Negligence To Be Successful In A Negligence Claim, The P

NEGLIGENCE To be successful in a negligence claim, the P must; 1. Establish that the D owed them a duty of care; 2. Prove that D breached that duty of care; 3. Prove that the damage that P suffered was caused by the D�s breach, and that the damage was not too remote a consequence of that breach.

DUTY OF CARE A duty of care can be established by; 1. Being a recognised duty category; or 2. The principles established in Donoghue v Stevenson Recognised Duty Categories 1. Landlord � Tenant; Jones v Bartlett 2. Motorist � Pedestrian; Pennington v Norris 3. Driver � Other road user; Cook v Cook Principles from Donoghue v Stevenson 1. Reasonable Foreseeability 2. Neighbour Principle �You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour� Also need to take policy issues; Administrative issues, Public interest issues, the legislative factor, the balance of competing moral claims issue and the loss distribution issue; into account. High court now favours incremental approach, that duties should be established on a case by case basis. �Justice Dawson in Hill v Vanerp The risk that is foreseeable at the duty stage must only be a risk of some kind of injury to a class of people that includes the plaintiff. � Chapman v Hearse Neighbourhood approach (proximity theory) regards 3 kids of proximity (Sutherland Shire Council v Heyman; 1. Physical proximity � time and space 2. Circumstantial � existing relationship 3. Casual � can you link act to event This test of proximity was discarded in Sullivan v Moody There is no duty to protect people from criminal activity � (Modbury v Anzil) Summary 1. Need to reasonably foresee; � Some kind of damage � To some person in the same class as the plaintiff 2. Factors that can limit the application of duty; � Proximity � Policy

BREACH OF DUTY To establish Breach of Duty you need to establish; 1. The standard of care that the D owed the P 2. Whether or not the D met that standard of care Section 5B of the CLA sets out the test for breach of duty. The standard required is that of a reasonable person (Blyth v Birmingham Waterworks Co) and is based on the reasonable person at the time of the negligent conduct (E v Australian Red Cross Society) Section 5H of the CLA sets out that there is no liability for obvious risks associated with dangerous recreational activities. The objective test can be adjusted to consider age and experience (McHale v Watson) Tests for breach are (CLA); 1. Was the risk foreseeable? 2. Was the risk not insignificant? 3. Would a reasonable person in the position of the D have taken precautions against that risk? A �not insignificant risk� has a higher probability of occurrence than a risk that is �not far-fetched or fanciful� (Wyong v Shirt) but a lower probability of occurrence than a �substantial risk.� It is not a synonym for significant. To determine the answer to test 3 you apply the negligence calculus from 5B(2) of the CLA. In the case of professionals, the reasonable person is adjusted to a reasonable person professing the D�s skill. (Rogers v Whittaker) Proof of Breach is an evidentiary matter � if there is no evidence you can use Res Ipsa Loquitor �The facts speak for themselves.� The general type of damage must be foreseeable (more narrow than in the duty phase.) Does not mean likely to occur but is just less general than in duty phase. (Wyong Council v Shirt)

Burden of taking risk considers expense, difficulty and inconvenience of taking precautions and the obvious nature of the risk. (Romeo v Conservation Commission of NT) The saving of life justifies taking considerable risk. (Watt v Herefordshire Council)

CAUSATION AND REMOTENESS OF DAMAGE Causation established in section 5C & 5D of the Civil Liability Act 2002 (WA). It is a question of fact, not of law. The plaintiff needs to establish that the damage was; 1. Caused by the defendant�s negligence; and 2. Not too remote in law from the defendant�s act or omission. Factual Causation; 1. Was the defendant�s negligence a necessary condition of the occurrence of the harm? (CLA 5C) Scope of Liability Causation (CLA 5C)- Whether appropriate in ALL circumstances that the negligent person�s liability extend to the harm so caused; 1. Was the damage too remote from the defendant�s act or omission, 2. Has an intervening event broken the chain of causation, 3. Was the defendant�s act legally the relevant cause, 4. Do policy considerations require the casual connection to be disregarded, 5. In all the circumstances should the defendant be liable, and 6. Does deciding that scope of liability causation exists create unreasonable problems for others in the position of the defendant? Onus of Proof The onus is always on the plaintiff to prove on the balance of probabilities. Factual Causation

