Torts [8th edition.] 9780409341874, 0409341878

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LEXISNEXIS CASE SUMMARIES

TORTS Eighth Edition

Duncan Holmes BA, LLB Solicitor of the Supreme Court of New South Wales and High Court of Australia

LEXISNEXIS BUTTERWORTHS

Australia 2016

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

Holmes, Duncan. Torts. 8th edition. 9780409341874 (pbk). 9780409341881 (ebk). Includes index. LexisNexis Case Summaries. 346.94030264

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition 1984, 2nd edition 1989, 3rd edition 1994, 4th edition 1997, 5th edition 1999, 6th edition 2003, 7th edition 2011. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Goudy and Helvetica. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface A tort is a civil wrong. It is an act which causes harm, either economic or physical, whether intentionally or not, giving rise to a remedy in damages. Recent decisions on nuisance, causation and related issues on the laws of negligence by the High Court of Australia and intermediate Courts of Appeal in Australia have warranted a new edition of this book. We continue to witness the general trend of legal development in the law of torts to confine liability for damages to the intentional or negligent infliction of harm. As part of that trend, recent decisions of the High Court have seen the demise of the ‘Highway Rule’ and at the same time the High Court appears to be looking afresh at questions of an individual’s responsibility for his or her own acts, perhaps in response to the community crisis in insurance. We are also witnessing tentative steps forward in the battle to establish a tort of privacy and to provide remedies for those whose privacy has been invaded. Additionally we have the interesting development on the law of defamation in Gutnick’s case as it applies to publications on the internet. These ‘companion’ publications are just that — they are recognised as an essential companion to the law student, forming an easy ‘first reference’, to glean the essential facts of a case. This book is not intended to be a substitute for a detailed analysis of the full reasons for judgment of the cases. February 2016 DH

Contents Preface Case Number 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Case Name Adamson v Motor Vehicle Insurance Trust Adeels Palace Pty Ltd v Moubarak Adelaide Chemical & Fertilizer Co Ltd v Carlyle Agar v Hyde; Agar v Worsley Albrighton v Royal Prince Alfred Hospital Alcock v Chief Constable of South Yorkshire Police Amaca Pty Ltd v Booth Amaca Pty Ltd v Ellis Amstad v Brisbane City Council (No 1) Anderson v Mackellar County Council Anns v Merton London Borough Council Attorney-General (NSW) v Perpetual Trustee Co Ltd Austin v Dowling Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd Australian Safeway Stores Pty Ltd v Zaluzna Baker v Bolton Baker v Willoughby Baker’s Creek Consolidated Gold Mining Co v Hack Balmain New Ferry Co Ltd v Robertson Balven v Thurston Barclay v Penberthy

22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49

Barisic v Devenport Barton v Armstrong Beaudesert Shire Council v Smith Behrens v Bertram Mills Circus Ltd Bennett v Tugwell Bernstein of Leigh (Baron) v Skyviews & General Ltd Bird v Holbrook Bird v Jones Bolton v Stone Bonnington Castings Ltd v Wardlaw Bourhill v Young Brambles Constructions Pty Ltd v Helmers Bridlington Relay Ltd v Yorkshire Electricity Board Broadhurst v Millman Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council Bryan v Maloney Bugge v Brown Bunnings Group Ltd v CHEP Australia Ltd Burnie Port Authority v General Jones Pty Ltd Burton v Davies Burton v Winters Butler v Egg & Egg Pulp Marketing Board Butterfield v Forrester Cabassi v Vila Caledonian Collieries Ltd v Speirs Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd Caparo Industries plc v Dickman

50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65

66 67 68 69 70 71 72 73 74 75

Carmarthenshire County Council v Lewis Cartledge v E Jopling & Sons Ltd Cartwright v McLaine & Long Pty Ltd Cassidy v Ministry of Health Caterson v Commissioner for Railways Cavalier v Pope Chapman v Hearse Chapman v Honig Chapman v Lord Ellesmere Chappel v Hart Chic Fashions (West Wales) Ltd v Jones City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd Clarey v Principal and Council of the Women’s College Cole v Turner Collins v Wilcock Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-Operative Assurance Company of Australia Ltd Commissioner for Railways (NSW) v Scott Cowell v Rosehill Racecourse Co Ltd Cullen v Trappell Curran v Young Cutler v Wandsworth Stadium Ltd D & F Estates Ltd v Church Commissioners for England Daborn v Bath Tramways Motor Co Ltd Darling Island Stevedoring & Lighterage Co Ltd v Long David Jones (Canberra) Pty Ltd v Stone Davies v Mann

76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103

Day v Bank of New South Wales Deatons Pty Ltd v Flew Dickenson v Waters Ltd Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd Jane Doe v Australian Broadcasting Corporation Donoghue (or McAlister) v Stevenson Douglas v Hello! Ltd (2001) Douglas v Hello! Ltd (No 3) (2007) Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd Dow Jones & Company Inc v Gutnick Downs v Williams Dumont v Miller Dunlop v Woollahra Municipal Council Dutton v Bognor Regis Urban District Council Eather v Jones Edelsten v John Fairfax & Sons Ltd Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) Evans v Balog Fenn v Paul Fennell v Robson Excavations Pty Ltd Fitzgerald v E D & A D Cooke Bourne (Farms) Ltd Flewster v Royle Fontin v Katapodis Fox v Percy Froom v Butcher Gala v Preston Galashiels Gas Co Ltd v O’Donnell (or Millar) Gales Holdings Pty Ltd v Tweed Shire Council

104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131

General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd Geyer v Downs Giller v Procopets Godden v Metropolitan Meat Industry Board Goldman v Hargrave Gorringe v Transport Commission (Tas) Graham Barclay Oysters Pty Ltd v Ryan Grand Central Car Park Pty Ltd v Tivoli Freeholders Grant v Australian Knitting Mills Ltd Griffiths v Kerkemeyer Grosse v Purvis H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd Haber v Walker Haley v London Electricity Board Hargrave v Goldman Harnett v Bond Hawkins v Clayton Haynes v G Harwood & Son Hedley Byrne & Co Ltd v Heller & Partners Ltd Herd v Weardale Steel, Coal & Coke Co Ltd Herring v Boyle Higgins v William Inglis & Son Pty Ltd Hill (Trading as R F Hill & Associates) v Van Erp Hoad v Scone Motors Pty Ltd Hoebergen v Koppens Hogan v A G Wright Pty Ltd Hollis v Vabu Pty Ltd Holloway v McFeeters

132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158

Hollywood Silver Fox Farm Ltd v Emmett Home Office v Dorset Yacht Co Ltd Horrocks v Lowe Hughes v Lord Advocate Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd Hutchins v Maughan Ilott v Wilkes Imbree v McNeilly Imperial Chemical Industries Ltd v Shatwell Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd Innes v Wylie Insurance Commissioner v Joyce International Factors Ltd v Rodriguez Italiano v Barbaro Jackson v Harrison Jaensch v Coffey John F Goulding Pty Ltd v Victorian Railways Commissioners John Lewis & Co Ltd v Tims Jones v Livox Quarries Ltd Jones v Schiffman Junior Books Ltd v Veitchi Co Ltd Kandalla v British European Airways Corporation Katsilis v Broken Hill Proprietary Co Ltd Kealley v Jones Kelly v Hazlett Kemsley v Foot Kent v Scattini

159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184

Keppel Bus Co Ltd v Sa’ad Bin Ahmad Khorasandjian v Bush Kiddle v City Business Properties Ltd Kondis v State Transport Authority Konskier v B Goodman Ltd Kraemers v Attorney-General (Tas) Lester-Travers v City of Frankston Letang v Cooper Levi v Colgate-Palmolive Pty Ltd Lewis v Daily Telegraph Ltd Lim Poh Choo v Camden and Islington Area Health Authority Lipman v Clendinnen Lippl v Haines Lister v Romford Ice and Cold Storage Co Ltd Lloyd v Grace, Smith & Co London Artists Ltd v Littler London Borough of Southwark v Williams McHale v Watson McNamara v Duncan Mahony v JK Kruschich (Demolitions) Pty Ltd March v E & M H Stramare Pty Ltd Medlin v State Government Insurance Commission Meering v Grahame-White Aviation Co Ltd Mercer v Commissioner for Road Transport and Tramways (NSW) Merck Sharp & Dohme (Australia) Pty Ltd v Peterson Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd

185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209

Metropolitan Asylum District Managers v Hill Milkovits v Federal Capital Press of Australia Pty Ltd Miller v Jackson Modbury Triangle Shopping Centre Pty Ltd v Anzil Morgan v Odhams Press Ltd Morosi v Mirror Newspapers Ltd Morris v C W Martin & Sons Ltd Mount Isa Mines Ltd v Pusey Mummery v Irvings Pty Ltd Munro v Southern Dairies Ltd Murphy v Brentwood District Council Murphy v Culhane Murray v McMurchy Mutual Life & Citizens Assurance Co Ltd v Evatt Myer Stores Ltd v Soo Nagle v Rottnest Island Authority National Coal Board v J E Evans & Co (Cardiff) Ltd and Maberley Parker Ltd Naxakis v Western General Hospital Nesterczuk v Mortimore New South Wales v Kable Northern Sandblasting Pty Ltd v Harris Northern Territory v Mengel Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound (No 2)) Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound (No 1)) Papatonakis v Australian Telecommunications Commission

210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235

Paris v Stepney Borough Council Parramatta City Council v Lutz Parry v Cleaver Penfolds Wines Pty Ltd v Elliott Pennington v Norris Perre v Apand Pty Ltd Platt v Nutt Plenty v Dillon Public Transport Commission (NSW) v Perry Pyrenees Shire Council v Day Qualcast (Wolverhampton) Ltd v Haynes Rixon v Star City Pty Ltd Rogers v Whitaker Romeo v Conservation Commission of the Northern Territory Rondel v Worsley Rose v Plenty Rosenberg v Percival Rylands v Fletcher San Sebastian Pty Ltd v Minister Administering the Environmental Planning & Assessment Act 1979 Scott v Davis Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) Sharman v Evans Sherman v Nymboida Collieries Pty Ltd Skelton v Collins Soblusky v Egan Southern Portland Cement Ltd v Cooper

236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 Index

Southport Corporation v Esso Petroleum Co Ltd Stevens v Brodribb Sawmilling Co Pty Ltd Stoneman v Lyons Strong v Woolworths Ltd Sullivan v Moody; Thompson v Connon Sutherland Shire Council v Heyman Tabet v Gett Tame v New South Wales Town of Port Hedland v Hodder (No 2) Venning v Chin Vial v Housing Commission of New South Wales Victoria Park Racing and Recreation Grounds Co Ltd v Taylor Voli v Inglewood Shire Council Wallace v Kam Watt v Rama White v Jones Wicks v State Rail Authority of New South Wales Williams v Milotin Wilson v Pringle The Winkfield Woolworths Ltd v Crotty Wynn v New South Wales Insurance Ministerial Corporation Wyong Shire Council v Shirt

[page 1]

Torts [1] Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 Supreme Court of Western Australia Negligence — Breach of duty — Insanity — Civil liability FACTS Driven on by insane delusions that his workmates were going to kill him, D drove a stolen car against a traffic policeman’s signal and knocked down P at a pedestrian crossing. D denied liability for negligence, on the ground of insanity. ISSUE Whether D’s state of mind was defence to the claim in negligence. DECISION (finding that D was insane at the time of the accident): D was responsible in negligence when he collided with P. ‘I can find no authority which would temper the view held by the earlier writers that insanity was not a defence’ (at 68 per Wolff SPJ).

[2] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628; [2009] HCA 48 High Court of Australia Negligence — Causation — Duty of care FACTS A dispute on a dance floor of D’s restaurant erupted between P and another patron. That patron left the premises, then came back with a gun and shot P and one other patron. P sued D in negligence and breach of

contract. The trial judge held D liable in damages for inadequate security arrangements. On appeal: ISSUE Whether there was a duty of care to protect D’s patrons from the behaviour of other patrons. DECISION The submission that P’s injuries were caused by the failure of D to take steps that made their occurrence less likely, was rejected. The absence of security personnel at D’s restaurant on the night P was shot was not a necessary condition of P being shot, and thus the ‘but for’ test (of causation) was not satisfied. [page 2]

[3] Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 High Court of Australia Negligence — Causation FACTS D manufactured sulphuric acid in brittle containers. P’s husband was fatally injured when a container which he was handling broke, spilling acid on him. After receiving treatment at a hospital the deceased was advised to report to a doctor the next day. This advice was not followed and P cared for her husband with preparations from the chemist. The husband subsequently died from infections. D, found to be negligent, alleged that the real cause of death was not the acid spill but the contact with the source of the infection. ISSUE Whether there was a causal connection between D’s actions and the death of the deceased. DECISION (dismissing the company’s appeal): ‘The sulphuric acid caused a physical injury to which the deceased’s death is traceable as a proximate and not remote consequence’ (at 520 per Rich ACJ).

[4] Agar v Hyde; Agar v Worsley (2000) 201 CLR 552; 173 ALR 665; 74 ALJR 1219; [2000] HCA 41 High Court of Australia Negligence — Duty of care — Sporting organisation FACTS H and W each became paraplegics after breaking their necks in games of rugby union. They sued the game’s administrators arguing that there was a duty owed to them to take reasonable care in monitoring and changing the operation of the rules of the game to avoid risk of unnecessary harm to the players. An Appeals Court overturned a trial judge’s decision that there could be no duty of care owed. On further appeal: ISSUE Whether the game’s organisers owed a duty of care to the players. DECISION (allowing the appeal and dismissing the claims): The decision to participate in the rugby activity was made freely. That freedom, or autonomy, was not to be diminished. [page 3] ‘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 a potential legal liability for injury sustained in such a contest. … To hold that [D] owed a duty of care … would diminish the autonomy of all who choose, for whatever reason, to engage voluntarily in this, or any other, physically dangerous pastime’ (at [23], [90] per Gleeson CJ).

[5] Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Supreme Court of New South Wales (Court of Appeal)

Negligence — Duty of care — Vicarious liability — Hospital patient FACTS P, who had previously suffered from gross deformities of her spine, and who became a paraplegic following corrective surgery which involved a procedure known as halo-pelvic traction, sued the hospital, the orthopaedic surgeon who attended her, and the neurosurgeon who was called in for a second opinion. It was apparent that P had a large hairy naevus on her lower back indicating ‘tethering’ or adherence of the spinal cord to adjacent structures, with the consequent risk of paraplegia if traction were applied. The trial judge directed a verdict for the defendants. ISSUE Whether the hospital was liable for the negligent conduct of its staff. DECISION (on appeal): (a) There was evidence upon which a jury, properly directed, could conclude that each defendant was guilty of a breach of duty to use due care in the medical management of P. Therefore, there should be a new trial of all issues between all parties. (b) The concept that a hospital fulfils its duty of care to persons treated in it by selecting and appointing competent medical staff, and the concept that a hospital is not responsible for the tortious conduct of its medical staff in the course of their duties in the hospital, unless it can be shown that the hospital has the power (whether or not it exercises it) of directing them as to the manner in which they should carry out their work (the control test), have long since been eroded. The latter concept will not preclude the finding of a relationship of master and servant, so as to make the former vicariously liable for the negligence of the latter. [page 4]

[6] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 House of Lords

Negligence — Nervous shock — Proximity of relationship FACTS Ninety-five people died when Hillsborough Stadium in South Yorkshire collapsed during an FA Cup game. D was in charge of policing arrangements at the venue and overcrowding was an alleged factor giving rise to a negligence claim. Some of the plaintiffs were at the ground, others saw it on TV or heard it on the radio. All alleged they suffered nervous shock from what they saw/heard and claimed damages in negligence against D. ISSUE Whether D’s relationship to the plaintiffs was sufficiently proximate to thereby found a negligence claim. DECISION It was necessary to show that P’s injuries were reasonably foreseeable and also that the relationship between P and D was sufficiently proximate. The class of person to whom a duty of care was owed as being sufficiently proximate is not limited to husband/wife, parent/child, but is based on ties of love and affection. The more remote the relationship, the more careful the scrutiny to prove the closeness. P also had to show propinquity in time and space to the accident or its immediate aftermath. Those viewing the match on TV could not be said to be equivalent to being within sight and hearing of the event or its immediate aftermath.

[7] Amaca Pty Ltd v Booth (2011) 246 CLR 36; 283 ALR 461; [2011] HCA 53 High Court of Australia Negligence — Causation — Negligent acts over lengthy period FACTS P, a retired motor and brake mechanic suffering from mesothelioma, sued Amaca Pty Ltd and Amaba Pty Ltd in the Dust Diseases Tribunal. The companies manufactured brake linings containing asbestos. Seventy per cent of the asbestos fibres to which P was exposed in his workplace were released from brake linings made by Amaca and Amaba.

ISSUE Whether there was sufficient evidence that exposure to those brake linings was a cause of P’s mesothelioma. DECISION The evidence was sufficient to support the Dust Diseases Tribunal’s decision that Amaca and Amaba’s products were a cause of P’s mesothelioma. The majority decision described the ‘but for’ test as [page 5] troublesome in cases where multiple acts of exposure to asbestos led to P’s injuries.

[8] Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR 576; [2010] HCA 5 High Court of Australia Negligence — Successive tortfeasors — Causation FACTS Mr Cotton died of lung cancer. He had consumed 15–20 cigarettes per day for 26 years. He had also been exposed to asbestos fibres from three separate employers. P, his executrix, sued the asbestos cement pipe maker and the three employers. It could not be definitively said what caused the cancer. All three defendants were found liable. On appeal: ISSUE cancer.

Causation – whether it was asbestos exposure that caused the

DECISION Allowing the appeal, causation was not established against each defendant. It was incorrect to assess causation by reference to the cumulative asbestos exposure over successive employment periods as done by the trial judge. The appropriate analysis was to consider whether the individual breach of duty was, in itself, causative of the damage. The evidence established only that exposure to asbestos may have been a cause, not that it was a probable cause.

[9] Amstad v Brisbane City Council (No 1) [1968] Qd R 334 Supreme Court of Queensland Trespass to land — Implied licence — Conduct of the plaintiff FACTS Ward, an authorised officer of the council, entered P’s land and requested Mrs A to remove her motor vehicle which was impeding council’s drainage construction work on the street. Evidence was accepted that Ward acted in a ‘highhanded, insolent’ manner and was in ‘contumelious disregard of the plaintiff’s rights’. Both the council and Ward were sued for damages for trespass. ISSUE Whether Ward’s entry onto the land was justified by implied licence. DECISION Ward’s entry upon the land could not be justified by any implied licence. The gate was locked against him; he did not ask for [page 6] permission to enter and he knew that difficulties might stand in his way (due to previous altercations), for he brought a police officer with him.

[10] Anderson v Mackellar County Council (1968) 69 SR (NSW) 444 Supreme Court of New South Wales (Court of Appeal) Breach of statutory duty — Civil rights FACTS P claimed damages for breaches of an ordinance made under s 318(17) of the Local Government Act 1919 (NSW), which authorised the making of ordinances with respect to ‘underpinning and shoring of adjoining buildings’. P alleged that breaches occurred in the course of excavations on

D’s land which caused damage to the foundations and footings of P’s adjoining building. D argued that the Part of the Act in question, Pt XI, dealing with building regulation, had as its purpose the conferring of powers upon local authorities to control building, and that the conferring of a private right of action was no part of the purpose or intent of the provisions in question. ISSUE Whether D’s conduct, pursuant to statutory authority, brought with it a liability for negligent conduct to persons affected by D’s conduct. DECISION There was a legislative intention evident in s 318(17) of the Act to permit the creation by ordinance of private rights of action in respect of breach of any statutory duty imposed thereby, and in this particular case the statutory duty imposed by cl 44 of Ordinance 71 gave rise to a private right of action to P, as an adjoining owner, for breach thereof by D.

[11] Anns v Merton London Borough Council [1978] AC 728; [1977] 2 All ER 492 House of Lords Negligence — Defective structures — Breach of statutory duty FACTS Structural movement and consequential damage occurred in a block of eight flats eight years after their erection. Seven of the tenants (only two being original lessees) who were on long leases sued the owner/builders and the local council alleging, inter alia, that council omitted to inspect the foundations of the building, or that the council, on its inspections, failed to discover the inadequacy of the foundations. [page 7] ISSUE The preliminary questions were whether the council owed a duty of care to the Ps and whether the actions were statute barred.

DECISION (a) In the light of the Public Health Act 1936 (UK) which provided for the health and safety of owners and occupiers of buildings, D was under a duty to give proper consideration to the question whether D should inspect or not. (b) If the inspection was made there must be a duty to exercise reasonable care. There may be a discretionary element such as time and manner of inspection. Such a duty arises under statute. To rely on common law duty of care P must prove the action taken was not within the limits of a discretion bona fide exercised. (c) The duty was owed to owners or occupiers. (d) The duty was to take reasonable care, no more, no less, to secure that the builder does not cover in foundations which did not comply with by-law requirements. (e) The cause of action arose when the state of the building was such that there was present or imminent danger to the health or safety of persons occupying it.

[12] Attorney-General (NSW) v Perpetual Trustee Co Ltd [1955] AC 457 Privy Council Negligence — Economic loss FACTS A police officer was passing along the highway in a tram car when a motor vehicle was negligently driven against the tram car, whereby the officer received bodily injury disabling him from the performance of his duties as a member of the police force. The Attorney-General for New South Wales on behalf of the Crown sought to recover the disablement moneys paid out to him as a result of the accident. ISSUE Whether the employer was entitled to recover damages for losses paid. DECISION (by their Lordships): ‘[T]he mere fact that an injury to A prevents a third party from getting from A a benefit which he would otherwise have obtained, does not invest the third party with a right of action against the wrongdoer’ (at AC 484). There was a fundamental difference between the domestic relation of servant and master, upon which

the action per quod servitium amisit rests, and that of the holder of a public office and the state which he is said to serve. The constable fell within the latter category. His relationship to the government was not, in ordinary parlance, described as that of servant and master. Thus the action for the loss of the services of the officer did not lie. [page 8]

[13] Austin v Dowling (1870) LR 5 CP 534 Court of Common Pleas False imprisonment — Trespass to the person FACTS The informant, D, sought to charge P with a felony. The police inspector expressly told D that he would not accept responsibility for the detention of P unless D signed the charge sheet. D did so and P claimed damages for false imprisonment. ISSUE Whether D was liable for the false imprisonment of P by the police. DECISION The inspector would not have kept P in custody except on the responsibility of D. Signing the charge sheet with that knowledge, therefore, was the doing of an act which caused P to be kept in custody.

[14] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1; [2001] HCA 63 High Court of Australia Tort of privacy — Breach — Whether remedy available FACTS Unknown persons unlawfully entered P’s premises and installed

video cameras which took film of the slaughter and processing of brush tail possums. The video was retrieved and passed to an animal rights group, Animal Liberation Ltd, which then supplied a copy of the video to the ABC current affairs program, 7.30 Report. P sought an interlocutory injunction to restrain the ABC from broadcasting the video. ISSUE The extent to which a media organisation can be restrained from publishing material obtained as a result of a trespass by an unknown person, and whether Australian law recognised a tort of privacy and that the tort would be available to a corporation, and that an injunction could be awarded to a corporation to restrain a threatened breach of the privacy tort. DECISION Dismissing the appeal and holding that interlocutory injunctive relief was not available: in the circumstances of this case, the decision of the majority of the High Court was that there had been no invasion of privacy. The question of whether there existed in Australian law a tort of invasion of privacy was left open. Callinan J said (at [335]): ‘It seems to me that, having regard to current conditions in this country, and developments of the law in other common law [page 9] jurisdictions, the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country, or whether the legislatures should be left to determine whether provisions for a remedy for it should be made.’

[15] Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615 High Court of Australia Occupier’s liability — Duty to invitees — Standard of duty FACTS P sued for damages after she slipped on D’s wet supermarket floor.

It had been a rainy day and, in consequence of the foot traffic, the floor had become moist. The trial judge found that D had not breached its duty of care as an invitor to warn its invitee, P, of any unusual dangers. ISSUE Whether the supermarket owed P a duty of care for the slippery floor. DECISION (on appeal): The trial judge applied the wrong test as D’s duty as an occupier was the ordinary common law duty to take reasonable care. ‘[T]he 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’: at CLR 488; ALR 621 per Mason, Wilson, Deane and Dawson JJ.

[16] Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 House of Lords Negligence — Death of a human being — Remedies — Statutory reform ISSUE Whether death caused by a wrongful act gave a dependant a right of action for that wrongful or negligent act. DECISION Per Lord Ellenborough that in ‘a civil court, the death of a human being could not be complained of as an injury’. Accordingly, the losses (financial or otherwise) sustained as a result of the loss of a breadwinner were not maintainable at common law. This decision led to legislative reform (known as Lord Campbell’s Act) to provide for remedies where the death was the result of a wrongful act or of the negligence of another. [page 10]

[17] Baker v Willoughby [1970] AC 467; [1969] 3 All ER 1528 House of Lords Negligence — Causation — Remoteness of damage — Compensation FACTS D’s negligent driving caused P to suffer severe injuries to his left leg and ankle with a resulting stiffness and loss of earning capacity. Three years later P was shot in the same leg by an armed robber during a hold-up. The injuries received resulted in the leg being amputated. P now had an artificial limb, whereas before he would have had a stiff leg. ISSUE The question was whether or to what extent the damages which would otherwise have been awarded in respect of the car accident were diminished by reason of the second injury. DECISION ‘A man is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned if there had been no accident. In this case the second injury did not diminish any of these’ (at AC 492 per Lord Reid).

[18] Baker’s Creek Consolidated Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207 Supreme Court of New South Wales Trespass — Land — Possession — Right to sue in trespass FACTS D re-entered onto land which he leased to P. However, P, claiming to have remained in de facto possession of the land, sought an injunction to restrain D from trespassing on the land. D successfully claimed that he was in fact entitled to immediate repossession of the land as P had broken various

covenants in the lease. P had tunnelled from a neighbouring property into the subject property and D had taken control of the land on the surface. ISSUE Whether D’s possession of the land amounted to a trespass. DECISION (per Owen CJ in Equity): D had the right to be on the land. Where there is a dispute as to who is in actual possession of the land, the law considers that the one in possession has the legal title (following Jones v Chapman (1849) 2 Exch Rep 803). If, therefore, there was any [page 11] conflict as to which party was in possession, D must be taken to have been the one in possession. D’s possession had to be treated as the actual possession and, accordingly, D could not be treated as a trespasser.

[19] Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 High Court of Australia Trespass — False imprisonment — Consent FACTS A notice board above the turnstiles to a private ferry wharf stated: ‘Notice. A fare of one penny must be paid on entering or leaving the wharf. No exception will be made to this rule, whether the passenger has travelled by the ferry or not.’ Robertson, aware of these conditions, paid his penny and entered the wharf, only to miss his ferry. He refused to pay another penny to exit the wharf and brought an action for assault and false imprisonment following an attempt to restrain him from squeezing past next to the turnstile. ISSUE Whether that act of restraint amounted to a false imprisonment. DECISION (dismissing the action): Robertson was aware of the terms and

conditions of the agreement with the ferry company and he must be held to have agreed to them when he obtained admission. ‘This agreement involves … an implied promise by the plaintiff that he would not ask for egress by land except on payment of one penny …’ (at 386 per Griffith CJ). ‘He may enter into a contract which necessarily involves the surrender of a portion of his liberty for a certain period, and if the act complained of is nothing more than a restraint in accordance with that surrender he cannot complain’ (at 388 per O’Connor J). The decision of the High Court was later upheld on appeal to the Privy Council.

[20] Balven v Thurston [2013] NSWSC 210 Supreme Court of New South Wales Trespass to the person — Assault — What constitutes assault FACTS P unsuccessfully sued D for return of gambling money he gave her, following the breakdown of their intimate relationship. D countersued P for assault based on two text messages P sent to D, ‘I guna get u big tim I want me money u will die ill waiting u wer not faithful’ and ‘U house will be ashes whil u asleep for what u did u no good’, both of which were found by the Magistrate to constitute an assault. On appeal: [page 12] ISSUE Did each text message constitute the tort of assault? DECISION Allowing the appeal; neither threat constituted a threat to inflict immediate physical harm and, as such, did not constitute the tort of assault. There was no temporal immediacy to the threats. D was not told that she would die if the money was not repaid by a certain time.

[21] Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608; [2012] HCA 40 High Court of Australia Negligence — Duty of care — Economic loss — Loss of employees’ services FACTS Two of P’s employees died and three others were injured in a light plane crash. Both D1, the pilot, and D2, the aeronautical engineer who designed the defective engine component, were sued in negligence. The accident was caused by an engine failure and D1’s negligent handling in response to that engine failure. ISSUE Whether the defendants were liable for P’s economic losses it sustained as a result of the death of its employees, ‘per quod servitium amisit’, while on this work-related flight. DECISION Both defendants were liable per quod servitium amisit in damages for the wrongful loss of P’s employees’ services. The court held that the action did not depend on a duty of care owed to the employer, but depended on an intentional or, in this case, negligent act that injured the employee.

[22] Barisic v Devenport [1978] 2 NSWLR 111 Supreme Court of New South Wales (Court of Appeal) Negligence — Contributory negligence — Apportionment FACTS D and his partners owned a mobile excavator which they hired out to Ford Excavations Pty Ltd, together with an operator, Keys, for use on a building site. Ford employed P as a labourer on the building site. P was struck by the bucket from the excavator and sued D, the operator Keys, and Ford. The trial judge found for P against both D and Keys and allowed for contributory negligence at 40 per cent. On appeal, Ford was also found

negligent in failing to provide a safe system of work, and contributory negligence was reduced to 30 per cent. ISSUE The question was the apportionment for contributory negligence against several concurrent tortfeasors. [page 13] DECISION First, P’s responsibility, on the one hand, was to be compared with the combined responsibilities of the defendants on the other, so that the damage, and hence the judgment, was scaled down equally in respect of each defendant. Then the defendants’ responsibilities were to be apportioned between them. Thus, in this case, the verdict in favour of P was first reduced by 30 per cent and then Ford was found liable for 90 per cent of the reduced sum with D responsible for the other 10 per cent.

[23] Barton v Armstrong [1969] 2 NSWR 451 Supreme Court of New South Wales Trespass — Assault FACTS P, having previously successfully sued D to have a deed set aside for duress by threats of violence, now sued for assault based on those threats of violence communicated to P by telephone. ISSUE Whether a telephone call with threats could constitute an assault. DECISION Although it is clear from the authorities that mere words themselves are not sufficient to constitute an assault and that the threatening act must put the victim in immediate fear or apprehension of violence, threats uttered over the telephone may not be properly categorised as mere words. It depends upon the circumstances. ‘In the age in which we

live threats may be made and communicated by persons remote from the person threatened’ (at 455 per Taylor J).

[24] Beaudesert Shire Council v Smith (1966) 120 CLR 145; [1966] ALR 1175 High Court of Australia Intentional infliction of economic loss — Action for damages upon the case FACTS Smith obtained a licence to pump water from a natural pool in a river bounding his property. The council removed gravel from the river bed for roadworks, altering the river flow and destroying the effect of the pool. Smith would incur expenses in re-siting the pump. P, Smith’s executors, obtained an order for damages and the council appealed. ISSUE Whether council’s deliberate actions gave rise to an actionable claim for damages. [page 14] DECISION A person who suffers harm or loss as the inevitable consequence of the unlawful intentional and positive acts of another is entitled to recover damages from that other by an action for damages upon the case, independently of trespass, negligence or nuisance.

[25] Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583 Queen’s Bench Division Scienter rule — Strict liability — Animals ferae naturae

FACTS A husband and wife team of dwarfs were being exhibited by their manager in a booth in D’s circus. The manager had been granted a licence by D to use the booth. The manager’s dog snapped at a group of elephants being led past the booth towards the circus ring, causing one of the elephants, Bullu (which was normally ‘no more dangerous than a cow’) to react in terror and to knock down the booth. ISSUE Whether D, Bullu’s keeper, was liable for the damages it caused. DECISION (applying the scienter rule): A person who keeps an animal with knowledge, scienter retinuit, of its tendency to do harm is strictly liable for damage it does if it escapes; that person is under an absolute duty to confine or control it so that it shall not do injury to others. All animals ferae naturae, that is, animals which are not by nature harmless (such as a rabbit), or have not been tamed by man and domesticated (such as a horse), are conclusively presumed to have such a tendency. The law ignores the difference between a wild elephant and a circus elephant. The dwarfs were entitled to recover damages for nervous shock and injuries.

[26] Bennett v Tugwell [1971] 2 QB 267; [1971] 2 All ER 248 Queen’s Bench Division Volenti non fit injuria — Defences to negligence FACTS P and D were mates. One night P was a passenger in D’s father’s car which was being driven by D. P sustained injuries when D drove into the back of a parked car. ISSUE The question was whether D, by his father’s insurers, was liable for damages as a notice was affixed to the dashboard of the car which read: ‘Warning — Passengers travelling in this vehicle do so at their own risk.’ P, aware of the notice, mistakenly believed that he still had direct recourse to the insurers.

[page 15] DECISION D was entitled to invoke the defence of volenti non fit injuria. On the facts, it could be inferred that P did assent to being carried at his own risk and to exempt D from liability for the negligence which caused the accident.

[27] Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479; [1977] 2 All ER 902 Queen’s Bench Division Trespass — Trespass to airspace FACTS D took a single aerial photograph of P’s country house from a plane which flew over P’s property. D was in the business of taking such photographs and then offering them for sale to the owners of the properties. P claimed that as owner of the land he was also owner of the airspace above the land, or at least had the right to exclude any entry into such airspace, and brought an action for trespass. ISSUE Whether D committed a trespass of P’s land. DECISION (per Griffiths J): There was no support for the view that a landowner’s rights in the airspace above his property extend to an unlimited height. The rights of an owner in the airspace above his land were restricted to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it. D’s aircraft did not infringe any such rights. Its mere presence hundreds of feet above the ground was not an interference with any use to which P might put his land, and the mere taking of a photograph could not transform that act into one of trespass.

