LAW OF TORTS

1
LAW OF TORTS

• Negligence Duty of Care
• Clary Castrission
• clary_at_40k.com.au

2
How will we cover negligence?

• Duty of Care at common law
• Civil Liability Act and Duty of Care
• More CLA and Breach of Duty
• Damage and Particular Duty Areas
• More Particular Duty Areas

3
Negligence- Duty of Care

• Snails
• Overview of negligence
• Arriving at a Duty of Care
• Categories
• The harder ones
• Proximity and Reasonable Foreseeability v
  Incrementalism
• Some interesting applications
• Unborn children and the wrongful life cases
• Legislative reform

4
NEGLIGENCE AND FAULT IN TORTS
FAULT
NEGLIGENCE
INTENTION
TRESPASS
NEGLIGENCE the action
CARELESS
5
NEGLIGENT TRESPASS

• Intentional or negligent act of D which
  directly causes an injury to the P or his /her
  property without lawful justification
• The Elements of Trespass
• fault intentional or negligent act
• injury must be direct
• injury may be to the P or to his/her property
• No lawful justification

6
NEGLIGENT TRESPASS

• While trespass is always a direct tort, it is not
  necessarily an intentional act in every instance.
  It may be committed negligently
• Negligent trespass is an action in trespass not
  in negligence
• Where the facts of a case permit, it is possible
  to frame an action in both trespass and
  negligence on the same facts
• Williams v. Molotin (1957) 97 CLR. 465.

7
What is Negligence?

• It is the neglect of a legal duty
• Negligence v carelessness
• The law takes no cognisance of negligence in the
  abstract. It concerns itself with carelessness
  only where there is a duty to take care and where
  failure in that duty has caused damage. (Lord
  MacMillan in D v S)
• Tame v NSW (2002) 211 CLR 317

8
Negligence The Elements
Duty of care
Negligence
Breach
Damage
9
Negligence The Early Cases

• Heaven v. Pender (1883)
• The dicta of Brett MR
• whenever one person is by circumstances placed in
  such a position with regard to another, that
  every one of ordinary sense who did think would
  at once recognise that if he did not use ordinary
  care and skill in his own conduct with regard to
  those circumstances he would cause danger or
  injury to the person or property of the other
  (person) a duty arises to use ordinary care and
  skill to avoid such danger.

10
Donoghue v. Stevenson 1932 AC 562

• Facts
• Understanding the relationships

11
Donoghue v Stevenson (cont)

• Dicta of Lord Atkin
• The rule that you are to love your neighbour
  becomes in law, you must not injure your
  neighbour, and the lawyers 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
  closely and directly affected by my act that I
  ought reasonably to have them in mind to the acts
  or omissions which are called into question (at
  599)

12
The Manufacturers Duty

• Grant v Australian Knitting Mills (1936)
• The application of the rule in D v S
• a manufacturer of products, which he sells in
  such a form as to show that he intends them to
  reach the ultimate consumer in the form in which
  they left him with no reasonable possibility of
  intermediate examination, and with the knowledge
  that the absence of reasonable care in the
  preparation or putting up of the products will
  result in an injury to the consumers life or
  property, owes a duty to the consumer to take
  that reasonable care
• Baar v Snowy Mountains Hydro-Electric Authority
  (1970) 92 WN (NSW) 472

13
What did Lord Atkin mean?

• What Lord Atkin did was use his general
  conception to open up a category of cases giving
  rise to a special duty The process may be
  described either as the widening of an old
  category or as the creation of a new and similar
  one. The general conception can be used to
  produce other categories in the same way.
• Lord Devlin in Hedley Byrne Co Ltd v Heller
  Partners Ltd 1964 AC 465 (at 524)

14
Established Categories

• Type of Harm
• Type of Defendant
• Type of Plaintiff
• Manufacturer to consumer
• Makers/repairers to users of chattels
• Teachers to pupils
• Occupiers of land to visitors
• Skilled professionals to their clients
• Highway workers to highway users

15
Checking In

• Snails
• Overview of negligence
• Arriving at a Duty of Care
• Categories
• _________
• The harder ones
• Proximity and Reasonable Foreseeability v
  Incrementalism
• Some interesting applications
• Unborn children and the wrongful life cases
• Legislative reform

16
Duty of Care in General

• Where there is physical loss or injury (or an
  established category), duty is relatively easy to
  identify.
• Rylands v Fletcher (1868) LR 3 HL 330
• Where nature of harm is more difficult to
  identify or quantify, it gets tougher.

17

• WHAT HAPPENS WHEN THE DUTY DOES NOT FIT AN
  ALREADY EXISTING CATEGORY?

• What is needed is a conceptual framework that
  will promote predictability and continuity and at
  the same time facilitate change when it is
  needed. (McHugh J in Perre v Apand (1999))
• Principle v Category
• Principle Proximity and Reasonable
  Foreseeability
• Category Incrementalism
• There is still much disorder and confusion-
  Kirby J Perre v Apand

18
What is Reasonable Foreseeability?

• Question of identity of the plaintiff
• Question of law

Is the P reasonably foreseeable (as person or
member of a class of people) likely to be
affected by Ds actions?
19
Reasonable Foreseeability Case Law

• Some illustrations
• Palsgraf v. Long Island R.R. Co. (1928
• Chapman v. Hearse (1961)

20
Reasonable Foreseeability Established Category
Of Duty of Care

• Wyong Shire Council v Shirt (1980) 146 CLR 40 per
  Brennan J
• risk must be real in the sense that a
  reasonable person would not brush it aside as
  far-fetched or fanciful.
• Koehler -v- Cerebos (Australia) Limited 2005
  HCA 15
• McHugh, Gummow, Hayne and Heydon JJ (majority)
• The central inquiry remains whether, in all the
  circumstances, the risk of a plaintiff
  sustaining a recognisable psychiatric illness was
  reasonably foreseeable, in the sense that the
  risk was not far fetched or fanciful 33

21
Needs Something Else

• Sullivan v Moody (2001) 207 CLR 562
• The fact that it is foreseeable that a careless
  act on the part of one person may cause harm to
  another does not mean the first is subject to a
  legal liability