Not liable if the harm would have happened anyway, �he would have died anyway�. (Barnett v Chelsea & Kensington Hospital) Remoteness of damage (Within Scope of Liability) You have to foresee the specific kind of harm. (Wagon Mound 1). It was reasonably foreseeable that the wharf could be damage by spilt oil but not reasonably foreseeable that it would be damaged by fire. You need to foresee the type of injury, how it occurs or the extent of damage is irrelevant; the D is liable for the entire extent of the injury. (Hughes v Lord Advocate) Egg shell skull rule applies and includes family and cultural settings (Kavanagh v Akhtar) Lady was injured and had to cut her hair as she could no longer maintain it�husband did not approve, became abusive, she suffered from depression and they separated. Multiple Sufficient Causes Did the D�s negligence materially contribute to the risk of damage occurring? (McGhee v National Coal Board) �dermatitis case, need to bridge the evidentiary gap, no determinative medical evidence. If P suffers a loss and then also suffers a further loss that builds upon the first, the 2nd wrongdoer must take the P as he or she finds him. When there are concurrent or successive tortfeasors, it if sufficient that the P establishes on the balance of probabilities, that each D has materially contributed to the P�s harm or injury. (Nilon v Bezzina) Novus Actus Interveniens If there is an intervening act between D�s negligence and the P�s injury, you can argue there is a novus actus and the D will not be liable. If the P did the act purely because of D�s negligence then the D caused the harm. (Adelaide Chemical and Fertiliser Co v Carlyle) P�s husband treated injury from work by applying a burn cream whi9ch gave him a disease and killed him. D was liable for the death. If something happens by coincidence the act is unrelated and the D cannot be said to cause the accident. (Baker v Willoughby) P wouldn�t have been in the place he was shot if the D had not been negligent. Summary P needs to establish; 1. Factual Causation 2. Scope of Liability Causation Factual Causation; 1. Was the defendant�s negligence a necessary condition of the occurrence of the harm Scope of Liability 1. Is it appropriate in all circumstances for the extent of the tortfeasors liability to extend to the harm so caused 2. In relation to remoteness if the kind/type of damage is reasonably foreseeable the defendant is liable for the entire amount of the damage even if

the full extent is not foreseeable (including egg shell skull rule)

DEFENCES TO NELIGENCE The three main defences to negligence are; 1. Contributory Negligence; 2. Volenti non fit injuria; and 3. Joint illegal enterprise. Onus is on defendant to prove: 1. P did not take precautions a reasonable person would have to take care of themselves; and 2. This lack of care caused or contributed to the damage of which the P suffered. The CLA also assists the defendant in that the P is assumed to be aware of obvious risks and there is no duty to warn of obvious risks except for the situations in CLA 5O (2). The P can rebut this presumption on the evidence and must prove on the balance of probabilities that she was not aware of the risk. Illegality In some circumstances, participation by P in some illegal venture with D can result in P forfeiting any right to sue if injured.

CONTRIBUTORY NEGLIGENCE At common law contributory negligence was a complete defence. We now have legislation that allows for apportionment of the blame. It is now a partial defence. To establish contributory negligence you need; 1. Carelessness; and 2. That carelessness to cause the harm suffered by P. Standard of care that is required by the P is that of a reasonable person in the

position of the P and is to be determined on what the P knew or ought to have known at the time. Rules of duty, breach and causation apply.�CLA 5K Standard of care is more lenient when applying to P because they are put in a position of risk by D. (McLean v Tedman). Reasonable person is adjusted to age in contributory negligence also (Kelly v Bega Valley City Council) The court shall reduce the damages recoverable by the plaintiff to such an extent as the Court thinks is just in accordance with the degree of negligence attributable to the plaintiff. �Law Reform (Contributory Negligence and Tortfeasors� Contribution) Act 1947 (WA) Consider whether the P�s acts endangered any other person or whether the D�s acts endangered any other person (Pennington v Norris) Also need to establish causation. The P�s conduct must be causally related in 3 ways: 1. The P�s carelessness is the cause of the accident. (Griffith v Doolan) 2. The P�s conduct increased the risk of harm (Azzopardi v State Transport Authority) 3. The P�s conduct aggravated the damage caused by the D�s negligence. (Eagles v Orth aka the Seatbelt Case) Contributory Negligence is about contributing to the injury not to the accident that caused the injury. (Eagles v Orth aka the Seatbelt Case) The harm suffered must be within the class of harm that the P exposed himself to by his negligent conduct. (Diver v Neville) Injuries would have happened despite the P�s carelessness. If P is intoxicated (self-induced) there is a presumption that P is contributory negligent. Burden of proof to rebut lies on P. �CLA 5I. In all other cases the onus is on the D to prove contributory negligence. If D is drunk and P knows of this, P can be held to be contributory negligent. (Banovic v Perkovic) In March v Stramare the court found that although P�s injuries could have been completely avoided if he took appropriate care, the D created the dangerous situation in the first place. Liability apportioned 70% to P, 30% to D.