[28] Bird v Holbrook (1828) 4 Bing 628; 130 ER 911

Court of Common Pleas Intentional injury to the person — The action on the case FACTS To protect from theft his valuable flowers, which he grew inside a walled garden, D installed a spring gun which was activated by trip wires and gave no notice of the gun’s presence. P, a 19-year-old youth, climbed the wall and entered the garden to catch a straying peahen. He set off the spring gun and was shot in the leg. ISSUE Whether D was liable for the injuries caused by the spring gun. DECISION (maintaining the action for damages): D intended that the gun should be discharged. ‘I am, therefore, clearly of opinion that he who sets spring guns, without giving notice, is guilty of an inhuman act, [page 16] and that, if injurious consequences ensue, he is liable to yield redress to the sufferer … as far as human means can go, it is the object of English law to uphold humanity, and the sanctions of religion’ (at Bing 641, 643 per Best CJ, Park, Burrough and Gaselee JJ delivering concurring judgments).

[29] Bird v Jones (1845) 7 QB 742 Queen’s Bench Division False imprisonment — Total restraint of liberty FACTS A part of Hammersmith Bridge which is ordinarily used as a public footway was appropriated for seats to view a regatta on the river, and separated for that purpose from the carriageway by a temporary fence. P insisted on passing through the appropriated area and jumped over the fence. D stationed two policemen to prevent P’s progress but P was told that he

might go back into the carriageway and proceed to the other side of the bridge. P refused and remained where he was for half an hour. ISSUE Whether P was entitled to claim damages for false imprisonment. DECISION The mere obstruction of the passage of another, leaving him free to stay where he is or to go in another direction if he pleases, cannot amount to imprisonment. ‘[I]mprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him’ (at 751 per Patterson J).

[30] Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 House of Lords Negligence — Foreseeability — Standard of care FACTS At a cricket match a batsman hit a six, which, 70 yards from the wicket, cleared a fence seven feet in height and struck Miss Stone who was standing outside her house across the road from the ground. ISSUE Whether the cricket club was negligent for Miss Stone’s injuries. DECISION Although the accident was foreseeable, the probabilities of such injuries were so slight that a reasonable man would not have felt called upon to either abandon the game or increase the height of [page 17] the fence. ‘The standard of care in the law of negligence is the standard of an ordinarily careful man, but in my opinion an ordinarily careful man does not take precautions against every foreseeable risk’ (at AC 863 per Lord Oaksey). ‘In my judgment the test to be applied here is whether the risk of damage to

a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger’ (at AC 867 per Lord Reid).

[31] Bonnington Castings Ltd v Wardlaw [1956] AC 613; [1956] 1 All ER 615 House of Lords Breach of statutory duty — Causation — Onus of proof FACTS Wardlaw, who had been employed for eight years in Bonnington’s foundry as a steel dresser, contracted pneumoconiosis through inhaling air containing silica dust. The dust emanated from pneumatic hammers and there was no known protection against dust produced by this operation. However, there was also dust emanating from swing grinders, as the dustextraction plant for these grinders had also not been kept free from obstruction as required by statutory regulations. ISSUE Whether P had to establish that D’s conduct caused the injuries. DECISION (allowing the action for breach of statutory duty as, on the facts, an amount of noxious dust did come from the grinders): On the issue of causation, the plaintiff must prove not only negligence or breach of statutory duty but also that such fault caused or materially contributed to his injury. ‘[T]he employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury …’ (at AC 620 per Lord Reid).

[32] Bourhill v Young [1943] AC 92; [1942] 2 All ER 396 House of Lords

Negligence — Duty of care — Foreseeability FACTS P, a fishwife who was eight months pregnant, alighted from a train and was in the process of retrieving her fish basket from the driver’s platform when she heard a collision between a motor cyclist and a motor car approximately 45 to 50 feet away from her. After the [page 18] motor cyclist’s body had been removed she approached and saw blood left on the roadway. P sustained nervous shock which disabled her from carrying on business for some time. She also subsequently lost the child. P sued for damages for nervous shock. ISSUE The question was whether the deceased motor cyclist, who was found to be negligent, owed P a duty of care. DECISION (dismissing the action): The motor cyclist did not owe P a duty of care. It was not reasonably foreseeable that someone in P’s position would suffer injury from the motor cyclist’s negligent driving. ‘In my opinion, such a duty [of care] only arises towards those individuals of whom it may be reasonably anticipated that they will be affected by the act which constitutes the alleged breach’ (at AC 102 per Lord Russell). ‘I cannot accept that John Young could reasonably have foreseen, or, more correctly, the reasonable hypothetical observer could reasonably have foreseen, the likelihood that anyone placed as the appellant was, could be affected in the manner in which she was’ (at AC 111 per Lord Wright).

[33] Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; 39 ALJR 410 High Court of Australia Concurrent liability — Recovery of contribution — Several

tortfeasors FACTS Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) provided for the recovery of contribution by one tortfeasor from another (concurrent) tortfeasor. The respondent suffered judgment at the hands of one of his employees for damages in respect of an injury to him caused by the respondent’s negligence. During the proceedings the respondent served a third-party notice on the appellant, claiming a contribution to the employee’s damages caused by the appellant’s alleged tortious conduct. ISSUE The question was whether the third party notice, served more than six years after the accident, was now statute barred. DECISION (rejecting the appellant’s argument): Section 5(1)(c) did not make available to a defendant tortfeasor, in an action for contribution towards damages, any time limitations which would have been available to him in action of tort brought directly against him by the injured party. [page 19]

[34] Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436 Chancery Division Private nuisance — Sensitive use of land FACTS P provided a relay system for radio and television broadcasts in a remote rural area in Yorkshire. D commenced erecting a pylon, 250 yards from P’s receiving tower, for its overhead power line. ISSUE Whether P was entitled to an injunction to restrain D from operating the power line, to prevent interference with the reception of the relay system.

DECISION It was established by authority that an act which does not, or would not, interfere with the ordinary enjoyment of their property by neighbours in the ordinary modes of using such property cannot constitute a legal nuisance. It could not be said that the interference complained of is so important a part of an ordinary householder’s enjoyment of his property that such interference should be regarded as a legal nuisance. The business of P was exceptionally sensitive to interference: to prosper, it required an exceptional degree of immunity and P was not entitled to any special protection.

[35] Broadhurst v Millman [1976] VR 208 Supreme Court of Victoria Negligence — Evidence on which a jury ‘could’ find negligence FACTS At the trial of P’s action for damages arising out of a motor accident in 1971, the jury reduced its assessment of damages by 70 per cent by reason of P’s contributory negligence. ISSUE On appeal by P the question was whether the finding of contributory negligence was against the weight of evidence. DECISION In order to set aside the verdict on this ground the finding must have been shown to be unreasonable and unjust. There must be an ‘overwhelming preponderance of evidence against it’ (Hocking v Bell (1945) 71 CLR 430 at 499 per Dixon J). There was evidence both ways, and it could not fairly be said that there was an ‘overwhelming preponderance of evidence’, whether real or oral, in favour of P’s case. Accordingly, it was not a case that answered the tests applicable for a rejection of the jury’s finding on the basis of its being against the weight of evidence. [page 20]

[36] Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; 180 ALR 145; [2001] HCA 29 High Court of Australia Negligence — Statutory authorities — ‘Highway rule’ FACTS Brodie (B) sued one council following injuries sustained while driving a 22-tonne truck over a 50-year-old bridge which then collapsed under him. Ghantous (G) sued another council when she tripped and fell while walking on an uneven concrete footpath. In both cases the claims were dismissed on the basis of the common law highway rule of immunity from liability in negligence for non-feasance. On appeal: ISSUE Whether the councils owed a duty of care to either person. DECISION (allowing B’s appeal but dismissing G’s appeal): In each case the councils owed P a duty of care. In B’s case the bridge danger ought reasonably to have been suspected by the council to exist and as such the council breached its duty of care. But in G’s case there was no breach of the duty of care as the council did not fail to maintain the footpath and to keep it or make it safe for a person who was exercising ordinary care. The ‘highway rule’ giving immunity to highway authorities in respect of a mere failure to act on a duty to repair was found to be no longer good law and ordinary principles of negligence were simply to be applied to the facts as they were found.

[37] Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 High Court of Australia Negligence — Duty of care — Proximity of relationship FACTS D, a builder, built a house for Mrs M, who sold the house to Mr and Mrs Q, who sold the house to P. The house was built with footings that

were inadequate to withstand the seasonal changes in the clay soil. The trial judge found D’s building work to be negligent, that damage (being repair costs) was suffered by P when the house cracked, and that the damage was a foreseeable consequence of D’s negligence. On appeal: ISSUE The sole issue was whether D owed P a relevant duty of care. DECISION (dismissing the appeal): A relationship of proximity existed between D and P, so that D owed P a duty to exercise reasonable care in relation to the building work, including the footings, to avoid a foreseeable risk of injury to P. That relationship of proximity and consequent duty of care also extended to economic loss suffered by [page 21] P when the inadequacy of the footings became manifest. The court did not follow the views of the House of Lords in D & F Estates Ltd v Church Commissioners for England [1989] AC 177 and Murphy v Brentwood District Council [1991] 1 AC 398 which appeared ‘to have rested upon a narrower view of the scope of the modern law of negligence and a more rigid compartmentalisation of contract and tort than is acceptable under the law of this country’ (at CLR 629; ALR 173).

[38] Bugge v Brown (1919) 26 CLR 110 High Court of Australia Negligence — Vicarious liability — Actions contrary to express prohibitions FACTS D, who was the owner of a grazing property, employed a servant, Winter (W) to work on the land. W was entitled as part of his remuneration to be supplied with cooked meat. On one occasion W was supplied with raw meat for his midday meal, and D instructed him to cook the meat at a certain

house on the property where there was a frying pan. Contrary to these instructions W lit a fire on the land near where he was working. Owing to W’s negligence the fire spread and burnt out P’s property. W believed that D’s real objection to cooking at the place where he was working was the necessity of taking a large special frying pan. ISSUE Whether D was responsible for his employee’s (W’s) negligence. DECISION On the facts the lighting of the fire was within the sphere of W’s employment and, therefore, notwithstanding that W had disobeyed D’s instructions as to the place where the fire should be lit, D was responsible for his servant’s negligence. ‘An instruction or a prohibition may, of course, limit the sphere of employment. But to have that effect it must be sure that its violation makes the servant’s conduct complained of so distinctly remote as to put him qua that conduct virtually in the position of a stranger’ (at 119 per Isaacs J).

[39] Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 New South Wales Court of Appeal Intentional torts — Conversion — Elements of FACTS Many various suppliers hired pallets from CHEP and delivered their stock to Bunnings on those pallets. Bunnings used those pallets to [page 22] display its goods on its shop floors and also for stock replenishment and to transport its own goods. CHEP identified that Bunnings was using its pallets in this way but could not trace the pallets to any particular hirer. CHEP demanded their return and then sued Bunnings for damages in conversion. Bunnings argued that they lawfully, as between them and their suppliers,

held the pallets and it was therefore a matter between CHEP and its customers. ISSUE Whether Bunnings had converted CHEP’s pallets. DECISION The use by Bunnings of CHEP’s wooden pallets constituted an intentional dealing with CHEP’s lawful property that was repugnant to its ownership rights, thus constituting a tort of conversion. On the facts, there was no basis to conclude that in simply receiving the pallets, Bunnings was committing any wrong. Absent the refusal of a demand for their return, there was no conversion. But, refusal by Bunnings to comply with CHEP’s lawful demands for return of the pallets amounted to unlawful detinue. Damages were the loss of potential hire revenue.

[40] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 High Court of Australia Negligence — Dangerous things — Duty of care — Rylands v Fletcher rule FACTS P suffered damage when a large quantity of its frozen vegetables was ruined by a fire which destroyed D’s building where the vegetables were stored. At the time of the fire, D’s building was being extended with the construction of further cold storage facilities. That building work had introduced hazardous substances to the site. Welding works on the site then ignited the substances, causing the blaze. The Supreme Court of Tasmania found D’s liability lay in accordance with the Rylands v Fletcher rule. On appeal by D: ISSUE Whether the application of that strict liability rule was valid. DECISION (dismissing the appeal): D, having allowed its independent contractor to introduce dangerous substances to the site, owed a

nondelegable duty of care to P to ensure that its contractor took reasonable steps to prevent the occurrence of a fire. The breach of that duty of care attracted liability under the ordinary principles of negligence. ‘[T]he rule in Rylands v Fletcher [(1866) LR 1 Ex 265; aff’d (1868) LR 3 HL 330], with all its difficulties, uncertainties, qualifications and exceptions, should now be seen, for the purposes of the common law [page 23] of this country, as absorbed by the principles of ordinary negligence. Under those principles, a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another’ (at CLR 556; ALR 67 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).

[41] Burton v Davies [1953] St R Qd 26 Supreme Court of Queensland False imprisonment — Reasonable means of escape FACTS P met D at a party and accepted his invitation to drive her home. Notwithstanding P’s protests, D did not stop at P’s home but continued on until her threats to scream induced him to stop. P claimed damages for, inter alia, assault from D putting his arm around her and his hand on her thigh, and for false imprisonment. ISSUE Whether D’s conduct could be construed as false imprisonment of P. DECISION D’s conduct in driving at such a speed as to prevent P from alighting amounted to the wrong of false imprisonment. ‘If I lock a person in

a room with a window from which he may jump to the ground at the risk of life and limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window’ (at 30 per Townley J).

[42] Burton v Winters [1993] 3 All ER 847 Court of Appeal (Civil Division) Trespass — Remedies — Self-help FACTS A garage wall had been built encroaching onto P’s land, by 4 inches, 11 years earlier. The trial judge refused to grant a mandatory injunction against D requiring demolition of the wall but rather adjourned the matter for assessment of damages caused to P by the encroachment. P, dissatisfied with that approach, then built a wall on D’s land in front of the garage. P then disobeyed an injunction restraining her from completing that wall and was eventually imprisoned for 12 months, having damaged the garage in the process of building her own wall. On appeal: [page 24] ISSUE Whether P could so exercise the remedy of ‘self help’. DECISION (dismissing the appeal): That it was not an appropriate case for the exercise by P of the remedy of self-redress as demolition of the garage wall would have been out of proportion to the damage suffered by P as a result of that encroachment. A decision having been made by the court that P was not entitled to have the wall removed meant that P had no right to remove it herself and her actions in building another wall which damaged the original garage wall justified the imprisonment.

[43] Butler v Egg & Egg Pulp Marketing Board

(1966) 114 CLR 185 High Court of Australia Conversion — Damages — Assessment of actual loss FACTS Under the Marketing of Primary Products Act 1958 (Vic) the property in commercially produced eggs divested from the producers and became the absolute property of the Board. The Board then returned part of the sale price to the producers. Butler did not deliver his eggs to the Board but sold them to a third party. The Board successfully claimed damages for conversion and alleged entitlement to the full value of the eggs converted. Butler alleged the Board’s entitlement was for the difference between their commercial value and the sum which it would have paid to him. ISSUE How the damages should be assessed. DECISION Damages should be assessed not on the value of the eggs but upon the actual loss sustained, because Butler converted the Board’s eggs instead of delivering them to it. The Board’s loss was determined by considering what sum of money would be required to place it in the same position as it would have been had Butler performed his statutory obligations.

[44] Butterfield v Forrester (1809) 11 East 60; 103 ER 926 King’s Bench Division Contributory negligence — Original rule — A complete bar to recovery FACTS While effecting household repairs D placed a pole across part of the road which ran beside his house. P, riding in a fast manner, collided with the pole and brought an action for damages. The trial

[page 25] judge directed that a verdict should be returned for D if P was riding without ordinary care, and this was so found. ISSUE Whether P’s own conduct then disentitled him to relief in negligence. DECISION (on appeal): P did not use ordinary care and the action must fail. ‘One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff’ (at East 61; ER 927 per Lord Ellenborough CJ).

[45] Cabassi v Vila (1940) 64 CLR 130 High Court of Australia Tort — Conspiracy to commit perjury — No civil right of action FACTS P unsuccessfully sued Ferrando (F) for damages for a fractured jaw. D was a witness in those proceedings. P then brought an action against D, F and another witness, claiming damages for conspiracy, alleging they had unlawfully conspired together to give false evidence at those proceedings. D demurred, claiming, inter alia, no such action for conspiracy was maintainable against him. ISSUE Whether a conspiracy to commit perjury could give rise to a claim in tort for damages. DECISION No civil action lies in respect of evidence, however false and malicious it may be, given by witnesses in the course of judicial proceedings.

The remedy against a witness who gives false evidence is by means of criminal law or by the punitive process of contempt of court.

[46] Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 High Court of Australia Negligence — Duty of care — Breach of duty — Practicability FACTS Speirs claimed damages under the Compensation to Relatives Act 1897 (NSW) for the death of her husband. He was killed at a level crossing when a car that he was driving was hit by a train of trucks that was running out of control down the steep gradient of a railway line owned and operated by the colliery under a private statute. Protective devices known as catch points, which allow a train to pass in one [page 26] direction but cause a derailment to trains passing in the other direction, were not installed. ISSUE Whether D could argue that it was simply not practical to install the devices as it would create a hazard to trains moving down the gradient. DECISION The well settled principle applies that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered. The colliery owed a duty to those using the roadway to exercise reasonable care for their safety. The problem of runaway trucks on the line was a contingency likely at some time to occur and the jury at the trial were entitled to treat it as a possible danger against which precautions should have been taken.

[47] Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529; 11 ALR 227 High Court of Australia Negligence — Economic loss — Reasonable foreseeability — Economic losses not consequential on property damage FACTS Australian Oil Refining Pty Ltd (AOR) owned an underwater pipeline which transported refined petroleum products from its refinery on the southern shore of Botany Bay, New South Wales, to the Caltex terminal on the northern shore. Although Caltex retained ownership of the petroleum at all times, the processing agreement provided that the risk of damage or loss to the products rested with AOR until delivery to the Caltex terminal. One night the dredge, which was being used to dredge a deep water channel in the bay, fractured the pipeline due to its negligent navigation and also due to its reliance on an inaccurate survey chart drawn by Decca Survey Australia Ltd. AOR successfully recovered damages against the dredge and Decca for the damages to the pipeline and the products it contained. Caltex’s claim for economic losses, being the cost of arranging alternative transportation for its products until the pipeline was repaired, was dismissed as such losses were unrelated to any injury to property of Caltex. On appeal to the High Court: ISSUE Whether Caltex’s losses were reasonably foreseeable. DECISION On the facts, the dredge and Decca should have had Caltex in contemplation as a person who would probably suffer economic loss [page 27] if the pipes were broken. Both parties owed a duty to Caltex to take reasonable care to avoid causing damage to the pipeline and thereby causing economic loss to Caltex. ‘In my opinion it is still right to say that as a

general rule damages are not recoverable for economic loss which is not consequential upon injury to the plaintiff’s person or property. The fact that the loss was foreseeable is not enough to make it recoverable. However, there are exceptional cases in which the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence, and owes the plaintiff a duty to take care not to cause him such damage by his negligent act’ (at CLR 555; ALR 245 per Gibbs J). It was similarly found by Stephen and Mason JJ that a duty of care to prevent economic loss was owed to a specific individual, namely Caltex, when it could be reasonably foreseen that the individual would suffer economic loss from the negligent act. Murphy and Jacobs JJ also found the dredge and Decca to be liable for the economic losses.

[48] Candlewood Navigation Corp Ltd v Mitsui OSK Lines Ltd (1985) 3 NSWLR 159; 60 ALR 163; [1985] 2 All ER 935 Privy Council Negligence — Duty of care — Economic loss — Damage to property owned by another FACTS P1, the owner of the Ibaraki Maru, let it under a bareboat charter to P2 which then time chartered the ship back to P1. Under the time charter, P1 did not obtain possession of the ship but only its use for the carriage of goods. The Ibaraki Maru was damaged in a collision off Port Kembla as the result of negligence of the crew of another ship, the Mineral Transporter. While the Ibaraki Maru was being repaired P1 and P2 suffered economic loss and successfully recovered against D, the owner of the Mineral Transporter. ISSUE Whether economic losses could be recovered by P1 against D. DECISION (on appeal): P1, as time charterer, was not entitled to recover for pecuniary loss caused by D. The reason was that P1, as a time charterer,

held no proprietary or possessory right in the chartered vessel; his only rights in relation to the vessel were contractual with P2. To grant P1’s claim would be to run counter to accepted policy of the law which provided a rule against allowing recovery by persons who are merely in a contractual relationship with the injured party (that is, P2). [page 28]

[49] Caparo Industries plc v Dickman [1990] 2 AC 605 House of Lords Negligence — Duty of care — To whom owed FACTS P, having taken over a company, sued that company’s auditors in negligence alleging reliance on D’s reports in connection with the takeover bid. ISSUE Whether D’s audit reports could found a claim by P for economic loss. DECISION Liability for economic loss due to negligent misstatement was confined to cases where the statement or advice had been given to a known recipient for a specific purpose of which the maker was aware and upon which the recipient had relied and acted to his detriment. D was accordingly found not to owe P a duty of care.

[50] Carmarthenshire County Council v Lewis [1955] AC 549; [1955] 1 All ER 565 House of Lords Negligence — Duty of care — Standard of care — Children

FACTS While the kindergarten teacher was distracted with attendances on other children, a four-year-old child left the classroom and wandered out of the playground and on to the street. Lewis’s husband was killed when, in attempting to avoid running down the child, he swerved the truck in which he was driving and collided with a lamp post. ISSUE Whether the council could be held vicariously liable for the negligence of its servant, the teacher, in leaving the child unattended. DECISION (on appeal): Such a situation ought to have been anticipated by the council itself. It was reasonably foreseeable that a child might sometimes be left alone and that it might wander onto the street if there was no obstacle in its way such as a bolted gate. It can be foreseen that once on the street either the child or someone seeking to avoid the child could be injured. ‘[I]n this case, it was not impracticable for the appellants to have their gate so made or fastened that a young child could not open it and, in my opinion, that was a proper and reasonable precaution for them to take’ (at AC 566 per Lord Reid). [page 29]

[51] Cartledge v E Jopling & Sons Ltd [1963] AC 758; [1963] 1 All ER 341 House of Lords Damages — Cause of action — Limitation of action — One cause of action FACTS D manufactured steel castings and had employed the plaintiffs for many years as steel dressers. In the period affected by war-time difficulties, between 1939 and 1950, effective ventilation was not provided in the factory. By the time this breach of the Factories Act 1937 was remedied in 1950, the plaintiffs had contracted a dust disease, pneumoconiosis, but (with three possible exceptions) they were unaware of it and had no reason to

suspect it. When the writs claiming damages for breach of statutory duty were issued, six years had already elapsed since the cessation of the breach which caused the damage. ISSUE Whether the injury must be taken to have first occurred when the man became aware of his disease or, alternatively, if a cause of action accrues when the injury occurred, a fresh cause of action accrues when the person becomes aware of the disease. DECISION The action was statute barred by the Limitation Act 1939. The cause of action accrued when it reached a stage, whether then known or unknown, at which a judge could properly give damages for the harm that had been done. Further, with regard to the second contention: it is well settled that although two separate actions may be brought, one for personal injury and one for property damage, both being caused by the same negligence, only one action may be brought in respect of all the damage from personal injury.

[52] Cartwright v McLaine & Long Pty Ltd (1979) 143 CLR 549; 24 ALR 97 High Court of Australia Public nuisance — Occupier’s knowledge of the nuisance FACTS P sustained personal injuries when he slipped on an oil slick which had flowed on to the public footpath from beneath a pile of rubbish on a disused service station site which adjoined the footpath. Claiming damages for public nuisance, P unsuccessfully sued a demolition contractor who had been working in the vicinity of the site, the owner of the land and a purchaser of the land. On appeal against the latter two of those three defendants: [page 30]

ISSUE Whether the occupiers of the land were liable for the nuisance. DECISION The presence of the slippery oil on the footpath constituted a public nuisance. However, neither of the respondents created the nuisance or knew of its existence at the time of the incident. ‘[N]either respondent can be held liable unless the case can be brought within an exception to the general rule that an occupier is not liable for a nuisance which he did not create unless he continued it with knowledge or means of knowledge of its existence’ (at CLR 555; ALR 102 per Gibbs ACJ).

[53] Cassidy v Ministry of Health [1951] 2 KB 343; [1951] 1 All ER 574 Court of Appeal Negligence — Vicarious liability FACTS Dr Fahrini, who was in whole-time employment as an assistant medical officer at D’s hospital, operated on P’s hand to correct a contraction of the fingers. Following the operation the hand was placed in a splint and P came under the care of Dr Fahrini, and the house doctor and the hospital nursing staff. When the splint was removed the hand was found to be useless. P sued D, alleging negligent treatment following the operation. ISSUE Whether D was responsible for the negligence of the surgeon and the house doctor. DECISION On the facts, both the surgeon and the house doctor had contracts of service with D. They were employed, like the nurses, as part of the permanent staff of the hospital. Accordingly, D was vicariously liable for the negligence of its servants. Their Lordships also discussed the distinctions between a contract of service and a contract for services.

[54] Caterson v Commissioner for Railways (1973) 128 CLR 99; [1972–73] ALR 1393

High Court of Australia Negligence — Duty of care — Foreseeability of injury — Defences FACTS P, who was seeing a friend off at a railway station, had taken some luggage on board the train when it suddenly started to move off. P’s 14-yearold son was left behind on the platform and the next stop was 80 miles away. P quickly jumped from the train and was injured. P sued D in negligence. The jury found in favour of P. The Court of Appeal set [page 31] aside that verdict on the basis of P’s contributory negligence (which, at that time, was a complete defence to negligence). On further appeal: ISSUE The question was whether P, by jumping from the train, had failed to take reasonable care for his own safety, and had acted unreasonably. DECISION (allowing the appeal): That it was open to the jury to find that a person, other than a passenger, who found himself on an express train which started to move off without warning, might jump from it, even though he was in no danger by remaining on the train, and therefore D owed P a duty of care. The jury had to weigh the inconvenience which P would suffer if he remained on the train against the risk of leaving the train, which was moving at the speed at which the jury considered that it was travelling, in deciding whether his injuries were caused by any negligence on his own part. It was open to the jury to find no evidence of contributory negligence.

[55] Cavalier v Pope [1906] AC 428; [1904–07] All ER Rep Ext 1221 House of Lords Negligence — Defective structures — Privity of contract

FACTS The wife of the tenant of a house, let unfurnished, sought to recover from the landlord damages for personal injuries arising from the nonrepair of the house. Under the oral agreement for lease the landlord undertook to carry out repairs. ISSUE Whether D, owning the defective structure (the house), was liable for the wife’s injuries. DECISION The wife had no right of action as she was not a party to the contract and further, the well known principle of absence of duty or liability in respect of the letting of a ‘tumble-down’ house prevented her from relying on an action in negligence.

[56] Chapman v Hearse (1961) 106 CLR 112; [1962] ALR 379 High Court of Australia Negligence — Duty of consequences — Causation

care

—

Foreseeability

of

FACTS Dr Cherry stopped to render assistance to Chapman who had been thrown unconscious to the roadway following a collision between [page 32] Chapman’s car and another vehicle. Hearse, who was travelling in the same direction as Chapman had been, negligently ran down and killed Dr Cherry. By a third party notice, Hearse claimed contribution by Chapman, alleging Chapman was also in breach of a duty of care owed to Dr Cherry. ISSUE Whether the duty of care of Chapman extended to someone such as Hearse. DECISION To determine the existence of a duty of care it is 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. What is important to consider is whether a reasonable man might foresee, as a consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured. To establish the existence of the duty of care it is only necessary to show that injury to a class of persons of which the plaintiff was one might reasonably have been foreseen as a consequence. Such an event as occurred herein was indeed ‘reasonably foreseeable’, and the intervening negligent acts of Hearse do not preclude the conclusion that the earlier act of Chapman’s negligence was a ‘proximate’ cause.

[57] Chapman v Honig [1963] 2 QB 502; [1963] 2 All ER 513 Court of Appeal Damages — Whether an act is tortious FACTS In an action against his landlord, P was subpoenaed by the landlord’s opponent, another tenant, and gave evidence against the landlord. The next day the landlord gave P a valid notice to quit. The county court judge found that the abuse of the contractual right to terminate the tenancy amounted to a contempt of court for which D was liable in damages. ISSUE Whether the breach of contract also amounted to tortious conduct. DECISION (on appeal): The tenant had no civil right of action for damages in this case because: (a) the same act (that is, the giving of the notice to quit) cannot at the same time as between the same parties be both a lawful exercise of a contractual right and a tortious act giving rise to an action for damages; (b) the jurisdiction to punish for contempt of court is for the protection of administration of justice and not for

[page 33] the protection of the individual affected by the contempt of court. Lord Denning dissented, noting he was under a duty to protect the victim of oppression.

[58] Chapman v Lord Ellesmere [1932] 2 KB 431; [1932] All ER Rep 221 Court of Appeal Defamation — Implied consent — Privilege FACTS Following a horse race at Newmarket Heath, the horse, ‘Don Pat’, which was trained by P, was found to have been drugged. Although the stewards found that P was not implicated, their decision to disqualify the horse from all future races and to ‘warn off’ P from Newmarket Heath because he had been derelict in his duties, was published in The Times and the Racing Calendar (being the official publication of the Jockey Club). P claimed damages for libel, as a result of the innuendo that he had drugged the horse. ISSUE Whether the publications were protected by privilege. DECISION There was an implied consent to the publication by P (analogous to volenti non fit injuria) and therefore he could not complain of such a tort. Although it was impossible to say that, by reason of the general public interest in racing, the publication in the Racing Calendar was not excessive, it had been accepted by P, as part of the normal terms and conditions on which P held his licence, that the Racing Calendar should be the means whereby communication of matters of interest or importance to those engaged in horse racing should be made by the stewards and, therefore, the publication was made on a privileged occasion. There was no such duty on The Times to publish it to their readers and, therefore, those publications were not made on a privileged occasion.

[59] Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; [1998] HCA 55 High Court of Australia Negligence — Causation — Duty to warn of risks FACTS P underwent throat surgery at the hands of Dr Chappel without warning as to the possible consequences should P’s oesophagus be perforated and infection set in. That was what happened and P suffered paralysis of her right vocal cord and voice loss. P’s illness would inevitably have required surgery and as such the surgery would have been subject [page 34] to the same risk which eventuated. P argued that had she been aware of the risk she would have taken steps to have it performed by the most experienced surgeon in the field (instead of D). P was awarded damages notwithstanding D’s submission that there was no causal connection between the failure to warn of the risks and the damage suffered by P. D’s argument was that the risk which eventuated was ever present, no matter when or by whom the surgery (which was inevitable) might be performed and therefore P did not lose a chance of any value as it was only the loss of a chance to have the surgery performed by somebody else at some other time. On appeal: ISSUE Whether the duty to warn of the risks had a causal connection to the injuries sustained by P. DECISION (dismissing the appeal): It was not disputed in this court that D was under a duty to inform P of the possible consequences in the event of the perforation of her oesophagus, and that this duty was not performed and that the risk eventuated. P had made very clear her concerns and had questioned the surgeon. Failure to warn of the risk was one of the events leading to the damages sustained. Without that failure the injury would not have occurred.

[60] Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; [1968] 1 All ER 229 Court of Appeal Trespass — Trespass to goods — Trespass ab initio FACTS Ladies’ clothes of various makes had been recently stolen from several shops and factories. The police obtained a warrant to search P’s shop for goods which had been stolen from ‘Ian Peters Ltd’. Instead, the police found and seized clothes which they reasonably believed to have been stolen from other firms. This proved mistaken. The goods were returned to P’s shop. ISSUE Whether P was entitled to claim damages against the chief constable for trespass. DECISION When a constable enters a house by virtue of a warrant for stolen goods, he may seize not only the goods which he reasonably believes to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be material evidence on a charge of stealing or receiving against the person in possession of them or anyone associated with him. The police had reasonable grounds for so believing and were not liable. [page 35]

[61] City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 High Court of Australia Detinue — Rights of a bailee FACTS Southern Aerial (SA) agreed to purchase a new Thames truck from City Motors (CM), which was to be paid for by way of trade-in with the

balance under a hire-purchase agreement. CM took possession of the tradein and delivered possession of the truck to SA. The application for hirepurchase was rejected. The trade-in broke down. CM then took possession of the truck against the will of SA. The balance of purchase moneys was tendered and SA demanded possession but this was refused. ISSUE Whether Southern Aerial could sue in detinue for return of the truck. DECISION The new truck was received upon a bailment which could not be terminated without sufficient default on the part of SA. The bailment was clearly not made at will and SA had made no default nor committed any act justifying its termination. The right asserted is simply to regain possession, not to establish a possession not before held. The title of the bailee persists. It follows that he may sue in detinue. The owner or bailor who wrongfully took it is compellable to restore it to SA.

[62] Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170; [1953] ALR 850 High Court of Australia Nuisance — Private nuisance — Reasonableness FACTS P, being a married couple in their sixties, granted a lease of the rear portion of their weatherboard residence to D in order to provide accommodation for some of its students and staff. P alleged that the noisy and rowdy behaviour of the occupants constituted a nuisance or annoyance to adjoining occupiers and neighbours, and sued to recover possession. ISSUE Whether the students’ behaviour amounted to a nuisance. DECISION (dismissing P’s claim): The noises made by the students were only noises of the kind that are incidental to the occupation of premises as a dwelling: walking about, having baths, talking and laughing. There was no

evidence that the conduct of the students caused any inconvenience to any adjoining occupier or neighbour except P. [page 36] The discomfort suffered by P proceeded from the circumstances that they lived under the same roof as D and the building was an old weatherboard building in which noises were very audible.

