LAW OF TORTS

1

• LAW OF TORTS
• WEEKEND LECTURE 2A
• NEGLIGENCE
• Duty of care Breach Civil Liability Act
• Damage

2
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

3
Claims excluded from operation of the Civil
Liability Act s3B(1)

• a) an intentional act that is done with intent to
  cause injury or death or that is sexual assault
  or other sexual misconduct. Note Part 7 does
  apply to intentional torts done with intent to
  injure.
• (b) dust diseases under the Dust Diseases
  Tribunal Act 1989
• (c) personal injury damages where the injury or
  death concerned resulted from smoking or other
  use of tobacco products
• (d) actions governed by Part 6 of the Motor
  Accidents Act 1988 and Chapter 5 of the Motor
  Accidents Compensation Act 1999 except the
  provisions that subsection (2) provides apply to
  motor accidents
• (e) Workers Compensation Act 1987, Workers
  Compensation (Bush Fire, Emergency and Rescue
  Services) Act 1987, Workers Compensation (Dust
  Diseases) 1942, Victims Support and
  Rehabilitation Act 1996 or Anti-Discrimination
  Act 1977 or a benefit payable under the Sporting
  Injuries Insurance Act 1978

4
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.

5
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

6
Duty of Care s.5B(1) (2)

• Waverley Council v Ferreira 2005 NSWCA 418
• Facts
• 15 December 2000 12 yr old boy died when he
  fell to the ground through a skylight in the roof
  of a building known as the Community Centre in
  Kimberley Park
• - The boy was throwing a soft dart with a friend
  and mistakenly threw it onto the roof. He gained
  access to the roof by climbing a mesh fence
  attached to the building and undergrowth. The
  fence and undergrowth made it relatively easy for
  children to climb onto the roof. The fence had no
  utilitarian purpose as it had a gate without a
  lock.

7
s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 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.
• 35 There can be no doubt that the Council knew or
  ought to have known that children frequently
  climbed on to the roof of the Community Centre.
  Children playing at the park were often seen on
  the roof. Mr Ferreira said that he saw children
  on the roof sometimes twice a week. Martins
  friend, Dima, said that on a few occasions he
  himself had climbed onto the roof. Some of Dimas
  friends had also climbed on to the roof as had
  other children. A witness testified that maybe
  weekly you could see at least one person up
  there.

8
s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 39 It was reasonably foreseeable that, once on
  the roof, a boy might be attracted to the
  skylight and stand on it or otherwise in some way
  rest his weight upon it.
• 41 ... Irrespective of whether the Council knew
  or ought to have known of the condition of the
  skylight it was reasonably foreseeable to the
  Council that a child who climbed on to the roof
  might come to serious harm by falling to the
  ground. Such a fall might be caused by an
  infinite variety of circumstances, impossible to
  identify in advance.

9
s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 43 In my opinion, the relevant risk of injury was
  that a child such as Martin might fall to the
  ground once he had climbed on to the roof. In my
  opinion, that was a foreseeable risk in terms of
  s 5B(1)(a). It was a risk of which the Council
  knew or ought to have known. It is immaterial
  that the Council might not have been able to
  foresee the precise mechanism that caused Martin
  to fall.

10
Duty of Care

• 5C Other principles
• In proceedings relating to liability for
  negligence
• the burden of taking precautions to avoid a risk
  of harm includes the burden of taking precautions
  to avoid similar risks of harm for which the
  person may be responsible , and
• the fact that a risk of harm could have been
  avoided by doing something in a different way
  does not of itself give rise to or affect
  liability for the way in which the thing was
  done, and
• the subsequent taking of action that would (had
  the action been taken earlier) have avoided a
  risk of harm does not of itself give rise to or
  affect liability in respect of the risk and does
  not of itself constitute an admission of
  liability in connection with the risk.

11
Assumption of risk

• Injured persons presumed to be aware of obvious
  risks
• 5G Injured persons presumed to be aware of
  obvious risks
• In determining liability for negligence, a person
  who suffers harm is presumed to have been aware
  of the risk of harm if it was an obvious risk,
  unless the person proves on the balance of
  probabilities that he or she was not aware of the
  risk.
• For the purposes of this section, a person is
  aware of a risk if the person is aware of the
  type or kind of risk, even if the person is not
  aware of the precise nature, extent or manner of
  occurrence of the risk.

12
s5G Obvious Risk

• Falvo v Australian Oztag Sports Association
  Anor 2006 NSWCA 17 (2 March 2006)
• The plaintiff injured his knee while playing
  Oztag (touch football) on the defendant council's
  field. The field had several sandy patches where
  the council had topped up' wear to the grass and
  the injury was suffered when the plaintiff
  stepped in one of these. Ipp JA, in his leading
  judgment, upheld the trial judge's finding that
  the field was in a fit condition and that the
  defendant was not liable. He found that the risk
  from the condition of the field was one
  substantially similar to many other fields used
  for amateur sport, and that the risk was obvious
  to all.