VOLENTI NON FIT INJURIA

No injury is done to one who voluntarily assents; Voluntary assumption of risk. If a P, with full knowledge of the risk, accepts the risk of injury, the D may raise volenti as a defence. If volenti is proven it is a complete defence, dissolving all liability. (Rootes v Shelton) The Court is more likely to favour contributory negligence. Volenti requires proof that the P; 1. Had full knowledge of the risk; and 2. Voluntarily accepted the physical and legal risk. The P must have �full appreciation� of the risk. The D needs to establish that (Smith v Baker, Canterbury Municipal Council v Taylor); 1. P had knowledge of the risk 2. Understood and appreciated the risk 3. Voluntarily accepted (consented to) that risk. It is a subjective test. (Canterbury Municipal Council v Taylor) Consent may be expressed or implied. If you are in a relationship where you owe someone a duty of care you cannot use an exclusion clause to disclaim liability. Factors of an implied risk are; 1. What was it that injured P? 2. What was it the P consented to? (Rootes v Shelton)

SPECIAL CATEGORIES OF NEGLIGENCE Special Categories of Negligence include; OMISSIONS AND RESCUERS NERVOUS SHOCK PURE ECONOMIC LOSS DEFECTIVE STRUCTURES NEGLIGENT MISSTATEMENT PRODUCT LIABILITY PROFESSIONAL NEGLIGENCE

OMISSIONS AND RESCUERS There is no duty of care for omissions, only from actions, except in some exceptional circumstances. If there is no special relationship, then common law imposes no duty on a person to protect another. (Hill v Van Erp) Some circumstances may arise where the defendant may be required to take positive action for others safety, such as: 1. Existence of a special relationship between P and D 2. Existence of a special relationship between D and another that requires D to take positive action for the safety of others. Pre-existing categories when liability for omissions has been admitted; 1. Relationships of reliance and dependence including; a) Ongoing professional relationships (Hawkins v Clayton) b) Duties of physical protection � Employers � Doctors and hospitals to (1) Provide treatment, (2) warn of risks associated with treatment and (3) give patients information about their health. � Teachers to students (Geyer v Downs) � Gaolers and Prisoners (Dixon v WA) c) Duties to control others � Teacher to control pupils � Host at party, or hotel manager (Wormald v Robertson) � Parents 2. Rescuers 3. Reliance cases involving statutory authorities Moral obligation (parent and child) does not automatically translate into a legal obligation. The duty only arises in specific situations. (Hahn v Conley) In a parent-child relationship, duty of care arises out of the adult creating a situation of danger or placing the child in a situation of danger through their acts. (Hahn v Conley) While there is reluctance to subject parents to a duty of care to their child, there is more willingness to subject them to a duty in protecting their child from harming others. (Smith v Leurs) �Duty conceded but sufficient care was taken as child was warned. Occupier�s liability: The D holds a duty of care under the ordinary principles of negligence to the P. (Australian Safeway Stores v Zaluzna) D owes a duty of care to rescuer if it is the very likely thing to result from the D�s negligence. Duty of care is owed to a rescuer who suffers nervous shock. (Chadwick v British Transport)

No duty to rescue from harm caused by another (Hargrave v Goldman) Protection for good Samaritans if the act is not done recklessly (s 5AD of the CLA)

STATUTORY AUTHORITIES With Statutory Authorities, courts can impose an obligation to act if, under the statute, it states that a body must do X, and fails to do X, or does X recklessly. (Sutherland Shire Council v Heyman) If a statutory authority is not under a statutory obligation to exercise power then duty cannot be imposed. (Sutherland Shire Council v Heyman) Misfeasance is acting negligently while you are acting. Nonfeasance is a failure to act. (Sutherland Shire Council v Heyman) Policy decisions are not open to liability however operational decisions are. (Sutherland Shire Council v Heyman) Failure to warn of a hidden risk (Nagle v Rottnest) If there is a power in a statute to protect people and property, and a stautory obligation to exercise power, then all matters must be followed up. (Pyrenees v Day) �Chimney Fire case. Reliance must be specific reliance not general reliance, ie. the specific P. (Pyrenees v Day) rejects general reliance. If authority directs P to work in a situation of danger it must owe P a duty of care. If there is knowledge of a danger then no-one should be directed toward the danger. P is particularly vulnerable. (Crimmins) Crimmins Test; 1. Is there specific reliance 2. Is D under control of P 3. Is P vulnerable to D�s control 4. Does authority have access to knowledge P doesn�t. Section S5W of the CLA deals with statutory authorities. S 5X deals with the policy defence. S 5Z reintroduces the highway rule. No common law duty is imposed that gives rise to an inconsistency with a statutory duty. (Sullivan v Moody) For non-feasance the power of the authority must not be too general. (Graham Barclay Oysters v Ryan)