[63] Cole v Turner (1704) 6 Mod Rep 149; 87 ER 907 Nisi prius Trespass to the person — Assault — Battery — Definitions ISSUE What constitutes an assault or a battery? DECISION (per Holt CJ upon evidence in trespass for assault and battery): (a) that the least touching of another in anger is a battery; (b) if two or more meet in a narrow passage and, without any violence or sign of harm, the one touches the other gently, it will be no battery; (c) if any of them use violence against the other, to force his way in a rude inordinate manner, it will be a battery; or (d) any struggle about the passage to that degree as may do hurt, will be battery.

[64] Collins v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172 Queen’s Bench Division Trespass — Trespass to the person — Assault FACTS D was charged with assaulting a police officer, P, following a scuffle

between them. P had seen D in the company of another woman who was a known prostitute and P had attempted to question D, by holding D’s arm. ISSUE Whether P’s action, in detaining D that way, was an unlawful assault. DECISION P’s conduct was unlawful, even if P merely intended to carry out a cautioning procedure, since that act went beyond the generally acceptable conduct of touching a person to engage her attention. Accordingly, D’s conviction for assault of P (by scratching P’s arm) had to be quashed since P was not acting in the course of her duty when she detained D. [page 37]

[65] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-Operative Assurance Company of Australia Ltd (1931) 46 CLR 41 High Court of Australia Vicarious liability — Defamation — Principal and agent FACTS Colonial (C) employed Ridley (R) as a canvasser and agent under a written ‘agency’ agreement to sell life insurance. The agreement included a requirement that R not use language or write anything concerning another person or institution which might reflect upon the character or integrity of the person or institution or bring the same into disrepute or discredit. While attempting to obtain assurance business, R made defamatory statements concerning Producers & Citizens. ISSUE Whether an action for slander lay against R’s employer, C. DECISION By performing these services for the company, R did not act

independently, but as a representative of the company, which, accordingly, must be considered as itself conducting the negotiation in his person. ‘The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to [Ridley] was exercised when acting as a true agent representing his principal in dealing with third persons’ (at 50 per Dixon J). C was, therefore, liable for the slanders uttered by R.

[66] Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392; [1959] ALR 896 High Court of Australia Master and servant — Loss of servant’s services FACTS P sued D alleging that, owing to D’s negligent driving of a motor cycle, a train driver named Rogers in the employ of P was injured. In consequence of Rogers’ injuries P was deprived of the services of Rogers for a period. During that time P paid Rogers his wages and medical fees. ISSUE Whether the employer could claim for the loss of the employee’s services. [page 38] DECISION (by majority): An officer in the railway service enters into the employment of the Commissioner which creates the relationship of master and servant which supports the action per quod servitium amisit to recover damages consequential upon the loss of servitium. Per Dixon CJ, dissenting: ‘The question is whether the engine driver, whom this action concerns, was for the purposes of the action per quod servitium amisit a menial servant. I think he was not a servant of that description because his service was not in “the realm of domestic relations”’ (at CLR 406).

[67] Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 High Court of Australia Assault — Standing to sue FACTS P sued for damages for assault after being ejected from D’s racecourse. D sought to justify the assault on the basis that it was a lawful exercise of force for the purpose of removing P from the racecourse after P refused a request to leave. P alleged that, having paid valuable consideration (the admission price), D contracted to allow P on the course to view the races and was not entitled to revoke P’s licence to do so. ISSUE Whether P could recover in tort for his forcible expulsion. DECISION P was not so entitled. Any remedy in contract did not include damages for the assault. The licence remained revocable at law, notwithstanding any breach of contract. ‘[A] patron of a public amusement who pays for admission obtains by the contract so formed and by acting on the licence it imports no equity against the subsequent revocation of the licence and the exercise by the proprietor of his common law right of expelling the patron’ (at 633 per Dixon J).

[68] Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1; 54 ALJR 295 High Court of Australia Negligence — Damages — Assessment of damages FACTS The respondent, having stopped on a highway while travelling from Sydney to Perth to assist another motorist whose car had broken down, was injured and left with severe disabilities when a semi-trailer struck the stranded car. The question before the High Court was the

[page 39] manner of assessment of damages for the appellant’s negligence. The trial judge assessed damages for the future economic loss suffered by the respondent by reference to his net earnings after tax; and on ascertaining a lump sum which would provide for the future weekly economic loss, the judge did not consider the effect of the notional tax on the income that would be derived from the investment of that sum. The Court of Appeal, following Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129, made an assessment based on the gross wage. On appeal to the High Court: ISSUE The proper assessment of damages for negligent conduct. DECISION (by majority): (a) In assessing damages for personal injuries which have resulted in loss or diminution of the plaintiff’s earning capacity, a court should take into account the income tax which the plaintiff would have had to pay on the earnings of which his injuries had deprived him (decision in Atlas Tiles Ltd v Briers not followed). (b) The sum of money ascertained by the use of actuarial tables which, if invested, will provide for the weekly loss in income suffered by the respondent, will be liable to taxation. Accordingly, to give the correct result, the lump sum must be increased to make allowance for the effect of taxation on that sum. As a rule it is proper to consider the effect of the notional tax on the assumed income of the amount awarded for the future economic loss.

[69] Curran v Young (1965) 112 CLR 99; [1965] ALR 917 High Court of Australia Negligence — Contributory negligence — Loss of consortium FACTS P sued D for the loss of the consortium of his wife, who had been injured when a motor vehicle driven by her was involved in a collision with

a vehicle negligently driven by D. The wife was found to have been guilty of contributory negligence. ISSUE Whether the wife’s contributory negligence affected the claim. DECISION The contributory negligence on the part of the wife did not, at common law, affect the husband’s claim for loss of the services of his wife. ‘He sues, not for the injury to her, but for the damages suffered by himself by the wrongful act of the defendant albeit because she was injured thereby’ (at CLR 100 per Barwick CJ). [page 40]

[70] Cutler v Wandsworth Stadium Ltd [1949] AC 398; [1949] 1 All ER 544 House of Lords Breach of statutory duty — Civil action for damages FACTS The Betting and Lotteries Act 1934 (UK) provided, inter alia, that the occupier of a licensed dog racing track should, when a totalisator was being operated, take all necessary steps to secure space for the use of bookmakers to carry on bookmaking. Penalties were prescribed for breaches of the Act. P, who was a bookmaker, sued the occupier, D, claiming damages for breach of statutory duty in not making available to him such space. ISSUE The question was whether the statutory duty gave right to a civil action for any breach thereof. DECISION On a proper construction of the statute, there was no indication that a right of civil action would accrue to an aggrieved bookmaker: ‘I see no reason to infer from the Act read as a whole or from the circumstances founded on by the appellant that the enjoyment of these facilities required or was intended to have any further protection than that

afforded by the track occupier’s liability to prosecution if he failed to comply with the statutory provisions’ (per Lord Reid).

[71] D & F Estates Ltd v Church Commissioners for England [1989] AC 177; [1988] 2 All ER 992 House of Lords Negligence — Duty of care — To whom duty owed FACTS D3 were the main contractors who built a block of f lats on the Church Commissioner’s (D1’s) land in 1965. Mr and Mrs Tillman, through a company, (P), leased one of the flats for 15 years and it was then discovered in 1980 that remedial plastering and redecorating work had to be done to their flat. P sued D for damages in negligence (as there was no contractual relationship between them) for the remedial works and for the disturbance caused to them. ISSUE What duty was owed and to whom, if any, by each of the defendants? DECISION The loss sustained by the Tillmans’ company in renewing the plaster work in the flat had been purely economic loss, which was not recoverable in tort under the principle in Donoghue v Stevenson (see [81] below), nor were the Tillmans entitled to damages for [page 41] disturbance. It was further held that D3 did not in general assume a duty of care to any person who might be injured by a dangerous defect caused by the negligence of an apparently competent subcontractor from D3, and in this instance D3 was therefore not liable to P in negligence.

[72] Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 Court of Appeal Negligence — Contributory negligence reasonable action taken by plaintiff

—

Whether

FACTS P was driving an ambulance during World War II with poor rear view vision and which was a ‘left-hand drive’. On the back of the ambulance a large warning was printed: ‘Caution — Left-hand drive — No signals’. As P was turning right the ambulance was involved in a collision with a motor bus. P sustained severe injuries and sued for damages for negligence against the driver of the bus and his employer. In defence it was argued that P had omitted to make certain that there were no vehicles behind before turning right. ISSUE Whether P’s conduct constituted contributory negligence. DECISION Considering the warning notice and P’s correct use of hand signals before starting to turn, there was no negligence on the part of P. Also held (per Asquith LJ) in considering whether reasonable care had been observed, it was necessary to balance the risk against the consequences of not assuming that risk. In view of (a) the necessity, in times of national emergency, of employing all available transport resources, and (b) the inherent limitations of the ambulance in question, P had done all that could reasonably be done in the circumstances.

[73] Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36; [1957] ALR 505 High Court of Australia Negligence — Breach of statutory duty — Civil right of action FACTS P, a wharf labourer, sued his employer, a stevedoring company,

claiming damages for injuries sustained when a hatch beam on a ship on which he was employed in loading and unloading became displaced. The action was based upon a breach of the Navigation Act 1912–53 (Cth), which required the hatch beam to be securely fastened, and provided that, when the loading or unloading of a vessel was being carried out under a person-in-charge representing the stevedoring [page 42] company, that person-in-charge should be responsible for compliance with regulations, and that non-compliance with the regulations was an offence with a penalty of £100. ISSUE Whether D could argue that the regulations created no right of civil action for breach of the statutory duties thereunder. DECISION The duty created by the regulations was for the individual benefit of the class of persons who came within the scope of the regulations. Such a duty gave rise to a correlative private right of civil action (unless a contrary intention appears in the legislation); however, in this instance the duties were imposed upon the ‘person-in-charge’ and there was no intention to extend that duty to the defendant company. Accordingly, the civil right of action did not extend against the employer.

[74] David Jones (Canberra) Pty Ltd v Stone (1970) 123 CLR 185; [1970] ALR 883 High Court of Australia Occupier’s liability — Duty to invitees — Reasonable use of premises FACTS P, a child aged four years, sustained injuries when his hand became caught in an escalator operating in D’s department store. At the point of entry to the escalator entrance a large notice was displayed: ‘Warning —

Children must not ride on this escalator unless accompanied by an adult.’ P was led on to the escalator by his mother who did not notice the sign. The mother became distracted with conversation and ceased to observe P who subsequently sat on the escalator and caught his hand. ISSUE Whether D had discharged its duty of care to the infant, P. DECISION The child was an invitee. However, the invitation or permission to use the escalator was subject to an implied condition that P would be in the effective physical control of an adult. P’s use of the escalator was not a reasonable use within that invitation and D was not in breach of any duty of care to P. ‘It seems to me it is certainly not a reasonable use of the moving staircase for an accompanied child to sit on its treads’ (at CLR 191 per Barwick CJ). [page 43]

[75] Davies v Mann (1842) 10 M & W 546; 152 ER 588 Court of Exchequer Contributory negligence — Originally doctrine of ‘last opportunity’ FACTS P negligently left his ass to graze on the public highway with its forefeet fettered. D negligently drove his team of three horses down the descent on the highway at a ‘smartish pace’ and hit and killed the ass. ISSUE Whether P’s negligent act excused D’s negligent conduct. DECISION ‘[A]lthough the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief’ (at M & W 549 per Parke B). D was liable for the consequences of his negligence.

[76] Day v Bank of New South Wales (1978) 18 SASR 163; 19 ALR 32 Supreme Court of South Australia Conversion — Defences — Contributory negligence as a defence FACTS P was a real estate agent. Two cheques, representing the deposit and balance of the purchase price of a parcel of land, were made out in favour of P. The first cheque was marked ‘or bearer’ and was received by a third party who was an agent for P and was deposited into that third party’s own account with the defendant bank. The second cheque was endorsed by the third party and was also deposited into his account. Following misappropriation of the proceeds of the two cheques by the third party, P sued D for conversion of the cheques as the bank had collected the cheques for the third party. ISSUE Whether D could argue contributory negligence on the part of P, as one of its defences, in that P suffered losses partly by its own fault. DECISION (on the question of contributory negligence): Contributory negligence is not a defence at common law to an action for conversion. [page 44]

[77] Deatons Pty Ltd v Flew (1949) 79 CLR 370 High Court of Australia Vicarious liability — Authorised acts FACTS D employed one Opal Ruby Pearl Barlow as a barmaid at its Hotel Manly. Barlow assaulted P by throwing the contents of a glass of beer and then the glass into P’s face, putting out P’s eye. Barlow alleged that P called

her foul names, reflecting upon her chastity and parentage. P sued both Barlow and her employer D for damages. D appealed against the finding of vicarious liability. ISSUE Whether D was vicariously liable for the employee’s conduct. DECISION The barmaid’s actions were not within the course of her employment and D could not be vicariously liable. ‘The truth is that it was an act of passion and resentment done neither in the furtherance of the master’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice’ (at 381–2 per Dixon J). Although it may be that acts of self-defence may so arise out of a servant’s acts done in furtherance of a master’s interests so as to be incidental to the servant’s duties, this case was not an act of self-defence.

[78] Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 Supreme Court of New South Wales False imprisonment — Trespass to the person FACTS P, who was a regular customer at D’s shop, was taken to the manager’s office as a result of suspected larceny. The police officer attended the scene and said to the manager ‘Do you wish to proceed?’, to which the manager replied in the affirmative. P was subsequently acquitted of the charge of larceny and then sued D for false imprisonment. ISSUE Whether D had committed the act of false imprisonment. DECISION (on appeal): It lay on P to establish that D had directly caused her imprisonment. The jury at first instance was justified in finding that, as a result of the conversation with the police officer, the arrest was the act of the defendants.

[page 45]

[79] Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171 High Court of Australia Tort — Tortfeasors — Contribution between tortfeasors FACTS A workman employed by Steel Mains (SM) sued his employer for damages for personal injuries suffered by him in the course of his employment and alleged to have been caused by the SM’s negligence. SM sought contribution from a former employer, Dillingham (D), on the ground that, while in the employ of D, the workman had suffered injury due to the negligence of D for which he had recovered damages. Those injuries sustained were of the same nature as those alleged in the current action with SM. Section 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 provided: ‘Where damage is suffered by any person as the result of a tort … (c) Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise ….’ ISSUE Whether the previous employer was also liable for the current claim. DECISION The claim against the previous employer is insupportable and should be struck out. Section 5(1)(c) deals only with the case of joint or concurrent tortfeasors in relation to the same injury and does not apply where there are successive injuries, unrelated both in occasion and in cause, by tortfeasors where each is not a tortfeasor in respect of both those injuries.

[80] Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 County Court of Victoria

Tort of privacy — Breach — Whether remedy available FACTS P was a 27-year-old woman who was twice raped by her estranged husband. As a consequence, P suffered post-traumatic stress disorder. D published a report revealing the offences as having occurred in Ps home and named the suburb. In one broadcast, D also revealed P’s name and identified her as the victim. The broadcast was heard by many of P’s friends who had hitherto not known of the attacks and in [page 46] consequence P received phone calls and inquiries. P sued D alleging breach of statutory duty (the journalist was convicted for publishing information identifying her as a victim of a sexual offence), negligence, breach of confidentiality and for breach of privacy. ISSUE Whether an action for breach of privacy was available in law. DECISION Finding D liable under each of the four separate heads of liability above, Judge Hampel accepted P’s argument that the High Court decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (see [14] above) left open the development, in appropriate cases, of a tort of privacy: ‘The wrong that was done here was the publication of personal information, in circumstances where there was no public interest in publishing it and where there was a prohibition on its publication. In publishing the information, the defendants failed to exercise the care which could be reasonably required of them to protect the plaintiff’s privacy and comply with the (statutory) prohibition on publication …’: at [163] per Judge Hampel.

[81] Donoghue (or McAlister) v Stevenson [1932] AC 562; [1932] All ER Rep 1 House of Lords

Negligence — Duty of care — Breach of duty — To whom is that duty owed — ‘Neighbour’ test FACTS P, a shop assistant, drank a bottle of ginger beer manufactured by the respondent, which a friend had purchased for her in a cafe. The bottle was made of dark opaque glass and P had no reason to suspect that it contained anything but ginger beer. While the friend was topping up P’s glass, a snail, which was in a state of decomposition, floated out of the ginger beer bottle. In consequence of the nauseating sight and of the impurities in the ginger beer which had already been consumed, P suffered severe shock and gastroenteritis and claimed damages. P alleged it was the duty of D to provide a system of working his business to prevent snails getting into the bottles and to provide an efficient system of inspection of the bottles before the ginger beer was filled into them, and that D had failed in both these duties and had so caused the accident. ISSUE Whether D had a duty of care to people who consumed its ginger beer. DECISION (by majority): The manufacturer of an article of food, medicine or the like sold by him in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser [page 47] or consumer to take reasonable care that the article is free from defect likely to cause injury to health. In this case the manufacturer was in breach of the duty of care owed to P and was liable for damages. Such a duty is owed notwithstanding there was no contractual relationship between the manufacturer and the consumer. Per Lord Atkin: ‘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’ (at AC 580).

[82] Douglas v Hello! Ltd (2001) [2001] QB 967; [2001] 2 All ER 289; [2001] 2 WLR 992 Court of Appeal Breach of privacy — Injunctions FACTS See the facts in the House of Lords case, below. The actors also brought an action to restrain publication of the photographs on the basis of breach of confidentiality and breach of a right to privacy. ISSUE Whether there is an actionable right to privacy. DECISION The Court of Appeal refused the injunction on the basis that a remedy in damages would be adequate. However P had an arguable claim based on a right of privacy. ‘English law will recognise, and, where appropriate, protect a right of personal privacy, grounded in the equitable doctrine of breach of confidence, which accords recognition to the fact that the law has to protect not only those whose trust has been abused but those who find themselves subject to an unwarranted intrusion into their personal lives’ (at QB 968 per Sedley LJ).

[83] Douglas v Hello! Ltd (No 3) (2007) [2007] UKHL 21; [2008] 1 AC 1 House of Lords Tort of breach of confidence — Economic loss FACTS

The magazine OK! contracted with Michael Douglas and

Catherine Zeta-Jones for the exclusive right to publish their celebrity wedding at the Plaza Hotel in New York. All other photography [page 48] was forbidden. The rival magazine, Hello!, published wedding photographs which it knew to have been surreptitiously taken by an unauthorised photographer pretending to be a waiter or guest. OK! sued Hello! arguing that this was interference by unlawful means with its contractual or business relations or a breach of its equitable right to confidentiality in photographic images of the wedding and was awarded damages exceeding £1 million. (The Douglases had brought separate actions against Hello! and recovered modest damages.) ISSUE Whether an action could be maintained for breach of confidentiality. DECISION by majority 3–2: That the photographs of the wedding were confidential, that there were circumstances of confidence and that publication of the photographs had been to the economic detriment of OK!.

[84] Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738; [1966] 3 All ER 214 Queen’s Bench Division Conversion — Possession — Actual or constructive possession FACTS P let out on hire-purchase two lorries, which were covered by special ‘A’ licences relating to the licensing of commercial vehicles, which substantially increased their value. As the result of a series of unauthorised transactions, including a purported sale by the hirer to D and by D to others,

the licences became irrevocably severed from the vehicles, with the result that when P recovered possession of the vehicles their value was substantially diminished. During the whole of the transactions the vehicles remained in the physical possession of the hirer. P sought damages for conversion. ISSUE Whether actual or constructive possession is necessary in conversion. DECISION Adverse possession by an alleged convertor was not an essential element in the tort of conversion, for dealing with the goods in a manner inconsistent with the rights of the true owner amounted to such, irrespective of an intention to deny the owner’s rights where the act done was necessarily a denial of those rights, or amounted to the assertion of a right inconsistent therewith. The transactions as a whole showed wrongful assumption of ownership by D which, coupled with acts as owner, constituted the tort of conversion, whether or not D had at any time any actual or constructive possession of the vehicles. Conversion covered the licence as well as the vehicles and P was entitled to damages representing the difference in market value before and after conversion. [page 49]

[85] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433; [2002] HCA 56 High Court of Australia Defamation — Publication — World-wide internet FACTS D, based in the USA, was the publisher of the Wall Street Journal and Barron’s Online on the internet. P alleged that he was defamed by an article in Barron’s entitled ‘Unholy gains’ which made reference to him and which he had downloaded from the internet. P alleged that the material was published in his home state of Victoria when downloaded by D’s subscribers.

D argued that the publication of the article on the internet occurred at the place of their servers which were maintained by D in New Jersey, USA and as such that place was the forum for the determination of the defamation suit. To do otherwise, D argued, would be to create multiple forums all over the world. ISSUE Where the act of defamation occurred, to determine forum. DECISION (upholding P’s right to sue in Victoria): That in the case of material on the worldwide web, it is where a person downloads the material that the damage to reputation may be done. Ordinarily then, that would be the place where the tort of defamation is committed. It was P’s reputation in the state of Victoria which P sought to vindicate. Accordingly, it followed that it should be determined according to the defamation laws of Victoria.

[86] Downs v Williams (1971) 126 CLR 61; [1972] ALR 97 High Court of Australia Statutory duty — Crown liability — Breach of duty FACTS P brought an action against Downs, a nominal defendant appointed under s 3 of the Claims Against the Government and Crown Suits Act 1912 (NSW) for damages for personal injuries suffered at premises alleged to be a factory under the control of the government of New South Wales. P was a pupil at a technical school conducted by the state, and the injury was alleged to have occurred at the school. By two of his counts, P alleged that his injury resulted from breaches by the occupier of the Factories, Shops and Industries Act 1962 (NSW) for failure to fence dangerous machinery. ISSUE Whether there had been a breach of statutory duty by D. [page 50]

DECISION (by majority): The Factories, Shops and Industries Act did not either expressly or by necessary implication bind the Crown and accordingly these counts did not disclose a cause of action and should be struck out. Also, s 3 of the Claims Against the Government and Crown Suits Act did not impose liability on the Crown for damages alleged to have been incurred as a result of a breach of a statutory duty if the statute alleged to impose the duty did not, of itself, bind the Crown.

[87] Dumont v Miller (1873) 4 AJR 152 Supreme Court of Victoria Trespass to land — No damages FACTS Dumont sued Miller for a trespass when Miller crossed Dumont’s property with a pack of beagles chasing a hare, although no damage was done. A verdict for the defendant was returned at first instance. On appeal it was argued that as the trespass was proved, the verdict should be for the plaintiff. ISSUE Whether absence of damages disentitled P to a verdict for trespass. DECISION Allowing the appeal and concurring with this view, a verdict for damages of one shilling.

[88] Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76 Supreme Court of New South Wales Negligence — Breach of duty — Resolution of council injuring ratepayer FACTS D refused consent to the erection of an eight-storey building on land where such building was permissible with D’s consent. It then passed

resolutions fixing a building line and limiting building heights to three storeys. These resolutions were later held to be invalid because of the want of fairness in giving notice to owners and conflict with the relevant ordinance. P, an owner of part of the land, sued for damages alleging, inter alia, negligence by D. ISSUE Whether D, in passing a council resolution, owed a duty to P. DECISION Even if D owed the owners of the land a duty to take reasonable care to see that a resolution which affected their land was one which it was lawfully entitled to pass, the council was entitled to rely upon advice which it received from its solicitors and its chief town planner and in the circumstances there was no breach of duty. [page 51]

[89] Dutton v Bognor Regis Urban District Council [1972] 1 QB 373; [1972] 1 All ER 462 Court of Appeal Negligence — Duty of care — To whom the duty is owed FACTS A builder constructed a house on his own land. D’s inspector examined and orally approved the foundations under the terms of local bylaws. The house was subsequently sold to C, and then to P. Soon after P moved in, serious defects developed in the internal structure of the house because the foundations were unsound as they were built on an old rubbish dump. An action for damages against the builder was settled. However, P also sought damages as a result of the negligent inspection by D. ISSUE Whether the council was under a duty of care to the new owner. DECISION The wide power to control all building in its area assumed by the council under the Public Health Act 1936 (UK) and the by-laws made under it, was exercisable for the protection and benefit of future owners and

occupiers and carried with it the duty at common law to take reasonable care to see that by-laws were complied with; and that the negligent approval of foundations, which resulted in a house being built and put on the market with a hidden defect likely to cause injury to a future purchaser, was a breach of that duty. P was within the class of persons, as described in Donoghue v Stevenson (see [81] above]), to whom the duty of care was owed.

[90] Eather v Jones [1974] 2 NSWLR 19 Supreme Court of New South Wales (Court of Appeal) Scienter — Strict liability — Vicious propensities — Imputed knowledge of owner FACTS A boy aged 11 was bitten by a colt owned by D, as the result of which three fingers of the boy’s left hand were amputated and he suffered other injuries. An action for damages was commenced alleging that the colt had a vicious propensity to attack humans, which was known to D, and that D kept the horse negligently. At trial there was evidence of D’s son being a witness to an apparent previous hostile incident involving the colt. The trial judge drew the inference that the son had told D of this previous incident in such a way as to fix him with knowledge of the colt’s vicious character. ISSUE Whether the knowledge of the son could be so imputed on his father. [page 52] DECISION (on appeal, by majority): The knowledge of the son should not be imputed to the father as a matter of law, because the son, by reason of his age (10), and the domestic situation, had not full control and custody of the colt in the relevant sense. The conclusion that the father had knowledge that the colt was vicious was based on conjecture, not inference. ‘[T]he

family relationship per se is not sufficient to visit the father with knowledge of viciousness possessed by the children or his wife’ (at 27 per Hutley JA).

[91] Edelsten v John Fairfax & Sons Ltd [1978] 1 NSWLR 685 Supreme Court of New South Wales Defamation — Remedies — Injunctions — Prima facie grounds for defence FACTS P, who was a medical practitioner, sought to continue an ex parte injunction restraining D from publishing certain articles detailing alleged abuses of and frauds upon the government health insurance scheme, Medibank, pending the hearing of any action for damages for defamation. D argued that it would defend an action for damages on the basis that the material which had already been published was published on an occasion of qualified privilege. ISSUE Whether the defence of qualified privilege on a prima facie basis was sufficient to refute the claim for interlocutory injunctions. DECISION It would be open to a judge, presiding at the trial of a claim for damages for defamation by P based upon the articles, to rule that they were published under qualified privilege. As there was a defence available to D which was one of some substance, the application to continue the injunction should be refused.

[92] Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241; 142 ALR 750 High Court of Australia Negligence — Economic loss — Cause of action

FACTS P lent money to Excel Finance Corporation Ltd which then went into liquidation. P sued D for damages for pure economic loss resulting from D’s alleged negligent auditing of the accounts of Excel. [page 53] ISSUE Whether D, as auditor of Excel, owed a duty of care to P. DECISION It was necessary for P to allege and prove that D knew or ought reasonably to have known that D’s information or advice on Excel would be communicated to P, either individually or as a member of an identified class; that the information or advice would be so communicated for a purpose that would be very likely to lead P to enter into a transaction of the kind that it did enter into; and that it would be very likely that P would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound.

[93] Evans v Balog [1976] 1 NSWLR 36 Supreme Court of New South Wales Damages — Assessment of — Cost of restoration of property — Diminution in value of property FACTS D commenced excavating a site it owned to provide a basement car parking area for premises which they proposed to erect there. The ground subsided along the boundary adjoining P’s property, undermining P’s house and rendering it uninhabitable. Liability was conceded; however, the question was the extent of damages recoverable. D argued that the true measure of damages was any diminution in the value of the house occasioned by D’s actions, and further that this figure was nil as P’s land was zoned for

high rise development, and it should be viewed as a development site only and thus the house had no market value and damages were nil. ISSUE What was the proper measure of damages in tort? DECISION (dismissing D’s appeal): The measure of damages in tort is that sum of money which will put the injured party in the same position as he would have been in if he had not sustained the wrong for which he is to be compensated. This may be achieved in different ways and a proper assessment is determined by the circumstances of the case and by the overriding requirements of what is reasonable. In this case P’s wish to reinstate the property which had been their home for many years was eminently reasonable, and the measure of damages will be the cost of restoring the house, not the diminution in the value of the land and its improvements. [page 54]

[94] Fenn v Paul (1932) 32 SR (NSW) 315 Supreme Court of New South Wales Malicious prosecution — Malicious abuse of civil proceedings FACTS P was cited by D in a divorce suit as having committed adultery with D’s husband. After D abandoned the suit, P sued to recover damages for malicious prosecution. ISSUE Whether the institution of the divorce proceedings constituted malicious prosecution. DECISION The mere bringing of an action, although brought maliciously and without reasonable or probable cause, does not give rise to an action for malicious prosecution. An action does not lie in the case for malicious abuse of legal proceedings.

[95] Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 Supreme Court of New South Wales (Court of Appeal) Nuisance — Private nuisance — Liability on a non-occupier FACTS A developer employed D to remove soil from a block of land which adjoined P’s land. Following completion of the excavation work, which was carried out in accordance with the developer’s instructions, there was left a sound, stable bank of earth which presented no immediate threat to P’s land. D believed that the developer would construct retaining walls to protect P’s land, but this never occurred. The developer went into liquidation. The following year after a period of heavy rain the face of the excavation subsided and the bank of earth eroded onto P’s land. ISSUE The question was whether D, who was found not to be in possession or occupation of the premises where the excavation was carried out, would incur liability in private nuisance. DECISION (finding D liable): A person who is on land with the authority of the occupier is liable for a nuisance which he creates on that land, even though he is neither in possession nor in occupation of the land, and even though he lacks the power to abate the nuisance. [page 55]

[96] Fitzgerald v E D & A D Cooke Bourne (Farms) Ltd [1964] 1 QB 249; [1963] 3 All ER 36 Court of Appeal Scienter — Animals mansuetae naturae — Whether vicious propensity FACTS P, while walking with her son and daughter along a public footpath

through a field, was injured by a young, unbroken thoroughbred filly which with another young filly came galloping across the field, pranced about her and knocked her down. P suffered a nervous breakdown and sued the owner of the filly, and the groom employed by the owners to look after the fillies, for damages. P argued that the filly which caused the injury was a dangerous animal to the knowledge of the defendants, and further that they should be liable in negligence for an incident which they should have foreseen and guarded against. ISSUE Whether strict liability or other claim in negligence was established. DECISION The filly was one of a class of animals mansuetae naturae, and in order to establish liability as for a dangerous animal on the ground of scienter it must be shown that the propensity complained of was one that was really likely to be dangerous. As the filly was merely indulging in a natural propensity to be playful and was not vicious or hostile, P’s claim based on scienter failed. P’s claim in negligence also failed as D was under no duty to prevent the filly from being on the footpath, which was a highway, and it was not established that D ought to have foreseen the likelihood of injury.

[97] Flewster v Royle (1808) 1 Camp 187 Nisi prius Trespass to the person — False imprisonment — Mistake FACTS D gave information that P was a fit person to serve His Majesty and was liable to be impressed for service. In consequence of this, P was seized by the press-gang and carried on board a ship and was detained until it was discovered that he had been wrongly impressed as he had never been on a ship before. [page 56]

ISSUE Whether D’s conduct, in giving information, amounted to trespass. DECISION (per Lord Ellenborough): There was clearly a trespass here in seizing P. Proof of malice is not necessary. If a person causes another to be impressed, he does so at his own peril, and is liable in damages if that person proves not to have been subject to the impress service. D positively averred that P was compellable to serve in a king’s ship and she must, therefore, answer for the consequences.

[98] Fontin v Katapodis (1962) 108 CLR 177; [1963] ALR 582 High Court of Australia Damages — Assessment of — Compensatory FACTS P was enraged over an accusation that he did not pay for certain goods at a store owned by D’s employer. An altercation developed during which P struck D with a T-square. D, thereupon, picked up an offcut of louvre glass and struck P with it. P sued D for assault and battery and also claimed D’s employer was vicariously liable for the assault by reason of the fact that D was, at the time, acting in the course of his employment. D pleaded self defence. The trial judge found only against D for the assault and reduced the assessment of damages by reason of P’s provocation. ISSUE Whether damages could be reduced because of the provocation. DECISION The damages were compensatory for pain, suffering, medical treatment etc, and not punitive or exemplary damages. They could not be reduced by reason of P’s provocation. ‘[T]he rule by which the defendant in an action in which exemplary damages are recoverable is entitled to show that the plaintiff’s own conduct was responsible for the commission of the tortious act and to use this fact to mitigate damages, has no application to damages awarded by way of compensation. It operates only to prevent the award of exemplary damages or to reduce the amount of such damages

which, but for the provocation would have been awarded’ (at CLR 187 per Owen J). [page 57]

[99] Fox v Percy (2003) 214 CLR 118; 197 ALR 201; [2003] HCA 22 High Court of Australia Appeal — Appellate Court duty to review the evidence — Reexamination of facts FACTS Barbara Fox claimed damages from Megan Percy when the horse she was riding collided with Percy’s Kombi. The crucial factual issue was whether Percy’s Kombi was on the wrong side of the road. The trial judge found in favour of Fox notwithstanding incontrovertible evidence of a 10metre skid mark on the road which suggested the Kombi was on the correct side of the road. The Court of Appeal overturned the trial judge’s decision due to that piece of evidence. On appeal to the High Court. ISSUE Whether the Court of Appeal should have reviewed the findings of fact by the trial judge in relation to the position of the Kombi. DECISION Dismissing the appeal: The Court of Appeal was correct in concluding the skid marks were incontrovertible evidence that the Kombi was on the correct side of the road. It was that court’s duty to review the evidence before the trial judge and determine the correctness or otherwise of the findings of fact of the trial judge. In this case the trial judge’s findings of fact were indeed erroneous.