22
Proximity

• Jaensch v. Coffey (1984)
• (Proximity involves) notions of nearness or
  closeness and embraces physical proximity (in the
  sense of space and time), circumstantial
  proximity such as an overriding relationship of
  employer and employee or of a professional man
  and his client, and causal proximity in the sense
  of the closeness or directness of the
  relationship between the particular act or cause
  of action and the injury sustained. (per Deane
  at 584-585)

23
The High Point of Proximity

• Bryan v Maloney (1995) 182 CLR 609
• A duty of care arises under the common law of
  this country only where there exists a
  relationship of proximity between the parties
  with respect to both the relevant class of act or
  omission and the relevant damage. (at 543)

24
Proximity Criticised

• The High Court has expressed reservations about
  the usefulness of the notion of proximity in
  recent times
• Sutherland SC v Heyman (1985)
• Hill v Van Erp (1997)
• Perre v Apand (1999)
• Modbury Triangle Shopping Centre Pty Ltd v Anzil
  (2000)

25
Proximity - Criticised

• Sullivan v Moody (2001) 207 CLR 562
• Facts
• Judgment
• Gleeson CJ, Gaudron, McHugh, Hayne Callinan JJ
• 573 foreseeability of harm is not sufficient
  to give rise to a duty of care
• 578 The formula is not proximity.
  Notwithstanding the centrality of that concept,
  for more than a century it gives little
  practical guidance in determining whether a duty
  of care exists in cases that are not analogous to
  cases in which a duty has been established

26
Incrementalism

• It is preferable, in my view, that the law
  should develop novel categories, rather than by a
  massive extension of a prima facie duty of care
  restrained only by indefinable considerations
  which ought to negative, or limit the scope of
  the duty or the class of persons to whom it is
  owed.
• Brennan J in Sutherland Shire Council v Heyman
  (1985) HCA

27
The Anns 2-Stage Test The UK Way

• Anns v Merton London Borough Council 1978 AC
  728
• 2-Stage Test (Wilberforce)
• It requires first a sufficient relationship of
  proximity based upon foreseeability
• and secondly considerations of reasons why there
  should not be a duty of care.

28
Australia Elaborates on Anns

• Jaensch v. Coffey (1984) per Deane J. p587-8
• A duty situation could arise from the following
  combination of factors
• A reasonable foreseeability of real risk of
  injury to P either as an identifiable individual
  or a member of a class of persons, and
• The existence of proximity between the parties
  with respect to the act or omission
• Absence of any rule that precludes such a duty

29
The 3-Stage Caparo Test

• Caparo Industries Plc v Dickman 1990 2 AC 605
• Was damage to P reasonably foreseeable
• Was relationship between P and D sufficiently
  proximate, and if so
• Would it be fair, just and reasonable to apply DOC

30
Perre v Apand (1999) 198 CLR 180

• Facts
• High Court gets the chance to explore the current
  state of duty of Care

31
Gaudron in Perre

• Prox is too ambiguous First, proximity as the
  second stage in a three stage test has no more
  content than it did when it was used as the
  unifying criterion Gaudron at 10
• Too powerful would prevent incrementalism.
  Concern that Caparo would be used in any case,
  even where there is an established duty category
• Too troublesome Fair, just and reasonable is
  troublesome- They are of little use, if they
  are of any use at all, to the practitioners and
  trial judges who must apply the law to concrete
  facts arising from real life activities.
  Gaudron at 12

32
Gaudron Concluding

• Need for predictability
• When legal practitioners are unable to predict
  the outcome of cases with a high degree of
  probability, the choice for litigants is to
  abandon or compromise their claims or defences or
  to expose themselves to the great expense and
  unpredictable risks of litigation. Gaudron at
  20
• Incrementalism is best compromise
• Until a unifying principle again emerges,
  however, the best solution is to proceed
  incrementally from the established cases and
  principles. Gaudron at 25

33
Kirby J

• Look at other jurisdictions
• Reasonable foreseeability falls short, so
  proximity has a role to play
• If on the other hand, proximity were to be
  confined to its original historical purpose as a
  measure of nearness and closeness between the
  parties in dispute, it cold yet provide a
  meaningful gateway, in addition to reasonable
  foreseeability of harm, to afford the starting
  point for the allocation of a legal duty of care
  or exemption from its burden. Then it would
  remain necessary to weigh candidly the competing
  policy considerations relevant to the imposition
  of a duty of care. Kirby at 24

34
Kirby J applying Caparo

• Foreseeability
• Proximity
• Policy

35
Wrapping up the approaches

• The quest for the unifying principle
• - Anns 2-Stage Test
• - Caparo
• Incremental Approach A compromise
• - Brodie v Singleton Shire Council (2001) 206 CLR
  512

36
Checking In

• Snails
• Overview of negligence
• Arriving at a Duty of Care
• Categories
• The harder ones
• Proximity and Reasonable Foreseeability v
  Incrementalism
• ----------------------
• Some interesting applications
• Unborn children and the wrongful life cases
• Legislative reform

37
Interesting Duty Application 1

• The unborn child
• There can be no justification for distinguishing
  between the rights of a newly born infant
  returning home with his /her mother from hospital
  in a bassinet hidden from view on the back of a
  motor car being driven by his proud father and of
  a child en ventre sa mere whose mother is
  being driven by her anxious husband to the
  hospital on way to the labour ward to deliver
  such a child ( Per Gillard J in Watt v Rama)
• Lynch v Lynch (1991)
• Watt v Rama 1972 VR 353

38
Unborn Child

• Wrongful life cases
• Harriton v Stephens 2006 HCA 15 (9 May 2006)
  Appeal dismissed (7 to 1 majority)
• Crennan J (Gleeson CJ, Gummow Heydon JJ
  agreeing), Hayne J and Callinan J in separate
  judgments dismissed the Appeal
• Kirby J dissented

39
Harriton v Stephens

• Crennan J (Gleeson CJ, Gummow Heydon JJ
  agreeing)
• 244 It was not Dr P R Stephens's fault that
  Alexia Harriton was injured by the rubella
  infection of her mother. Once she had been
  affected by the rubella infection of her mother
  it was not possible for her to enjoy a life free
  from disability. ... Dr P R Stephens would have
  discharged his duty by diagnosing the rubella and
  advising Mrs  Harriton about her circumstances,
  enabling her to decide whether to terminate her
  pregnancy he could not require or compel Mrs 
  Harriton to have an abortion.