13
s5G Obvious Risk

• Eutick v City of Canada Bay Council 2006 NSWCA
  30 (3 March 2006)
• The plaintiff was a pedestrian who tripped over
  the ridge of a gully or depression in a roadway.
  In the leading judgment, Campbell AJA held that
  the risk was very obvious', as part of the
  normal incidents of life', and that it did not
  pose a significant risk. This was held to be the
  case in spite of the fact of the injury and the
  amount of traffic on the roadway, which was said
  to have added to the risk. His Honour held the
  defendant council was entitled, having regard to
  the obviousness of the risk, and the limited
  nature of the hazard posed by it, to expect that
  the exercise of reasonable care for their own
  safety by pedestrians would obviate the need for
  any further response' to the risk.
• His Honour added that s5(1)(b) CLA put the onus
  of proving that the risk was not insignificant'
  on the plaintiff, and that she had not discharged
  this.

14
Assumption of risk

• 5H No proactive duty to warn of obvious risk
• A person ( "the defendant" ) does not owe a duty
  of care to another person ( "the plaintiff" ) to
  warn of an obvious risk to the plaintiff.
• This section does not apply if
• (a) the plaintiff has requested advice or
  information about the risk from the defendant, or
  
• (b) the defendant is required by a written law
  to warn the plaintiff of the risk, or
• (c) the defendant is a professional and the risk
  is a risk of the death of or personal injury to
  the plaintiff from the provision of a
  professional service by the defendant.
• (3) Subsection (2) does not give rise to a
  presumption of a duty to warn of a risk in the
  circumstances referred to in that subsection.

15
Assumption of risk

• 5I No liability for materialisation of inherent
  risk
• A person is not liable in negligence for harm
  suffered by another person as a result of the
  materialisation of an inherent risk.
• An "inherent risk" is a risk of something
  occurring that cannot be avoided by the exercise
  of reasonable care and skill.
• This section does not operate to exclude
  liability in connection with a duty to warn of a
  risk.

16
s5I Inherent Risk

• Lormaine Pty Ltd v Xuereb 2006 NSWCA 200
• The NSW Court of Appeal has held that a shipowner
  was liable for a woman's injuries when she was
  washed from the bow by a rogue wave'. One of the
  defences raised by the shipowner was that the
  waves were an inherent and obvious risk of
  dolphin-watching. However, the shipowner was
  unable to prove that the risk was obvious because
  the brochure had given the impression of a gentle
  cruise. Also, the ship's presence in a known
  wave zone' meant that the risk was avoidable,
  not inherent. The woman's damages were reduced,
  however, because the trial judge had not
  considered pre-existing conditions and the
  plaintiff had failed to alleviate the symptoms by
  losing weight.

17
Recreational activities

• 5M No duty of care for recreational activity
  where risk warning
• A person ( "the defendant" ) does not owe a duty
  of care to another person who engages in a
  recreational activity ( "the plaintiff" ) to take
  care in respect of a risk of the activity if the
  risk was the subject of a risk warning to the
  plaintiff.
• If the plaintiff is an incapable person, the
  defendant may rely on a risk warning only if
• (a) the incapable person was under the control
  of or accompanied by another person (who is not
  an incapable person and not the defendant) and
  the risk was the subject of a risk warning to
  that other person, or
• (b) the risk was the subject of a risk warning
  to a parent of the incapable person (whether or
  not the incapable person was under the control of
  or accompanied by the parent).

18
Recreational activities

• 5M No duty of care for recreational activity
  where risk warning
• The fact that a risk is the subject of a risk
  warning does not of itself mean
• (a) that the risk is not an obvious or inherent
  risk of an activity, or
• (b) that a person who gives the risk warning
  owes a duty of care to a person who engages in an
  activity to take precautions to avoid the risk of
  harm from the activity.

19
Recreational activities

• 5N Waiver of contractual duty of care for
  recreational activities
• Despite any other written or unwritten law, a
  term of a contract for the supply of recreation
  services may exclude, restrict or modify any
  liability to which this Division applies that
  results from breach of an express or implied
  warranty that the services will be rendered with
  reasonable care and skill.
• Nothing in the written law of New South Wales
  renders such a term of a contract void or
  unenforceable or authorises any court to refuse
  to enforce the term, to declare the term void or
  to vary the term.

20
Recreational Activities Trade Practices Act

• Recreational Activities Sections 5J to N
• - The NSW Govt could not exclude the operation of
  the Trade Practices Act 1974, although the
  Federal Govt has done so by passing The Trade
  Practices Amendment (Liability for Recreational
  Services) Act 2002 proclaimed on 19/12/02

21
Recreational activities

• 5L No liability for harm suffered from obvious
  risks of dangerous recreational activities
• (1) A person ( "the defendant" ) is not liable in
  negligence for harm suffered by another person (
  "the plaintiff" ) as a result of the
  materialisation of an obvious risk of a dangerous
  recreational activity engaged in by the
  plaintiff. (2) This section applies whether or
  not the plaintiff was aware of the risk.