[100] Froom v Butcher [1976] QB 286; [1975] 3 All ER 520 Court of Appeal

Damages — Contributory negligence — Reduction of assessment of damages FACTS P suffered head and chest injuries together with a broken finger in a car accident when the vehicle in which he was driving collided with a vehicle driven by D. The accident was caused by D’s negligent driving. P did not wear his seat belt at the time of the accident as he feared being trapped in the vehicle. The trial judge held that, in the absence of any statutory compulsion to wear a seat belt, P was not guilty of contributory negligence. [page 58] ISSUE What were the considerations in determining contributory negligence? DECISION (on appeal by D, allowing the appeal): That in determining whether P had been guilty of contributory negligence, the question was not what was the cause of the accident but what was the cause of the damage; that since the head and chest injuries were caused by the failure to wear the seat belt there should be an allowance for contributory negligence. As a general rule the court assessed a reduction of 25 per cent in situations where the damage could have been prevented altogether by wearing a seat belt and 15 per cent where some of the injuries could have been averted.

[101] Gala v Preston (1991) 172 CLR 243; 100 ALR 29 High Court of Australia Negligence — Duty of care — Proximity of relationship FACTS P and D, with two others, stole a car. P sued D after the car struck a tree as a result of D’s careless and drunken driving. The trial judge

dismissed the claim on the ground that their joint illegal enterprise prevented the court from determining the appropriate duty of care. ISSUE Whether, in a joint criminal enterprise, D owed P a duty of care. DECISION (on appeal, dismissing the appeal): The parties were not in a relationship of proximity to each other so that D would owe P a duty of care. Each of P and D must be taken to have appreciated that he would be encountering serious risks in the joy ride.

[102] Galashiels Gas Co Ltd v O’Donnell (or Millar) [1949] AC 275; [1949] 1 All ER 319 House of Lords Breach of statutory duty — Absolute statutory obligations FACTS The deceased was employed as a stoker in D’s gas works and was using an electrically operated lift to carry coke to a screening plant on the first floor. He emptied a bogie of its coke and ran it back into the lift shaft. However, owing to a brake failure, the lift had moved up the shaft and the deceased fell down the shaft and was killed. The Factories Act 1937 (UK) provided that ‘Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained’. The widow sued for damages alleging breach of [page 59] statutory duty. An inspection of the lift did not reveal the cause of the malfunction. ISSUE Whether those statutory obligations were qualified in any way. DECISION The statutory provisions imposed upon the occupiers of a factory an absolute and continuing obligation. ‘The words of the sub-section

[22(1)] are imperative “shall be properly maintained” and I can find nothing in the context or in the general intention of the Act, read as a whole, which should lead your Lordships to infer any qualification upon that absolute obligation’ (at AC 282–3 per Lord Morton of Henryton).

[103] Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382 Court of Appeal – New South Wales Nuisance — Damages — Whether limited to consequences that were reasonably foreseeable FACTS Gales owned a large site of undeveloped land in Kingscliff, New South Wales. Tweed did not adequately control storm water in developments upstream of Gales’ land and also took action to direct storm water through council-constructed storm water infrastructure onto Gales’ land. This created increases in storm water flow onto Gales’ land, with resultant ponding of the water on Gales’ land. The ponding helped create a habitat for the Wallum froglet, which is a threatened species of frog. Subsequent development consents for Gales’ land imposed conditions requiring it to then separate the part of the site which was a continuing habitat for the endangered frogs. Gales sued Tweed for damages based on nuisance in the Supreme Court, alleging loss of value of land caused by the creation of this frog protection area. ISSUE Whether or not it was reasonably foreseeable that the damage would create a habitat for the frog and cause consequent losses as a result of that nuisance. DECISION The Council was guilty of nuisance as it failed to properly address storm water flows upstream and deliberately used the site for storm water runoff. P’s failure to complain earlier did not mean that the nuisance was tolerated.

However, foreseeability limits the damages caused by the nuisance. In this case, it was not reasonably foreseeable that the nuisance caused by council would result in the creation of a habitat for threatened frogs on [page 60] the land. Council was still liable in nuisance for certain costs directly related to the additional storm water flows that constituted the nuisance. However, it was not liable in damages because of the establishment of the habitat for a threatened species such as the Wallum froglet. The consequent losses caused by that nuisance were not reasonably foreseeable.

[104] General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314; [1963] 1 WLR 644 Court of Appeal Detinue — Damages — Forms of judgment — Assessment of damages FACTS P let a mobile crane on hire-purchase to a company which, in breach of the agreement, purported to sell the crane to G who, in turn, sold it to R, who delivered it to D to carry out certain repairs to it. D refused to return the crane to P as it claimed a lien on it. P obtained judgment in an action in detinue; damages were assessed by the Master at £150 and the crane was not to be returned. P appealed, arguing that there should have been separate figures for the value of the goods and for the damages for the detention of the goods, so as to enable P, if it preferred the return of the goods to payment of the assessed value, to apply for a writ of delivery. ISSUE What form of judgment in detinue could be obtained by P? DECISION The judgment in detinue for the return of the goods or their

value, and for damages, did not divest P of ownership of the crane. P was entitled to a separate assessment of the value of the crane before deciding whether to exercise its rights to make application for a writ of delivery. The case was remitted to the Master for a new assessment with separate figures for the crane’s value and the damages.

[105] Geyer v Downs (1977) 138 CLR 91; 17 ALR 408 High Court of Australia Negligence — Duty of care — When a duty arises FACTS P, aged eight, attended Blacktown Primary School. Although no regular supervision was provided until 9.00am each day, in accordance with Education Department direction, many children started arriving [page 61] from 8.15am. D, the headmaster, permitted the children to enter the school; however, his instructions were that the children should sit quietly or read until 9.00am. P suffered severe brain damage when she was hit by a softball bat in a softball game which took place before 9.00am. P sued D for damages in negligence and also brought the action against the government of New South Wales on the grounds of vicarious liability. The jury’s verdict for P was set aside by the Court of Appeal on the basis that the relationship of schoolteacher/pupil was not such as to give rise to a duty of care at that time of the morning. ISSUE Whether a duty of care by the school arose prior to school time. DECISION (on appeal): Restoring the verdict — the duty of care owed by the headmaster required that he should take such measures as in all the circumstances were reasonable to prevent physical injury to his pupils. In this case the injury was of a kind which was foreseeable, and might have been

prevented had there been supervision of the playground activities. It was open to the jury to conclude that a duty of care arose in the mornings before 9.00am when the children were allowed onto the grounds.

[106] Giller v Procopets (2008) 24 VR 1; 40 Fam LR 378; [2008] VSCA 236 Court of Appeal – Victoria Privacy — Breach of — Videos FACTS D videoed a series of sexual encounters between himself and P, some filmed surreptitiously, some filmed with her consent. Later D showed the videos to some people; he also left a copy with P’s father and he contacted P’s employer. P sued D for damages for breach of confidence, intentional infliction of mental harm and breach of privacy. The trial judge dismissed each of those three causes of action. On appeal: ISSUE Whether there exists a cause of action for breach of privacy. DECISION (allowing the appeal) P was found to have suffered distress and humiliation but had not suffered any mental illness. It was unanimously decided that a case for breach of confidence for such distress (even though not a psychiatric illness) had been made out regarding unauthorised display of the videos and an award of damages was made. The court found it then unnecessary to decide on whether a tort of breach of privacy should be recognised under Australian law — although they did not rule it out, either. [page 62]

[107] Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 Supreme Court of New South Wales (Court of Appeal)

Negligence — Causation — Successive injuries — Damages FACTS D employed P as a stockman at an abattoir. P suffered successive injuries to his back during his employment. First, he slipped on a concrete step while he was driving cattle up a race onto the killing floor. Second, 16 months later, P slipped on a shallow drain in the concrete floor while driving cattle into pens. P sued for damages for, inter alia, negligence and breach of statutory duty in respect of the accidents. At the trial the jury assessed general damages of $5,000. D successfully appealed to the Court of Appeal alleging that the general damages were excessive, and general damages were reduced to $1,500. P also successfully appealed against the trial judge’s decision to withdraw certain counts, alleging breaches of the Factories Shops and Industries Act 1962 (NSW), and a new trial on these issues was ordered. ISSUE What are the criteria for damages assessments involving successive injuries? DECISION Kerr CJ and Jacobs JA considered the question which arises where, between the date of the injury sued on and the date of trial, the plaintiff has suffered a further injury which by itself has the effect of extinguishing or greatly reducing the plaintiff’s working capacity. Their Honours stated the position as decided by the House of Lords in Baker v Willoughby (see [17] above), that a plaintiff was still entitled to be compensated for the losses sustained from the initial injury.

[108] Goldman v Hargrave [1967] 1 AC 645; [1966] 2 All ER 989 Privy Council Negligence — Duty of care — Standard of duty FACTS See the facts in Hargrave v Goldman (1963) 110 CLR 40 (at [118] below) — the High Court decision summarised therein. ISSUE What is the standard required of the duty of care of an occupier?

DECISION (dismissing the further appeal): The occupier of land is under a general duty of care, in relation to hazards (whether they arise [page 63] by an act of God, or from natural causes or by human agency) occurring on his land to remove or reduce such hazards to his neighbour, and the standard of the duty of care required of the occupier is to do what is reasonable having regard to his individual circumstances. In this case the action needed to extinguish the fire, particularly by water, was within the capacity of D, and D is liable for his negligence, notwithstanding that he did not initially cause the fire.

[109] Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 High Court of Australia Negligence — Highway authority — Non-feasance FACTS During a night of heavy rainstorms, P’s truck was driven into a large hole in a state highway in Tasmania, killing the driver, who was an employee of P, and damaging the truck. The hole was caused by the collapse of a culvert underneath the roadway through which ran a natural watercourse. D was under a statutory duty to ‘cause all State highways … to be maintained as it shall direct’. P sought to recover damages for the truck and goods being carried and for the workers’ compensation paid to the widow. The trial judge held that D was under no liability for non-feasance and there was no evidence of misfeasance and a verdict was directed for D. ISSUE Whether a statutory duty arose giving rise to an entitlement to damages. DECISION (dismissing the appeal): D was not under an absolute duty to keep in repair the roadway and D, as a highway authority, is not liable for a

non-feasance. Fullagar J, in his decision, outlined the development of case law on this point and summed up the principles by saying ‘(1) that at common law no person or persons, corporate or unincorporate, is or are subject to any duty enforceable by action to repair or keep in repair any highway of which, whether at common law or by statute, he or they or it has or have the management and control, and (2) that if a duty to repair or keep in repair a highway or highways … is imposed by a statute on any such person or persons … that duty is not enforceable by action unless the statute makes it clear by express provision or necessary implication that the duty is to be enforceable by action at the suit of a person injured by its breach’ (at 375–6). [page 64]

[110] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337; [2002] HCA 54 High Court of Australia Negligence — Duty of care FACTS P and others contracted hepatitis following the consumption of D’s oysters. In 1996, there was heavy rainfall around Wallis Lake where the oysters were grown, with the water run-off increasing the risk of contamination from sewage and other pollutants. There had not been such an outbreak of hepatitis in 100 years of D’s oysters farming and D had followed its standard testing procedures. P sued D in negligence and also sued the local council and the state, arguing they were negligent by omission in failing to prevent the hepatitis outbreak. ISSUE Whether a duty of care was owed by each defendant. DECISION Neither the state nor the council nor D were liable in negligence. Whilst the public authorities had responsibility for public health and safety, that duty did not extend to individual consumers of Wallis Lake

oysters. The oyster grower had a duty to take reasonable care to see that their oysters were fit for human consumption but they did not breach that duty.

[111] Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62 Supreme Court of Victoria Public nuisance — Unreasonable interference — Unlawful use of land FACTS P operated a multi-storey car park. D commenced a rival operation nearby on a vacant allotment where an old theatre had been demolished and started undercutting P’s prices. P objected to D’s application for a permit to so operate and D continued to operate without a permit. P sought an injunction to restrain D from unlawfully using the land as a car park and further alleged that D’s actions constituted a public nuisance with the congestion it caused in the surrounding streets. ISSUE Whether D’s conduct amounted to a public nuisance. [page 65] DECISION (per McInerney J, dismissing P’s application): On the facts there was no evidence that any obstruction of traffic caused by D’s conduct in operating the open air car park was so unreasonable either in quantum or duration as to constitute a nuisance. Also, ‘I find no hint in the case law of any doctrine that interference with public rights neither substantial nor unreasonable, is actionable as a public nuisance merely because it is committed in the course of the carrying on of an unlawful trade’ (at 72).

[112] Grant v Australian Knitting Mills Ltd [1936] AC 85; [1935] All ER Rep 209

Privy Council Negligence — Duty of care — Breach of duty — Liability in tort FACTS Dr Grant contracted dermatitis from two pairs of ‘Golden Fleece’ long underpants owing to the presence of excess sulphites which it was found had been negligently left in the garments in the process of manufacture. The dermatitis became so severe that Grant was hospitalised for some months. Grant claimed damages against the manufacturer and the retailer from whom he purchased the garments. ISSUE Whether the manufacturer of the underpants owed a duty of care to the wearer. DECISION (Lord Wright delivering the judgment of their Lordships): The presence of the sulphites in the garments was a hidden, and latent defect and could not be detected by any examination that could reasonably be made. The underwear reached P in the same defective condition as that in which it was when it left the manufacturers. The underwear was made for the purposes of apparel as worn by P. These facts establish a duty to take care as between the manufacturer and P. There has been a breach of this duty and D is liable for its negligence. ‘One further point may be noted. The principle of Donoghue’s case can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent … It is enough now to say that their Lordships hold the present case to come within the principle of Donoghue’s case’ (at AC 105, 107–8). Additionally, the retailers were liable in contract for breaches of statutorily implied warranties. [page 66]

[113] Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 High Court of Australia

Damages — Assessment of — Allowance for gratuitous services FACTS P became a quadriplegic as the result of a car accident in which D was held negligent. In an action for damages in the Supreme Court of South Australia the trial judge included in his assessment of damages an amount of $15,000, representing the value of gratuitous services rendered by P’s fiancée and his family, to the date of judgment. His Honour also assessed $80,000 as the cost of future care of P and he stated that one-half of this sum was a component for services to be rendered by the fiancée and the family in the future. D appealed against the assessment of damages. ISSUE Whether the value of the gratuitous services ought to be included in the damages awarded. DECISION The trial judge was correct in allowing P to recover the value of the gratuitous services provided and to be provided in the future by the fiancée and the family, even though P was under no legal liability to pay for those services. There is also no foundation for the theory that P would hold the sum in question on trust for the person who provided the services.

[114] Grosse v Purvis [2003] QDC 151 District Court of Queensland Tort of privacy — Whether actionable FACTS P, a shire councillor on the Sunshine Coast in Queensland, sued her former lover D for damages for negligence, harassment, nuisance, trespass to the person and intentional infliction of physical harm. P claimed D’s conduct constituted ‘stalking’ of her, including loitering near her places of work and residence, and argued D’s conduct amounted to a breach of her privacy. ISSUE Whether the tort of invasion of privacy existed.

DECISION (per Skoien DCJ): It was noted that there had been no case in Australia which expressly recognised the civil right of action for invasion of privacy. A test was formulated: (a) a willed act by D; (b) which intrudes upon the privacy or seclusion of P; (c) in a manner which would be considered highly offensive to a reasonable person of ordinary [page 67] sensibilities; (d) and which causes P detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders P from doing an act which she is lawfully entitled to do. The stalking was found to be such actionable behaviour and damages were awarded.

[115] H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791 Court of Appeal Damages — Remoteness of damage FACTS P ordered a bulk food storage hopper from D for storing pignuts as feed for P’s top grade pig herd. D’s delivery man failed to ensure that the ventilator on the hopper was open and, in consequence, the pignuts became mouldy. The mouldy nuts caused the outbreak of an intestinal infection in the herd which killed 254 pigs. P brought an action for damages for breach of contract. ISSUE The question was whether the damage was too remote to be recoverable. DECISION P should recover damages for breach of contract as the injury to the pigs was within the contemplation of the parties if the hopper was unfit for the storage of nuts. However, the court also discussed the problem of the law’s reconciliation of the different standards for the remoteness principle in contract with that in tort. The court stated that in a factual

situation where all have the same actual or imputed knowledge and the contract contains no term limiting the damage recoverable for breach, the amount of damages recoverable does not depend upon whether, as a matter of legal classification, the plaintiff’s cause of action is in breach of contract or tort. It may be that the necessary reconciliation is to be found in holding that the difference between ‘reasonably foreseeable’ (the test in tort) and ‘reasonably contemplated’ (the test in contract) is semantic, not substantial.

[116] Haber v Walker [1963] VR 339 Supreme Court of Victoria Negligence — Causation — Foreseeability FACTS P’s husband committed suicide while mentally unbalanced and depressed as a result of injuries received in a motor accident caused by D’s negligence. The death occurred almost 18 months from the date of the injury brought about by the collision, and it was immediately brought [page 68] about by the deceased’s own actions in hanging himself. An action for the widow and eight children, under s 16 of the Wrongs Act 1958 (Vic), required P to establish that the deceased’s death was caused by some act, neglect or default of the defendant. The jury found that the death was caused by the motor accident, but that the suicide was not something which could have been reasonably foreseen by D. Judgment was, however, entered for P. On appeal: ISSUE Whether reasonable foreseeability was a requirement. DECISION (by majority, dismissing the appeal): In an action under s 16 of the Wrongs Act brought in these circumstances, the test of liability was whether the death was caused by the wrongful act, default or neglect of D.

Reasonable foreseeability was not a requirement. It was merely that the death by suicide was a consequence of the negligence.

[117] Haley v London Electricity Board [1965] AC 778; [1964] 3 All ER 185 House of Lords Negligence — Duty of care — Standard of duty — Breach of duty FACTS Each day P, a blind man, would walk down the road for some 50 yards before getting someone to help him cross the road and board a bus to travel to work. One morning D’s workmen had commenced excavating a trench in the pavement. P, with his white stick, missed the obstacle (a punner-hammer) which the workmen had placed to guard the trench, and tripped and fell on to the pavement, in consequence of which P became deaf. P sued for damages. ISSUE The main issue was the extent and nature of the duty of care owed to pedestrians by persons who carry out operations on a city pavement. DECISION The duty of care extended to all those persons whose use of the roadway was reasonably likely and thus reasonably foreseeable; in the circumstances D’s servants did not adequately discharge that duty. ‘It is their duty to take reasonable care not to act in a way likely to endanger other persons who may reasonably be expected to walk along the pavement. That duty is owed to blind persons if the operators foresee or ought to have foreseen that blind persons may walk along the pavement and is in no way different from the duty owed to persons with sight, though the carrying out of the duty may involve extra precautions in the case of blind pedestrians’ (at AC 794 per Lord Morton of Henryton). ‘The punner-hammer was not, in my view, an adequate precaution to take against the blind pedestrian’ (at AC 808 per Lord Guest).

[page 69]

[118] Hargrave v Goldman (1963) 110 CLR 40 High Court of Australia Negligence — Duty of care — Breach of duty — Nuisance FACTS D owned a 600-acre property in Western Australia. During an electrical storm a tall tree which stood near the centre of D’s land was struck by lightning and the fork of that tree, more than 80 feet above the ground, caught fire. The next day D ordered the tree cut down. Three days later the fire revived in high winds and spread from the felled tree and caused damage to P’s sawmill which stood on an adjoining property, and also damaged other adjoining properties. The seven actions brought against D were consolidated but were dismissed at the trial. ISSUE Whether the duty of care was founded in tort or in nuisance. DECISION (on appeal): On the facts D did not take reasonable steps after felling the tree to extinguish the fire fully, particularly as he had the available resource of a 600-gallon water tank. ‘But 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 … he failed to discharge this duty … is we think unassailable. We add that on this view it is of no consequence whether this liability rests in negligence or nuisance’ (at 53 per Taylor and Owen JJ). See the subsequent appeal to the House of Lords, Goldman v Hargrave, at [108] above.

[119] Harnett v Bond [1925] AC 669; [1925] All ER Rep 110 House of Lords

False imprisonment — Directly causing restraint FACTS P, who had been committed to a private mental asylum known as Malling Place, was granted a leave of absence from the asylum on probation for 21 days but with a proviso authorising the medical officer to take back P during that time if P’s mental condition required it. P went to see a Commissioner in Lunacy, Dr Bond, who, believing P not to be in a fit condition, detained him for a few hours while the asylum manager, Dr Adam, despatched attendants to take P back to confinement at Malling Place. P remained in mental institutions for a further nine years before escaping and proving himself sane. P then sued Bond and Adam for false imprisonment. The jury gave a verdict against Bond for £5,000 [page 70] and both defendants for £20,000, but these verdicts were overturned by the Court of Appeal. P appealed to the House of Lords. ISSUE Whether the actions of Dr Bond caused the false imprisonment. DECISION The subsequent detention of P at various institutions was not the direct consequence of Bond’s wrongful act. The retaking and confinement were independent acts of Adam, and each of them was a novus actus interveniens sufficient to break the chain of causation from Bond’s act. The liability of Bond did not extend beyond that period of Bond’s act of detention. Adam was acting under lawful authority and was not liable for false imprisonment.

[120] Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69; 62 ALJR 240 High Court of Australia Duty of care — Proximity

FACTS D, a firm of solicitors, prepared a will for a Mrs Brasier which appointed P as executor. After Mrs Brasier’s death, D commenced preliminary legal work regarding the estate; however, they failed to take any steps to locate P or to inform him of the death. Probate in the estate was not obtained for some six years after death and the estate suffered economic losses by that delay. ISSUE Whether the solicitors owed a duty of care to the beneficiaries. DECISION (by majority): D, as custodians of Mrs Brasier’s will, owed P a duty of care to take reasonable steps to locate P and inform him of his appointment as executor. Breach of that duty was actionable by P in his capacity as executor for losses incurred by the estate.

[121] Haynes v G Harwood & Son [1935] 1 KB 146; [1934] All ER Rep 103 Court of Appeal Negligence — Rescue — Good Samaritan actions — Volenti FACTS A horse-drawn van, owned by D, was left unattended in a street by D’s deliveryman. A boy threw a stone at the horses causing them to bolt along the street where there were many people. P, a police officer, succeeded in stopping the horses but sustained injuries in consequence and claimed damages against D for negligence. D argued that P was a volunteer and that his injuries were caused by his own voluntary act. [page 71] ISSUE Whether P voluntarily assumed the risks for his own conduct. DECISION (finding that D’s servant was negligent in leaving the horses unattended): As the police were under a duty to intervene to prevent injury to persons using the highway, the act of, and injuries to, P were the natural

consequences of D’s negligence, and the principle of volenti non fit injuria did not apply to prevent P recovering damages.

[122] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] 2 All ER 575 House of Lords Negligence — Duty Misrepresentation

of

care

—

Economic

loss

—

FACTS The appellants (HB), a firm of advertising agents, were proposing to undertake an extensive advertising program on behalf of a customer, Easipower Ltd. HB was doubtful of the financial position of Easipower and instructed HB’s own bankers to obtain a report. The bankers’ head office contacted the respondents who were a firm of merchant bankers and who gratuitously supplied information, giving a favourable report of Easipower. However, that report also contained a disclaimer on the part of the respondents, stating that such information was ‘without responsibility on the part of this bank or its officials’. HB relied on these statements and incurred substantial liabilities for the advertising expenses when Easipower went into liquidation. HB sought to recover this loss from the respondents as damages, on the grounds that their replies were given negligently and in breach of the respondents’ duty to exercise care in giving such replies. The Court of Appeal found that there existed no such duty of care in these circumstances. ISSUE Whether a duty of care to prevent economic loss existed. DECISION (on appeal): That a negligent, though honest, misrepresentation (spoken or written) may give rise to an action for damages for financial loss caused thereby, apart from any contract or fiduciary relationship (since the law will imply a duty of care when a party seeking information from a party possessed of special skill trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed on his skill and judgment). However, since here there was an express disclaimer of responsibility, no such duty was, in any event, implied. Lord

Morris of Borth-y-Gest: ‘Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person [page 72] who, as he knows or should know, will place reliance upon it, then a duty of care will arise’ (at AC 503).

[123] Herd v Weardale Steel, Coal & Coke Co Ltd [1915] AC 67 House of Lords False imprisonment — Failure to perform a duty — Volenti FACTS P, a miner, descended his employer’s coal mine for his 9.30am to 4.00pm shift down the mine. In the ordinary course of events, P would be entitled to be raised to the surface at the conclusion of his shift. P refused to do certain work in the mine on the ground that it was unsafe and, at 11.00am, requested to be taken to the surface. D refused to permit P to use the lift until 1.30pm although it had been available since 1.10pm and, in consequence, P was detained in the mine against his will for 20 minutes. ISSUE Whether P was entitled to claim damages for false imprisonment. DECISION On the principle of volenti non fit injuria, that the action could not be maintained. ‘The man chose to go to the bottom of the mine under these [employment] conditions — conditions which he accepted. He had no right to call upon the employers to make use of special machinery put there at their cost, and involving cost in its working, to bring him to the surface just when he pleased’ (at 73 per Viscount Haldane LC).

[124] Herring v Boyle (1834) 1 Cr M & R 377; 149 ER 1126 Court of Exchequer Trespass to the person Cognisance of restraint

—

False

imprisonment

—

FACTS P, an infant, had been placed by his mother at the school kept by D. When the mother applied to take P away, the schoolmaster refused to give him up unless she paid an amount which he claimed to be due. ISSUE Whether the schoolmaster’s actions constituted false imprisonment. DECISION The schoolmaster’s actions did not amount to a trespass as there was no evidence that P was at all cognisant of any restraint. ‘As far [page 73] as we know, the boy may have been willing to stay’ (at Cr M & R 381; ER 1127 per Bolland B).

[125] Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 Supreme Court of New South Wales (Court of Appeal) Scienter — Dangerous animals — Whether ‘escape’ necessary FACTS P attended an auction sale of cattle at Camden. While there he was knocked down and injured by a bull. P brought an action for damages against D1 (the auctioneer) in whose cattle yards the bull was then being held, and against D2 (the owner) who had sent the bull to auction. ISSUE Whether D1 was liable in negligence and D2 was absolutely liable

under the scienter rule. DECISION Finding the owner strictly liable for damages, but on the facts he should recover a full indemnity against the auctioneer, who had been informed by the owner’s son of the bull’s dangerous tendencies. Held further, discussing issues concerning the scienter rule: the owner is strictly liable for damage caused whether or not the animal has escaped from its confinement. Further, this liability, being strict, cannot be terminated by transferring custody of the animal to an independent contractor (the auctioneer). Further, contributory negligence was not an available defence.

[126] Hill (Trading as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 High Court of Australia Negligence — Duty of care — Proximity FACTS D, who was a Queensland solicitor, asked P’s husband to witness a will of Mrs Currey, which he did. The will left a half share in a house and some furniture to P. Under the Succession Act 1981 (Qld) a gift to the spouse of a witness is null and void. P successfully sued D for $163,000 in damages. On appeal by D: ISSUE Whether the solicitor owed a duty of care to the beneficiaries. DECISION (dismissing the appeal): D owed P, as an intended beneficiary under the will, a duty of care, which thus made D liable in negligence. [page 74]

[127] Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 Supreme Court of New South Wales (Court of Appeal)

Damages — Mitigation of losses FACTS As a result of D’s negligence, P’s tractor and mower which had a market value of $1,850 and were used to crop lucerne in P’s dairy farming business, were destroyed by fire. Unable to find suitable secondhand replacements, new items were bought at a cost of over $5,000. The trial judge found that P had taken reasonable steps to mitigate their loss and assessed the quantum of damages by the losses which would have been incurred had the new equipment not been purchased. D appealed arguing that damages were assessed on the wrong basis. ISSUE What was the true measure of damages to which P was entitled? DECISION (by majority, allowing the appeal and ordering a re-trial): The principle of restituto in integrum is the dominant rule of law in relation to the measure of damages and such rule is not overridden by any rules of practice. The measure of damage was the net detriment arising from the acquisition of the new equipment, after taking into account all ensuing events connected with the loss, or its mitigation, including any gain connected with, or arising out of, the latter. A plaintiff should not receive more than his true loss.

[128] Hoebergen v Koppens [1974] 2 NZLR 597 Supreme Court of New Zealand Trespass to the person — Contributory fault — Provocation — Damages FACTS P was a market gardener who had been involved in various animosities with his neighbour, D, particularly relating to D’s alleged damaging of P’s crops with careless spraying. Following another altercation in a garage, P said, ‘Oh shut up you Dutch bastard’, whereupon D struck P in the mouth and stomach and said, ‘No one calls me a Dutch bastard’. On appeal:

ISSUE Whether damages awarded should be reduced by P’s provocation by insulting language. DECISION P was partly to blame for what happened as he was aware of the hostility. P, accordingly, failed to take such care of his own safety as the ordinary reasonable man would have taken. Damages should be reduced in [page 75] accordance with the provisions of s 3(1) of the Contributory Negligence Act 1947 (NZ). Provocation was a ground for mitigating exemplary or aggravated damages, but not for mitigating compensatory damages.

[129] Hogan v A G Wright Pty Ltd [1963] Tas SR 44 Supreme Court of Tasmania Trespass — Remoteness of damage — Consequential damage FACTS D wrongfully entered P’s land by means of a bulldozer and broke P’s fence. A number of horses escaped, including a young filly which was injured while being rounded up by P. In consequence of these injuries P was forced to destroy the horse some six months later. P claimed the value of the filly in damages. ISSUE Whether the loss of the filly was too remote from the incident. DECISION It was held that the question was whether the destruction of the filly was such a consequence of the breaking down of the fence. ‘The principle appears to be, that consequences which flow from the action of animals following their natural propensities may be said to be the natural or reasonable consequences of the original wrongful act, where such action on the part of the animals ensues upon the wrongful act’ (at 48 per Neasey J).

The loss of the filly was a natural consequence of the trespass and P is, therefore, entitled to her value.

[130] Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263; [2001] HCA 44 High Court of Australia Negligence — Vicarious liability — Employment relationship FACTS P sued D for damages when he was knocked down by an unidentified bicycle courier who was wearing a ‘Crisis Couriers’ uniform at the time of the accident. P unsuccessfully argued that the unidentified cyclist was the servant or agent of D, the court finding no vicarious liability as the courier was an independent contractor, not an employee, nor agent. On appeal: ISSUE Whether D was vicariously liable for the unidentified rider. DECISION (allowing the appeal): D was vicariously liable for the negligent acts of the unidentified bicycle courier. The conduct by D of an enterprise in which persons were identified as representing that enterprise, should carry with it an obligation to third persons to bear [page 76] the costs of injury or damage to them which may fairly have been said to be characteristic of the conduct of that enterprise. The notion of ‘control’, that D did not control the cyclist’s riding, was but one factor in determining the nature of the relationship between the cyclist and D, leading to the conclusion of vicarious liability.

[131] Holloway v McFeeters (1956) 94 CLR 470

High Court of Australia Negligence — Proof of breach — No witnesses FACTS The husband of the respondent died as a result of injuries sustained by him when his car was struck by an unidentified vehicle. The respondent sought to recover damages against the nominal defendant, based upon the allegation made by inference from marks on the roadway etc, as there were no witnesses, that the driver was driving in a negligent manner. The jury found a verdict for the respondent but reduced the quantum by 50 per cent holding, as they did, that the deceased was equally to blame. ISSUE The question on appeal was whether there was any evidence upon which the jury was entitled to find negligence on the part of the unidentified driver. DECISION There was no evidence concerning the movements of either vehicle in the critical few seconds before impact. All sorts of possibilities as to how the accident happened may be imagined. The question was, whether it was reasonably open to the jury on the evidence to find that the death of the deceased was caused, wholly or in part, by the negligence of the driver of the unidentified vehicle. All that was necessary was that, according to the course of common experience, the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. Applying these principles, it was thus open to the jury to make such a finding.

[132] Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468; [1936] 1 All ER 825 King’s Bench Division Private nuisance — Intention to disturb — Malicious acts FACTS P and D were neighbours. D was about to develop his land as a

building estate and requested P to take down a sign which read ‘Hollywood Silver Fox Farm’ as he believed this would be detrimental to his estate. P carried on the business of breeding silver foxes and, during the breeding [page 77] season, the vixens become very nervous and are liable to miscarry or destroy their young if disturbed. D then caused his son to discharge guns on his own land as near as possible to the breeding pens to disturb the vixens. P sought an injunction and damages. D argued he committed no actionable wrong as he was entitled to shoot on his own land. ISSUE Whether D’s malicious actions carried out on his own land could constitute a private nuisance. DECISION D’s actions were intended to cause the harm which ensued and P is entitled to an injunction and damages notwithstanding that the firing took place on D’s own land, over which he was entitled to shoot. Having regard to the intention of the person making the noise, the action in nuisance was maintainable.

