .… 2.37 non-pecuniary loss method of assessing loss .… 2.36, 9.44 quantum .… 2.35 pecuniary loss, in form of .… 2.38 wrongful death .… 9.70 contributory negligence .… 9.87 dependants of deceased .… 9.73 defamation legislation .… 17.1–17.5 defences contributory negligence .… 2.28 wrongful death .… 2.34 ‘good samaritan’ protection .… 2.30 intoxication .… 2.29 obvious risk .… 2.32 public authorities, for .… 2.33 voluntary assumption of risk .… 2.31 making a claim .… 2.24 wrongful birth .… 2.25 wrongful death .… 2.26 dependant’s action .… 2.27 no-fault schemes criminal injuries legislation .… 2.10 motor vehicle accidents .… 2.8, 9.55, 9.57, 21.8 workers’ compensation .… 2.9, 9.59, 21.10 obvious and inherent risks .… 2.15 occupiers duty to trespassers .… 2.21, 19.11 liability .… 2.19, 19.9 standard of care .… 2.20, 19.10 professional standards .… 2.18 public authorities breach of statutory duty by .… 2.22 highway authorities .… 2.23, 15.31 reasonable foreseeability .… 2.13 time limits for issuing proceedings .… 21.7 Workers’ compensation breach of statutory duty .… 16.2–16.5 compensation issues and insurance factors .… 3.18

888



Index

damages .… 9.59 law in practice .… 21.11 negligence scenarios .… 4.97 statutory framework .… 2.9, 9.59, 21.10 Australian Capital Territory .… 2.9, 9.59, 21.10 New South Wales .… 2.9, 6.62–6.64, 9.59, 16.3, 21.10 Northern Territory .… 2.9, 9.59, 21.10 Queensland .… 2.9, 9.59, 21.10 South Australia .… 2.9, 9.59, 21.10 Tasmania .… 2.9, 9.59, 21.10 Victoria .… 2.9, 9.59, 21.10 Western Australia .… 2.9, 9.59, 21.10 Wrongful birth .… 10.41 case law .… 10.42–10.43, 10.45–10.46 legislative provisions .… 10.44

Wrongful death .… 9.67–9.85 damages apportionment .… 9.85 contributory negligence .… 9.87–9.89 dependants actions .… 9.68, 9.73–9.85 estate’s action .… 9.68–9.72 long service leave accrual .… 9.84 non-pecuniary losses .… 9.77–9.78 possibility of surviving spouse remarrying .… 9.80 succession of property .… 9.82 survivor’s earnings .… 9.81 value of dependency .… 9.79 wage and overtime accrual .… 9.83 Wrongful life .… 10.47–10.48 Harriton v Stephens .… 10.48

889

Related LexisNexis Titles Balkin & Davis, Law of Torts, 5th ed, 2013, ISBN 9780409332049 Davies & Malkin, Focus:Torts, 8th ed, 2017, ISBN 9780409344967 Foster, Torts Cases and Commentary Supplement: Defamation and Wrongful interference with Goods, 2nd ed, 2019, ISBN 9780409350135 George, Defamation Law in Australia, 3rd ed, 2017, ISBN 9780409345575 Howe, Walsh and Rooney, LexisNexis Study Guide: Torts, 3rd ed, 2015, ISBN 9780409341348 Holmes, LexisNexis Case Summaries:Torts, 8th ed, 2016, ISBN 9780409341874 Luntz et al, Torts: Cases and Commentary, 8th ed, 2017, ISBN 9780409342093 Paine, LexisNexis Questions and Answers:Torts, 4th ed, 2015, ISBN 9780409339260 Stickley, Australian Torts Law, 4th ed, 2016, ISBN 9780409342048 Vines, Quick Reference Card:Torts, 3rd ed, 2017, ISBN 9780409347517