22
s5L Dangerous Recreational Activities

• Fallas v Mourlas 2006 NSWCA 32 (16 March 2006)
• The plaintiff was holding a spotlight from a
  vehicle, while others shot the kangaroos. He was
  accidentally shot by the defendant when the
  defendant tried to unjam his weapon, despite
  having given the plaintiff assurances that the
  weapon was not loaded. The defendant argued it
  was an obvious risk in the course of a dangerous
  recreational activity (s5L CLA).
• The court held unanimously (Ipp JA, Tobias JA and
  Basten JA) that spotlighting was a dangerous
  recreational activity'. Ipp JA and Tobias JA held
  that for the risk to be significant' (s5K) it
  must have been a somewhere between a trivial
  risk and a risk likely to materialise'. Ipp JA
  held that in determining whether a recreational
  activity was dangerous involved particularising
  and segmenting the activity where necessary.
• The court held by majority (Ipp JA, Basten JA)
  that the risk that eventuated was not an obvious
  risk' (s5F) in the course of a dangerous
  recreational activity because of the defendant's
  assurances that the gun was not loaded. It
  therefore ruled in favour of the plaintiff.

23
Professional negligence

• Sections 5O 5P
• Peer professional opinion (or Bolam) test for
  determining the appropriate standard of care
• Rogers v Whitaker (1992) 175 CLR 479
• Cases involving a risk of injury or death arising
  from a professional service, community standards
  and other considerations may be applied by the
  court in determining the appropriate standard of
  care to be exercised.

24
Professional negligence

• 5O Standard of care for professionals
• A person practising a profession ( "a
  professional" ) does not incur a liability in
  negligence arising from the provision of a
  professional service if it is established that
  the professional acted in a manner that (at the
  time the service was provided) was widely
  accepted in Australia by peer professional
  opinion as competent professional practice.
• However, peer professional opinion cannot be
  relied on for the purposes of this section if the
  court considers that the opinion is irrational

25
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.

26
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. (eg Waverley Council v Ferreira
  2005 NSWCA 418)

27
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

28
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.

29
Part 1A Duty of Care more commentary

• Recreational Activities Sections 5J to N
• Issues of concern
• Is the commercial incentive for the safe
  provision of recreational commercial activities
  gone?
• What real bargaining power do consumers have in
  negotiating a contractual waiver?
• Definition of recreational activity is broad and
  ambiguous.

30
Parts 8 9 Good Samaritans Volunteers

• Proclaimed on 6/12/02 Sections 55 to 66
• Parts 8 9 operate to protect Good Samaritans
  and volunteers.
• Section 58 no protection if the Good Samaritan
  is under the influence of alcohol, impersonating
  a police officer or falsely representing that
  they have skills or expertise in providing
  emergency assistance.

31
Parts 8 9 Good Samaritans Volunteers

• 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.
• Section 61 No civil liability for a volunteer
  doing community work but does not extend to
  criminal acts, acts whilst intoxicated, a
  volunteer failing to exercise reasonable care and
  skill, actions outside the scope of the
  charitable organisation or contrary to
  instructions, where the volunteer is required by
  State law to be insured or motor vehicle
  accidents.

32
Breach of Duty General Principles

• Wyong Shire Council v Shirt (1980) 146 CLR 40 per
  Mason J
• 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
  defendants position would have foreseen that his
  conduct involved a risk of injury to the
  plaintiff If the answer is in the affirmative,
  it is then for the tribunal of fact to determine
  what a reasonable man would do 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.

33
Breach of Duty Civil Liability Act

• Civil Liability Act does not apply to claims
  excluded by Section 3B (eg. dust diseases, use of
  tobacco products, workers compensation)
• Section 5B(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.

34
s.5B(2) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 45 The matters set out in s5B(2), in substance,
  are a reiteration of Mason Js remarks in Wyong
  Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
  ...
• 51 Section 5B(2) provides a framework for
  deciding what precautions the reasonable person
  would have taken to avoid the harm and involves
  weighing the factors set out in ss5B(2)(a) and
  (b) against those in ss5B(2)(c) and (d) (subject,
  of course, to each being applicable in the
  particular circumstances of the case).
• 52 In my opinion, the probability as to whether a
  reasonable person would have taken precautions
  against a risk of harm (referred to in s5B(2)(b))
  must be considered objectively by reference to
  the particular circumstances of the case (and the
  state of mind of the defendant is not relevant to
  this inquiry).

35
s.5B(2) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 53 ... s5B(2)(a) requires consideration to be
  given to the objective probability of harm
  occurring if care were not taken. In my view,
  there was a reasonable possibility of harm
  occurring if the fence and undergrowth were not
  removed and children were not prevented from
  using the fence or the undergrowth as a stepping
  stone to gain access to the roof. By s5B(2)(a),
  this possibility must be taken into account.
• 54 The likely seriousness of the harm, should the
  risk materialise, was severe injury or death (s
  5B(2)(b)) (that is, in consequence of falling
  from the roof to the ground).

36
s.5B(2) - Waverley Council v Ferreira

• 55 Garling DCJ found that the fence served no
  practical purpose and in my view he did not
  thereby err. There was a gate in the fence and
  the gate had no lock. It would not have been
  difficult to climb over the fence. There is
  nothing to suggest that there was a reason to
  retain the undergrowth. Both the fence and the
  undergrowth served no apparent utilitarian or
  aesthetic purpose and the burden of removing them
  would have been small (s 5B(2)(c)).

37
s.5B(2) - Waverley Council v Ferreira

• 56 I have already mentioned that s5B(2)(d) (the
  social utility of the activity that creates the
  risk of harm) is not relevant in this case.
• 57 Weighing the factors set out in ss5B(2)(a) and
  (b) against those in s5B(2)(c), I conclude that a
  reasonable Council would have taken the
  precautions of removing the fence and the
  undergrowth and Garling DCJ did not err in so
  holding.