[133] Home Office v Dorset Yacht Co Ltd [1970] AC 1004; [1970] 2 All ER 294 House of Lords Negligence — Duty of care FACTS A party of Borstal boys was working on Brownsea Island in Poole Harbour under the supervision and control of three Borstal officers. During the night seven boys escaped and went on board a yacht which they found nearby. This yacht was set in motion and collided with Dorset’s yacht which was moored in the vicinity. The boys boarded Dorset’s yacht and caused further damage. Dorset sued the Home Office for damages alleging negligence against the officers. In reply it was denied that any duty of care

was owed to Dorset with respect to the detention and control of the boys. On appeal: ISSUE The preliminary issue was whether a duty of care existed. DECISION The Borstal officers owed Dorset a duty to take such care as was reasonable, in all the circumstances, with a view to preventing the boys under their control from causing damage to Dorset’s property if that was a happening of which there was a manifest risk if they neglected that duty. Further, there was no reason on the grounds of public policy to exclude Borstal officers of such a duty.

[134] Horrocks v Lowe [1975] AC 135; [1974] 1 All ER 662 House of Lords Defamation — Defence of privilege — Express malice FACTS At a meeting of the Bolton Borough Council D made a speech criticising P both as a member of the Management and Finance [page 78] Committee of the council and as chairman of a land development company. The speech concluded with a request that P be removed from the committee. P brought an action for slander, in which he accepted D’s plea that the words were spoken on a privileged occasion but alleged that D was actuated by express malice. The trial judge found that D believed that everything he said was true and justifiable; however, he also found that owing to D’s anxiety to have P removed from the committee, his state of mind was one of ‘gross and unreasoning prejudice’ from which express malice could be inferred, and P was awarded damages. The Court of Appeal held that D’s belief, that everything he said was true, entitled him to succeed on his defence of privilege. On appeal:

ISSUE Whether the defence of privilege was available to D. DECISION Since D had an honest belief in the truth of what he had said, he was entitled to succeed in his defence of privilege. Gross and unreasoning prejudice could not give rise to malice in a case when such prejudice had induced D to believe in the truth of his allegations.

[135] Hughes v Lord Advocate [1963] AC 837; [1963] 1 All ER 705 House of Lords Negligence — Damage — Foreseeability — Remoteness of damages FACTS Post office employees opened a manhole in a street to carry out work on underground telephone cables. While the workers were on a tea break an eight-year-old boy took one of the four paraffin warning lamps around the site and went inside the canvas tent which enclosed the manhole to explore. The boy tripped and the lamp fell down the hole. An explosion occurred and the boy sustained severe burns. P claimed damages alleging that the workers in leaving the manhole unattended were in breach of the duty of care which they owed to P. D argued first that P was a trespasser and also that if a duty was owed, such a chain of events leading to the explosion and damages was not reasonably foreseeable. ISSUE Whether the chain of events leading to the injuries was reasonably foreseeable. DECISION The workers were in breach of the duty of care which they owed to P. The cause of the accident was a known source of danger (the paraffin lamp); however, it behaved in an unpredictable way with regard to the explosion. Although the injuries were sustained in a manner which could not have been foreseen, the burns were nonetheless sustained and it was foreseeable that this type of injury might occur from the boy playing in and about the canvas shelter with the lamps.

[page 79]

[136] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; 296 ALR 3; [2013] HCA 10 Negligence — Damages — Proportionate liability FACTS Two fraudsters, one of whom was a solicitor, forged a business partner’s signature (Vella) and used the certificates of title to a number of Vella’s properties to secure $1 million in loans from Morgan. In other words, the fraudsters induced Morgan into a loan agreement to which it would not otherwise have agreed. As a result of negligent drafting by Morgan’s lawyers at Hunt & Hunt, the mortgage was worded to secure money owed by the business partner (Vella) to Morgan. As Vella was the victim of fraud and not liable to pay Morgan, the mortgage effectively secured nothing. The contentious issue on appeal was whether Hunt & Hunt were concurrent wrongdoers with the fraudsters and were therefore liable only for the proportion of Morgan’s loss that reflected their responsibility. The Court of Appeal held that Hunt & Hunt were wholly responsible for Morgan’s losses, therefore the fraudsters did not cause the loss claimed by Morgan and they were therefore not liable as concurrent wrongdoers. ISSUE Whether or not the lawyers were solely responsible for the damages or whether they were a concurrent wrongdoer with the fraudsters and thus damages would be apportioned. DECISION Held the lawyers were a concurrent wrongdoer with the fraudsters, and so their liability could not exceed the proportion apportioned to them by the trial judge. Although Morgan’s inability to enforce the mortgage over Vella’s property was directly caused by the lawyers’ negligent drafting of the mortgage document, the whole transaction was the result of the fraudsters’ work. Thus the fraudsters contributed to the loss caused by the lawyers’ negligent drafting.

[137] Hutchins v Maughan [1947] VLR 131; [1947] ALR 201 Supreme Court of Victoria Trespass — Direct interference — Consequential injuries FACTS D laid baits for dogs on some unfenced land. P, who had been droving 2,000 ewes in the vicinity, was warned by D of the presence of the baits. P did not believe D and moved his sheep and dogs onto the land. Two sheep dogs picked up the baits and died. The claim for damages was laid alternatively in negligence, nuisance or trespass. The magistrate awarded damages for trespass. [page 80] ISSUE Whether such an action in trespass could be maintained by P. DECISION (on appeal) The injury suffered by the complainant was consequential upon and not directly or immediately occasioned by the act of the defendant and, accordingly, an action in trespass did not lie.

[138] Ilott v Wilkes (1820) 3 B & Ald 304 King’s Bench Division Trespass to land — Volenti non fit injuria FACTS D set a number of spring guns in his private 60-acre wood, one of which was near to a right of way. Notices were placed along the right of way to this effect. P, having been advised by his companion of the presence of the spring guns, went into the wood to gather nuts and was injured when he triggered one of the spring guns. ISSUE Whether, by P’s own conduct, he voluntarily assumed his own risks.

DECISION P did not have an action for damages; the maxim of volenti non fit injuria applied, for he voluntarily exposed himself to the mischief which had happened. P had notice that the spring guns were placed in the wood. Upon entering the wood he was a trespasser and had no right to bring an action against the owner of the soil for the consequences of his own imprudent and unlawful act.

[139] Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647; [2008] HCA 40 High Court of Australia Negligence — Duty of care FACTS P suffered spinal injuries in a motor accident in the Northern Territory. P was a front seat passenger, supervising D, the driver, who was aged 16 and on a learner’s permit. The outback road was rocky and D swerved to avoid some tyre debris, causing the vehicle to roll. P sued D. ISSUE The standard of care owed by an inexperienced driver. DECISION The standard of care owed by an inexperienced driver to his supervisor was the same as the normal standard of a reasonable driver. P, as supervising D, or if just another passenger, or if just another road user – all are owed the same duty of care, that of a reasonable driver. [page 81]

[140] Imperial Chemical Industries Ltd v Shatwell [1965] AC 656; [1964] 2 All ER 999 House of Lords Negligence — Defences — Voluntary assumption of risk

FACTS P was employed by D as a qualified shot-firer which involved carrying out blasting operations at D’s quarries. P and his brother, who was also an experienced shot-firer, both carried out a pre-detonation ‘continuity test’ on the electric wiring to the explosives in disobedience of D’s strict orders and of statutory regulations which required all testing to be done from a proper shelter to protect the testers. By conducting the continuity test in the open, P and his brother were in clear breach of the regulations and, in the result, both were injured, P seriously. P brought an action for damages for his brother’s negligence, and alleged D was vicariously liable. The trial judge gave judgment for P but reduced the damages by one-half to take account of P’s contributory negligence. ISSUE Whether P’s own conduct gave rise to voluntary assumption of risk. DECISION (on appeal): Where two fellow-servants combined to disobey an order deliberately, though they knew the risk involved, volenti non fit injuria was a complete defence if the employer was not himself at fault and was only liable vicariously for the acts of the fellow servant. ‘If the plaintiff invited or freely aided and abetted his fellow-servant’s disobedience, then he was volens in the fullest sense. He cannot complain of the resulting injury either against the fellow-servant or against the master on the ground of his vicarious responsibility for his fellow-servant’s conduct’ (at AC 672–3 per Lord Reid).

[141] Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd [1968] 1 NSWR 392 Supreme Court of New South Wales (Court of Appeal) Trespass to land — Unauthorised conduct — Trespass pro tanto FACTS D sold to P, on 60 days credit terms, various electrical goods to be sold by P in its retail stores. The property in such goods passed to P. Subsequently D sold further goods to P on a display plan agreement and, in respect of these goods, it retained the property until sold by P at retail. After

a receiver had been appointed to the plaintiff company, D organised a simultaneous raid on all of P’s stores and retook possession of not only the goods which remained in the ownership of D but also the goods which had been sold to P on credit. [page 82] ISSUE Whether D was liable to P for trespass to land, trespass to goods and conversion of the goods. DECISION (by the Court of Appeal with regard to the action for trespass to land): That, although D may have initially entered the premises by leave and licence in accordance with the display plan agreement, such leave and licence extended only to the repossession of the display plan goods. D was not licensed to use the premises for improper use and the acts done subsequently without any authority amount to a trespass pro tanto, and D was liable for trespass to land.

[142] Innes v Wylie (1844) 1 Car & K 257; 174 ER 800 Queen’s Bench Division Trespass to the person — Assault — Passive obstruction FACTS P challenged the decision of the Caledonian Society of London to expel him from membership and attempted to enter a hotel room to attend a dinner of the society. A policeman, on the orders of the defendants, prevented P’s entry and P sued for assault. ISSUE Whether passive obstruction could constitute a trespass. DECISION Lord Denman CJ, in summing up, stated: ‘If the policeman was entirely passive like a door or a wall put to prevent the plaintiff from entering the room, and simply obstructing the entrance of the plaintiff, no

assault has been committed on the plaintiff … The question is, did the policeman take any active measure to prevent the plaintiff from entering the room, or did he stand in the doorway passive, and not move at all’ (at Car & K 263).

[143] Insurance Commissioner v Joyce (1948) 77 CLR 39 High Court of Australia Negligence — Defences — Volenti non fit injuria FACTS Mr Kettle drove himself and his friend P to pick up Kettle’s wife and then to return to pick up P’s wife and thence to travel on to a wedding. The trip to pick up Mrs Kettle was two miles. They never arrived. Two hours later the motor car crashed into a parked vehicle and then into a fence. There were indications that liquor had been consumed. Kettle was found asleep under some bushes, drunk. Kettle’s insurer joined the action as a defendant. P claimed damages for Kettle’s negligent driving. [page 83] ISSUE Whether P, as a willing passenger, voluntarily assumed the risk. DECISION (dismissing P’s action): P was aware of the dangers and voluntarily assumed the risk. ‘The plaintiff’s case depends upon his affirmatively establishing the proposition that his injuries were caused by the negligence of the defendant, Kettle. This conclusion, however, rests upon inference from all the proved facts, and the other inferences mentioned namely, contributory negligence on the part of the plaintiff [at that time a complete defence] and voluntary assumption of an obvious risk, are equally consistent with those facts. Accordingly it should be held that the plaintiff’s claim has not been established’ (at 48 per Latham CJ).

[144] International Factors Ltd v Rodriguez [1979] QB 351; [1979] 1 All ER 17 Court of Appeal Conversion — Title to sue — Proprietary rights FACTS By a standard factoring agreement P purchased the book debts of D’s company. The agreement provided that should D receive a payment of an assigned debt, it was to be held in trust and handed over to P. In breach of this agreement D instructed his company to bank four cheques received by it into the company’s account. P sued for conversion. ISSUE Whether P had proprietary right in the cheques to then sue for conversion. DECISION The trust arose upon receiving the cheques and D and the company were obliged immediately upon receipt to hand over the cheques to P, and this constituted a sufficient proprietary right for P to sue for conversion. D disposed of the cheques in such a way as to take them away from P, and putting the cheques into the company’s bank account amounted to a conversion.

[145] Italiano v Barbaro (1993) 40 FCR 303; 114 ALR 21 Federal Court of Australia Negligence — Duty of care — Proximity — Illegality FACTS P was a passenger in D’s car which was hit by a car driven by R. R’s evidence was that they had been planning to fake an accident in order to claim insurance, and that during the plan a car came out of a carpark with such speed that R’s car was forced into D’s car. It was claimed that this was a real accident, not the orchestrated one which

[page 84] was being planned. P successfully sued D for damages. On appeal, by D’s insurance company: ISSUE Whether P’s participation in a criminal activity disentitled him to a duty of care. DECISION Allowing the appeal; whether or not the collision was a genuine accident, there should be a verdict for D. It was not feasible for the law to define an appropriate standard of care between participants in a serious crime. At the time of the accident there was a special and exceptionable relationship between the parties, namely, that of conspirers engaged in the furtherance of a conspiracy, under which D was not in a relationship of proximity.

[146] Jackson v Harrison (1978) 138 CLR 438; 19 ALR 129 High Court of Australia Negligence — Duty of care FACTS Two youths, both of whom knew that they were disqualified from driving a motor car, took a car on a ‘jaunt’ from Adelaide to Port Augusta. Due to the appellant’s negligence in driving the car, it swerved across the roadway and collided with vehicles stationary at the side of the road. Both youths were injured and P sued D for damages. ISSUE The question was whether their joint participation in an illegal venture of both of them driving the vehicle without a licence would disentitle P’s right to recovery. DECISION (on appeal): P was not disabled from recovering damages from D as there was still a duty of care owed by D. The facts concerning the joint illegal enterprise had no bearing on the standard of care reasonably to be

expected of the driver. A plaintiff’s case would only fail when the joint illegal enterprise in which he and the defendant were engaged was such that the court could not determine the particular standard of care to be observed.

[147] Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 High Court of Australia Negligence — Duty of care — Nervous shock — Proximity FACTS P’s husband suffered injuries in a motor cycle accident caused by D’s negligence. P was called to the hospital and told that her husband [page 85] was ‘pretty bad’. The next day P was told her husband was in intensive care. Later that morning she was again summoned to the hospital after being told there had been ‘a change for the worse’. P’s husband survived, but P nearly didn’t and she successfully sued for damages for nervous shock. ISSUE Whether the relationship between D and P was sufficiently proximate to found a duty of care. DECISION D owed P a duty of care. She was a ‘neighbour’ of D. It was foreseeable that she would suffer nervous shock. P personally perceived the aftermath of the accident although not at the scene but at the hospital. The events constituting the nervous shock were part of the aftermath. The fact that the shock was sustained at the hospital and that it was sustained by reason of her own observations and conversation with hospital staff did not prevent recovery of damages.

[148] John F Goulding Pty Ltd v Victorian Railways Commissioners

(1932) 48 CLR 157 High Court of Australia Detinue — When cause of action accrues — Demand FACTS P delivered to D goods to be carried by rail and upon arrival to be then redelivered to the order of P. The goods safely arrived at the place to which they were consigned but were delivered or removed by persons who were not entitled to receive them. The Railways Act 1928 (vic) required P to take legal action within six months after ‘the act complained of was committed’. P brought an action in detinue more than six months after the loss of the goods by D but less than six months after P made a demand for the goods. ISSUE The question was whether, notwithstanding the previous loss of the goods by D, a new cause of action arose upon D’s failure to deliver the goods upon P’s request. DECISION The conditions of the bailment upon which D received the goods was to deliver them up in compliance with an order from P. Unless the bailment was prematurely extinguished it would continue until redelivery pursuant to P’s orders or until lawful disposal by statute or by conditions, express or implied, of the bailment. D, by its own wrongful act inconsistent with the terms of the bailment could not, against the will of the bailor, terminate the bailment or discharge itself of the obligations of bailees. A cause of action in detinue arose upon the failure to deliver the goods upon P’s request. [page 86]

[149] John Lewis & Co Ltd v Tims [1952] AC 676; [1952] 1 All ER 1203 House of Lords

False imprisonment — Right of detention — Reasonable delays FACTS P and her daughter entered D’s store and her daughter stole four calendars. After leaving the premises the two were accosted by store detectives and returned to D’s store to be detained until the chief store detective and the managing director heard the account of the two detectives, after which the police were sent for and both were subsequently charged. The daughter was tried and convicted but the charges against P were withdrawn. P claimed damages for false imprisonment against D. The Court of Appeal affirmed the trial judge’s finding in favour of P. ISSUE Whether P’s detention amounted to a false imprisonment. DECISION (on appeal): Where a person in exercise of his common law right arrests another, his duty is to take that person before a justice or to a police station not necessarily forthwith but as soon as is reasonably possible. The action of detaining P to obtain the authority of the managing director to prosecute was not an unreasonable delay before handing P over to the police and, accordingly, D was not liable for false imprisonment.

[150] Jones v Livox Quarries Ltd [1952] 2 QB 608 Court of Appeal Negligence — Defences — Contributory negligence — Causation FACTS P, a workman at a quarry, during his lunch hour rode on the towbar of a slow-moving traxcavator. The workmen had been instructed not to ride on the quarry vehicles. While the traxcavator was almost stationary, another vehicle, a dumper, negligently ran into him from the back as he stood on the towbar, and P was crushed between the two vehicles. ISSUE The question was whether P was guilty of contributory negligence

such as to reduce his damages. DECISION P had suffered damages which were caused partly as the result of his own fault, and damages were reduced accordingly. ‘Even though the plaintiff did not foresee the possibility of being crushed, nevertheless in the ordinary plain common sense of this business the [page 87] injury suffered by the plaintiff was due in part to the fact that he chose to ride on the towbar to lunch instead of walking down on his feet’ (at 616 per Lord Denning).

[151] Jones v Schiffman (1971) 124 CLR 303; [1972] ALR 632 High Court of Australia Damages — Assessment of — Prospects of remarriage FACTS A widow brought an action under the Compensation to Relatives Act 1897 (NSW) for the death of her husband. The trial judge’s award of $10,000 in general damages was increased to $20,000 on appeal on the ground that the judge had too heavily discounted the award because of the widow’s capacity to remarry. On appeal to the High Court: ISSUE What relevance to the damages assessment was ‘prospects of remarriage’? DECISION The appeal to the High Court was dismissed with members of the court making observations on this factor in the assessment of damages. ‘It is not in my opinion a question as to whether the widow is likely to remarry and if so, with what financial success … The question, I think, is what is the value to this widowed plaintiff of her freedom to marry’ (at CLR 306 per Barwick CJ). ‘The extent to which the prospects of a particular widow

marrying again will reduce the damages recoverable by her is not, however, a matter which can be governed by rules, even by imprecise rules. It is a matter for the judgment of the assessor in the circumstances of the particular case’ (at CLR 308 per Menzies J).

[152] Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520; [1982] 3 All ER 201 House of Lords Negligence — Economic loss — Proximity FACTS The respondents contracted with a building company to construct a factory for them. In the course of construction the respondent’s architects nominated the appellants as subcontractors to lay a concrete floor with a special surface in the main production area of the factory. The appellants duly contracted with the builder, but there was no contractual relationship between the respondent and the appellant. Two years after the floor was laid, cracks developed in the surface and the respondent was faced with the prospect of continued repairs. The respondents sued the appellants [page 88] in negligence seeking damages for the cost of replacing the floor and for consequential economic loss arising out of the moving of machinery, closing of the factory, payment of wages and loss of profits during the period of replacement. The subcontractors argued that there was no cause of action as there was no allegation that the flooring was a danger to the health or safety of any person or there was risk of damage to property. ISSUE Whether the relationship between the parties was sufficiently proximate to found a duty of care. DECISION (by majority dismissing the subcontractor’s appeal): The action in negligence could lie. Where the proximity between a person who

produced faulty work or a faulty article and the user was sufficiently close, the duty of care owed by the producer to the user extended beyond a duty merely to prevent harm being done by the faulty work or article, and included a duty to avoid faults being present in the work or article itself. The producer was liable for the cost of remedying defects in the work or article or for replacing it and for any consequential economic loss. The damage caused was a direct and foreseeable result of the subcontractor’s negligence in laying a defective floor.

[153] Kandalla v British European Airways Corporation [1981] QB 158 Queen’s Bench Division Damages — Assessment of — Compensation to relatives FACTS P, an elderly Iraqi, who was proposing to come to live in England, claimed damages against D on behalf of himself and his wife as dependants of their two deceased daughters who were killed in an aircraft crash. The claim was made as dependants under the Fatal Accidents Act 1846–1959 (UK). However, they also claimed damages on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 (UK) for earnings the daughters would have been expected to make but for their premature death (referred to as the ‘lost years’). ISSUE What was the proper basis for the assessment of damages? DECISION Griffiths J expressed his disapproval of results which provide a windfall for the dependants, by virtue of their claim for the ‘lost years’, who would recover not only fair compensation for their pecuniary loss as they had hitherto done under the Fatal Accidents Acts but an additional sum over and above such losses. ‘In my view there is no material before the court upon which it could properly make any award for the “lost years” over and above that which it assessed for the parents’ support’ (at 173).

[page 89]

[154] Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181; 52 ALJR 189 High Court of Australia Negligence — Duty of care — Employer’s ‘personal’ duties FACTS P, who was a fettler employed by D, was hit in the eye by a chip of metal while fellow workmen were attempting to remove a fishplate which joined together two lengths of train rails. In his pleadings P alleged D failed to provide a safe system of work rather than relying upon D’s vicarious liability for the dangerous method of removal of the fishplates and the negligence of the fellow workmen. ISSUE Whether a duty of care arose in the employer/employee relationship. DECISION (by majority): In this instance at least the case made out by P, although framed in terms of a breach of the so-called ‘personal’ duty resting upon the employer, was in fact no different from that which would establish vicarious liability in D. The issue was whether the method by which work was being undertaken in proximity to P was such as to show a lack of reasonable care for P’s safety and, this being so, D was liable in negligence.

[155] Kealley v Jones [1979] 1 NSWLR 723 Supreme Court of New South Wales (Court of Appeal) Damages — Assessment of — Loss of consortium FACTS The wife sued D for injuries she received in a motor accident. The husband sued D for injuries he received and for loss of consortium of his wife.

ISSUE What damages are recoverable for loss of consortium? DECISION The trial judge’s assessment of $10,000 damages for loss of consortium was reduced by majority on appeal to $5,000 and the members of the court commented on this factor in assessment of damages. Samuels JA said: ‘The husband may claim damages for his wife’s lost or impaired capacity to provide the domestic services or companionship she was wont and able to render before the injury. It is, therefore, the wife’s diminished performance which is in question. Hence, no damages are recoverable if she continues to do what she did before although, as Hutley JA has put it, “with a scowl rather than a smile”; and the husband has no remedy for distress caused by his wife’s moroseness [page 90] or melancholy … The damages are to compensate him for the loss of services and society, and not for the feelings of emotional deprivation which the wife’s incapacity may produce’ (at 746–7).

[156] Kelly v Hazlett (1976) 75 DLR (3d) 536 Ontario High Court of Justice Trespass to the person — Consent — Informed consent FACTS In consequence of rheumatoid arthritis, P had a stiff and deformed right elbow and numbness in the right hand. P consented to D, an orthopaedic surgeon, carrying out operations to remove the stiffness and numbness; however, D advised against the operative treatment — an osteotomy — necessary to correct the deformity as this would be too much for P. Just prior to the operation P insisted on having an osteotomy. D, though attempting to discourage P, did not tell P that there was a risk of an additional stiffness to the elbow from the osteotomy. A consent form

authorising the operation was duly signed. Following the operation P suffered additional stiffness and sued D in battery and negligence. ISSUE Whether D discharged his duty to adequately warn P of the risks. DECISION If the basic nature and character of the operation performed is substantially that of which P was advised, and then agreed to, then there has not been an unconsented-to invasion of the person of the plaintiff, regardless of any failure to disclose any collateral risks flowing from the operation. However, such failure, if it can be shown to have resulted in damage to the patient, and was not justified by reasonable medical considerations, may properly be subject matter for a claim based on negligence. D was not liable in battery but it was his duty to advise P of the special risk involved in an osteotomy and, accordingly, was liable in negligence.

[157] Kemsley v Foot [1952] AC 345; [1952] 1 All ER 501 House of Lords Defamation — Defences — Fair comment FACTS Under the headline ‘Lower than Kemsley’ which referred to P, a well-known newspaper proprietor, D published an article criticising the conduct of another newspaper unrelated to P. In P’s action for damages [page 91] for libel, D pleaded the defence of fair comment. P now sought to have this defence struck out as such a defence was not available because no facts appeared in the article to support the statement made in the headline. ISSUE Whether D was entitled to plead the defence of fair comment. DECISION The question is whether there was a sufficient substratum of

fact stated or indicated in the words which are the subject matter of this action which was sufficient to form a basis for the comment. If so, it was unnecessary for all the facts on which the comment was based to be stated in order to admit the defence of fair comment. In this case, the substratum of fact upon which the comment is based is that Lord Kemsley is the active proprietor and responsible for the Kemsley Press. The criticism is that the Kemsley Press is a press of low standards. Any facts sufficient to justify that statement would entitle D to succeed on a plea of fair comment. The defence was not struck out.

[158] Kent v Scattini [1961] WAR 74 Supreme Court of Western Australia Negligence — Defences — Volenti non fit injuria FACTS P, a 16-year-old girl, was a passenger with a group of friends in a car driven by D, which was chasing another group of youths to retaliate in a water fight. P sustained injuries when the car in which she was travelling failed to take a bend and skidded and overturned in the loose gravel. ISSUE Whether the defence of volenti non fit injuria could apply. DECISION Although P consented to take part in the ‘fun’ and ran the risk of getting wet and perhaps being involved in some scrimmage with the occupants of the other car, there was no reason to think that P consented to D driving around a bend at a fast speed, nor should P have foreseen the likelihood of D so doing.

[159] Keppel Bus Co Ltd v Sa’ad Bin Ahmad [1974] 1 WLR 1082 Privy Council Vicarious liability — Actions in the course of employment

FACTS An altercation broke out between P and the conductor of a bus owned by D, in the course of which each tried to hit the other. [page 92] The other passengers intervened and separated them. The conductor then began collecting fares and as he did so he abused P in Chinese, using a very rude expression. P asked the conductor not to use abusive language and the conductor struck P in the eye with his ticket punch, breaking P’s glasses and causing the loss of sight of an eye. ISSUE Whether the conductor’s actions were within the course of his employment. DECISION Although the keeping of order among the passengers is part of the duties of a conductor, there was no evidence of disorder at the time of the assault. The evidence falls short of establishing an implied authority to take violent action where none was called for. There were no facts indicating an emergency situation calling the forcible action justifiable upon any express or implied authority with which D could be said on the evidence to have clothed the conductor.

[160] Khorasandjian v Bush [1993] QB 727; [1993] 3 All ER 669 Court of Appeal (Civil Division) Private nuisance — Remedies — Injunctions FACTS P’s love for D was unrequited. D refused to accept P’s statement that she wanted nothing more to do with him and began harassing P, assaulting her and threatening violence. D was subsequently imprisoned for threatening to kill P. An injunction was granted restraining D from using violence to, harassing, pestering or communicating with P in any way. D argued that there was no jurisdiction to restrain D from ‘harassing, pestering

or communicating with’ P because those words did not reflect any tort known to the law. ISSUE What were the elements of a private nuisance and the remedies available? DECISION (by majority) dismissing the appeal: The court had jurisdiction in private nuisance to grant an injunction restraining persistent harassment by unwanted telephone calls. The tort of private nuisance originated as an action to protect private property or rights of property. The inconvenience and annoyance to the occupier of the property caused by such telephone calls are sufficient damage in the tort of private nuisance. The essence of nuisance is a condition or activity which unduly interferes with the ordinary and reasonable use or enjoyment of land, as occurred here. [page 93]

[161] Kiddle v City Business Properties Ltd [1942] 1 KB 269; [1942] 2 All ER 216 King’s Bench Division Nuisance — Implied consent FACTS P leased a shop in an arcade from D. Rainwater from the roof, which was under D’s control, ran into a gutter and drainpipe over P’s shop. Due to a blockage the rainwater overflowed into P’s shop and damaged his stock. P’s claim for damages was based on nuisance and negligence. However, the evidence showed that D had made satisfactory arrangements for periodical inspection and cleaning of the pipes and so the claim in negligence failed on the facts. ISSUE Whether a claim in nuisance could nevertheless be established. DECISION (concerning the claim in nuisance): The lessee of a portion of premises must take them as he finds them. ‘It is now settled law that where

the plaintiff and the defendant occupy parts of the same building, whether it be two floors of a warehouse, two sets of offices, or two flats, and water which is laid on to the building escapes and does damage, the person from whose part the escape takes place is not liable in the absence of negligence’ (at KB 274 per Goddard LJ). As negligence has not been proved, D cannot be held liable.

[162] Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; 58 ALJR 531 High Court of Australia Negligence — Duty of care — Master and servant — Vicarious liability FACTS P was employed by D dismantling a structure at a railway yard. A crane operator, working as the employee of an independent contractor to D, deliberately dropped a metal rod from the crane’s jib, thus injuring P who was standing underneath. The operator was found to have failed to keep a proper lookout or to have warned of his intention to drop the rod. The trial judge’s decision finding D negligent was overturned on appeal but, on appeal to the High Court: ISSUE Whether D was vicariously liable for the operator’s actions. DECISION D’s foremen had failed to direct P not to stand under the crane jib during the work and D’s duty to provide a safe system of work was nondelegable, therefore, D was liable for the crane operator’s omission to adopt a safe work system. [page 94]

[163] Konskier v B Goodman Ltd [1928] 1 KB 421; [1927] All ER Rep 187

Court of Appeal Trespass to land — Continuing trespass FACTS D received written permission from the owner of an adjoining property to partly demolish a chimney standing on a party wall, in return for a promise to rebuild it and make good any damages. Following completion, a quantity of debris was left on the roof of the adjoining property which blocked a drainpipe. P later tenanted the property and, when, as a result of the blocked pipe, his basement flooded during a rainstorm, sued D for damages. ISSUE Whether leaving the debris on the roof constituted a trespass. DECISION D had no more than a limited licence to leave rubbish on the roof and was bound to remove it when the work was finished. By failing to remove it D became a trespasser and the trespass was a continuing trespass. The new occupier had a cause of action.

[164] Kraemers v Attorney-General (Tas) [1966] Tas SR 113 Supreme Court of Tasmania Nuisance — Reasonableness of conduct — Natural use of land FACTS The Public Works Department obtained a licence to remove gravel from certain privately owned land, for roadwork purposes. On that land there existed a bank which had the physical effect of preventing surface water which came down a gully from flowing into an old gravel pit and percolating from the pit to P’s land. The workmen removed the bank and the surface water flowed into the gravel pit and percolated through to P’s land, causing damage. The trial judge found D not liable in nuisance as the bank had been removed for the sake of the gravel and that this was the reasonable and natural use of the land for mining purposes.

ISSUE Whether D’s use of the land was a reasonable and natural use. DECISION (on appeal): ‘The cause of action in nuisance is unlawful interference with the plaintiff’s enjoyment of his land. Interference causing material damage, whether it could reasonably be anticipated or not, is prima facie unlawful and it is for the defendant to allege and prove lawful justification in accordance with some recognised criterion of exculpation from liability such as “natural” and reasonable user causing [page 95] the damage which could not reasonably have been avoided’ (at 123 per Bradbury CJ). The defendant should also establish that the nuisance could not have been prevented by taking reasonable precautions. In this case D created the nuisance and its actions could not be characterised as proper and reasonably skilful mining, and D was liable for all damage proved to have resulted from seepage of water caused by removal of the bank.

[165] Lester-Travers v City of Frankston [1970] VR 2 Supreme Court of Victoria Nuisance — Defences — Statutory authority FACTS P’s house was situated adjacent to the defendant council’s golf links. Over a period of several years golf balls had landed on her property, at times causing slight damage. P sought an injunction based on nuisance. D denied any nuisance and claimed that it was acting under statutory authority which permits the use of golf links. ISSUE Whether P could establish a defence of statutory authority for its use of the land, thus disentitling P to injunctive relief for nuisance. DECISION

On the facts, the intrusion of golf balls had substantially

interfered with P’s use and enjoyment of her property and as such amounted to a private nuisance. The statutory powers conferred upon D to operate golf links were permissive powers as distinct from mandatory powers, and ‘there are very many cases in which statutory bodies and others, acting under permissive statutory powers, have been restrained from committing private nuisances in the same way a private individual would have been restrained’ (at 15 per Anderson J). D had not taken reasonable precautions and P was entitled to an injunction.

[166] Letang v Cooper [1965] 1 QB 232; [1964] 2 All ER 929 Court of Appeal Trespass — Definitions — Intention to cause injury FACTS P was on holiday in Cornwall and sustained injuries while sunbathing on a patch of grass in the hotel grounds which was used as a car park when D, not noticing the presence of P, drove his Jaguar motor car over her legs. More than three years later P sued D for damages in negligence and trespass. P argued that actions on the case, as in [page 96] negligence, were statute barred after three years whereas trespass to the person was so barred only after six years. ISSUE The question was whether the action was statute barred. In view of the time periods, it was necessary for the court to define the cause of action. DECISION The only cause of action here where such injuries were unintentional was in negligence and as such was statute-barred under the Law Reform (Limitation of Actions, etc) Act 1954 (UK). Further, that Act covered all tortious breaches including trespass, in any event. ‘Instead of dividing actions for personal injuries into trespass (direct damage) or case

(consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. … If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass’ (at QB 239 per Lord Denning).