40
Harriton v Stephens

• Crennan J (Gleeson CJ, Gummow Heydon JJ
  agreeing)
• 249 It is not to be doubted that a doctor has
  a duty to advise a mother of problems arising in
  her pregnancy, and that a doctor has a duty of
  care to a foetus which may be mediated through
  the mother403. However, it must be mentioned
  that those duties are not determinative of the
  specific question here, namely whether the
  particular damage claimed in this case by the
  child engages a duty of care. To superimpose a
  further duty of care on a doctor to a foetus
  (when born) to advise the mother so that she can
  terminate a pregnancy in the interest of the
  foetus in not being born, which may or may not be
  compatible with the same doctor's duty of care to
  the mother in respect of her interests, has the
  capacity to introduce conflict, even incoherence,
  into the body of relevant legal principle

41
DUTY TO RESCUE

• There are two separate issues in rescue
• The duty to rescue
• The duty of care owed to the rescuer
• There is no positive legal obligation in the
  common law to rescue
• The law does not cast a duty upon a man to go to
  the aid of another who is in peril or distress,
  not caused by him Hargrave v Goldman (963)
• There may however exist a duty to rescue in
  master servant relationships or boat owner and
  guest relationships for instance
• Horsley v Maclaren (The Ogopogo) (1971) 22 DLR
• One is only required to use reasonable care and
  skill in the rescue

42
THE DUTY OWED TO RESCUERS

• The rescuer is generally protected torts
  recognizes the existence of a duty of care owed
  to the rescuer.
• The issue of volenti-non fit injuria This
  principle does not seem to apply in modern tort
  law to rescue situations.
• The cry of danger is the summons to relief. The
  law does not ignore these reactions of the mind..
  It recognizes them as normal and places their
  effects within the range of of the natural and
  the probable and for that matter the
  foreseeable per Cardozo J in Wagner v
  International Railway Co. (1921)
• Chapman v Hearse
• Videan v British Transport Commission (1963)
  (rescue attempt to get a child trespassing on
  railway line)
• Rescuers may recover for both physical injuries
  and nervous shock
• Mount Isa Mines v Pusey (1970)
• The US fire-fighters Rule does not apply in
  Australia and the UK
• Ogwo v Taylor (1988) AC 431

43
IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF
CARE

• The Civil Liability Act 2002 together with the
  Civil Liability Amendment (Personal
  Responsibility) Act 2002 govern the law of
  negligence in NSW.
• The Civil Liability Act 2002 was enacted 28th
  May 2002 and received assent on 18 June 2002
• Rationale behind the legislation
• to limit the quantum of damages for personal
  injury and death in public liability instances
  resultantly lowering insurance premiums.
• to discourage over litigation, by the
  imposition of restrictions and obligations and
  responsibilities upon plaintiffs and counsel

44
Civil Liability Act 2002 Duty of Care

• Statute overrides the common law and that any
  negligence claim commenced since 20 March 2002
  will be governed by the Civil Liability Act 2002.
  
• Next lecture, we will consider the application
  of
•  
• general duty of care provisions of s.5B
• situations of obvious/inherent risks under ss.5F
  to I and
• situations of dangerous recreational activities
  under ss.5J to N.

45
The Rationale for Reform

• It's my view that this country is tying itself
  up in tape because of over litigation, a
  long-term trend to see us litigate for
  everything, to try to settle every problem in our
  lives...by getting a big cash payment from the
  courts....a country as small as ours can't afford
  to have the American-style culture of
  litigation". (Bob Carr)

46
The Rationale for Reform

• We need to restore personal responsibility and
  diminish the culture of blame.That means a
  fundamental re-think of the law of negligence, a
  complex task of legislative drafting.There is no
  precedent for what we are doing, either in health
  care or motor accident law, or in the legislation
  of other States and Territories.We are changing
  a body of law that has taken the courts 70 years
  to develop (Bob Carr)

47
The Approach to Reform Governments View

• We propose to change the law to exclude claims
  that should never be brought and provide defences
  to ensure that people who have done the right
  thing are not made to pay just because they have
  access to insurance (Bob Carr)
• We want to protect good samaritans who help in
  emergencies. As a community, we should be
  reluctant to expose people who help others to the
  risk of being judged after the event to have not
  helped well enough (Bob Carr)

48
Wrap-Up

• Snails
• Overview of negligence
• Arriving at a Duty of Care
• Categories
• The harder ones
• Proximity and Reasonable Foreseeability v
  Incrementalism
• Some interesting applications
• Unborn children and the wrongful life cases
• Legislative reform

49
TORTS

• Civil Liability Act An Overview of the Duty of
  Care
• Clary Castrission
• Clary_at_40k.com.au
• Later lectures will focus on other aspects of
  the Act (viz breach of duty and damages)

50
Overview for Tonight

• S35
• Duty of Care- s5B
• Duty Areas under the CLA
• Risk (will cover in defences)
• Assumption of Risk ss5F- I
• Recreational Activities s5J- 5N
• Public Authorities ss40-46
• Good Samaritands ss55- 58
• Volunteers ss59
• Mental Harm ss27-33

51
Claims excluded from operation of the Civil
Liability Act s3B(1)

• (a) civil liability of a person in respect of an
  intentional act that is done by the person with
  intent to cause injury or death or that is sexual
  assault or other sexual misconduct committed by
  the person
• (AND A WHOLE BUNCH OF OTHERS LIKE DUST DISEASES,
  SMOKING ETC)
• See s3B as it lists where CLA and Motor Accidents
  Compensation Act 1987 overlap

52
Duty of Care

• S 5B(1) A person is not negligent in failing to
  take precautions against a risk of harm unless
• (a) the risk was foreseeable (that is, it is a
  risk of which the person knew or ought to have
  known), and
• (b) the risk was not insignificant, and
• (c) in the circumstances, a reasonable person in
  the persons position would have taken those
  precautions.
• (2) In determining whether a reasonable person
  would have taken precautions against a risk of
  harm, the court is to consider the following
  (amongst other relevant things)
• (a) the probability that the harm would occur if
  care were not taken,
• (b) the likely seriousness of the harm,
• (c) the burden of taking precautions to avoid the
  risk of harm,
• (d) the social utility of the activity that
  creates the risk of harm.