38
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

39
Breach of Duty Seriousness of Risk

• 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

40
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

41
Breach of Duty Utility of the Act of the
Defendant

• Section 5B(2)(d) the social utility of the
  activity that creates the risk of harm.
• South Australian Ambulance Transport Inc. v
  Walhdeim (1948) 77 CLR 215

42
Proof of Negligence - General

• CIVIL LIABILITY ACT 2002 s.5E Onus of proof
• In determining liability for negligence, the
  plaintiff always bears the onus of proving, on
  the balance of probabilities, any fact relevant
  to the issue of causation.
• Holloway v McFeeters (1956) 94 CLR 470

43
Proof of Negligence Res Ipsa Loquitor

• The action/thing speaks for itself
• Nominal Defendant v Haslbauer (1967) 117 CLR 448

44
1 GENERALCAUSATION
Duty of Care
breach
damage
Negligence
causation
There must be a causal link between Ds breach of
duty and damage to P or Ps property
45
Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd (The Wagon Mound 1)

• The facts
• The rule the replacement of direct cause (Re
  Polemis )with reasonably foreseeable
• It is not the hindsight of a fool, but the
  foresight of a reasonable man which alone can
  determine liability (per Viscount Simonds)

46
CAUSATION THE ELEMENTS

• Causation involves two fundamental questions
• the factual question whether Ds act in fact
  caused Ps damage causation-in-fact
• Whether, and to what extent D should be held
  responsible for the consequences of his conduct
  legal causation

47
CLA s5D

• (1) A determination that negligence caused
  particular harm comprises the following elements
  
• (a) that the negligence was a necessary condition
  of the occurrence of the harm ( "factual
  causation" ), and
• (b) that it is appropriate for the scope of the
  negligent persons liability to extend to the
  harm so caused (scope of liability" ).
• (4) For the purpose of determining the scope of
  liability, the court is to consider (amongst
  other relevant things) whether or not and why
  responsibility for the harm should be imposed on
  the negligent party.

48
THE ELEMENTS OF CAUSATION
Causation
Legal
Factual (Causation in fact)
49
CAUSATION-IN-FACT

• Causation in fact relates to the factor(s) or
  conditions which were causally relevant in
  producing the consequences
• Whether a particular condition is sufficient to
  be causally relevant depends on whether it was a
  necessary condition for the occurrence of the
  damage
• The necessary condition causa sine qua non

50
CAUSATION

• To be successful in a claim for a remedy, P needs
  to prove that the loss for which he/she seeks
  compensation was caused in fact by the Ds
  wrongful act
• Traditionally, the test whether Ds wrongful act
  did in fact cause the loss is the but for test

51
Kavanagh v Akhtar

• Factsa Muslim woman who was physically injured
  while shopping was forced by the medical
  condition she had to then cut her previously long
  hair Husband rejects her causing her to suffer
  depression
• In any event, the possibility that a person will
  desert a partner who has been disfigured in the
  eyes of the deserter is sufficiently commonplace
  to be foreseeable (Per Mason J)
• It was not necessary that the defendant should
  have foreseen the precise nature of the
  consequences of his act. In the present case, the
  plaintiffs psychiatric illness was foreseeable

52
Chapman v Hearse Jolley V Sutton

• The place of intervening acts in causation
• Jolley v Suttton
• P then aged 14, sustained serious spinal injuries
  in an accident. It arose when a small abandoned
  cabin cruiser, which had been left lying in the
  grounds of the block of flats, fell on Justin as
  he lay underneath it while attempting to repair
  and paint it. As a result he is now a paraplegic.
  
• D held liable what must have been foreseen is
  not the precise injury which occurred but injury
  of a given description. The foreseeability is not
  as to the particulars but the genus.

53
INCREASE IN MATEARIAL RISK

• MGhee v National Coal Bd (1972) 3 All ER 1008
• The P claimed employers failure to provide
  showers to wash away residue caused his
  dermatitis - the doctors were not certain if
  showers would have stopped the plaintiff
  contracting dermatitis D held liable but mainly
  on policy grounds
• Wilsher v Essex Area Health Authority (1988)
• a premature baby negligently received an
  excessive concentration of oxygen and suffered
  retrolental fibroplasia leading to blindness.
  However the medical evidence demonstrated that
  this can occur in premature babies who have not
  been given excessive oxygen, and there were four
  other distinct conditions which could also have
  been causative of the fibroplasia
• MGhee distinguished on the grounds that there
  was only one causal candidate (brick dust)

54
The Law of Torts

• Particular Duty Areas
• Product Liability
• Abnormal Plaintiffs
• Unborn Children

55
Liability for Defective Products The Scope

• Product liability as a regime for protecting
  consumer rights
• Defective structures/premises (as products?)
• Consumer goods as products

56
Product Liability Evolution in Common Law

• Originally in Common Law, a consumer in receipt
  of defective goods (including goods that caused
  injury to the consumer because of defects) was
  protected by the warranties implied in the
  contract of sale
• The implied warranties was later incorporated
  into statutes
• Sale of goods Act 1983 (UK)
• Sale of Gods At 1923 (NSW)