[167] Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48 Supreme Court of New South Wales Negligence — Duty of care — Standard of duty — Abnormal plaintiffs FACTS P received a box of free samples of D’s products. P used the bath salts sample, in consequence of which her skin turned red and an itch developed which persisted for some time. The evidence indicated that the salts were compounded of the usual ingredients but that P was allergic or idiosyncratic to the substances contained in the salts. ISSUE On the issue of negligence the court was bound to consider the duty owed to P and whether the fact that P was ‘abnormal’ of itself created special duties for D to be careful which do not exist in the case of normal persons. DECISION ‘It is only if a reasonable man ought to realise that what he is doing is likely to cause injury to others unless it is done carefully, and would therefore take care to prevent some injury, that he becomes subject to a duty to take the appropriate precautions. Where the act is incapable of injuring an ordinary person, the person who does it owes no duty to do more by reason only of the possibility that a person of abnormally accentuated susceptibility may be affected by it’ (at 52 per Jordan CJ). There was no evidence that the ingredients in the salts were dangerous. No special duty was owed to P. [page 97]

[168] Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151 House of Lords Defamation — Innuendoes of words published FACTS Articles were published in the Daily Telegraph and Daily Mail under the headlines ‘Enquiry on Firm by City Police’ and ‘Fraud Squad Probe Firm’ which stated that the police were inquiring into the affairs of a company of which P was the chairman. In his statement of claim P alleged that the words were meant and were understood to mean that P had been guilty of or was suspected by the police of being guilty of fraud or dishonesty. It was alleged that these were inferences or innuendoes from the words complained of. D denied that the words were capable of such a meaning from the jury and directed the jury that the words could bear the meaning alleged in the innuendo and that they might properly so find. ISSUE What were the true meanings of the words in the defamation suit? DECISION (on appeal, ordering a new trial): It was for the trial judge to rule whether the words were capable of imputing guilt of fraud as distinct from suspicion, and his failure to do so amounted to a misdirection. Further, the words in question were not capable of implying guilt of fraud in their ordinary meaning and the jury should have been so directed. ‘The natural and ordinary meaning of words for the purposes of defamation is not their natural and ordinary meaning for other purposes of the law. There must be added to the implications which a court is prepared to make as a matter of construction all such insinuations and innuendoes as could reasonably be read into them by the ordinary man’ (at AC 236 per Lord Devlin).

[169] Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174; [1979] 2 All ER 910 House of Lords

Damages — Assessment of — Allowance for inflation FACTS Following a minor operation P, a senior psychiatric registrar who was 36 years of age, suffered a cardiac arrest as the result of the negligence of some person for whom D was vicariously responsible. P suffered extensive and irremediable brain damage. ISSUE Whether allowance should be made for future inflation on the assessment of damages. [page 98] DECISION The law is now settled that only in exceptional cases, where justice can be shown to require it, will the risk of future inflation be brought into account in the assessment of damages for future loss. If it can be demonstrated that an assessment of damages without regard to the risk of future inflation would not result in fair compensation (bearing in mind the investment opportunity that a lump sum award offers) some increase would then be permissible.

[170] Lipman v Clendinnen (1932) 46 CLR 550; [1933] ALR 20 High Court of Australia Negligence — Occupier’s liability — Duty to licensees FACTS D was the owner of a block of flats. One night P entered the premises for the purpose of visiting an occupier of one of the flats who was also the caretaker. In the darkness P did not notice the unlit and unprotected lightwell and fell into it, sustaining injuries. In an action for damages: ISSUE What was the duty owed to a licensee entering upon property? DECISION (per Dixon J): P was not an invitee of D but should be classed

as a licensee; and the lightwell constituted a hidden danger from which it was D’s duty to exercise reasonable care to safeguard licensees. ‘The result of the authorities appears to be that the obligation of an occupier towards a licensee is to take reasonable care to prevent harm to him from a state or condition of the premises known to the occupier, but unknown to the visitor, which the use of reasonable care on his part would not disclose and which, considering the nature of the premises, the occasion of leave and licence, and the circumstances generally, a reasonable man would be misled into failing to anticipate or suspect’ (at CLR 569–70).

[171] Lippl v Haines (1989) 18 NSWLR 620 Supreme Court of New South Wales (Court of Appeal) Trespass — Trespass to land — Justification — Forcible entry FACTS Several police raided P’s house to search for and arrest armed robbers. The robbers were not there. P was injured during the raid and claimed damages for trespass to the person and trespass to land. ISSUE Whether the forcible entry onto P’s land was lawfully just. [page 99] DECISION In terms of forcible entry — if a police officer was authorised by the Crimes Act 1900 (NSW) to arrest a person without warrant then, according to common law principles, it may be lawful for him to engage in conduct that would otherwise amount to a trespass for the purpose of making or endeavouring to make such an arrest. Such conduct will be lawful where entry is reasonably necessary, provided he believes, on reasonable grounds prior to entry, that the person he is seeking to arrest is on the premises and provided that there is a proper announcement (save in exigent

circumstances) prior to entry so that the occupier of the premises is made aware that a police officer claims authority to enter and is given an opportunity to permit entry without force.

[172] Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555; [1957] 1 All ER 125 House of Lords Negligence — Contribution between tortfeasors — Master and servant FACTS While backing his lorry in the yard of a slaughterhouse, where Lister’s employers had sent him to collect waste, Lister negligently reversed into and injured his father, who was also employed on the same job. The father obtained judgment against their employers, who were vicariously liable for damages for Lister’s negligence. ISSUE Whether the employers could now seek an indemnity or contribution against Lister for negligence or for breach of the contract of service that Lister would carry out his duties with reasonable care and skill. DECISION Lister was under a contractual obligation of care in the performance of his duties to his employers. The employers were entitled to recover the damages suffered by that breach of duty to the amount for which they had been made liable to the father.

[173] Lloyd v Grace, Smith & Co [1912] AC 716; [1911–13] All ER Rep 51 House of Lords Vicarious liability — Intentional wrongdoing of a servant FACTS P, a widow, consulted D, a firm of solicitors, concerning her financial affairs. Mr Sandels, a managing clerk employed by D, duped her

into transferring a mortgage and a property to himself and then pledged the property for his own indebtedness and used the proceeds [page 100] of the mortgage to repay another debt. It was contended for D that a principal was not liable for the fraud of his agent unless the fraud was committed for the benefit of the principal. ISSUE Whether D was vicariously liable for the fraud of his employee. DECISION (finding D liable): A principal will be liable for the dishonesty or fraud of his agent if it was done within the course of his employment, no matter whether it was done for the benefit of the principal or for the benefit of the agent.

[174] London Artists Ltd v Littler [1969] 2 QB 375; [1969] 2 All ER 193 Court of Appeal Defamation — Defences — Fair comment FACTS Four actors gave identical notices to terminate their engagements in a play being staged by D. D was convinced there was a plot to stop the play and wrote a letter to each actor expressing hurt at the ‘plan to close the run of The Right Honourable Gentleman by joining in and sending me a month’s formal notice from your agent’. D also distributed the letter at a press conference. The plaintiffs, who were those accused in the letter of the plot, issued writs seeking damages for libel. The trial judge withdrew the defence plea of fair comment as the matter was not one of public interest and the publication to the press was not privileged. On appeal: ISSUE Whether the defence of fair comment was available to D.

DECISION (dismissing the appeal): The plea of fair comment failed because, although the comment was on a matter of public interest in which people at large were legitimately interested, the allegation of a plot was a statement of fact, in itself defamatory of P, which was not reasonably capable of being considered as comment and which D had failed to substantiate. For the defence of fair comment there is a requirement of a sufficient basis of fact to warrant the comment. [page 101]

[175] London Borough of Southwark v Williams [1971] 2 All ER 175; [1971] 2 WLR 467 Court of Appeal Trespass to land — Defences — Necessity FACTS The defendants, who were two homeless families, ‘squatted’ in empty houses owned by P. P sought an order for immediate possession and one of D’s defences was that of ‘necessity’. ISSUE What constitutes the elements of the defence of necessity? DECISION The circumstances did constitute the sort of emergency to which the plea of necessity could apply. ‘If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut’ (at All ER 179 per Lord Denning); ‘… necessity can very easily become simply a mask for anarchy’ (at All ER 181 per Edmund Davies LJ). It was further held that the plea of necessity could only be invoked within very narrow limits.

[176] McHale v Watson (1964) 111 CLR 384; (1966) 115 CLR 199; [1966] ALR 513 High Court of Australia

Negligence — Standard of care — Young tortfeasor FACTS A 12-year-old boy threw a sharpened piece of steel rod at a post. The projectile hit P, a girl of 9 years, and destroyed the sight of her right eye. On the allegation of negligence, Windeyer J (at first instance, in the 1964 proceedings) held that he was not required to disregard altogether the fact that D was only 12 years of age when deciding the standard of care of the reasonable man to be applied in this instance. P appealed from the judgment for D arguing that the standard of care to be exercised did not differ from that of an adult. ISSUE Whether D’s age was relevant to the standard of the duty of care. [page 102] DECISION (on appeal): It was appropriate for the trial judge to consider D’s age in determining the standard of care to be applied, and the decision of Windeyer J at first instance not to disregard such fact did not amount to a misdirection in law. Kitto J went on to state: ‘it is the standard to be expected of a child, meaning an ordinary child of comparable age … not that which is to be expected of an adult …’ (at (1966) CLR 215).

[177] McNamara v Duncan (1971) 26 ALR 584 Supreme Court of the Australian Capital Territory Trespass — Trespass to the person — Defences — Volenti FACTS During a game of Australian Rules football, P sustained a fractured skull at a point just behind the top of the right ear when he received a sharp blow to the head from D, a member of the opposing team. P alleged the blow was intentional and sought damages for trespass to the person. D argued that it was the sort of blow which a person playing Australian Rules must expect.

ISSUE Whether participation in the game amounted to a voluntary assumption of the risk of being injured in this way, by the blow to the head. DECISION (per Fox J): The blow was intentional and such actions can hardly be understood as an act in the ordinary, legitimate course of a game of football. Deliberate injury, in the sense of something done solely or principally with a view to causing sensible hurt, is not justified by the rules and usages of the game. P did not consent to receiving a blow even though it is known that blows may and probably will occur.

[178] Mahony v JK Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722 High Court of Australia Damage — Definition of concurrent liability — Successive negligent acts — Second tortfeasor FACTS Glogovic (G) sued his employer, Kruschich (K), for damages sustained while working on the demolition of a power station at Lithgow. K sought contribution from Dr Mahony, who had treated G’s injuries over a five-year period, alleging that the doctor’s negligent treatment exacerbated G’s injuries. [page 103] ISSUE Whether the doctor could have the cross claim against him struck out on the basis that the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) only provided for contribution between tortfeasors who inflict the same injury, not a subsequent injury. DECISION (refusing to strike out the cross claim): ‘In negligence, “damage” is what the plaintiff suffers as the foreseeable consequence of the tortfeasor’s act or omission’ (at CLR 527; ALR 724). Where the injury was exacerbated by medical treatment, such exacerbation may easily be regarded

as a foreseeable consequence. Whether a tortfeasor could avoid liability for subsequent injuries would depend upon whether the subsequent tort and its consequences were foreseeable.

[179] March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423 High Court of Australia Negligence — Causation — Two negligent acts FACTS P, drunk and speeding, drove into D’s truck which had been badly parked, in a manner straddling the centre of a six-lane road in central Adelaide. The trial judge apportioned responsibility 70 per cent to P and 30 per cent to D. Both appealed. ISSUE What was the causation, when two negligent acts occurred? DECISION (finding P’s negligence caused the accident): That where negligence is in issue, causation is essentially a question of fact to be answered by reference to common sense and experience and one into which consideration of policy and value judgments necessarily enter. The ‘but for’ or causa sine qua non test was not a definitive test of causation.

[180] Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180 High Court of Australia Negligence — Causation — Damages FACTS P, a university professor, was injured by D in a car accident. He took early retirement four years later, at age 60, because of the pain he suffered as a result of the accident. He sued for damages for loss of his earning capacity for the extra five years he could have worked until age 65. The trial

judge found no loss of earning capacity as he could have worked until 65, and the decision to retire early was P’s. On appeal: [page 104] ISSUE What was the cause of the loss of earning capacity: the accident or the retirement? DECISION (allowing the appeal): It was a mistake to find that voluntary retirement which caused loss of earning capacity was not the by-product of the accident. The necessary causation between D’s negligence and the termination of P’s employment, in the sense that the termination of the employment which caused loss of earning capacity is the product of an accident, can exist notwithstanding the fact that the immediate trigger of the termination of the employment was P’s own decision to retire early.

[181] Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 Court of Appeal False imprisonment — Knowledge of restraint FACTS Following several thefts of materials from D’s premises, P, who was an employee of D, was taken by D’s officers to the waiting room at the company’s offices. P informed the officers that if he was not told what he was there for and why he was wanted, he would go away. However, after being informed that he was wanted for the purpose of inquiries as things had been stolen, P decided to remain in the waiting room. P was subsequently charged but later acquitted on charges of larceny. P brought an action for false imprisonment. ISSUE Whether awareness of restraint was an element of false imprisonment.

DECISION (by majority): There had been a wrongful imprisonment. Both Duke LJ (dissenting) and Atkin LJ looked at the question of whether, for there to be a wrongful imprisonment, P must be aware at the time of the fact of his restraint. Duke LJ found that there could not have been an imprisonment as P himself did not show the ‘slightest indication of a suspicion that he was restrained of his liberty to go if he had thought fit to go’. In contrast Atkin LJ held: ‘It appears to me that a person can 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 … any restraint within defined bounds which is a restraint in fact may be an imprisonment’ (at 53–4). [page 105]

[182] Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 High Court of Australia Negligence — Duty of care — Breach — Remoteness of risk FACTS P, a blind man aged 68 years, was a passenger on a tram. The driver of the tram collapsed and, notwithstanding the efforts of the conductors to apply the handbrakes, the tram crashed into another tram, as a result of which P sustained injuries. In an action for damages for negligence, the jury found that D had been so negligent. On appeal: ISSUE The question was whether D had acted reasonably or unreasonably in failing to guard against the danger of a driver’s collapse by installing a means for automatically cutting off the motor or otherwise pulling up the car. It was noted that such a device, commonly known as the ‘dead man’s handle’, had been in use in the electrical railway system. DECISION (by majority): ‘In our view, the jury were not precluded from

thinking that a reasonably efficient system of tram control would have included installation of a device which, on a driver’s collapse, would automatically bring the tram to rest, or at least cut out the motor so as to make braking by the conductors reasonably easy’ (at 595). The majority judgment went on to affirm the rider or comment by the jury that D was not careless in the ordinary meaning of that word in not fitting the braking device but, on the contrary, was justified in taking the remote risk of a claim for damages by not fitting the device.

[183] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128 Federal Court of Australia (Full Court) Negligence — Product liability — Defective product — Causation FACTS P suffered a heart attack while consuming D’s medication for arthritis. D withdrew the medication (‘Vioxx’) from the market and P sued for damages pursuant to the Trade Practices Act 1974 (Cth), alleging the medication was not reasonably fit for the purpose for which it was marketed (ie, a defective product) under s 74AD of that Act and that D had failed to warn him of the increased risk of a heart attack. ISSUE attack.

Whether the consumption of the medication caused the heart

[page 106] DECISION D was not liable, as an increased risk of harm by a tortious act was, alone, insufficient to found a conclusion of causation by material contribution to that harm. For P to establish that the medication materially contributed to his heart attack, P would need to show that his consumption

of the medication was a necessary condition for the occurrence of the heart attack. In fact, P was at risk of a heart attack independently of taking the medication. Damages were not available in the absence of a finding that P’s heart attack would not have occurred but for the consumption of ‘Vioxx’.

[184] Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1; [1946] 2 All ER 345 House of Lords Vicarious liability — Negligence FACTS Coggins, a firm of stevedores, hired a crane from Mersey and although the contract provided that the driver of the crane was to be the servant of Coggins, the driver was in fact an employee of Mersey, although Coggins directed the operations of the crane. Another worker was trapped and struck by the crane due to the negligence of the driver. ISSUE The question was who was liable for damages, Coggins or Mersey? DECISION The driver was never so transferred from the service and control of Mersey to the service and control of the stevedores (Coggins) as to render the stevedores answerable for the manner in which he carried on his work of driving the crane. The stevedores were entitled to direct the driver as to what they wanted him to do, but they had no authority to tell the driver as to how he was to handle the crane in the doing of his work. It was not in consequence of any order of the stevedores that the worker was injured but it was in consequence of the driver’s negligence in driving the crane.

[185] Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193; 44 LT 653 House of Lords

Private nuisance — Defences — Statutory authority FACTS P claimed in their damages writ for a nuisance arising from the use by D of their hospital at Hampstead for smallpox and other infectious and contagious diseases, and for causing the assemblage, in the [page 107] neighbourhood of P’s property, of large numbers of persons suffering from smallpox or other infectious or contagious diseases, or having been recently in contact with persons so suffering, and from offensive smells and noises emanating from the hospital. P sought an injunction to restrain D using the hospital for such patients. D relied upon statutory authority which authorised the erection and maintenance of asylums for the sick and poor. ISSUE Where, in the action in nuisance, the burden of proof lay to establish the defence of statutory authority. DECISION ‘It is clear that the burthen lies on those who seek to establish that the Legislature intended to take away the private rights of individuals, to shew that by express words, or by necessary implication, such an intention appears. There are no express words in this Act …’ (at App Cas 208 per Lord Blackburn). On the facts the legislation did not sanction the commission of the nuisance and P was entitled to an injunction to restrain the nuisance.

[186] Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311 Supreme Court of the Australian Capital Territory Vicarious liability — Negligence — Principal and agent FACTS P’s car was being driven by her son, exiting from a car park. While proceeding towards the exit, a collision occurred with another vehicle. The

magistrate reduced by 50 per cent the amount of damages otherwise awarded to P for the negligence of the driver of the other vehicle, on account of her son’s contributory negligence. Section 14(2) of the Law Reform (Miscellaneous Provisions) Ordinance 1955–65 (ACT) governing apportionment of damages, stated: ‘A reference in this Part to the fault of a person shall be deemed to include a reference to a fault for which that person is vicariously responsible.’ On appeal, P argued that whether or not her son was at fault she herself was not a person at fault and that there could not, therefore, be any apportionment. ISSUE The question was whether, at the time of the accident, the car was being used, with the permission of the owner, for a purpose of the owner. DECISION (per Fox J, allowing the appeal): ‘But the owner is not liable unless it can be said that the vehicle was being used for a purpose of his at the material time. Doubtless questions of degree arise, but it seems to me that the user of the car must serve a purpose of the owner in some reasonably direct and substantial way’ (at 316). On the facts of this [page 108] case, no purpose of the owner was involved at the time of the accident and the driver could not be classed an agent of the owner.

[187] Miller v Jackson [1977] QB 966; [1977] 3 All ER 338 Court of Appeal Private nuisance — Balance of conflicting interests — Public interests FACTS The Lintz Cricket Club had been using the local cricket oval for the past 70 years. The grazing land which adjoined the field had now been turned into a housing estate and the owners of one of the houses sought

damages for negligence and nuisance and an injunction to restrain the cricket club from playing cricket without first taking adequate steps to prevent balls from being hit onto their property. ISSUE Whether the public interest in the use of the land overrode the negligence. DECISION (by majority): The risk of injury to property at least was both foreseeable and foreseen and such risk is so great that on each occasion when a ball comes over the fence and causes damage to P, D was guilty of negligence. Further, the use by D of their land involved an unreasonable interference with P’s use of their land and D was thus liable in nuisance. However, it was also held by majority that having regard to public interest the special circumstances were such that an injunction should not be granted. Lord Denning MR (who dissented on the findings of negligence and nuisance) said: ‘In this case it is our task to balance the right of the cricket club to continue playing cricket on their cricket ground — as against the right of the householder not to be interfered with. On taking the balance, I would give priority to the right of the cricket club to continue playing cricket on the ground, as they have done for the last 70 years’ (at QB 981).

[188] Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411; [2000] HCA 61 High Court of Australia Negligence — Duty of care — Occupier’s liability FACTS P had worked in a video shop at D’s centre and was attacked by three assailants in the car park when he was going home. The lights in the car park had been turned off automatically earlier in the evening. [page 109] P claimed damages from D alleging that it failed to provide adequate

illumination of the car park. The trial judge found D owed P a duty, which had been breached, causing the injuries. On appeal: ISSUE The issue was the principle upon which an occupier of land, such as D, may be liable, in an action for negligence to a person, such as P, who while on the land was injured as a result of the deliberate wrongdoing of a third party. DECISION (allowing the appeal): D’s failure or omission to leave the car park lights on might have facilitated the crime and thereby the injuries sustained, as did D’s decision to provide a car park and as did P’s decision to park there. However D’s omission to leave the lights on did not cause P’s injuries. ‘[T]he law is, and in my view should be, slow to impose a duty of care on a person with respect to the actions of third parties over whom he or she has no control’ (at [43] per Gaudron J).

[189] Morgan v Odhams Press Ltd [1971] 2 All ER 1156; [1971] 1 WLR 1239 House of Lords Defamation — Innuendo — Imputed references FACTS An article was published in D’s newspaper, The Sun, which stated that a woman, Margo Murray, who was a key witness in the prosecution of a dog doping gang, was ‘kidnapped last week by members of the gang’ and further that she had been kept in a house at Finchley. The article made no reference to P. However, P commenced an action for libel against D. The woman had stayed with him during the relevant period and they had been seen together in public at that time. P claimed that the people who knew that Murray had stayed with him would infer that the article was referring to P as a gang member. The jury awarded damages to P. On appeal: ISSUE D arguing that the defamation must be found in the words themselves and not in facts extrinsic to them, there must be a ‘key or pointer’ referring to P.

DECISION The trial judge had correctly left to the jury the question of whether on the evidence as a whole readers having knowledge of P would reasonably have understood that the article referred to P. There was no rule that, before an article could be said to be defamatory of a person, it must contain within itself some ‘key or pointer’ indicating that it referred to him. [page 110]

[190] Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Supreme Court of New South Wales (Court of Appeal) Defamation — Defences — Qualified privilege — Public interest FACTS P sought damages for defamation against the publisher of the Daily Telegraph in respect of a series of articles and a cartoon dealing with her employment as private secretary to the Deputy Prime Minister and Treasurer. Headlines included ‘Those Other New Year Honours: Order of the Latchkey to Junie Morosi’ and ‘No Sex with Junie says Clyde; Sexual Skeletons in the Cupboard: Cameron’. On appeal against a verdict for P for the sum of $17,000, D challenged, inter alia, the finding of the trial judge that several of the publications were not made on privileged occasions. ISSUE What constituted the defence of qualified privilege? DECISION (per curiam, dismissing the appeal): The publications were not fair and accurate accounts of the proceedings. Assuming that their subject matter was a matter of public interest, there was no duty or interest in the appellant to publish to the world material including defamatory statements concerning P. ‘[I]t should be realised that the common law does not place newspaper editors or journalists in any different position to that of other citizens … at common law, a publication in a newspaper is not the subject of qualified privilege merely because it gives the public information concerning

a matter in respect of which the public is interested. Something more is needed which is said in some circumstances to constitute a duty, and in other circumstances an interest, on the part of the newspaper to communicate the information … something more than mere public interest is required. It may be truth; or it may be reasonableness, in all the circumstances, of the conduct of the publisher in making the publication; or it may be some other requirement’ (at 778, 792).

[191] Morris v C W Martin & Sons Ltd [1966] 1 QB 716; [1965] 2 All ER 727 Court of Appeal Vicarious liability — Master and servant — Theft of goods FACTS P delivered her long white mink stole to a furrier to be cleaned. As the furrier did not do such work he offered to send the stole to D, which was a reputable firm of cleaners that only worked for the trade and not for individuals, to which P agreed. A newly employed servant [page 111] of D stole the fur, which was never recovered, and so P claimed damages against D. ISSUE Whether D was liable for the theft of the fur by its employee. DECISION (holding D vicariously liable): D was a sub-bailee for reward and as such owed to P all the duties of a bailee for reward and, accordingly, owed P a duty to take reasonable care of the fur. D was liable for loss or damage unless it could prove that the loss or damage occurred without its fault or that of its servants. ‘[W]e may deduce the general proposition that when a principal has in his charge the goods or belongings of another in such circumstances that he is under a duty to take all reasonable precautions to protect them from theft or depredation, then if he entrusts that duty to a

servant or agent, he is answerable for the manner in which that servant or agent carries out his duty’ (at QB 728 per Lord Denning MR).

[192] Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971] ALR 253 High Court of Australia Negligence — Nervous shock — Foreseeability of class of injury FACTS P was employed by D as an engineer in its powerhouse. Following an explosion in another part of the powerhouse, P went to the place of the incident, whereupon he saw another employee, with whom he was not personally acquainted, who had suffered extensive burns. P assisted the worker to an ambulance. Some four weeks after the incident P developed a serious disturbance, diagnosed as schizophrenia. P sued D for damages and the trial judge found that the disturbance was a direct result of the incident and that D ought to have foreseen that an employee such as P might suffer a psychological reaction. ISSUE On appeal, the question as Windeyer J put it, was ‘was it reasonably foreseeable that an accident of that kind, if it occurred, might have consequences for somebody of the kind that it had for the plaintiff’ (at CLR 401). DECISION It was not necessary in order to hold D liable that, as a prudent employer, he should foresee the precise damage which would occur if he failed to discharge his duty of care. It was sufficient that the class of injury ought to be foreseeable. Liability for nervous shock depended on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced [page 112]

need not have been foreseeable. It is enough that it was a ‘recognizable psychiatric illness’ (at CLR 402 per Windeyer J).

[193] Mummery v Irvings Pty Ltd (1956) 96 CLR 99; [1956] ALR 795 High Court of Australia Negligence — Res ipsa loquitur — Breach of statutory duty FACTS P entered D’s premises for the purposes of purchasing some timber and was struck in the eye by a piece of wood, which flew out of a circular saw then in operation. In support of his claim against D in negligence, P relied upon the principle res ipsa loquitur. P also alleged a breach of the statutory duty imposed by the Factories and Shops Act 1928 (Vic) which required every occupier to provide guards for ‘all dangerous parts of the machinery of the factory’. ISSUE Whether the principle of res ipsa loquitur applied and whether there was a breach of a statutory duty. DECISION The statutory obligations were to provide a guard against contact with any dangerous part of a machine; it did not impose an obligation to guard against dangerous materials or objects ejected from the machine. The court did not give an opinion on whether the customer as an invitee was within the class of persons protected by the duty to fence imposed by the Factories and Shops Act or whether such protection would only be afforded to an employee of the occupier. With regard to the principle res ipsa loquitur, the court held that once the cause of an accident has been established and the relevant circumstances proved there was no further room for the operation of the principle. The question was then whether, on the facts as established, negligence was to be inferred or not. It was a vital condition for the operation of the principle that ‘the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care’. Such an inference could not be made from the fact of a piece of wood flying out from the saw.

[page 113]

[194] Munro v Southern Dairies Ltd [1955] VLR 332; [1955] ALR 793 Supreme Court of Victoria Nuisance — Test applied — Abnormal sensitivity FACTS P sought damages and an injunction based on the nuisance created by D, a milk distributor. P claimed that D interfered with his quiet enjoyment of his premises by reason of noise, smell and flies emanating from D’s premises, where horses were kept. ISSUE What was the test to be applied in the action on nuisance? DECISION (in finding for the plaintiff): ‘The test which the law applies is not the test of an abnormal sensitiveness. A man is not entitled to relief merely because he may happen to be unduly sensitive to noise or smell or any other form of interference with his property’ (at VLR 335; ALR 796 per Sholl J).

[195] Murphy v Brentwood District Council [1991] 1 AC 398; [1990] 2 All ER 908 House of Lords Negligence — Duty of care — To whom duty owed FACTS D, relying upon an engineer’s advice which failed to take account of errors in the design of building foundations, approved building plans for a house. Following P’s occupation of the house, the foundations cracked. P subsequently sold the house at a discount. P received damages from D in respect of the diminution in the value of the house and his expenses incurred.

ISSUE Whether D should be liable for the purely economic losses incurred as a result of the engineer’s negligent advice. DECISION (on appeal and allowing the appeal): Where a defect was discovered, the expense incurred by a subsequent purchaser of the house in putting the defect right was pure economic loss. To hold that D, in supervising compliance with building regulations, was under a common law duty to take reasonable care to avoid putting a purchaser of a house in a position in which he would be obliged to incur such pure economic loss, was an extension of the Donoghue v Stevenson principle [see [81] above) that should not, as a matter of policy, be affirmed. [page 114]

[196] Murphy v Culhane [1977] QB 94; [1976] 3 All ER 533 Court of Appeal Trespass to the person — Defences — Volenti non fit injuria FACTS The deceased plotted to beat up D and went to D’s address for this purpose. There ensued a ‘criminal affray’ and D killed the deceased by hitting him on the head with a plank. D subsequently pleaded guilty to manslaughter. The deceased’s widow now commenced a civil action for damages for herself and her child under the Fatal Accidents Act 1846–59 (UK). D sought to rely on the principle volenti non fit injuria and alleged the death was caused in part by the deceased’s own fault. Judgment for P was entered by reason that the pleadings showed no defence at law, as the plea of guilty to manslaughter was admitted by D. ISSUE Whether D could raise the defence of voluntary assumption of risk. DECISION (on appeal): In the present case it was open to D to raise the defences of ex turpi causa non oritur or volenti non fit injuria. ‘A man who takes

part in a criminal affray may well be said to have been guilty of such a wicked act as to deprive himself of a cause of action, or, alternatively, to have had taken upon himself the risk’ (at QB 98 per Lord Denning MR). Such defences would go to the whole of the claim. Further, even if the widow were entitled to damages under the Fatal Accidents Act, they might fall to be reduced under the Law Reform (Contributory Negligence) Acts 1945 (UK) because the death of her husband might be the result partly of his own fault and partly of D’s fault.

[197] Murray v McMurchy [1949] BCJ No 74; [1949] 2 DLR 442 Supreme Court of British Columbia Trespass to the person — Defences — Necessity FACTS In the course of a Caesarean operation for the delivery of a child a physician discovered the presence in the wall of the uterus of a number of fibroid tumours. The physician decided to tie the Fallopian tubes of the patient to prevent her undergoing the hazards of a second pregnancy. In the action for damages by the patient: ISSUE The question was whether D had the authority to take this additional step at the time of the Caesarean operation in view of the possibility of some future hazard without the consent of P. [page 115] DECISION There was no urgency to justify D’s actions without the authority of P. ‘The evidence is only that they might constitute a hazard in the event of a further pregnancy. That may go to the quantum of damages, but it does not, in my opinion, justify a “trespass” to her person without her consent’ (at [7] per McFarlane J).

[198] Mutual Life & Citizens Assurance Co Ltd v Evatt [1971] AC 793; [1971] 1 All ER 150 Privy Council Negligence — Duty of care — Economic loss — Financial advice FACTS In response to a request by P, who was a policy holder with D, D gratuitously gave advice on the financial stability of an associated company, HG Palmer (Consolidated) Ltd. Relying on such advice, P invested in the associated company and lost his investment when the company went into liquidation. P, relying on the principles of Hedley Byrne & Co Ltd v Heller & Partners Ltd (see [122] above), claimed damages alleging that D knew that he would act on the advice given and that D was in a better position than himself for obtaining full and upto-date information as to the financial affairs of the associated company. ISSUE The question was whether D, in response to P’s request for information, owed any duty of care to P when it gave him an opinion on the company’s financial stability. DECISION (by majority): The allegations by P contained no averment that D, to the knowledge of P, carried on the business of giving advice upon investments or in some other way had let it be known to him that they claimed to possess the necessary skill and competence to do so, and were prepared to exercise the necessary diligence to give reliable advice to him upon the subject-matter of his inquiry. ‘In the absence of any allegation to this effect Mr Evatt was not entitled to assume that the company had accepted any other duty towards him than to give an honest answer to his inquiry nor, in the opinion of their Lordships, did the law impose any higher duty upon them’ (at AC 809 per Lord Diplock giving the majority judgment of their Lordships). Accordingly, as the company did not hold itself out as being such financial advisers, there was no cause of action in negligence. ‘[T]heir Lordships would emphasise that the missing characteristic of the relationship which they consider to be essential to give rise to a duty of care in a situation of the kind to which Mr Evatt and the company found

themselves when he sought their advice is not necessarily essential in other situations — such as, perhaps, where the adviser has a financial interest in the transaction upon which he gives his advice … The categories of negligence are never closed …’ (at AC 808 per Lord Diplock). [page 116]

[199] Myer Stores Ltd v Soo [1991] 2 VR 597 Supreme Court of Victoria (Appeal Division) False imprisonment — Restraint of liberty FACTS D, a Myer security guard, and two police officers requested that P accompany them to D’s office where he was subsequently interviewed in relation to shoplifting at the store. A search warrant was then issued to the police to enter and search P’s home. P voluntarily attended the police station for the purpose of being further interviewed. The police found nothing. D was found liable in an action for damages for false imprisonment. On appeal: ISSUE Whether D’s actions amounted to a restraint of P’s liberty. DECISION dismissing the appeal: From the time of the request to attend the security office until the time of his eventual release from the interview room, each of the security guards was jointly liable, having participated in a common action in furtherance of a common design. P was apprehended in the hi-fi department and was then escorted to the security office. However, there was no false imprisonment when P voluntarily attended the police station.