NERVOUS SHOCK You can only claim nervous shock when this is the only damage suffered. You cannot claim it if it is �consequential psychiatric injury� from normal damages. The illness has to be a recognised psychiatric illness. (Hinz v Berry and CLA 5S) What constitutes a recognised psychiatric illness will be decided by medical evidence on a case by case basis. (Mount Isa Mines v Pusey) Shock itself is not enough, nor is grief, sorrow or any normal emotional reaction. Needs to be damage, a recognised psychiatric illness. The defendant needs to foresee that kind of damage as part of the Lord Atkin Neighbour principle. (Mount Isa Mines v Pusey) Elements of establishing nervous shock are (CLA 5S); 1. Reasonable foreseeability 2. That a person of normal fortitude 3. Would suffer a recognised psychiatric injury. Relevant matters for the court to consider in establishing nervous shock are; 1. Whether or not the mental harm was suffered as the result of a sudden shock 2. Whether the P witnessed, at the scene, a person being killed, injured or put in peril 3. The nature of the relationship between the P and any person killed, injured or put in peril 4. Whether or not there was a pre-existing relationship between the P and the D. History of denying nervous shock claims due to policy reasons. Need to be a direct perception a �Sudden sensory perception� resulting in sudden shock. (Hinz v Berry) It is enough that the P has a direct perception of some of the events which make up the accident, including in the aftermath. (Benson v Lee and Jaensch v Coffey) 1. 2.

Psychiatric illness from knowledge of a distressing fact is not compensable Perception of the distressing phenomenon is essential (Jaensch v Coffey)

Alcock v Chief Constable of South Yorkshire Alcock test; 1. Relationship of love and affection; and; 2. Physical Proximity (in time and space) between the plaintiff and the

accident. Aftermath does not include television and radio broadcasting, as these are edited and broadcasting standards mean that particularly disturbing images are removed. Finding a body hours after in the morgue was not in the aftermath. (Alcock) In White v Chief Constable of South Yorkshire, police were not able to recover from their employee for psychiatric injury. Being a rescuer does not automatically give rise to a duty of care. To recover from being a rescuer you must fear for your own safety, being exposed to physical danger. Egg-shell skull rule does not apply if the injury was not foreseeable. It does apply if the injury was foreseeable. (Tame v NSW) Annetts v Australian Stations Three control mechanisms are; 1. Normal Fortitude 2. Sudden Shock 3. Direct Perception But none of these are accepted as a precondition for negligently inflicted psychiatric harm. Gifford v Strange Patrick Stevedoring Pty Ltd � Touchstone of liability remains the reasonableness of the defendants conduct, a must be judged by community standards as to what is reasonable care. � Relationship relevant in establishing reasonable foreseeability and reasonableness of recognising a duty. From Tame, Gifford and Annetts Combined Nervous Shock Test; 1. Harm by way of a recognised psychiatric injury 2. Reasonable foreseeability of injury in this way 3. Duty is only owed to those who are �so closely affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions in question� �from Donoghue Use CLA s 5S mainly to establish nervous shock.

PURE ECONOMIC LOSS � NEGLIGENT ACTS

Consequential Economic Loss: Economic loss occurring as a consequence of damage to property or person Pure Economic Loss: Loss that is no way related to injury to property or person Still need to go through basic CLA principles, Duty, Breach and Causation. Caltex Oil v The Dredge Economic loss suffered by loss of the oil is consequential, economic loss suffered by the damage to the pipeline was pure. Floodgate argument did not apply in Caltex as the D knew of the P as an individual, and knew or ought to have known that P would suffer economic loss if damage occurred. As a matter of policy it was appropriate to impose a duty as the amount of economic loss was easily identifiable. Caltex ratio: No liability for pure economic loss where the person claiming is the member of an indeterminate class. Perre v Apand Principles 1. Reasonable Foreseeability 2. Indeterminacy 3. Autonomy of the Individual 4. Vulnerability to Risk 5. Knowledge of the risk and its magnitude Reasonable Foreseeability 1. Foreseeability to a class of people of which the plaintiff was one 2. Determines existence of a duty of care, but is not sufficient alone. Indeterminacy 1. Defendant should be able to determine those likely to e affected by their negligent action 2. Cannot be an indeterminate number of claims resulting from the imposition of a duty. Autonomy of the Individual 1. Legitimate protection or pursuit of social or business interests 2. Apand pursued an interest in a way that constituted a breach of the law. Vulnerability 1. If a P cannot protect themselves then a duty may be owed 2. If a P can self protect but doesn�t then a duty is not owed Knowledge of the Risk and its Magnitude 1. Knowledge of the risk and its consequences on an ascertainable class continues to be regarded as a prerequisite for the existence of a duty of care. No duty if a P can self protect but doesn�t (Reynolds v Katoomba RSL club)