57
The Difficulties with Implied Warranties

• Warranties do not run with goods. It is simply
  an element of the contract and does not therefore
  attach to the goods as such
• There is generally no vertical privity between
  the manufacturer and the ultimate consumer let
  alone between wholesalers and the ultimate
  consumers
• Privity of contract remained a recalcitrant
  obstacle to the extension o warranties between
  the manufacturer and the ultimate consumer
  (Fleming)

58
The Emergence of Negligence Law Donoghue v
Stevenson

• The existence of the duty of care between the
  manufacturer and ultimate consumer
• a manufacturer of products owes a duty to the
  consumer to take reasonable care

59
The Sources of Law on Product Liability

• Common Law
• contract
• tort
• Statute Law
• Trade Practices Act 1974 (Cwth)
• State fair trading legislation, State Sale of
  Goods legislation
• Strict liability regime.

60
Common Law Negligence

• Donoghue v Stevenson and the Common Law duty of
  manufacturers
• The scope of the duty
• The extent of the duty Junior Books v Veitchi
  (the duty extends beyond merely causing harm to
  safety or property)
• Intermediate examination Grant v. Aust. Knitting
  Mills
• The range of defendants Haseldine v. Daw

61
The Act of the Defendant

• Negligent design of product
• ODwyer v. Leo Buring 1966 WAR 67
• Negligence in the manufacturing process
• Grant v. Australian Knitting Mills
• Negligent Marketing of a Product
• Adelaide Chemical Fertilizer Co
• V. Carlyle
• Failure to warn of dangers or proper use
• Norton Aust. Pty Ltd V. Steets Ice Cream Pty Ltd

62
Statute

• Sale of Goods Act (1923) NSW implies into
  contracts for sale of goods certain warranties
• fitness for purpose
• merchantable quality
• cannot be excluded

63
Statute

• Trade Practices Act (Comm) Pt V Div 2A
• S74B Allows a consumer or person acquiring title
  through or under consumer an action against
  manufacturer in respect of goods unsuitable for
  purpose of sale. 
• S.74C Action in respect of false description
• S.74D goods of unmerchantable quality
• S.74E goods not corresponding with sample
• S.74K No exclusion or modification of T.P.A

64
The TPA The manufacturer

• Manufacturer defined widely (S74A (3) (4)) to
  include a corporation
• -allows its name or brand on goods
• -holds itself out as manufacture
• -is importer manufacture has no Aust place of
  business

65
Abnormal Plaintiffs and Particularly Sensitive
Plaintiffs

• To be liable, P must show that she/he was
  foreseeable. In general the abnormal P is not
  foreseeable
• There is a distinction to be drown between the
  abnormal Plaintiff and the particularly sensitive
  Plaintiff

66
Abnormal Plaintiffs

• In general where D is negligent, D takes P as he
  /she finds P. Any unusual condition that
  aggravates the damage cannot be used by D as a
  defence
• Haley v. London Electricity Bd. A blind P held
  not to be abnormal D ought to anticipate the
  presence of such persons within the scope and
  hazard of their operations

67
Particularly Sensitive Plaintiff

• Where P suffers damage because of a particular
  sensitivity in circumstances where Ds conduct is
  not considered a breach, P cannot claim
• Levi. V Colgate Palmolive
• the bath salts supplied to P were innocuous to
  normal persons the skin irritation which she
  sufferedwas attributable exclusively to
  hypersensitiveness 

68
The Unborn Child

• In general, a duty of care may be owed to P
  before birth
• Watt v. Rama the possibility of injury on birth
  to the child was reasonably foreseeableOn the
  birth, the relationship crystallised and out of
  it arose a duty on the D
• X v. Pal Duty to a child not conceived at the
  time of the negligent act
• Lynch v. Lynch Mother liable in neg to her own
  foetus injured as result of mothers neg driving.

69
Wrongful Birth Claims

• Claims by parents in respect of the birth of a
  child who would not have been born but for the
  Ds negligence.
• Vievers v Connolly (1995) 2 Qd R 325 (Mother of
  disabled child born bec. Pl lost opportunity to
  lawfully terminate pregnancy. Damages included
  costs for past future care of child for 30
  years.)
• CES v Superclinics (1995-6) 38 NSWLR 47 Mother
  lost opportunity to terminate pregnancy as a
  result of Ds neg failure to diagnose pregnancy.
  NSW Ct of Appeal held claim maintainable but
  damages not to include costs of raising the
  chills as adoption was an option.
• Melchior v Cattanach 2001 QCA 246 Mother of
  healthy child after failed sterilization
  procedure. Qld CT Appeal held damages shld
  include reasonable costs of raising the child.
  High Ct agreed on appeal

70
Wrongful Life Claims

• Claim by child born as a result of negligent
  diagnosis by D of childs parent.
• Bannerman v Mills (1991) ATR 81-079. Summary
  dismissal of claim by child born with
  disabilities as result of mother having rubella
  whilst pregnant. Tort of wrongful life unknown
  to common law

71
Wrongful Life Claims

• Edwards v Blomeley Harriton v Stevens Waller v
  James (2002 ) NSW Supreme Court, Studdert J.
•       No duty of care to prevent birth
•       Policy reasons -
• 1. Sanctity value of human life
• 2. impact of such claim on self-esteem of
  disabled persons
• 3. exposure to liability of mother who continued
  with pregnancy
• 4.Plaintiffs damage not recognizable at law -
  would involve comparison of value of disabled
  life with value of non-existence
• 5.Impossibility of assessment of damages in money
  terms - taking non-existence as a point of
  comparison. 