[200] Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393; 67 ALJR 426 High Court of Australia

Negligence — Causation — Failure to warn FACTS P struck his head on a submerged rock when he dived from a rock ledge into the water at the Basin, Rottnest Island, becoming a quadriplegic. P sued the park managers in negligence for failing to put warning signs at the site. At the trial D was found to be normally a cautious diver. ISSUE Whether the failure to warn P of the dangers constituted negligence. DECISION by majority: Finding D liable in negligence; D, as manager of the public reserve, owed a general duty of care at common law to take reasonable care to avoid foreseeable risks of injury to visitors on the site. The risk of injury to those diving from the rock ledge was reasonably foreseeable. The failure to warn of the danger of diving from the rock ledge was a breach of D’s general duty of care. Causation was also established as it was held that, on the facts, the likelihood was that P would have been deterred from diving by an appropriate warning sign. [page 117]

[201] National Coal Board v J E Evans & Co (Cardiff) Ltd and Maberley Parker Ltd [1951] 2 KB 861; [1951] 2 All ER 310 Court of Appeal Trespass to goods — Accidental act FACTS An electric cable, which was the property of P, had been sunk under land which was the property of Glamorgan County Council. Unaware of the existence of the cable, council engaged D1 (which in turn subcontracted D2) to excavate a trench across the land for drainage purposes. Council supplied a plan of the land which did not indicate the existence of the cable. The cable was damaged during excavation and, as a

result, some months later, the electricity supply carried by the cable failed. In an action for damages the trial judge found no evidence of negligence, but that D’s absence of knowledge was no defence to a claim in trespass. ISSUE Whether D could be liable in trespass for the damage to P’s cable. DECISION (on appeal): The accident occurred ‘utterly without fault on the part of the defendants’ (at KB 874 per Cohen LJ) and there was no ground for attaching any blame to D in trespass. The accident was attributable mainly to P’s conduct in placing their cables on council’s land without its knowledge. No trespass was committed.

[202] Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540; [1999] HCA 22 High Court of Australia Negligence — Standard of care — Medical negligence FACTS P was a 12-year-old schoolboy who was hospitalised following being hit on the head with another boy’s school bag. After discharge from hospital following treatment for a haemorrhage, he suffered a burst aneurysm causing permanent impairment. The trial judge directed the jury to find in favour of D. P had unsuccessfully argued that an alternative diagnosis should have been considered by D at the time of treatment. On appeal it was held that there was no basis to argue a claim that the surgeon failed to consider the possibility of an aneurysm as there was no evidence that he did not consider that possibility. On further appeal to the High Court. ISSUE What was the appropriate standard of care owed to P by the hospital? [page 118] DECISION (allowing the appeal and remitting for retrial): While evidence

of acceptable medical practice was a useful guide for the courts in adjudicating on the appropriate standard of care, the standard to be applied was nonetheless that of the ordinary skilled person exercising and professing to have that special skill. The trial judge erred in withdrawing the medical negligence case from the jury on the basis of his view that the overwhelming balance of evidence favoured D. The question of whether there should have been an angiogram performed should have gone to the jury.

[203] Nesterczuk v Mortimore (1965) 115 CLR 140; 39 ALJR 288 High Court of Australia Negligence — Proof of negligence FACTS Two vehicles approached each other from opposite directions at night on a straight roadway which had a bitumen surface 22 feet wide. Both vehicles had their headlights on and each vehicle appeared to be on the correct side of the road. An accident occurred and each driver asserted that the other must have swerved across the roadway although neither driver could assert that he had seen the other swerve. The trial judge found that neither party had established his case that the other party had been negligent and dismissed both the claim by P and the counter-claim by D. The Wrongs Act 1936–51 (SA) made statutory provision for the reduction of damages for contributory negligence. ISSUE Whether each driver had satisfactorily discharged the burden of proof. DECISION (on appeal, by majority): The action by the trial judge in dismissing each claim of negligence was correct. ‘The plaintiff simply failed to prove that the defendant was blameworthy’ (at CLR 154 per Windeyer J). ‘There is no principle of law which insists that both must be held to be blameworthy when that hypothesis is not a more probable one than that one or the other was wholly responsible’ (at CLR 158 per Owen J).

[page 119]

[204] New South Wales v Kable (2013) 252 CLR 118; 298 ALR 144; [2013] HCA 26 High Court of Australia Trespass to the person – Wrongful imprisonment FACTS Kable had been imprisoned for a number of years for the death of his wife. Upon expiry of his prison term he was kept imprisoned for another six months pursuant to special legislation as he was deemed a danger to the community. The High Court ultimately found that legislation to be invalid (Kable v Director of Public Prosecutions (NSW) [1996] HCA 24) and Kable then sued the state of New South Wales for wrongful imprisonment for the six-month period. ISSUE Whether or not the additional imprisonment was lawfully justified. DECISION Kable was not wrongfully imprisoned. The High Court’s declaration that the special legislation was invalid did not render the acts (of imprisonment) by the state, pursuant to the legislation then so enacted, unlawful. It was not for the state to predict the outcome of that High Court decision on invalidity.

[205] Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 High Court of Australia Negligence — Landlord and tenant — Duty of care — Whether delegable FACTS P, a girl aged nine, was electrocuted when she turned off a water sprinkler tap, leaving her in a vegetative state. She sued D1, the landlord of the premises, as well as an electrical contractor who, two days earlier, had

been hired by D1 to repair the defective stove on the premises. She alleged, inter alia, breaches of a general duty of care, firstly, that D1 as landlord should have inspected the premises for its safety prior to P’s family’s occupancy and, secondly, that the duty to take care in the repair of the stove was a non-delegable or personal duty which could not be delegated to the electrical contractor. The electrician’s work was found to be negligent. [page 120] ISSUE In relation to D1’s liability, the question was whether his duty of care was delegable to the electrician. DECISION Upon being advised that the stove was not working, D1 accepted his contractual duty to get the stove repaired. That negligence on the part of the electrical contractor might foreseeably cause injury to P or her family was not enough to impose a ‘non-delegable’ duty of care upon D1. The duty of an occupier of premises was simply an example of the general duty of care as is required of occupants towards those who enter the occupied premises by consent. However, D1 was in breach of a duty of care to P as an intended occupant of the premises to ensure that the premises, at the time they went into possession, were safe. An inspection at that time would have shown a defective connection in the power box (which was also a cause of the accident); thus D1 was also liable.

[206] Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1 High Court of Australia Intentional injury — Economic loss FACTS Stock inspectors, acting in connection with a governmentsponsored campaign to eradicate bovine brucellosis and tuberculosis, and who were acting in good faith but outside the scope of their authority,

informed P that P’s cattle were subject to movement restrictions. Those instructions caused losses to P who could not sell their breeder cattle as planned. P claimed damages. ISSUE Whether there was liability for intentional acts, notwithstanding there being no duty of care or intention to cause harm. DECISION (dismissing the claim): The mere fact that the inspectors acted beyond their powers, without establishing that they knew they were acting beyond power or were recklessly indifferent as to the availability of that power, did not of itself establish the tort of misfeasance. The principle that there can be liability and thus damages for loss, as the inevitable consequence of the unlawful, intentional and positive acts of another notwithstanding that there is no duty of care or intention to harm (as enunciated in Beaudesert Shire Council v Smith, see [24] above) was wrong in law and was overruled. The general trend of legal development confines liability to intentional or negligent infliction of harm. [page 121]

[207] Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound (No 2)) [1967] 1 AC 617; [1966] 2 All ER 709 Privy Council Negligence — Liability — Foreseeability FACTS The respondents’ two vessels were moored at Sheerlegs Wharf when the incident as set out in Wagon Mound (No 1) occurred. The vessels were also substantially damaged by the fire and the respondents sought damages based on nuisance and/or negligence. The trial judge found that the officers of the Wagon Mound would regard the oil as being very difficult to ignite on water and would have regarded the risk of fire as being ‘a possibility but one which would become an actuality only in very exceptional

circumstances’. (This finding of fact differs from Wagon Mound (No 1) wherein it was found that the fire was not foreseeable to all — that is, there was no possibility.) He found the damage to the vessels was not reasonably foreseeable and dismissed the claim in negligence. However, he found that liability in nuisance did not depend on foreseeability and found that cause of action proved. Each party appealed against the respective decisions against them. ISSUE The question asked by their Lordships was whether a reasonable man, having the knowledge and experience to be expected of the chief engineer of the Wagon Mound, would have known that there was a real risk of the oil on the water catching fire in some way. DECISION (Lord Reid delivering the judgment of their Lordships): ‘In the present case the evidence shows that the discharge of so much oil onto the water must have taken a considerable time, and a vigilant ship’s engineer would have noticed the discharge at an early stage. The findings show that he ought to have known that it is possible to ignite this kind of oil on water’ (at AC 644). The finding on the facts answered the issue set out above in the affirmative; that such a risk was known, and the fact that the risk was small did not justify the inaction taken to eliminate it. [page 122]

[208] Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound (No 1)) [1961] AC 388; [1961] 1 All ER 404; [1961] 2 WLR 126 Privy Council Negligence — Liability — Foreseeability of damage FACTS The appellant’s servants carelessly allowed a large quantity of bunkering oil from a vessel which it had chartered known as the SS Wagon

Mound to spill into Sydney Harbour. The oil spread over some 600 feet to Sheerlegs Wharf, which was owned by the respondents. The respondents, who carried on the business of shipbuilding, ship-repairing and general engineering at Morts Bay, Balmain, ceased their welding and burning work upon becoming aware of the floating oil. However, after inquiries with the oil company at whose wharf the Wagon Mound was berthed, the respondents felt it was safe to resume work and did so. Molten metal from the welding operations then fell onto some cotton waste which was floating on the oil. The cotton waste burst into flames and set alight the oil which caused substantial fire damage to the respondents’ wharf. The respondents sought damages for negligence. The trial judge found as a fact that the appellants did not know and could not reasonably have been expected to know that the oil was capable of being set afire when spread on water. ISSUE Whether the damage was reasonably foreseeable to D, thus limiting the extent of the duty of care. DECISION (Viscount Simonds delivering the judgment of their Lordships, allowing the appeal): Even though the damage was the direct result of the oil spillage, the appellants could not (as found by the trial judge) reasonably have been expected to know that the oil would catch fire and thereby damage the wharf. The test of liability for the injury caused by the fire is foreseeability of injury by fire. Thus foreseeability becomes the effective test. ‘It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour’ (at AC 422–3). In applying the test of foreseeability of damage, as a limit to liability, the decision laid down in Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560 which asserted that if the defendant is guilty of negligence, he is responsible for all the consequences, whether reasonably foreseeable or not, was effectively overruled. [page 123]

[209] Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1; 59 ALJR 201 High Court of Australia Occupier’s liability — Duty of care — Duty to invitees FACTS P, a skilled employee of D1, was injured while repairing D2’s telephone service. ISSUE Whether a duty of care was owed to invitees. DECISION D2 was liable in negligence as it had installed its own poles and wires on which P was to do his work. The wires were not of the standard normally used by D1 and snapped, causing P to fall. D2 as occupier owed a duty of care to his invitee, P, and was in breach of that duty by failing to warn P of the unusual danger of the wire.

[210] Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 House of Lords Negligence — Standard of care — Gravity of the harm FACTS P was a garage hand in the employ of D and had already lost the sight in one eye during World War II. While working on a vehicle in D’s garage, P hammered a rusty bolt and a metal chip flew into his other eye causing him to lose his sight in his other eye. ISSUE Whether the gravity of the damage introduced a higher standard of care. DECISION D was negligent in not providing goggles for P, and that a greater duty of care was owed to P as the gravity of the damage suffered by P would be far higher than workmen having the use of both eyes.

[211] Parramatta City Council v Lutz (1988) 12 NSWLR 293 Supreme Court of New South Wales (Court of Appeal) Negligence — Negligent misstatement — Reliance upon FACTS P’s house was destroyed by a fire which emanated from her neighbour’s property. P had earlier complained to D about the derelict condition of the neighbour’s property and D had told P that it was taking action to protect her by issuing a demolition order. D delayed in the issue [page 124] of that order. P successfully claimed damages in negligence against D. On appeal: ISSUE Whether P, having relied on D’s representations, had a cause of action. DECISION (dismissing the appeal): D having advised P that it was taking action with reasonable expedition to protect her, was negligent in proffering that advice and P acted on that advice to her detriment. D ought to have foreseen that P would then rely on D performing its powers to issue the demolition order.

[212] Parry v Cleaver [1970] AC 1; [1969] 1 All ER 555 House of Lords Damages — Assessment of — Insurance policy FACTS P, a police constable, was forced to retire from the police force as a result of injuries sustained while directing traffic when he was hit by a motor car negligently driven by D. P received a disablement pension.

ISSUE The question was whether the pension entitlements of P should be considered when assessing P’s financial losses. DECISION by majority: The disablement pension should not be considered when assessing damages for loss of earning capacity. P received the moneys under a pension scheme similar to an insurance policy and it was unjust and unreasonable to find that such benefits should enure for the benefit of the tortfeasor.

[213] Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; [1946] ALR 517 High Court of Australia Trespass — To chattels — Elements of — Invasion of possession FACTS P made wine for sale in bottles which were branded with its company name. The ownership of the bottles was retained by P, and the words ‘This bottle always remains the property of Penfolds Wines Limited’ were moulded upon the glass. D supplied his customers with wine which he poured into bottles brought by them and left with him for that purpose. Among such bottles were bottles owned by P. P alleged that D, without its consent, had been using P’s bottles in his business. P claimed an injunction against the continuance of this practice. [page 125] ISSUE Whether D’s use of P’s bottles amounted to a trespass or a conversion. DECISION Trespass is a wrong to possession and in this case there was never any invasion of possession. D came into possession of the bottles without trespass. ‘It cannot be trespass because there is, on the part of the respondent, no infringement upon the possession of anyone. It cannot be

conversion, because, on his part, there is no act, and no intent, inconsistent with the appellants’ right to possession, and nothing to impair or destroy it’ (at CLR 224 per Dixon J).

[214] Pennington v Norris (1956) 96 CLR 10 High Court of Australia Contributory negligence — Principles of FACTS P sustained personal injuries when he was struck by D’s motor vehicle late one misty night. P appealed against the decision of the trial judge to reduce the quantum of damages by 50 per cent by reason of P’s own negligence. ISSUE In reducing P’s responsibility to 20 per cent the High Court looked at the basis for the apportionment for contributory negligence. DECISION ‘What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and the defendant of the “responsibility” for the damages. It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blameworthiness but a degree of departure from the standard of care of the reasonable man’ (at 16).

[215] Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; 73 ALJR 1190; [1999] HCA 36 High Court of Australia Negligence — Economic loss — Foreseeability — Proximity FACTS D controlled 60 per cent of the Australian potato crisping industry. D imported into Australia a new potato seed and conducted trial plantings

on a property situated less than 20km from P’s property. This trial planting introduced a disease, ‘bacterial wilt’, as a result of which P, having grown potatoes within a 20km radius of that property, was then banned from supplying potatoes to the Western Australian market for five years due to Western Australian state regulations. [page 126] P unsuccessfully sued D for damages for the negligent introduction of the disease, failing on the test of foreseeability. On appeal: ISSUE Whether P’s economic loss was reasonably foreseeable. DECISION (allowing the appeal): D knew or ought to have known that if bacterial wilt was transmitted to potatoes grown within the 20km buffer zone, the growers would lose their market due to the statutory prohibition and those growers were powerless to protect their own interests. Where P had no knowledge of the risks being created by D and, thus, was in no position to protect his interests, the law should impose a duty of care on D to take reasonable steps to avoid a foreseeable risk of economic loss resulting from the loss or impairment of the rights to sell potatoes in the state market.

[216] Platt v Nutt (1988) 12 NSWLR 231 Supreme Court of New South Wales (Court of Appeal) Trespass — To the person — Onus of proof FACTS P went to her daughter’s house to help her leave D following a domestic dispute. P stood at the front door using her body to keep open a gauze door in order to help her daughter exit the house with various items of luggage. P was injured when she put out her hand to block the front door which was being slammed shut, her hand smashing a glass panel. P sued D for trespass to the person. The trial judge accepted that D slammed the door but

rejected the contention that D had done so with the intention of injuring P. However, he also found that D failed to discharge the onus of proof that the injury did not resolve from his negligent conduct in these circumstances. D appealed, contending that the onus of proof of negligence lay upon P. ISSUE Upon whom was the onus of proof in the case in trespass? DECISION (allowing the appeal): In an action for trespass to the person, the onus was on P to prove on the balance of probabilities that the injuries were the direct result of the act or force of D. In this case P failed to establish to that standard of proof that the injuries were caused by D rather than as a consequence of her own act in putting out her hand. [page 127]

[217] Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 High Court of Australia Trespass — Trespass to land — Unlawful entry FACTS D1 and D2 were police officers. They attended P’s farm to serve upon his daughter a summons, alleging P’s daughter was in need of care and control. They had no express or implied permission to enter P’s land. The summons was left on a car seat when P refused to accept the document. P sued D1 and D2 claiming damages for trespass to his land. ISSUE Whether the police entry onto the land constituted a trespass. DECISION At common law, a police officer charged with the duty of serving a summons is not authorised, without the consent of the person in possession of the land and without any implied leave or licence, to go upon the land in order to serve the summons. In an action for trespass to land P is entitled to some damages in vindication of his right to exclude D1 and D2 from his land, even if he has suffered no loss as a result of the trespass.

[218] Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14 ALR 273 High Court of Australia Occupier’s liability — Categories of entrants — Invitees — Trespassers — Duty of care FACTS P, while waiting at D’s railway station for a train, suffered an epileptic attack and fell on to the track. The train driver approaching P subsequently indicated that he applied the brakes when he realised that what he thought to be a large piece of brown paper on the track was actually P. D appealed against the finding that the driver was negligent, arguing that P was a trespasser and that the appropriate duty of care only arose when the driver knew that P was on the track. ISSUE Whether P could be classed as a trespasser and the duty owed to him. DECISION (dismissing the appeal): P could not be a trespasser and D owed P a duty to take reasonable care. ‘[A] person who is lawfully upon premises, and is using the premises in an ordinary and reasonable way, becomes a trespasser only if he goes voluntarily on to a part of the premises to which the invitation does not extend’ (at CLR 133 per Gibbs J). [page 128]

[219] Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147; [1998] HCA 3 High Court of Australia Negligence — Duty of care — Proximity FACTS In 1990 a fire broke out from a deteriorated fireplace within a fish and chip shop/residence, destroying those premises (which were occupied by

P1) and also destroying the adjoining shop (owned and occupied by P2). In 1988, D, being the Shire Council, had issued a warning notice addressed to both the owner and the then occupier of the fish and chip shop/residence warning them not to use the fireplace until it was repaired. The then occupier did not tell the owner about the letter. Nothing was done. P1 was not told about the warning notice when he took over the lease of the premises. Following the fire the previous occupier was found liable in negligence to both owners and the current occupier of the shop. ISSUE The only issue before the High Court was the duty of care owed by the council. DECISION D was liable in negligence to both P1 and P2. D, aware of the defective chimney, failed to exercise its powers with care and diligence. Its failure to both warn the current occupier and the neighbour of the risk of harm and to ensure that the risk was rectified made the risk of harm and the damage foreseeable, thus D was liable.

[220] Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743; [1959] 2 All ER 38 House of Lords Negligence — Duty of care — Standard of duty — Skilled workers FACTS P, an experienced moulder, splashed molten metal on to his left foot while working at D’s foundry. Protective spats had been supplied but D had not ordered P to wear them. The trial judge considered P so experienced that he needed no warning of the dangers; however, he felt bound by authority to decide that employers must do more than merely provide protective equipment and he found D liable in negligence for not pressing P to wear them. ISSUE Whether D had satisfied its duty of care by the supply of the spats.

DECISION (on appeal, by majority): The question of whether D should have urged P to wear the spats was a question of fact. It was not [page 129] the one of strict law that D must tell P to wear the spats. The duty of the employer will vary according to the circumstances. With regard to P as an experienced workman, D had fulfilled its duty of care. Appeal allowed.

[221] Rixon v Star City Pty Ltd (2001) 53 NSWLR 98; [2001] NSWCA 265 Supreme Court of New South Wales (Court of Appeal) Assault — Battery — Elements of FACTS P, who was the subject of an exclusion order to keep him out of D’s casino, was seen at D’s roulette table. D’s employee placed his hand on P’s shoulder and said: ‘Are you Brian Rixon?’ P’s claim for damages based on assault and battery failed as there was no requisite intention to assault or anger or hostile attitude in relation to battery. P’s evidence was that he was grabbed on the shoulder and spun around. This level of touching was not accepted by the trial judge. On appeal: ISSUE Whether touching P on the shoulder in this way constituted either an assault or battery. DECISION dismissing the appeal: That the placing of a hand on a shoulder could be a battery. The absence of anger was not a satisfactory basis for concluding that the touching was not a battery. But the trial judge’s finding that the touching lacked ‘the requisite anger or hostile attitude’ was upheld. It could not be said that the conduct, for the purposes of engaging P’s attention, ‘was not generally acceptable in the ordinary conduct of daily life’. In relation to the assault claim — there was no evidence of the necessary

intention to create in P an apprehension of imminent harmful or offensive contact.

[222] Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 High Court of Australia Negligence — Duty of care — Extent of duty FACTS P successfully sued D following an eye operation, alleging D failed to warn P that she might develop a condition known as sympathetic ophthalmia in her eye as a result of the surgery, which she did, leaving her almost totally blind. ISSUE Whether the duty to warn had been discharged adequately. [page 130] DECISION (dismissing the appeal): Except in the case of an emergency or where disclosure would prove damaging to P, D had a duty to warn of the risks inherent in the treatment. The fact that a body of other reputable doctors would have acted in the same way as D did not preclude a finding of negligence.

[223] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263; [1998] HCA 5 High Court of Australia Negligence — Duty of care — Extent of duty FACTS P, a 16-year-old girl who was drunk at a beach party, fell off the

Dripstone Cliffs in the Northern Territory and became a paraplegic. P claimed damages alleging D, as manager of the reserve area, failed to warn her of the danger of the cliff or to erect adequate fencing. ISSUE What was the extent of the duty of care owed by D to P? DECISION (dismissing P’s claim): D’s duty was to exercise reasonable care to prevent injury from dangers which were not apparent and which were to be avoided by the exercise of reasonable care by P. There was no warrant to extend D’s duty of care to the taking of steps to protect particular entrants from the consequences of their own failure to take reasonable care.

[224] Rondel v Worsley [1969] 1 AC 191; [1967] 3 All ER 993 House of Lords Negligence — Privileged groups — Immunity from action FACTS P was convicted of causing grievous bodily harm and sentenced to a term of imprisonment. Nearly six years later P issued a writ against the barrister who undertook his case on a dock brief, claiming damages for professional negligence. ISSUE Whether P’s barrister could rely upon the general principle of immunity from negligence in defence of a claim against him by P. DECISION An action did not lie against counsel. The immunity of counsel from being sued for professional negligence was based on considerations of public policy. It was in the public interest that the immunity should be retained. ‘But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, [page 131]

to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests’ (at AC 227 per Lord Reid).

[225] Rose v Plenty [1976] 1 All ER 97; [1976] 1 WLR 141 Court of Appeal Negligence — Vicarious liability — Master and servant — Prohibited acts FACTS D1 was a milk roundsman employed by D2. There were notices up at the depot making it quite clear that the roundsmen were not allowed to take children on the vehicles. One notice said ‘Children and young persons must not in any circumstances be employed by you in the performance of your duties’. Notwithstanding the warnings, such a practice persisted. D1 hired P, aged 13 years, and through D1’s careless driving, P was injured. ISSUE The question was whether D2 should be held vicariously liable for D1’s negligence. DECISION (by majority): D1 got, or allowed, P to do part of his work which was part of the employer’s business. Although prohibited, the milkman’s acts of employing P and carrying him on the milk float to deliver milk were within the scope of his employment, having been performed for the purposes of the employer’s business. Accordingly, D1’s conduct was within the course of his employment and D2 was vicariously liable for those acts.

[226] Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; 75 ALJR 734; [2001] HCA 18 High Court of Australia

Negligence — Breach of duty — Causation FACTS D performed oral surgery upon P, who was an experienced nurse. Following the surgery P suffered chronic pain and an inability to eat hard food. It was common ground that D did not advise P of the risks, either specific or general, of temporomandibular joint problems following surgery of that kind. P’s damages claim was dismissed, with a finding that D had not been negligent in not warning P of any material problem that might develop as even if P had been warned she would have proceeded with the surgery in any event. Those findings were overturned on appeal. On appeal to the High Court. [page 132] ISSUE Whether any breach of duty of care was causally related to P’s injuries. DECISION (upholding the appeal and reinstating the trial judge’s decision): The trial judge was entitled to find on the facts that any breach of duty of care by D was not causally related to P’s injuries. The trial judge considered the seriousness of P’s need for corrective surgery, her evident willingness to undergo the risks of general anaesthetic with which she was familiar and was entitled to conclude that P would have proceeded with the surgery even if she had been adequately warned of the risks involved. P’s claim against D failed.

[227] Rylands v Fletcher (1868) LR 3 HL 330; [1861–73] All ER Rep 1 House of Lords Rylands v Fletcher — Strict liability rule FACTS D arranged for the construction of a water reservoir on its lands for use in connection with its mill operation. Underneath the close of land on

which they proposed to construct the reservoir, there were certain old and disused mining shafts and passages. The weight of the water in the reservoir broke through those shafts, passed down the passages and into the workings under nearby land owned by P and flooded P’s mine, causing considerable damage. The judgment of the Court of the Exchequer Chamber ((1866) LR 1 Exch 265), delivered by Blackburn J: ‘We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major; or the act of God’ (at LR 1 Exch 279–80). ISSUE Whether a concept of strict liability should be imposed. DECISION (on appeal to the House of Lords): Their Lordships expressly approved the judgment of the Exchequer Chamber. Lord Cairns went on to state: ‘[O]n the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a nonnatural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land … and if in consequence of any imperfection in the mode of their doing so, [page 133] the water came to escape and to pass off into the close of the plaintiff, then it appears to me that which the defendants were doing they were doing at their own peril’ (at LR 3 HL 339).

[228] San Sebastian Pty Ltd v Minister Administering the

Environmental Planning & Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161 High Court of Australia Negligence — Negligent misstatements — Duty of care — Proximity FACTS In 1969 Sydney City Council adopted a plan for the redevelopment of Woolloomooloo. Study plans were placed on public display until they were scrapped in 1972. P, a developer, in reliance upon those plans purchased areas of land at Woolloomooloo. After the plan was abandoned the land was either compulsorily acquired or sold at a loss. ISSUE P sought damages claiming the plans contained untrue representations and that the council ought to have known that reliance would be placed upon those plans. DECISION (dismissing P’s appeal): The study plans and documents themselves did not contain any assurances that it would be applied continuously and inflexibly and that the development would be definitely carried out. The absence of any such representations or assurances made it impossible for the court to say that a duty of care was owed to P. Commentary was also made on relationship of proximity as an integral part of the duty of care concept.

[229] Scott v Davis (2000) 204 CLR 333; 175 ALR 217; [2000] HCA 52 High Court of Australia Negligence — Principal and agent — Vicarious liability FACTS P, after suffering nervous shock from witnessing the death of their 11-year-old son in a plane crash, sued D for damages. In response to a request by some of the guests at D’s daughter’s 21st birthday party for a ride in one of his vintage aeroplanes, D asked his wife to request another guest who

happened to be a pilot to take the children up in D’s plane. The pilot did so but crashed killing himself and P’s child. On appeal from a failure to award damages. [page 134] ISSUE The question was whether D would be liable for the negligent acts of the deceased pilot. DECISION (dismissing the appeal): The management of the aircraft was not subject to D’s control. The doctrines of agency and vicarious liability were not to be applied in the circumstances of this case. The flight was arranged to satisfy a request made on a social occasion. The pilot was neither an employee nor an independent contractor of D. No liability could be imported upon D.

[230] Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; 36 ALR 385 High Court of Australia Negligence — Negligent mis-statements – Duty of care FACTS P’s solicitor made inquiries of D as to any road widening proposals affecting land to be purchased by P. Those inquiries did not reveal anything. P sued D for loss of value of the land acquired when it was revealed that, in fact, road widening proposals were indeed in existence. ISSUE The extent of the duty of care owed by D. DECISION Contrary to the Privy Council decision in Mutual Life & Citizens Assurance Co Ltd v Evatt (see [198] above), there was no requirement or prerequisite of the application of a special skill in the advice being given, before a duty of care could be owed. D owed P a normal duty of care to give

good advice. There was no requirement to hold out any special skill in the giving of such advice.

[231] Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 High Court of Australia Damages — Assessment of quantum FACTS P was 20 years of age when she was injured in a motor accident, as a result of which she suffered very serious injuries including brain stem damage and was rendered a quadriplegic. The trial judge assessed damages of $300,000. ISSUE What were the proper criteria to be applied in the assessment of the quantum of damages? [page 135] DECISION (on appeal): The assessment was reduced by $30,000 and their Honours took time to comment on the various heads of damages used in making an assessment. The often-quoted judgment of Gibbs and Stephen JJ referred (i) to cost of medical and nursing care: ‘The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant … The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff’ (at CLR 573; ALR 65–6). Their Honours concluded that D should not be required to compensate P on any basis other than that of a lifetime spent in hospital (as opposed to more expensive home nursing) and also because of this P’s loss of the enjoyment and amenities of life will be the greater. Reference was also made (ii) to lost earning capacity: there should be an allowance for expenses which would have been incurred in earning the

income but there should be no allowance for involuntary savings in expenditure because P is unable to enjoy the pleasure-giving activities and expenditure in life; and (iii) to pain and suffering and loss of enjoyment and amenities of life. ‘The authorities also require, as does good sense, that to the extent that damages awarded under other heads produce freedom from economic uncertainty and the availability of funds for pleasurable activities, the less will be the loss to be compensated under this head’ (at CLR 585; ALR 75).

[232] Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 High Court of Australia Breach of statutory duty — Causation FACTS P’s husband was killed in an explosion at D’s mine. The deceased had been making a pre-shift inspection in the course of his employment as a mine deputy. P claimed damages on the basis of negligence and breach of statutory duty. P appealed against the finding for D, arguing that the evidence of a cigarette lighter nearby which implicated the deceased was inadmissible, by reason that contributory negligence was, by statute, no defence to an action for breach of statutory duty. ISSUE Whether the evidence of the lighter was a causal link to the damage sustained and to the conduct of the deceased in relation to alleged breaches of statutory duties. DECISION Such evidence was relevant to the count in negligence; and second, such evidence was put to the jury not to support a defence of contributory negligence but to show that the ignition of the gas was [page 136] due to the deceased’s own conduct and not any breach on the part of D.

Windeyer J said: ‘A deputy also has duties in relation to the safety lamps. It seems that a deputy who, in the course of making an examination to see whether gas be present, detonated gas, by striking a light or exposing the flame of his safety lamp, could not maintain an action for breach by his employer of a statutory duty to ventilate the mine’ (at 591).

[233] Skelton v Collins (1966) 115 CLR 94; [1966] ALR 449 High Court of Australia Damages — Assessment of FACTS At the time of a motor accident P was 17 years of age. He suffered multiple injuries, including severe injury to the brain which rendered him unconscious, in which condition he had remained. The evidence was that he would never recover and would probably die shortly after the case was finalised. The High Court took time to look at the question of assessment of damages. ISSUE Whether the unconscious state of P lessened the quantum of damages to which he would otherwise be entitled. DECISION by a majority: That regard must be had for the fact that P was unaware of his deprivations when assessing the damages for loss of amenities of life. Nominal sums were duly awarded for loss of expectation of life and loss of amenities of life. Further, where P’s expectation of life had been shortened by reason of the injuries sustained, damages for lost earning capacity were to be assessed on the basis of his probable working life had he not been injured and not on the basis of his shortened life span.

[234] Soblusky v Egan (1960) 103 CLR 215; [1960] ALR 310 High Court of Australia

Negligence — Principal and agent — Vicarious liability FACTS Egan sued Behrendorff (B) (who formerly owned the vehicle under hire-purchase), Soblusky (S) (who had recently purchased the vehicle and continued the original hire-purchase agreement but never took action to become the registered owner) and Lewis (L) (the driver) for personal injuries received by him as passenger in a motor vehicle [page 137] when, as a result of negligent driving, it hit a post. B was not in the vehicle at the time but S was a passenger, asleep in the back. The trial judge found B liable under statute as the owner and S, as bailee, was liable for the negligence of his agent, L, at common law. ISSUE Whether S would be liable for the acts of his alleged ‘agent’, L. DECISION (on appeal): The finding that B and S were equally liable was upheld. B was found to be a ‘tortfeasor’ within the statutory provisions allowing for contribution by tortfeasors. With regard to S, the court found liability as L was driving as agent for the bailee, S. ‘It appears quite immaterial that Soblusky went to sleep. That means no more than a complete delegation to this agent during his unconsciousness. The principle of the cases cited is simply that the management of the vehicle is done by the hands of another and is in fact and law subject to direction and control’ (at CLR 231 per Dixon CJ, Kitto and Windeyer JJ). S had appointed L to do the manual work of directing and controlling the car on his behalf.

[235] Southern Portland Cement Ltd v Cooper (1973) 129 CLR 295; [1974] AC 623; (1973) 2 ALR 113 Privy Council Occupier’s liability — Trespassers — Duty owed to

trespassers FACTS P, a boy aged 13 years, sustained very severe injuries while a trespasser on land occupied by D by coming into contact with a 33,000-volt electric cable. The electric cable, which was used in D’s business operations of quarrying limestone, was normally out of reach but was, as a result of earthmoving, within reach of P as he was playing on the sandhill. ISSUE Whether a duty of care was owed to a trespasser of P’s young age. DECISION (Lord Reid delivering the judgment of their Lordships): D knew that children were likely to trespass on the land to play on the sandhill and, accordingly, owed P a duty to take reasonable steps to prevent injury. Their Lordships noted that an occupier’s duty to a trespasser is based on consideration of humanity. ‘The rights and interests of the occupier must have full consideration. No unreasonable burden must be put on him’ (at AC 644). If the occupier creates the danger when he knows that there is a chance that trespassers will come that way and will not see or realise the danger, a duty may arise. [page 138]

[236] Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182; [1954] 2 All ER 561 Court of Appeal Trespass to land — Direct damage — Public nuisance — Defences — Onus of proof FACTS One of D’s tankers became stranded in an estuary. To save the vessel and the crew the master of the ship jettisoned 400 tons of oil which was carried by the tide on to foreshores belonging to P. P alleged that the deposit of oil on their foreshore was either a trespass to land, or a nuisance or that it was due to negligence.