53
Section 3B V s5B

• Deliberate Act intended to cause harm s3B (not
  covered by act)
• Omission which causes harm s5B (covered by the
  act)
• Deliberate Act without due care NOT intended to
  cause harm Drinkwater v Howarth 2006 NSWCA 222

54
Duty of Care commentary

• Section 5B(1) provides a person is not negligent
  unless (b) the risk was not insignificant.
• Wyong Shire Council v Shirt (1980) 146 CLR 40
  risk must be real in the sense that a
  reasonable person would not brush it aside as
  far-fetched or fanciful.
• It is unclear whether not insignificant in
  Section 5B(1)(b) is more restrictive than not
  far-fetched or fanciful in Wyong Shire Council v
  Shirt

55
Wyong Shire Council v Shirt

•  Mason J
• 13 ... when we speak of a risk of injury as
  being foreseeable we are not making any
  statement as to the probability or improbability
  of its occurrence, save that we are implicitly
  asserting that the risk is not one that is
  far-fetched or fanciful. Although it is true to
  say that in many cases the greater the degree of
  probability of the occurrence of the risk the
  more readily it will be perceived to be a risk,
  it certainly does not follow that a risk which is
  unlikely to occur is not foreseeable.

56
Duty of Care in Certain Situations contained in
the Act

• Duty Areas
• Risk (will cover in defences)
• Assumption of Risk s5F-I
• Recreational Activities- s5J to s5N
• Public Authorities (ss40-46)
• Good Samaritans (ss55-58)
• Volunteers (ss59-66)
• Mental Harm (ss27-33)

57
Part 5 Liability of Public Other Authorities

• Sections 40 to 46
• Provides specific additional protection for
  public authorities including
• the Crown
• Government departments
• Local councils
• Other prescribed bodies

58
Part 5 Liability of Public Other Authorities

• Section 42 sets out the principles to apply in
  determining whether a public or other authority
  has a duty of care or has breached a duty of care
  including
• the functions required to be exercised by the
  authority are limited by the financial and other
  resources that are reasonably available to the
  authority for the purpose of exercising those
  functions,
• the general allocation of those resources by the
  authority is not open to challenge,
• the functions required to be exercised by the
  authority are to be determined by reference to
  the broad range of its activities (and not merely
  by reference to the matter to which the
  proceedings relate),
• the authority may rely on evidence of its
  compliance with the general procedures and
  applicable standards for the exercise of its
  functions as evidence of the proper exercise of
  its functions in the matter to which the
  proceedings relate.
• Council of the City of Liverpool v Turano Anor
  2008 NSWCA 270

59
S45- Roads Authorities

• (1) A roads authority is not liable in
  proceedings for civil liability to which this
  Part applies for harm arising from a failure of
  the authority to carry out road work, or to
  consider carrying road work, unless at the time
  of the alleged failure the authority had actual
  knowledge of the particular risk the
  materialisation of which resulted in the harm.
• (2) Doesnt create duty of care simply because
  the roads authority had actual knowledge of the
  risk.
• (3) Carry out roadwork defined to include
  construction, installation, maintenance,
  inspection, repair.
• This done to overturn recent HCA decision in
• Brodie v Singleton Shire Council Council
  Ghantous v Hawkesbury City Council (2001) 206 CLR
  512

60
Porter v. Lachlan Shire Council 2006 NSWCA 126

• Facts
• S45 (3) In this section
• "carry out road work" means carry out any
  activity in connection with the construction,
  erection, installation, maintenance, inspection,
  repair, removal or replacement of a roadwork
  within the meaning of the Roads Act 1993 .
• Roads Act 1993 (dictionary)
• "road work" includes any kind of work, building
  or structure (such as a roadway, footway,
  bridge) that is constructed, installed or
  relocated on or in the vicinity of a road for the
  purpose of facilitating the use of the road as a
  road. and "carry out road work" includes carry
  out any activity in connection with the
  construction, erection, installation,
  maintenance, repair, removal or replacement of a
  road work.

61
s45 - Porter v. Lachlan Shire Council

• Hodgson JA (Beazley JA Giles JA agreeing)
• 34 In my opinion, this case does come within s45,
  on either of two bases. 35 First, where that
  part of a road used for pedestrian purposes has
  been altered by the installation of a footpath
  and a gutter, leaving what may be called a nature
  strip in between, it is in my opinion an unduly
  narrow view of what constitutes a road work to
  say that, while the made footpath is a road work
  and the gutter is a road work, the nature strip
  between them is neither a road work nor part of a
  road work. In my opinion the better view is that
  the whole of the area for pedestrian purposes,
  comprising the made footpath, the nature strip
  and the gutter, comprises a road work.

62
s45 - Porter v. Lachlan Shire Council

• Hodgson JA (Beazley JA Giles JA agreeing)
• 36 Second, in any event, where there is a hole in
  that part of a road which is a nature strip
  within the area used for pedestrian purposes, it
  would be road work to fill and make good that
  hole. That view is not in my opinion precluded by
  the use of the words constructed and
  installed in the definition of road work in the
  Roads Act, which, unlike the relevant definition
  in s45 of the Civil Liability Act, is an
  inclusive definition and not an exhaustive
  definition. Once it is accepted that to fill and
  make good the hole would be road work, then the
  question would arise whether failure to do this
  would be failure to carry out any activity in
  connection with the construction, erection,
  installation, maintenance, repair or replacement
  of a road work within s45(3). In my opinion, it
  would be although the words construction and
  installation, and the indefinite article a in
  front of road work, could be taken as inapt for
  the filling and making good of a hole, on balance
  I think it would be too narrow an approach to
  hold that the words do not extend to such
  activity.