72
CLA Part 11 s71

• In any proceedings involving a claim for the
  birth of a child to which this Part applies, the
  court cannot award damages for economic loss for
  (a) the costs associated with rearing or
  maintaining the child that the claimant has
  incurred or will incur in the future, or (b) any
  loss of earnings by the claimant while the
  claimant rears or maintains the child. (2)
  Subsection (1) (a) does not preclude the recovery
  of any additional costs associated with rearing
  or maintaining a child who suffers from a
  disability that arise by reason of the disability.

73
Defective Premises

• In general the occupier of premises owes a duty
  of care to persons who come on to the premises
• While the notion of occupier's liability may have
  developed initially as a separate category of
  tort law, it now considered under the general
  principles of negligence
• Zaluzna v Australian Safeway Stores

74
Occupiers Liability

• What are Premises?
• -Land and fixtures
• -but Cts have used wide interpretations including
  moveable structures eg
• scaffolding (London Graving Dock v. Horton 1951
  AC 737
• Ships and gangways eg. Swinton v. China Mutual
  Steam Navigation Co Ltd (1951) 83 CLR 553

75

• The Liability of Public Authorities

76
Introduction Public Authorities and the Rule of
Law

• Applying the same rules of civil liability to
  the actions of public authorities or corporation
  
• The rationale No legal or natural person is
  above the law
• The difficulties The nationalization and
  provision of public utilities and community
  facilities necessarily distinguish public
  corporations from ordinary citizens

77
The Rule of Law and Public Authorities

• When a statute sets up a public authority, the
  statute prescribes its functions so as to arm it
  with appropriate powers for the attainment of
  certain objects in the public interest. The
  authority is thereby given a capacity which it
  would otherwise lack, rather than a legal
  immunity in relation to what it does, There is,
  accordingly, no reason why a public authority
  should not be subject to a common law duty of
  care in appropriate circumstances in relation to
  performing, or failing to perform, its functions,
  except in so far as its policy-making and,
  perhaps, its discretionary decisions are
  concerned (per Mason J in Sutherland Shire
  Council v Heyman)

78
Some Basic Concepts Feasance

• In tort law D is liable for a breach of duty
  towards P
• The breach may take the form of an act
  (misfeasance) or an omission (non feasance)
• However not every non-feasance provides a basis
  for liability
• Negligent omissions are actionable.
• Mere/neutral omissions are not actionable
  unless the D is under a pr-existing duty to act

79
Some Basic Concepts Powers and Duties

• Duty
• The obligation to act the statutory
  provision/function is cast in mandatory terms
• Once the content of the duty is determined, the
  question of breach is a question of fact
• Breach duty attracts liability

80
Basic Concepts Power

• Power
• The statutory function is cast in permissive
  terms
• It confers on the power holder a choice to act in
  a particular way
• The failure or refusal to exercise a choice may
  not necessarily be illegal.
• The power holder has a freedom of choice to act/
  The duty holder has an obligation to act

81
Some basic Concepts Ultra Vires

• It is for the power holder to decide what it
  wants to do within the limits of its powers
• Where a power holder acts beyond the powers
  conferred on it by the relevant statute, the
  power holders conduct is ultra vires. The
  decision of the power holder has no legal effect
  and can be quashed by a court.

82
The Planning Operational Dichotomy I

• Planning decisions
• Are based on the exercise of policy options or
  discretions
• They may be dictated by social or economic
  considerations
• not provide the basis for a duty
• In general, a public authority is under no duty
  of care in relation to decisions which involve or
  are dictated by financial, economic, social or
  political factors or constraints

83
The Planning Operational Dichotomy II

• Operational decisions
• The implementation of policy decisions
• subject to the duty of care
• -

84
Australian Approaches to the Liability of Public
Authorities

• Sutherland Shire Council v Heyman Majority
  Mason, Brennan Deane JJ
• in general no duty to exercise statutory powers
• duty will arise where authority by its conduct
  places itself in a position where others rely on
  it to take care for their safety.
• duty arises where D ought to foresee a) Pl.
  reasonably relies on D to perform function AND b)
  P will suffer damage if D fails.

85
Australian Approaches to the Liability of Public
Authorities

• Parramatta City Council v. Lutz Maj of NSW Court
  of Appeal Kirby P McHugh JA
• D held liable P because P had generally relied
  on council to exercise its statutory powers.
• I think that this Court should adopt as a
  general rule of the common law the concept of
  general reliance

86
Australian Approaches to the Liability of Public
Authorities

• Pyrenees Shire Council v. Day Maj Brennan, CJ,
  Gummow, Kirby, JJ
• -rejected concept of General Reliance (too vague,
  uncertain, relies on general expectations of
  community)
• (Only McHugh, Toohey, JJ approved and applied
  concept of General Reliance)
• Brennan, CJ No specific reliance by P here Duty
  arises where Authority is empowered to control
  circumstances give rise to a risk and where a
  decision not to exercise power to avoid a risk
  would be irrational in that it would be against
  the purpose of the statute.