ISSUE Whether there lay an action in trespass or in nuisance against D and where the burden of proof lay. DECISION (by majority): The discharge of oil was not done directly on to the foreshore but outside in the estuary. The damage was consequential and not direct; trespass does not lie. However the discharge of oil into the sea in such circumstance that it is likely to be carried on to the shores and beaches amounted to a public nuisance. Once the nuisance was proved and D was shown to have caused it, then the legal burden was shifted on to D to justify or excuse the actions. D could not show that the failure in the ship’s steering was without D’s fault and D had not discharged the burden on it. D could not show that it committed no negligence on this occasion.

[237] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513; 60 ALJR 194 High Court of Australia Vicarious liability — Master and servant — Non-delegable duty of care FACTS D was licensed to log state forests. D’s practice was to engage three categories of workers, being fellers, sniggers and truck drivers, and to allocate them to specific logging areas known as ‘compartments’. The operations were overseen by a ‘bush boss’ who was an employee of D. P, engaged as a truck driver by D, was struck by a log that G (a bulldozer operator engaged by D) attempted to load onto P’s truck. ISSUE The question was whether D was vicariously liable for G’s negligent acts. It was argued that snigging operations were an extra-hazardous activity and P was in breach of a non-delegable duty of care. [page 139] DECISION Finding that both P and G were independent contractors, D

was not in breach of any duty of care as it had provided a safe system of work and did not control or retain a right to control or supervise the loading of logs. G’s construction of a ramp to load the logs was entirely a matter for G. There was no strict liability by D arising out of the dangerous operations or extra-hazardous activities performed by P.

[238] Stoneman v Lyons (1975) 133 CLR 550; 8 ALR 173 High Court of Australia Vicarious liability — Trespass to land — Negligence FACTS D proposed to erect a supermarket on his land. He engaged an architect to supervise the erection of the building and also contracted with a builder to erect the supermarket in accordance with the architect’s plans. The builder’s workmen excavated a trench along the boundary with P’s land in what was found to be a very unskilled and careless manner. After a fall of rain the wall of P’s garage building, situated on that boundary, collapsed, due largely to the excavations. P’s claim was in trespass and negligence. D appealed against the decision to find him liable for the damages. ISSUE Whether D should be vicariously liable in trespass or negligence for the shoddy work his independent contractor. DECISION (by majority): Although D engaged the builder to carry out the contract work for him, he did not authorise nor did he direct the dangerous mode of digging the trench which caused the collapse of the wall. As such, the act of the independent contractor did not become the direct act of D so as to found an action of trespass against D. Further, the erection of a building in the immediate proximity of the wall of the adjoining building did not amount to ‘extra-hazardous’ operations which might otherwise be said to be an exception to the general rule in negligence, namely that an employer is under no liability for the acts of his independent contractor.

[239] Strong v Woolworths Ltd (2012) 246 CLR 182; 285 ALR 420; [2012] HCA 5 High Court of Australia Negligence — Causation FACTS P suffered serious spinal injury when she slipped and fell while at the Centro Taree Shopping Centre. At the time of her fall, P had [page 140] an amputated leg and used crutches to walk. Her right crutch came into contact with a greasy chip lying on the floor of D’s sidewalk sales area. The accident was at 12.30pm and the last periodic cleaning and inspection was at 8.00am. The Court of Appeal found D not liable, concluding the chip had probably been dropped at (recently) lunchtime and therefore reasonable 15minute periodical cleaning/inspection would not have detected it. ISSUE Whether on the balance of probabilities, D’s negligence caused P’s fall. DECISION P’s onus of proof could be satisfied by considering ‘the probabilities in circumstances in which the evidence did not establish when the chip was deposited’. The majority found that, since the evidence did not permit a finding as to when the chip was dropped on the floor, it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground long enough for it to have been detected and removed by operation of a reasonable cleaning system. Causation was thus established on the probabilities.

[240] Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562; 183 ALR 404; [2001] HCA 59

High Court of Australia Negligence — Duty of care — Extent of duty FACTS The Community Welfare Act 1972 (SA) established a child protection scheme, requiring the defendants in the carrying out of their responsibilities to treat the interests of the children as paramount. Two fathers, S and T, were each accused of sexually abusing their children. The charges against T were dropped but he suffered shock, distress, psychiatric harm and consequential personal and financial loss. No charges were laid against S but the allegations were believed by his wife, resulting in the breakdown of his marriage and those allegations being pursued unsuccessfully against him in proceedings in the Family Court of Australia. S and T each sued the respective treating practitioners, social workers and the sexual assault referral centre alleging breach of a duty of care owed to them to exercise reasonable care in the conduct of [page 141] their sexual abuse investigations. P argued that it was foreseeable that harm of the type allegedly suffered might result from want of care on the part of those who investigated the allegations. ISSUE Whether those involved in the investigation process were under a duty of care to S and T. DECISION (finding that no such duty of care existed): The statutory scheme that formed the background to the activities of the defendants was a scheme for the protection of children. It required the defendants to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon allegations that children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in

damages, to take care to protect persons who were suspected of being the sources of that harm.

[241] Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1 High Court of Australia Negligence — Duty of care — Foreseeability — Proximity FACTS In 1968 D (the Council) approved plans and issued a building permit for the construction of a house on a steep block of land. Although D’s officers inspected the house while under construction, there was no evidence that they inspected the footings. P and his wife then purchased the house in 1975. When structural defects appeared in the house a year later, attributable to inadequate foundations, P successfully sued D arguing that the council owed P a duty of care and its negligent inspection of the house caused them to suffer damages. ISSUE Whether D was in breach of any duty it owed to P. DECISION (on appeal): That although there may have been some carelessness in the inspection of the house while under construction, D was not in breach of any duty it owed to P. The relationship between P and D did not have the element of proximity necessary to give rise to a duty of D to ensure that P did not suffer economic loss. (See the judgment of Deane J.) [page 142]

[242] Tabet v Gett (2010) 240 CLR 537; 265 ALR 227; [2010] HCA 12 High Court of Australia Negligence — Loss of a chance — Extent of duty of care

FACTS P, aged six, was hospitalised with headaches and vomiting. She was later readmitted under D’s care when the symptoms continued and was diagnosed with chicken pox and possibly meningitis. She was subsequently diagnosed with a brain tumor and suffered irreversible brain damage. ISSUE Whether the loss of a chance of a better medical outcome, had she been properly diagnosed earlier, constituted the required ‘damage’ to found a negligence claim. DECISION The High Court held that to allow P to recover compensation in negligence for only the loss of a chance of a better medical outcome would diminish the requirement of P to prove on the balance of probabilities that her damage was caused by D’s negligence. P’s claim in negligence was refused.

[243] Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449; [2002] HCA 35 High Court of Australia Negligence — Psychiatric injury — Foreseeability FACTS A police officer made a clerical error by recording P’s blood alcohol reading at 0.14 in a traffic accident report. That information was then obtained by P’s insurance company and delayed P’s insurance claim. The police, upon realising the mistake, corrected the record and apologised. P developed an obsession about the incorrect information, believing everyone thought she was a drunk driver, leading to her suffering a psychiatric illness and she sued the police. ISSUE Limitation on recovery for pure psychiatric injury. DECISION The High Court held that a plaintiff who is unable to affirmatively establish the existence of a recognisable psychiatric illness is not entitled to recover damages. Grief and sorrow were among the ‘ordinary and inevitable incidents of life’ which did not entitle damages. The police

officer could not reasonably have been expected to foresee that his mistake carried a risk of harm to P. It was not reasonable to have her mental health in contemplation when he filled out the traffic report. [page 143]

[244] Town of Port Hedland v Hodder (No 2) (2012) 43 WAR 383; 294 ALR 315; [2012] WASCA 2012 Supreme Court of Western Australia – Court of Appeal Negligence — Contributory negligence — Standard of care expected of disabled plaintiff FACTS P, a deaf, blind and mute man, aged 23, was paralysed after diving off a block into 1.1 metres of water at the South Head Aquatic Centre, owned by D. P visited the pool while staying with relatives to give his mother and full-time carer a break. Prior to the accident, the council had been warned of the dangers of having permanent diving blocks at the shallow end of the pool. The trial judge found D 90 per cent liable and also found P 10 per cent liable in contributory negligence on an objective basis without reference to his disabilities. ISSUE The standard of care to be applied in deciding whether P failed to take reasonable care for his own safety; and the extent to which P’s disabilities were properly taken into account in assessing whether he failed to take reasonable care of his safety, and, if so, the extent of his culpability. DECISION The trial judge was wrong to assess P’s liability for contributory negligence without reference to his disabilities. The proper approach to the question of whether P failed to take reasonable care of his own safety is to ask what conduct might have been expected from a reasonable person in P’s situation having regard to his physical disabilities including, most relevantly, his visual impairment. There was no contributory negligence by P.

[245] Venning v Chin (1974) 10 SASR 299 Supreme Court of South Australia Trespass to the person — Highway cases — Onus of proof FACTS P, while walking across the road, sustained injuries when she was hit by a car driven by D. The trial judge held that on the pleadings as they stood P was entitled to a claim as for a trespass. However P’s damages were reduced by 60 per cent as a result of her contributory negligence. ISSUE Whether trespass to the person was an available claim to a person injured in a highway case. [page 144] DECISION (on appeal): The Full Court found that there was an action in negligence and apportioned P’s blame at 40 per cent. The court also looked at the question whether trespass was still available for injuries caused by negligence. On this question the court held that an action for trespass was open on the facts of this case and, further, that although generally in trespass the onus lies on the defendant to disprove negligence, the weight of authority favoured the proposition that highway cases were an exception to this rule, and that in trespass for injury on the highway the onus was on the plaintiff to prove either intention or negligence on the part of the defendant.

[246] Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388 Supreme Court of New South Wales (Court of Appeal) Occupier’s liability — Invitees — Vicarious liability FACTS D1 let a flat in a four-storey block of flats to P’s husband. One day

P was walking down the stairs and fell, sustaining injuries. The stairway had just been washed by the cleaning contractor with water containing detergent. The jury found D1 liable for breach of duty owed by it to a licensee, and the cleaning contractor liable for breach of the general duty of care owed to P. ISSUE What was the duty owed to an invitee in respect of an unusual danger? DECISION (on appeal): It was open to find P classed as an invitee for the reason that she was engaged on a visit to the rent office in which mission D1 had a material interest. There was evidence to justify the conclusion that the presence on the steps of water containing detergent constituted an unusual danger. The mere fact that P knew of a danger did not make it usual. The presence of the detergent would constitute an ‘unusual’ danger.

[247] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479; [1937] ALR 597 High Court of Australia Private nuisance — Interference with use of land FACTS Radio broadcasts were made from a platform on D’s land which overlooked P’s racecourse. As a result, attendances at the racecourse [page 145] dropped, causing economic loss. P claimed an injunction based on nuisance, alleging that D was making an unnatural use of his land and interfering with P’s proprietary right in the spectacle conducted on his land. ISSUE Whether there had been an actual interference with P’s enjoyment of his land thus giving rise to an action in nuisance.

DECISION D’s actions have not interfered in any way with the use and enjoyment of P’s land. There has been no infringement of a legal right of P. The effect of making P’s business less profitable does not give a cause of action. D does not interfere with the racecourse or the comfort or enjoyment of patrons.

[248] Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] ALR 657 High Court of Australia Negligence — Duty of care — Liability for independent contractor FACTS P attended a tobacco growers meeting at the Inglewood Shire Hall. While on the stage to cast his vote, the stage collapsed. P sued the council as owner, the building contractor and the architect. The building had been built a year earlier in accordance with the architect’s plans. These plans provided for joists of insufficient width to support the minimum weight required for such a stage. These plans were approved by council. ISSUE Who owed the duty of care and was thus liable for the damages caused by the collapsed stage? DECISION (finding both the architect and council equally liable): The architect owed a duty of care to P to design the stage as to make it able to bear the weight reasonably expected to be upon it. ‘His duty of care extended to persons who would come there to use it in the ordinary way’ (at CLR 85 per Windeyer J). The architect failed to use due care and skill in the performance of his duty. Further, council knew what was required in the work and must be liable, both vicariously for the negligence of the architect it employed, and directly because of the failure of its officers to examine correctly the architect’s plans in accordance with council by-laws for such structures.

[page 146]

[249] Wallace v Kam (2013) 250 CLR 375; 297 ALR 383; [2013] HCA 19 High Court of Australia Negligence — Causation — Medical practitioner — Failure to warn of material risks inherent in a surgical procedure FACTS D performed a surgical procedure on P in an effort to relieve him of a condition of his lumbar spine. The procedure had inherent risks, one of which was temporary damage to P’s thighs, or ‘neurapraxia’. Another risk was a one in 20 chance of permanent and catastrophic paralysis. The first risk materialised, the second risk did not. It was found at trial that while D negligently failed to warn P of the risk of neurapraxia, P would have chosen to undergo the surgical procedure even if warned of that risk. It was also found that the legal cause of the neurapraxia could not be the failure to warn of some other risk that did not materialise. ISSUE Whether the failure to warn of the risk of paralysis could constitute the legal cause of the neurapraxia suffered by P. In circumstances where P would have taken the risk if warned of neurapraxia only. DECISION: The High Court held that it was not appropriate for D’s liability to extend to the physical injury in fact sustained by P (neurapraxia) in circumstances where P would not have chosen to undergo the surgical procedure had he been properly warned of all material risks (that is, the paralysis risks), but where he would have chosen to undergo the surgical procedure even if he had been warned of the risk of neurapraxia that in fact materialised. The policy underlying the requirement that a medical practitioner exercise reasonable care and skill in warning a patient of material risks inherent in proposed treatment is to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient. The court held that P was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept.

[250] Watt v Rama [1972] VR 353 Supreme Court of Victoria Negligence — Duty of care — Duty to unborn child FACTS A pregnant woman was injured in a motor accident by reason of D’s negligence. She subsequently gave birth to P who suffered from brain damage and epilepsy, allegedly due to the injuries sustained in the accident. [page 147] ISSUE The question was whether P, born with injuries caused by the prenatal neglect of D, could sustain an action in negligence against D. D argued no duty was owed to P at the time and who was not living and had no separate existence apart from her mother. The issue was foreseeability. DECISION (finding D liable): If it might reasonably have been foreseen that the pregnant woman might be injured by D’s carelessness, it must follow that the possibility of injury on birth to the child she was carrying must equally have been reasonably foreseeable. These circumstances constituted a potential relationship capable of imposing a duty on D in relation to the child if and when born. On the child’s birth the relationship crystallised and out of it arose a duty on D in relation to the child.

[251] White v Jones [1995] 2 AC 207; [1995] 1 All ER 691 House of Lords Negligence — Duty of care — Negligent omissions FACTS D, a firm of solicitors, received instructions in July for the preparation of a new will which included P1 and P2 as beneficiaries. By

September the will had not been drawn up and the testator died. P1 and P2 sued D for negligence for the loss of their prospective entitlements under the proposed will. ISSUE Whether the failure to prepare the will gave rise to a breach of any duty of care that may have been owed to the beneficiaries. DECISION (finding the solicitors liable): D assumed responsibility towards their client to prepare the will and having negligently failed to do so they were liable to those deprived of a legacy. D owed a duty to the intended beneficiary to act with due expedition and care in relation to the task that they had assumed.

[252] Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60; 267 ALR 23; [2010] HCA 22 High Court of Australia Negligence — Nervous shock — Witness to accident FACTS In 2003 two policemen (P) attended the scene of the Waterfall (New South Wales) train crash after a derailment had occurred. They were among the first to arrive at the scene, soon after the accident [page 148] happened and they were directly involved in the rescue operation. They saw injured and deceased passengers. They sued the Authority for damages for resulting psychiatric injury, alleging the negligence of the Authority in its failure to ensure that the train’s ‘dead man’s’ safety device was operating in the event of the train driver’s incapacitation. Section 30(2)(a) of the Civil Liability Act 2002 (NSW) provided that a plaintiff was not entitled to recover damages for pure mental harm unless ‘the Plaintiff witnessed, at the scene, the victim being killed, injured or put

in peril’. The lower court decisions concluded that neither of them had witnessed a victim of the derailment being so ‘killed, injured or put in peril’. On appeal to the High Court: ISSUE For liability purposes, what acts constituted ‘being put in peril’. DECISION (allowing the appeal): Ps were found to have witnessed, at the scene, victims being ‘injured’ or ‘put in peril’ as there are cases where death or injury or being put in peril takes place over an extended period and this was such a case. It was held that it was incorrect to read s 30(2)(a) as though it were based on the assumption that all cases of death, injury or being put in peril were events that begin and end in an instant.

[253] Williams v Milotin (1957) 97 CLR 465; [1957] ALR 1145 High Court of Australia Trespass to the person — Highway cases — Negligence FACTS P was riding a bicycle along a public road when he was struck from behind by a motor truck which was negligently driven by D. P’s action for damages in negligence was commenced more than three years later. An action in trespass would be statute barred as being out of time. ISSUE Whether an action was available in negligence in circumstances where an action in trespass was now statute barred by reason of effluxion of time. DECISION While the cause of action might properly have been laid as a trespass to the person, as P was immediately or directly hit by the truck driven by D, the action might also have been brought as an action on the case to recover special or particular damage caused by D’s negligence. P, having elected to rely on the second cause of action, negligence, may rely on the applicable statutory time limitations for that cause of action.

[page 149]

[254] Wilson v Pringle [1987] QB 237; [1986] 2 All ER 440 Court of Appeal Trespass — Trespass to the person — Battery — Elements of FACTS P and D were 13-year-old school boys. P claimed damages for trespass to the person alleging that D jumped on P’s back intentionally. D denied liability arguing that he merely pulled P’s school bag off his shoulder, which was an act of ordinary horseplay induced by P. D denied that his actions were hostile but judgment was entered against him. On appeal: ISSUE The question was whether such acts amounted to a battery. DECISION (allowing the appeal): Battery was an intentional and hostile touching of, or contact with, one person by another. An intention by the assailant to injure the other was not an essential element of the tort. Although all are entitled to protection from physical molestation, in a crowded world people must be considered as taking on themselves some risk of injury from the acts of others which are not in themselves unlawful.

[255] The Winkfield [1902] P 42; [1900–03] All ER Rep 346 Court of Appeal Conversion — Title to sue — Action by bailee FACTS A ship, the Winkfield, negligently collided with another vessel, the Mexican, at sea in a fog. The Mexican sank with its cargo which included mail. The Postmaster-General sought recovery of the value of the letters and parcels lost at sea. It was accepted that the Postmaster was a bailee in

possession (even though not in actual occupation) and further that he was under no liability to the bailors (the senders of the letters). ISSUE Whether the bailee of the cargo (letters) had title to sue for conversion. DECISION The Postmaster-General, as a bailee in possession, was entitled to recover the value of the goods lost by the negligence of the Winkfield as, against a wrongdoer, possession is title. The obligation of a bailee to account was not a precondition of his title to sue. D’s liability was not affected by the fact that, here, the bailee was not under an obligation to account to the bailors (being the senders of the letters). [page 150]

[256] Woolworths Ltd v Crotty (1942) 66 CLR 603; [1943] ALR 100 High Court of Australia Compensation to relatives — Wrongful death FACTS P’s daughter bought an electric light globe from D on behalf of her brother. Owing to a defect in the globe, the brother was electrocuted and killed while using the globe. ISSUE The question was whether the Compensation to Relatives legislation (Lord Campbell’s Act) applied in cases where death is brought about by breach of contract or whether it was limited to cases where the death is the result of a tort. DECISION A breach of contract (in the case, breach of implied warranty of fitness for its purpose) causing wrongful death was within the term ‘wrongful act, neglect or default’ in the Compensation to Relatives Act 1897 (NSW).

[257] Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; 133 ALR 154 High Court of Australia Damages — Assessment of FACTS D argued that, when assessing damages for a car accident, there should be a discount to the damages for the fact that P, a woman, would have child care costs and also would have about two years’ absence from the workforce to have two children and also that she would have at some stage chosen a less demanding job than her then executive position with American Express because of her family. ISSUE Whether a reduced assessment of the quantum of damages was warranted by those gender-specific reasons DECISION (rejecting the submission): There was nothing to suggest that P was any less able than any other career-oriented person, whether male or female, to successfully combine a demanding career and family responsibilities. As to child care costs, they were simply one of the costs of having children, being an essentially private cost. Thus they were no more to be deducted when calculating loss of earning capacity than were other items of expenditure for personal amenity. [page 151]

[258] Wyong Shire Council v Shirt (1980) 29 ALR 217; 54 ALJR 283 High Court of Australia Negligence — Breach of duty of care — Standard of care — Foreseeability

FACTS D (the council) dredged a channel in a lake to give access to boats to deeper parts of the lake for water skiing, and erected ‘Deep Water’ signs along the channel. P, an inexperienced water skier, became a paraplegic when he fell off his skis in shallow water, near one of those signs. The New South Wales Court of Appeal affirmed the finding of negligence against D in relation to the sign. ISSUE The High Court, in refusing leave to appeal, discussed the question of ‘foreseeability’. DECISION In deciding whether there has been a breach of the duty of care ‘the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk’ (at ALR 217 per Mason J, Stephen and Aickin JJ concurring).

Index References are to case numbers

A Action on the case damages …. 24 intentional injury to person …. 28 Airspace trespass …. 27 Animals dangerous …. 125 ferae naturae …. 25 mansuetae naturae …. 96 vicious propensity …. 90, 96 Appeal facts, re-examination …. 99 Apportionment contributory negligence …. 22 Assault detention, by …. 64 elements …. 221 passive obstruction …. 142 standing to sue …. 67 threats of violence …. 23 what constitutes …. 20, 63

B Bailee action by …. 255 rights of …. 61 Battery elements …. 221, 254 what constitutes …. 63 Breach confidence, of …. 83 duty of care see Duty of care privacy …. 14, 80, 82, 106 remedies …. 14 Breach of statutory duty absolute statutory obligations …. 102 causation …. 232 civil action for damages …. 70 civil right of action …. 73 civil rights …. 10 Crown liability …. 86 dangerous machinery, guards for …. 193 defective structures …. 11 onus of proof …. 31

C Causation …. 31, 226 breach of statutory duty …. 232 defective product …. 183 duty to warn of risks …. 59, 200

material risk, failure to warn …. 249 more than one negligent act …. 179 negligence …. 2, 3, 7, 8, 17, 56, 59, 107, 116, 150, 179, 180, 200, 239 successive injuries …. 107 Chattels trespass …. 213 Children duty of care …. 50 negligence …. 50 standard of care …. 50 tortfeasor, as …. 176 Civil liability …. 1 Civil proceedings malicious abuse …. 94 Civil rights breach of statutory duty …. 10 Compensation negligence …. 17 relatives, to …. 153, 256 Concurrent liability definition …. 178 several tortfeasors …. 33 Conduct plaintiff, of …. 9 Confidence breach of …. 83 Consent false imprisonment …. 19 implied …. 58, 161

informed …. 156 trespass …. 19 Consortium, loss of …. 69 damages …. 155 Contributory negligence …. 69 apportionment …. 22 bar to recovery …. 44 damages, assessment of …. 100 defence, as …. 76, 150 disabled plaintiff …. 244 ‘last opportunity’ doctrine …. 75 loss of consortium, and …. 69 principles of …. 214 reasonable action by plaintiff …. 72 Conversion actual loss, assessment of …. 43 actual or constructive possession …. 84 defences …. 76 elements of …. 39 possession and …. 84 title to sue …. 144, 255 Council ratepayer, injury to …. 88 Crown breach of statutory duty, liability …. 86

D Damages

action upon the case …. 24 assessment …. 43, 68, 93, 98, 100, 104, 113, 151, 153, 155, 169, 212, 231, 233, 257 breach of statutory duty …. 70 causation and negligence …. 180 compensatory …. 98 consortium, loss of …. 69, 155 contributory negligence and …. 100 detinue …. 104 gratuitous services and …. 113 inflation, allowance for …. 169 insurance policy …. 212 limitation of action …. 51 mitigation of losses …. 127 proportionate liability …. 136 provocation …. 128 quantum, assessment of …. 231 reasonable foreseeability, limit …. 103 relatives, compensation to …. 153 remarriage, prospects of …. 151 remoteness of damage …. 115 successive injuries …. 107 tortious act, whether …. 57 trespass to land …. 87 Death negligence …. 16 wrongful …. 256 Defamation defence of privilege …. 134, 190

express malice …. 134 fair comment defence …. 157, 174 implied consent …. 58 imputed references …. 189 innuendo …. 168, 189 internet publication …. 85 privilege …. 58 remedies …. 91 Defective products causation …. 183 negligence …. 183 product liability …. 183 Defective structures breach of statutory duty …. 11 negligence …. 55 Defences conversion, to …. 76 defamation …. 134, 157, 174, 190 necessity …. 175 negligence, to …. 26, 54, 132 prima facie grounds …. 91 statutory authority, of …. 165, 185 voluntary assumption of risk see Volenti non fit injuria Detinue bailee, rights of …. 61 damages …. 104 when cause of action accrues …. 61 Duty of care …. 2, 4, 5, 32, 37, 40, 46, 48, 110, 139, 146, 147, 162 abnormal plaintiffs …. 167

breach …. 28, 81, 112, 117, 118, 182, 258 chance, loss of …. 242 defences …. 54 economic loss …. 21, 122, 198 employees’ services, loss …. 21 employer’s ‘personal’ duties …. 154 existence of …. 133 extent …. 222, 223, 240, 242 financial advice …. 198 foreseeability …. 32, 54, 56, 241, 258 illegality, where …. 145 invitees …. 15, 74, 209 landlord and tenant …. 205 liability for independent contractor …. 248 negligent omissions …. 251 ‘neighbour’ test …. 81 non-delegable …. 237 nuisance …. 118 practicability …. 46 proximity …. 6, 37, 101, 120, 126, 145, 147, 152, 219, 228, 241 remoteness of risk …. 182 skilled workers …. 220 standard of …. 30, 50, 108, 117, 167, 220, 258 to whom owed …. 49, 71, 81, 89, 112, 195 trespassers …. 218, 235 unborn child, to …. 250 when arising …. 105

E Economic loss breach of confidence …. 83 cause of action …. 92 duty of care to prevent …. 122 employees’ services, loss of …. 21 financial advice …. 198 foreseeability …. 215 intentional infliction of …. 24 intentional injury …. 206 negligence …. 12 property damage …. 47, 48 proximity …. 152, 215 Employment relationship see also Master and servant duty of care …. 154 intentional wrongdoing of employee …. 173 vicarious liability …. 130, 159 Evidence appellate court duty to review …. 99 negligence, jury finding …. 35

F False imprisonment cognisance of restraint …. 124, 181 consent and …. 19 directly causing restraint …. 119 failure to perform duty …. 123 reasonable delays …. 149

reasonable means of escape …. 41 restraint of liberty …. 29, 199 right of detention …. 149 trespass to the person …. 13, 78, 97, 204 wrongful imprisonment …. 204 Foreseeability …. 30, 32, 56, 116, 135, 207, 208, 241, 258 reasonable …. 47

G Good Samaritan rescue …. 121 Goods demand …. 148 trespass to …. 60, 201

H Highway authority ‘highway rule’ …. 36 negligence …. 36, 109 Highway cases trespass to person, whether …. 245, 253 Hospitals patients, vicarious liability …. 5

I Illegality participation in criminal activity …. 145 Independent contractor

liability for …. 248 Injunctions breach of privacy …. 82 defamation …. 91 nuisance …. 160 Injury intentional …. 28, 166 psychiatric …. 243 ratepayer, to, by council …. 88 Insanity …. 1 Intentional torts elements of …. 39

L Land continuing trespass …. 163 interference with use of …. 247 natural use of …. 164 sensitive use of …. 34 trespass …. 9, 18, 87, 138, 141, 171, 175, 217, 236, 238 unlawful entry …. 217 unlawful use of …. 111 Licence implied …. 9 Limitation of action …. 51 Lord Campbell’s Act …. 16 Loss consortium, of see Consortium, loss of

services, of see Services, loss of

M Malicious prosecution malicious abuse of civil proceedings …. 94 Master and servant …. 66, 162, 164, 172 see also Employment relationship non-delegable duty of care …. 237 prohibited acts …. 225 theft of goods …. 191 Medical negligence material risk, practitioner failure to warn …. 249 standard of care …. 202 Misrepresentation economic loss …. 122 Misstatement negligent, reliance upon …. 211, 228, 230 Mistake …. 97

N Negligence actions contrary to express prohibitions …. 38 breach of duty …. 1, 88 causation …. 2, 3, 7, 8, 17, 239 contributory see Contributory negligence dangerous substances …. 40 death …. 16 defective product …. 183 defective structures …. 11

defences see Defences duty of care see Duty of care economic loss …. 12, 21 evidence …. 35 foreseeability …. 30, 192, 207, 243 Good Samaritan actions …. 121 highway authority …. 109 immunity from action …. 224 landlord and tenant …. 205 lengthy period …. 7 medical …. 202 medical practitioner …. 249 misrepresentation …. 122 negligent misstatement …. 211, 228, 230 nervous shock …. 6, 147, 192, 252 privileged groups …. 224 proof …. 131, 203 proportionate liability …. 136 psychiatric injury …. 243 res ipsa loquitur …. 193 sporting organisation …. 4 statutory authorities …. 36 successive negligent acts …. 178 successive tortfeasors …. 8 vicarious liability see Vicarious liability voluntary assumption of risk see Volenti non fit injuria young tortfeasor …. 176 Nervous shock proximity of relationship …. 6

Nuisance abnormal sensitivity …. 194 conflicting interests, balance of …. 187 defence of statutory authority …. 185 duty of care …. 118 implied consent …. 161 intention to disturb …. 132 malicious acts …. 132 non-occupier liability …. 95 occupier’s knowledge of …. 52 private …. 34, 62, 95, 132, 160, 185, 187, 247 public …. 52, 111, 236 reasonableness of conduct …. 164 test of …. 194 unreasonable interference …. 111

O Occupier’s liability categories of entrants …. 218 duty to licensees …. 170 invitees …. 15, 246 negligence, duty of care …. 188 reasonable use of premises …. 74 trespassers and duty of care …. 218, 235 Onus of proof breach of statutory duty, causation …. 31 negligence, proof of …. 203 trespass to land …. 236

trespass to the person …. 216, 245

P Perjury conspiracy to commit …. 27, 45 Plaintiff conduct, of …. 9 Possession …. 18 actual or constructive …. 84 invasion of …. 213 Principal and agent vicarious liability …. 65, 186, 229, 234 Privacy actionable, whether …. 114 injunctions for breach …. 82 tort of …. 14 videos …. 106 Privilege defamation, implied consent …. 58 defence of …. 134 qualified …. 190 Privity of contract …. 55 Product liability negligence, defective product …. 183 Proof breach, of …. 131 negligence, of …. 203 onus of see Onus of proof

Property diminution in value …. 93 restoration, cost of …. 93 Proprietary rights title to sue …. 144 Provocation …. 128 Proximity …. 6, 37, 101, 120, 126, 145, 147, 152, 219, 228, 241 Public interests defamation …. 190 private nuisance …. 187 Publication innuendo …. 168 internet …. 85

R Reasonableness nuisance and …. 62, 164 Recovery contribution, of …. 33 contributory negligence …. 44 Remedies availability …. 14 breach of privacy …. 80 death as result of negligence …. 16 defamation …. 91 injunctions …. 160 nuisance …. 160 self-help …. 42

Remoteness of damage damages …. 115 negligence …. 17, 135 trespass …. 129 Res ipsa loquitur …. 193 Rylands v Fletcher rule …. 40, 227

S Scienter rule …. 25, 96, 125 imputed knowledge of owner …. 90 Services, loss of employees …. 66 servant …. 66 Standard of care …. 30, 50, 176, 202, 210, 258 children …. 50 disabled plaintiff …. 244 gravity of harm …. 210 Standard of duty …. 15, 108, 117, 167 Statutory authorities defence of …. 165, 185 ‘highway rule’ …. 36 Statutory duty absolute statutory obligations …. 102 breach of see Breach of statutory duty civil action …. 45, 73 Crown liability …. 86 highway authority and nonfeasance …. 109 Strict liability …. 25, 40, 90, 125, 227

T Tortfeasors contribution between …. 79, 172 more than one …. 33, 178 successive …. 8 young …. 176 Trespass ab initio …. 60 airspace …. 27 assault …. 18, 23 chattels, to …. 213 consequential injuries …. 137 defence of necessity …. 175, 197 definitions …. 166 direct interference …. 137 false imprisonment, consent …. 19 forcible entry …. 171 goods, to …. 60, 201 justification …. 171 land …. 9, 18, 87, 138, 141, 163, 171, 175, 217, 236, 238 passive obstruction …. 142 person, to …. 13, 20, 60, 63, 64, 78, 97, 124, 128, 142, 156, 177, 196, 197, 216, 245, 253, 237 pro tanto 141 remedies …. 42 remoteness of damage …. 129 right to sue in …. 18 unauthorised conduct …. 141

V Vicarious liability …. 5, 38, 53, 184, 238 authorised acts …. 77 defamation …. 65 employment relationship …. 130, 159 intentional wrongdoing of servant …. 173 invitee …. 246 master and servant …. 162, 191, 225, 237 principal and agent …. 65, 186, 229, 234 Volenti non fit injuria …. 26, 121, 123, 138, 140, 143, 158, 177, 196

W Warn duty to warn of risks …. 59, 200 failure to warn …. 249