63
s45 - Porter v. Lachlan Shire Council

• Hodgson JA (Beazley JA Giles JA agreeing)
• 37 On either basis, s45 applies on the first
  basis, the allegation would be that the
  respondent failed to maintain a road work, and on
  the second basis, it would be that the respondent
  failed to construct or install a road work.

64
s.45 Actual KnowledgeNorth Sydney Council v-
Roman 2007 NSWCA 27

• Facts
• At Trial

65
s.45 North Sydney Council-v- Roman

• Held, allowing the appeal, per Basten JA (Bryson
  JA agreeing)
• 1. For the purposes of s.45 actual knowledge must
  be found in the mind of an officer within the
  council having delegated (or statutory) authority
  to carry out the necessary repairs.
• 2. The evidence demonstrated that no Council
  officer at a decision-making level had actual
  knowledge of the particular pothole and
  therefore the appellant did not have such
  knowledge. Accordingly, the exception to s.45 was
  not engaged and the statutory immunity prevailed.
  
• Note McColl JA (dissenting)

66
Parts 8 Good Samaritans

• S56
• For the purposes of this Part, a "good samaritan"
  is a person who, in good faith and without
  expectation of payment or other reward, comes to
  the assistance of a person who is apparently
  injured or at risk of being injured.
• s57
• (1) A good samaritan does not incur any personal
  civil liability in respect of any act or omission
  done or made by the good samaritan in an
  emergency when assisting a person who is
  apparently injured or at risk of being injured.

67
Part 8 Good Samaritans

• S58 where liability not exempted
• Where good samaritan caused the injury in the
  first place
• The good samaritan was under the influence of
  drugs/alcohol AND failed to take reasonable care
• The good samaritan was impersonating emergency
  service worker, policeman or pretending to have
  the skills to address the current injury

68
Part 9 Volunteers (ss59-66)

• Section 60 Defines community work to mean work
  that is not for private financial gain and that
  is done for a charitable, benevolent,
  philanthropic, sporting, educational or cultural
  purpose. It excludes community service orders
  imposed by a court.

69
Volunteers (cont)

• Section 61 No civil liability for a volunteer
  doing community work, but does not extend to
• Criminal acts (s62)
• Acts while intoxicated AND volunteer failing to
  exercise reasonable care (63)
• Actions outside the scope of the charitable
  organisation contrary to instructions (s64)
• Where the volunteer is required by State law to
  be insured (s65)
• Or motor vehicle accidents (s66)

70
Mental Harm

• At common law- only type of pure mental harm
  where this liability is recognised psychiatric
  illness
• Thus grief or sorrow doesnt sound damages Mount
  Isa Mines v Pusey (1970) 125 CLR 383

71
Mental Harm pre Annetts

• Suffer from a recognised psychiatric illness
• Be a person of reasonable fortitude
• Be subject to a sudden shock
• Have directly perceived the accident or its
  immediate aftermath

72
The 2 major cases

• Both heard together
• Tame v NSW (2002) 211 CLR 317
• Annetts v Australian Stations Pty Ltd (2002) 211
  CLR 317

73
Affecting Factors

• Was illness result of sudden shock?
• Cases of protracted suffering, as opposed to
  sudden shock could raise difficult issues of
  causation and remoteness of damage. Difficulties
  of that kind are more appropriately analysed with
  reference to the principles of causation and
  remoteness, not through an absolute denial of
  liability. (Gleeson CJ, Gaudron, Gummow , Kirby
  and Hayne JJ in separate jments)
• Direct perception of distressing events?
• Relationship between primary and secondary victim
• Relationship between Plaintiff and Defendant

74
Ipp Report

• ... the law has said that a duty to avoid
  causing mental harm would be imposed only in
  relation to harm caused by shock that this
  duty was owed only to persons who were physically
  near to the scene of the shocking events at the
  time they occurred, or who witnessed their
  immediate aftermath and that the duty was owed
  only to those who witnessed the shocking events
  or their aftermath with their own unaided
  senses. (138, 9.12)

75
Ipp Report Continued

• The fundamental proposition which Tame/Annetts
  seems to establish is that reasonable
  foreseeability of mental harm is the only
  precondition of the existence of a duty of care.
  It also establishes, however, that a duty of care
  to avoid mental harm will be owed to the
  plaintiff only if it was foreseeable that a
  person of normal fortitude might suffer mental
  harm in the circumstances of the case if care was
  not taken. This test does not require the
  plaintiff to be a person of normal fortitude in
  order to be owed a duty of care. It only requires
  it to be foreseeable that a person of normal
  fortitude in the plaintiffs position might
  suffer mental harm. In this sense, being a person
  of normal fortitude is not a precondition of
  being owed a duty of care. (138, 9.13) (Original
  emphasis)

76
Mental harm

• 27 Definitions
• In this Part
• "consequential mental harm" means mental harm
  that is a consequence of a personal injury of any
  other kind.
• "mental harm" means impairment of a persons
  mental condition.
• "negligence" means failure to exercise reasonable
  care and skill.
• "personal injury" includes
• pre-natal injury,
• impairment of a persons physical or mental
  condition, and
• disease.
• "pure mental harm" means mental harm other than
  consequential mental harm.

77
Mental Harm

• 29 Personal injury arising from mental or nervous
  shock
• In any action for personal injury, the plaintiff
  is not prevented from recovering damages merely
  because the personal injury arose wholly or in
  part from mental or nervous shock.

78
Mental harm

• 30 Limitation on recovery for pure mental harm
  arising from shock
• (1) This section applies to the liability of a
  person ("the defendant) for pure mental harm to
  a person ("the plaintiff") arising wholly or
  partly from mental or nervous shock in connection
  with another person ("the victim") being killed,
  injured or put in peril by the act or omission of
  the defendant.
• (2) The plaintiff is 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, or
• the plaintiff is a close member of the family of
  the victim.

79
Mental harm

• 32 Mental harmduty of care
• A person ("the defendant") does not owe a duty of
  care to another person ("the plaintiff") to take
  care not to cause the plaintiff mental harm
  unless the defendant ought to have foreseen that
  a person of normal fortitude might, in the
  circumstances of the case, suffer a recognised
  psychiatric illness if reasonable care were not
  taken.
• Codifies the common law test for foreseeability
  of risk of mental harm in Tame v NSW Annetts v
  Australian Stations Pty Ltd 2002 HCA 35

80
Mental harm

• 33 Liability for economic loss for consequential
  mental harm
• A court cannot make an award of damages for
  economic loss for consequential mental harm
  resulting from negligence unless the harm
  consists of a recognised psychiatric illness.