87
Mis-feasance and None-Feasance Highway
Authorities

• The traditional position in Common Law
• Highway authorities owe no duty to road users to
  repair or keep in repair highways under their
  control and management.
• Highway authorities owe no duty to road users to
  take positive steps to ensure that highways are
  safe for normal use.
• It is well settled that no civil liability is
  incurred by a road authority by reason of any
  neglect on its part to construct, repair or
  maintain a road or other highway. Such a
  liability may, of course, be imposed by statute.
  But to do so a legislative intention must appear
  to impose an absolute, as distinguished from a
  discretionary, duty of repair and to confer a
  correlative private right. (per Dixon J in
  Buckle v Bayswater Road Board) See also Gorringe
  v. Transport Comm.

88
Misfeasance and non-Feasance Common Law
Developments

• Brodie v. Singleton Shire Council
• Ghantous v. Hawkesbury City Council

89
The Civil Liability Act (NSW) and Public
Authorities

• Part 5 of the Civil Liability Act (Sections 40 to
  46)
• Section 42 sets out the principles to determine
  duty of care exists or has been breached (ie.
  financial and other resources reasonably
  available, allocation of resources, broad range
  of its activities, and compliance with the
  general procedures and applicable standards)

90
Part 5 Liability of Public Other Authorities

• Section 43 an act or omission by an authority
  does not constitute a breach of a statutory duty,
  unless the act or omission so was unreasonable in
  the circumstances that no authority having the
  functions in question could properly consider the
  act or omission to be a reasonable exercise of it
  function.

91
Part 5 Liability of Public Other Authorities

• Section 44 Removes the liability of public
  authorities for failure to exercise a regulatory
  function if the authority could not have been
  compelled to exercise the function under
  proceedings instituted by the Plaintiff.
• Section 45 Restores the non-feasance protection
  for highway authorities taken away by the High
  Court in Brodie v Singleton Shire Council
  Council Ghantous v Hawkesbury City Council
  (2001) 206 CLR 512

92
45 Special non-feasance protection for roads
authorities

• (1) A roads authority is not liable in
  proceedings for civil liability to which this
  Part applies for harm arising from a failure of
  the authority to carry out road work, or to
  consider carrying out road work, unless at the
  time of the alleged failure the authority had
  actual knowledge of the particular risk the
  materialisation of which resulted in the harm.

93
S45 Hwy Immunity

• Porter v. Lachlan Shire Council 2006 NSWCA 126
• The appellant suffered a fractured right ankle
  when he accidentally put his foot into a hole in
  the nature strip between the made footpath and
  the gutter of a street in Condobolin.
• The primary judge held that, but for s45 of the
  Civil Liability Act 2002, he would have found the
  Council liable on the ground that it should have
  known about the hole but he was not satisfied
  that the Council had actual knowledge of it.

94
s45 - Porter v. Lachlan Shire Council

• 45 Special non-feasance protection for roads
  authorities(1) A roads authority is not liable
  in proceedings for civil liability to which this
  Part applies for harm arising from a failure of
  the authority to carry out road work, or to
  consider carrying out road work, unless at the
  time of the alleged failure the authority had
  actual knowledge of the particular risk the
  materialisation of which resulted in the
  harm....
• (3) In this section carry out road work means
  carry out any activity in connection with the
  construction, erection, installation,
  maintenance, inspection, repair, removal or
  replacement of a road work within the meaning of
  the Roads Act 1993.roads authority has the same
  meaning as in the Roads Act 1993.

95
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.

96
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.

97
s.45 Actual KnowledgeNorth Sydney Council v-
Roman 2007 NSWCA 27

• Ms Roman was injured at night when she fell in a
  pothole half a metre wide and about four to five
  inches deep in Princes Street, McMahons Point on
  16 October 2001. She brought proceedings against
  the Council, alleging that it had been negligent
  in failing to maintain the road by repairing the
  pothole. The Council defended the proceedings on
  the basis that it did not have actual knowledge
  of the pothole as required by s.45 of the CLA.
  The evidence established that Council street
  sweepers regularly swept the gutters in Princes
  Street in the vicinity of the subject hole. The
  street sweepers were instructed as part of their
  induction to identify hazards which needed
  attention and report them to their supervisor. Ms
  Roman argued at trial that the street sweepers
  actual knowledge of the pothole could be inferred
  from the regularity of those duties and from
  their obligation to identify hazards which needed
  attention. She also argued that their knowledge
  was attributable to the Council.

98
s.45 North Sydney Council v- Roman

• The appellant did not call a street sweeper. It
  did call evidence from their supervisor and from
  people responsible for repairing potholes. All
  said they had not known of the pothole. They said
  that if they had they would have regarded it as a
  hazard. By the time of the trial the pothole had
  been repaired. None of the appellants witnesses
  was aware of how it had come to be repaired, nor
  did the appellant produce any records relating to
  its repair. The primary judge inferred the street
  sweepers had actual knowledge of the pothole and
  that, for the purposes of s.45, their knowledge
  could be attributed to the appellant. She also
  found the appellant had breached its duty of care
  by leaving the pothole in a place where a person
  getting into or out of a car might reasonably be
  expected to step. She awarded the respondent
  475,485 damages.