81
Overview for Tonight

• S35
• Duty of Care- s5B
• Duty Areas under the CLA
• Risk (will cover in defences)
• Assumption of Risk ss5F- I
• Recreational Activities s5J- 5N
• Public Authorities ss40-46
• Good Samaritands ss55- 58
• Volunteers ss59
• Mental Harm ss27-33

82
Practice Question

• Arnold was a serving police officer who attended
  the scene of an horrific train derailment in
  Katoomba NSW, whereby six people were killed and
  many were injured.
• He was among the first ones at the scene
  following the derailment and was involved in the
  rescue operation by providing emergency first-aid
  and assisting the injured from the carriages.
• Arnold searched through the train where he saw
  dead bodies in horrible condition, as well as
  badly injured people. One of them, he recognised
  to be his high-school friend, Steve.
• Arnold suffered post traumatic stress syndrome,
  nervous shock and major depressive disorder.
• State Rail had failed to ensure the trains
  deadmans safety device was operating
• Arnold brought a claim for damages against State
  Rail alleging he had suffered psychiatric injury
  due to the negligence of State Rail in failing,
  inter alia, to ensure the trains deadmans
  safety device was operating, or was designed so
  as to operate in the event of the incapacitation
  of the driver.
• Did State Rail owe Arnold a Duty of Care?

83
TORTS LECTURE

• PARTICULAR DUTY AREAS
• Clary Castrission
• clary_at_40k.com.au
• (p) 02 9221 4030

84
Road Map for Tonight

• Products Liability
• Defective Structures
• Professional opinions - done
• Nervous Shock- done
• Council and Public Authorities- done
• Commercial Premises
• Hotelier/Publican to Intoxicated Patron
• Pure Ecomic Loss

85
PRODUCT LIABILITY

• Common law
• Donoghue v Stevenson 1932 AC 562
• Grant v Australian Knitting Mills 1936 AC 85
• a manufacturer of products, which he sells in
  such a form as to show that he intends them to
  reach the ultimate consumer in the form in which
  they left him with no reasonable possibility of
  intermediate examination, and with the knowledge
  that the absence of reasonable care in the
  preparation or putting up of the products will
  result in an injury to the consumers life or
  property, owes a duty to the consumer to take
  that reasonable care

86
PRODUCT LIABILITY

• Relevant Statutes
• Sale of Goods Act 1923 (NSW)
• Pt 4 Performance of the Contract (ss.30 to 40)
• Pt 6 Actions for Breach of the Contract (ss.51
  to 56)

87
PRODUCT LIABILITY

• Relevant Statutes
• Fair Trading Act (NSW)
• Part 4- NSW Consumer Safety and Information
  Requirements

88
PRODUCT LIABILITY

• Relevant Statutes
• Trade Practices Act 1974 (Cth)- now Competition
  and Consumer Act 2010 (from 1 January 2011)
• Absolute mammoth! Australian Consumer Law in
  Schedule 2 of Div 2 of Part XI
• See www.consumerlaw.gov.au

89
Professional Opinion

• Civil Liability Act
• - s.5O Civil Liability Act 2002 Peer
  professional opinion (ie. The UK Bolam test)
• S.5P Civil Liability Act 2002 Duty to warn
  remains

90
DEFECTIVE STRUCTURES

• Builders
• Bryan v Maloney (1995) ATR 81- 320
• Architects
• Voli v Inglewood Shire Council (1963) 110 CLR
  74

91
Commercial Premises

• Thompson v Woolworths (Queensland) Pty Ltd (2005)
  221 CLR 234 at 246-247
• Timberland Property Holdings Pty Ltd v Bundy
  2005 NSWCA 419 at 25-27).

92
Hotelier/Publican to Intoxicated Patron

• Cole v South Tweed Heads Rugby League Football
  Club Limited (2004) 217 CLR 469
• Facts
• Held

93
Cole v South Tweed Heads Rugby League Football
Club Limited (2004) 217 CLR 469

• Majority 4 to 2 (McHugh Kirby JJ dissenting) no
  duty of care owed by the Club
• Gleeson CJ
• 14.Although there are exceptional cases, as Lord
  Hope of Craighead pointed out in Reeves v
  Commissioner of Police of the Metropolis6, it
  is unusual for the common law to subject a person
  to a duty to take reasonable care to prevent
  another person injuring himself deliberately. A
  duty to take care to protect an ordinary adult
  person who requests supply from risks associated
  with alcohol consumption is not easy to reconcile
  with a general rule that people are entitled to
  do as they please, even if it involves a risk of
  injury to themselves.
• 17. It is possible that there may be some
  circumstances in which a supplier of alcohol
  comes under a duty to take reasonable care to
  protect a particular person from the risk of
  physical injury resulting from self-induced
  intoxication7. However, the appellant cannot
  succeed in this case unless there is a general
  duty upon a supplier of alcohol, at least in a
  commercial setting, to take such care. I do not
  accept that there is such a general duty.

94
Cole v South Tweed Heads Rugby League Football
Club Limited (2004) 217 CLR 469

• Gummow Hayne JJ
• 65. The appellant's contention that her collision
  with the driver's vehicle was caused or
  contributed to by the Club's negligence in
  continuing to serve her alcohol, when the Club
  knew or should have known that she was
  intoxicated, was a contention that depended upon
  taking a number of steps, some (perhaps all) of
  which may be contested.
• 66. First, what exactly is meant by "serving" the
  appellant alcohol? Does it encompass, or is it
  limited to, selling alcohol which it is known
  that the appellant will consume? Does it extend
  to selling, to others, alcohol which it is
  suspected that the appellant will consume? How is
  the Club to control what other patrons may do
  with bottles of alcohol which the Club sells
  them? Given the uncertainties about how and from
  whom the appellant obtained alcohol during the
  second half of the day, these are questions that
  go directly to the formulation of the duty which
  is said to have been breached.
• 67. Secondly, the evidence of what the Club knew,
  or could reasonably be taken to have known, of
  what alcohol the appellant took during the day
  was very slight...