99
s.45 North Sydney Council v- Roman

• On appeal the appellant submitted that to find
  actual knowledge for the purpose of s.45 it was
  necessary that there be a connection between the
  person with actual knowledge of the particular
  risk and the person able to, but who failed to,
  carry out the roadwork which would have avoided
  the harm which materialised. It argued that even
  if it was assumed a street sweeper had actual
  knowledge of the pothole, such knowledge was not
  sufficient because street sweepers did not carry
  out repairs.

100
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.
  Per McColl JA (dissenting)

101
THE LAW OF TORTS

• Vicarious Liability

102
Introduction Personal Liability

• In tort law liability is generally personal ie,
  liability is generally linked to a breach of
  ones (own) duty
• There are however instances where a party may be
  held liable for torts committed by another
  vicarious relationship

103
What is Vicarious Liability

• Liability of D (usually the master/employer) for
  the torts of another (usually his or her
  servant/employee) although the master is without
  any blame or fault.

104
Distinctive Features

• It is liability for the wrongful act of another.
• It is a form of strict liability. D is liable
  without proof of fault on Ds part

105
Types of Vicarious Relations Master Servant
Situations
106
Partnerships
107
Principal and Agent Relations

• An agent acts for the principal but the
  liability of the principal for the act of the
  agent is not based on vicarious liability
• The liability of the principal is based on the
  maxim qui facit per alium, facit per se
• The agent acts in a representative capacity and
  has the authority to act for the principal but is
  not necessarily a servant

108
The Employer-Employee (Master-Servant) Relations

• An employer is vicariously liable for the
  tortuous acts or omissions by his employee in
  the course of employment whether or not such act
  or omission was specifically authorised by the
  employer.

109
The Rationale for Vicarious Liability

• Respondeat superior Traditionally, the common
  law viewed the master as responsible for the
  servants conduct
• "for seeing somebody must be a loser by (because
  of the conduct of the employee), it is more
  reason that he that employs and puts a trust and
  confidence in the (employee) should be a loser
  than a stranger". Per Earl of Halsbury in Lloyd
  v Grace, Smith Co
• Choice and training of employees  Liability
  tends to provide a spur toward careful selection,
  training and supervision of employees
•  Benefits and the burden Since the employer
  receives the benefits of the activities of the
  enterprise, he should also bear its burdens
• The ability to pay Liability increases the
  likelihood of accident victims receiving
  compensation  

110
SERVANTS AND INDEPENDENT CONTRACTORS

• Vicarious liability arises only in respect of the
  torts of the servant
• The master/employer is therefore responsible only
  for the torts of the servant and not the
  independent contractor
• For the master/employer to be held liable, the
  tortfeasor must
• be a servant, and
• commit the tort in the course of his or her
  employment

111
WHO IS A SERVANT?

• A servant is one who is under a contract of
  service to another an independent contractor is
  under a contract for services
• The contractor is paid for the job by results
  rather than for time spent, receives a fee or
  commission, the servant receives wages
• The contractor is usually employed on a casual
  basis, the servant on a permanent basis
• The contractor usually specifies his/her work
  schedule and supplies his/her own tools
• The master may select the servant for the task

112
WHO IS A SERVANT? THE CONTROL TEST

• If the Master controls what the employee does and
  how it is done, then the employee is a servant.
  The relationship will give rise to Vicarious
  Liability.
• Zuijs v Wirth Bros The case of the trapeze
  artist
• What is essential is whether there is lawful
  authority to command or give directives if there
  is scope for it.
• Stevens v Brodribb Sawmilling)

113
Borrowed Servants

• Instances of borrowed services
• The general (ie regular) employer leases (out) a
  vehicle or equipment such as crane, power shovel,
  bulldozer, truck etc with employee as operator,
  to a party (special employer) who has a temporary
  need for such machinery.  Employee commits a
  torts by the negligent operation of machinery
•  The general employer as his business provides
  temporary workers to other parties (special
  employers), sometimes simply as day laborers,
  sometimes as skilled workers for specified
  periods of time.
• The general employer, by an agreement with the
  special employer assigns the employee to work for
  the special employer for a specified period on
  secondment or attachment etc

114
The Test in in the case of Borrowed Servants

• The transfer or loan of an employee to the
  special employer is not intended to terminate the
  employees employment with the general employer. 
• An employee is presumed to continue in the
  employment of the general employer. P or the
  general employee carries the burden of proof
  where there is an allegation that the special
  employer has assumed control and become the
  principal employer
• The test is control
• Mersey Docks Harbour Board v Coggins Griffith
  

115
Limits of the Control Test

• The nature of the service to be performed is
  essential in determining the relationship Stevens
  v Brodribb Sawmilling
• Uncontrollability of a person forming part of an
  organization as to the manner in which work is
  performed does not preclude a relationship of
  master servant
• Albrighton v PRA Hospital

116
The Evidence of Control

• Master- servant relationship
• Right to have the particular person do the work
• Right to suspend or dismiss
• Right to exclusive services of person engaged
• Right to dictate place of work, hours etc
• Independent contractors
• A profession or trade or distinct calling of the
  contractor
• Provision of own place of work or equipment
• Creation of contractor of goodwill, saleable
  assets
• Payment of own b