95
Cole v South Tweed Heads Rugby League Football
Club Limited (2004) 217 CLR 469

• Gummow Hayne JJ
• 68. Unsurprisingly, there was no evidence which
  would have revealed that servants of the Club
  could have (let alone reasonably should have)
  been able to observe how much the appellant drank
  during the morning. That is, as we say,
  unsurprising when it is recalled how many patrons
  attended the Club. About 100 or 120 had attended
  breakfast. Some of those patrons stayed at, and
  no doubt others came to, the clubhouse and the
  ground to attend the several football games to be
  played that day. There was, therefore, a large
  and shifting population to observe. If it is said
  that the Club owed the appellant a duty to
  monitor and moderate the amount that she drank,
  it owed all its patrons such a duty...
• 69.Next, what level of intoxication is said to be
  relevant? Does it mean not lawfully able to drive
  a motor car? Some drivers may not drive a motor
  car if they have had any alcohol. Other drivers
  may be unfit to drive after very few glasses of
  alcohol. Does "intoxicated" mean, as the primary
  judge held, "loss of self-control or judgment
  which is more than of minor degree"16? If that
  is so, many drinkers will arrive at that point
  after very little alcohol.
• 70.All of these questions would have to be
  answered in deciding what duty of care was owed.
  None can be answered in isolation. All would
  require consideration of the purpose for which it
  is said that the duty alleged is to be imposed.

96
Cole v South Tweed Heads Rugby League Football
Club Limited (2004) 217 CLR 469

• Callinan J
• 131 I am also of the opinion that in general -
  there may be some exceptional cases - vendors of
  products containing alcohol will not be liable in
  tort for the consequences of the voluntary
  excessive consumption of those products by the
  persons to whom the former have sold them. The
  risk begins when the first drink is taken and
  progressively increases with each further one.
  Everyone knows at the outset that if the
  consumption continues, a stage will be reached at
  which judgment and capacity to care for oneself
  will be impaired, and even ultimately destroyed
  entirely for at least a period.

97
PURE ECONOMIC LOSS

• What is pure economic loss?
• Indeterminacy
• Liability of the defendant to an indeterminate
  class, for an indeterminate time, and in an
  indeterminate amount Ultramares Corp v Douche
  (1931) 174 NE 441

98
Pure economic loss

• 2 types
• Negligent statements leading to pure economic
  loss
• Negligent acts leading to pure economic loss, and

99
1. Negligent Misstatement Causing Economic Loss

• Early on no liability. Pulsey v Freeman (1789)
  Norton v Asburton 1914 AC 932
• Why?
• Words are more volatile than deeds. They travel
  fast and far afield. They are used without being
  expended and take effect in combination with
  innumerable facts and other words. Yet they are
  dangerous and can cause vast financial damage..
  Damage by negligent acts to persons or property
  on the other hand is more visible and obvious
  its limits are more easily defined. (per Lord
  Pearce in Hedley Byrne Co v Heller 1964 AC
  465 at 534.

100
Hedley Byrne Co v Heller

• Facts
• How could DOC arise? Special Relationship
• If someone possessed of a special skill
  undertakes quite irrespective of contract to
  apply that skill for the assistance of another
  person who relies on such skill, a duty of care
  will arise (per Lord Morris)
• Mutual Life Citizens Assurance v Evatt 1971
  AC 793

101
Shaddock Associates Pty Ltd v Parramatta CC
(1981) 150 CLR 225

• Held
• Whenever a person gives information or advice
  to another upon a serious matter in circumstances
  where the speaker realises, or ought to realise,
  that he is being trusted to give the best of his
  information or advice as a basis for action on
  the part of the other party and it is reasonable
  in the circumstances for the other party to act
  on that information or advice, the speaker comes
  under a duty to exercise reasonable care in the
  provision of the information or advice he chooses
  to give.

102
THE ISSUE OF SKILL

• With all respect I find it difficult to see why
  in principle the duty should be limited to
  persons whose business or profession includes
  giving the sort of advice or information sought
  and to persons claiming to have the same skill
  and competence as those carrying on such a
  business or profession, and why it should not
  extend to persons who, on a serious occasion,
  give considered advice or information concerning
  a business or professional transaction. (Gibbs J
  in Shaddock)

103
Later Clarifications

• Butcher v Lachlan Elder Realty (2004) 218 CLR 592
• The mere fact that a person had engaged in the
  conduct of supplying a document containing
  misleading information did not mean that that
  person had engaged in misleading conduct it was
  crucial to examine the role of the person in
  question (Gleeson CJ, Hayne and Heydon JJ)
• Tepko Pty Ltd v Water Board (2001) 206 CLR 1

104
Factors the court will look at

• Nature of relationship
• Special skill (either actually possessing it or
  holding oneself to possess it)
• Nature of subject matter
• Reliance- reasonable reliance creates DOC, actual
  reliance establishes breach
• Context of interchange professional? Social?
  Information requested?

105
2. Negligent Act causing pure economic loss

• Originally- no common law DOC Leigh Sullivan v
  Aliakmon Shipping Co Ltd 1986 AC 785
• Why?
• What is pure economic loss caused by negligent
  act?
• Indeterminacy
• Perre v Apand (1999) 198 CLR 180

106
THE CALTEX PRINCIPLECaltex Oil (Aust) Pty Ltd
v The Dredge Willemstadt (1976) 136 CLR 529

• Facts

107
THE CALTEX PRINCIPLECaltex Oil (Aust) Pty Ltd
v The Dredge Willemstadt (1976) 136 CLR 529

• Held- Mason J
• Liability arises when A defendant can reasonably
  foresee that a specific individual as distinct
  from a general class of persons will suffer
  financial loss This approach eliminates the
  prospect that there will come into existence
  liability to an indeterminate class of persons.
  (at 593)

108
Australia beyond Caltex

• Indeterminacy Johns Period Furniture v
  Commonwealth Savings Bank (1980) SASR 224
• Christopher v Motor Vessel Fiji Gas 1993 Aust
  Tort Reports 81-202
• Johnson Tiles v Esso Australia 2003 Aust Tort
  Reports 81-962
• 1.Reasonable foreseeability of injury
• 2. Whether there is a relationship of proximity
  and
• 3. Identification and consideration of competing
  salient features for and against the finding of a
  DOC

109
Wrap-Up

• Products Liability
• Defective Structures
• Professional opinions - done
• Nervous Shock- done
• Council and Public Authorities- done
• Commercial Premises
• Hotelier/Publican to Intoxicated Patron
• Pure Economic Loss

110
TORTSBreach of Duty

• Clary Castrission
• clary_at_40k.com.au

111
Roadmap

• S5B
• Understanding standard of care
• Foreseeability of risk
• Calculus of negligence
• An Application Waverly Council v Ferreira 2005
• Res Ipsa Loquitur
• Professional Negligence

112
Duty of Care

• S 5B(1) A person is not negligent in failing to
  take precautions against a risk of harm unless
• (a) the risk was foreseeable (that is, it is a
  risk of which the person knew or ought to have
  known), and
• (b) the risk was not insignificant, and
• (c) in the circumstances, a reasonable person in
  the persons position would have taken those
  precautions.
• (2) In determining whether a reasonable person
  would have taken precautions against a risk of
  harm, the court is to consider the following
  (amongst other relevant things)
• (a) the probability that the harm would occur if
  care were not taken,
• (b) the likely seriousness of the harm,
• (c) the burden of taking precautions to avoid the
  risk of harm,
• (d) the social utility of the activity that
  creates the risk of harm.

113
Breach of Duty

• Standard of Care
• What standard of care is owed?
• Standard of care owed by the reasonable person in
  the circumstances
• What would the reasonable person do in the Ds
  position
• Duty breached
• Did the Ds actions fail to meet that standard?
• Probability of risk
• Magnitude of harm
• IF SO
• Was the response of the d to this reasonable?
• Calculus of negligence (from s5B), where
  relevant, consider
• Reasonability of precautions
• Social utility
• Any relevant professional or statutory standards

114
Breach of Duty from Shirt

• If reasonable person in defendants position
  would have foreseen risk to the P, then
• ... it is then for the tribunal of fact to
  determine what a reasonable man would do by way
  of response to the risk. The perception of the
  reasonable mans response calls for a
  consideration of the magnitude of the risk and
  the degree of the probability of its occurrence,
  along with the expense, difficulty and
  inconvenience of taking alleviating action and
  any other conflicting responsibilities which the
  defendant may have. It is only when these matters
  are balanced out that the tribunal of fact can
  confidently assert what is the standard of
  response to be ascribed to the reasonable man
  placed in the defendants position.
• Applied in Roads and Traffic Authority of NSW v
  Refrigerated Roadways Pty Limited 2009 NSWCA
  263 (22 September 2009)

115

• RTA v Dederer, Gummow J at 69
• What Shirt requires is a contextual and balanced
  assessment of the reasonable response to a
  foreseeable risk.

116
Comparing DUTY to BREACH

• Mason J in Wyong v Shirt at 47-48
• Wagon Mound (No. 2) per Lord Reid
• A reasonable man would only neglect such a risk
  if he had some valid reason for doing so, eg,
  that it would involve considerable expense to
  eliminate the risk. He would weigh the risk
  against the difficulty of eliminating it ...

117
Test for breach

• Was the risk of injury to P reasonably
  foreseeable? DUTY
• RTA v Dederer (2007) 238 ALR 761
• It is only through the correct identification of
  the risk that one can assess what a reasonable
  response to that risk would be (Gummow J at
  59)
• If so, was the response of the defendant to this
  risk reasonable? BREACH
• What would the reasonable person, in the
  defendants position (with the knowledge that
  they either had or ought to have had) have done
  in the circumstances out of which the harm arose?
• Did the D meet the requisite standard of care?
• IF NOT, there has been a breach of duty

118
Calculus of Negligence under 5B(2)

• Probability of harm occurring if care not taken
• Likely seriousness of harm
• Burden of taking precautions
• Social Utility

119
Breach of Duty Likelihood of Injury

• Section 5B(2)(a) the probability that the harm
  would occur if care were not taken
• Bolton v Stone 1951 AC 850
• RTA v Dederer (2007) 238 ALR 761

120
Breach of Duty Seriousness of Harm

• Section 5B(2)(b) the likely seriousness of the
  harm
• Adelaide Chemical Fertilizer Co. v Carlyle
  (1940) 64 CLR 514
• Paris v Stepney Borough Council 1951 AC 367

121
Breach of Duty Cost of Avoiding Harm

• Section 5B(2)(c) the burden of taking precautions
  to avoid the risk of harm
• Caledonian Collieries Ltd v Speirs (1957) 97 CLR
  202

122
Breach of Duty Social Utility of the Act of the
Defendant

• Section 5B(2)(d) the social utility of the
  activity that creates the risk of harm.
• Watt v Hertfordshire County Council
• It is one thing to take risks when driving for
  some commercial purpose with no emergency, but
  quite another to take risks for life and limb.
  (Lord Denning

123
How Duty and Breach work together s.5B(1) (2)

• Waverley Council v Ferreira 2005 NSWCA 418
• Facts

124
Issue 1 The Fence and the undergrowth

• S5B(1)
• Risk of harm foreseeable?
• Risk of harm significant?
• In circumstances, would reasonable person have
  taken precautions?

125
s.5B(1)(a) - Waverley Council v Ferreira

• Foreseeability of harm
• 34 The initial element to be determined under
  s5B(1) is whether the risk was foreseeable. As
  s5B(1)(a) makes plain, that involves inquiring
  whether the risk in question is one of which the
  defendant knew or ought to have known. The
  relevant risk in relation to the removal of the
  fence and undergrowth was the risk that children
  might use the fence and undergrowth to facilitate
  their access to the roof and, when on the roof,
  might fall to the ground.
• Doubleday v Kelly 2005 NSWCA 151
• The actual events as they happened are not the
  circumstances to which consideration of
  foreseeability of risk of injury is applied what
  is to be considered is foresight in more general
  terms of risk of injury. per