DEFECTIVE STRUCTURES Pure economic loss arises �where damage consists of a defect in the structure, itself arising from inadequate design or building, so that the value of the structure is diminished and may require remediation.� (De Pasquale Bros. Pty Ltd v Cavanagh) Plaintiffs in Defective structure cases are generally purchases of houses, units, townhouses etc. Defendants are generally the builder, the architect, the engineer or the local authority. Builders owe a duty of care to subsequent owners. No different in relationship between first owner and builder than in subsequent owner and builder. Duty confined to structural and latent defects that affect value of the house. (Bryan v Maloney) Duty from Bryan v Malone does not extend to situations where defect was apparent upon purchase if sufficient inspection had occurred. (Woollahra Council v Sved) �In this case a duty was held on the statutory authority who had failed to produce a report on the inspection. Duty of care in Defective Structure cases based on; (from Bryan v Maloney) 1. Assumption of responsibility 2. Know reliance 3. Proximity Also need to look at these issues 1. Autonomy 2. Indeterminate liability 3. Some criteria satisfied other than reasonable foreseeability 4. Vulnerability In Woolcock St Investments the distinction was in vulnerability issue as the manager had an opportunity to self protect. No duty to subsequent purchasers in commercial premises. �No prudent purchaser would contemplate buying a building without determining whether it has preexisting or potential construction defects� for investment purposes as in commercial buildings. (Woolcock St Investments) Normal process of investigating foundations (from an engineering perspective); 1. Obtain sufficient geotechnical information on the site to assess the likely performance of foundation material including variability across the site. 2. The pattern of investigation calls for an engineering judgment as to the probable subsurface variations in materials and, in variable sites, this may require some guess work 3. As each foundation is prepared it is inspected by an engineer or someone technically competent to determine whether or not the material upon which the foundation is to be cast reflects the parameters used in design as developed from the geotechnical investigation. 4. no engineer other than the original engineer, could certify the structure to the level appropriate for a �warranty� without relying on the engineering information produced at the time of original design and construction The statutory regime which now exists nationally (The Building Code of Australia) requires the issuing of a certificate from a practising structural engineer �certifying that the building � will be structurally sound �� for legal occupation

of the building. Statutory Authorities and Defective Structures Sutherland Shire Council v Heyman Duty arises ONLY if; 1. Actual or specific reliance on performance 2. Such reliance must be reasonable in the circumstances Council must assume responsibility for reliance for example by informing the P it will carry out the inspection. Brodie v Singleton Shire Council; Bridge collapsed due to rot and white ants while truck was driving over it. Highway rule was applied; no duty for non-feasance. The factor of control is of fundamental importance. �There will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them.� (Brodie v Singleton Shire Council)

NEGLIGENT MISSTATEMENT Hedley Byrne v Heller Hedley Byrne factors; 1. Person making the statement must be responsible for the statement 2. This undertaking can be expressed or implied 3. Person seeking advice must rely on it 4. This reliance must be reasonable with a reasonable justification 5. Person giving advice knew or ought to have known of reliance All of these factors must be establish in finding a duty of care. A disclaimer negates the duty of care (Hedley Byrne v Heller) Shaddock v Parramatta Council

�Special skill� was not a requirement for a duty of care in negligent misstatement, but was merely a factor affecting the question of reasonable reliance. Serious or business setting is needed for negligent misstatement but not special skill. In Shaddock the council was the only body that had the information, it was reasonable to rely on the information or the absence of information and therefore the D owed a duty of care to the P. San Sebastian Mass published plans are not finite, definitive or permanent, it was a draft. No one had made a statement or representation. There was no reasonable reliance. (Factor 1, 4 and 5 of Hedley Byrne not satisfied.) Esanda v Pete Marwick 1. Need to foresee the P, individually or a member of an ascertainable class, and need to know that the information will be used for some purpose (eg. invest) 2. Knowledge that the P will enter a transaction on the information provided 3. P would suffer economic loss if D was negligent Auditors do not owe a duty of care to prospective shareholders (Caparo v Dickman) PROFESSIONAL NEGLIGENCE Duty of care is implied in professional situations. (Pullen v Gutteridge) Solicitors and Clients The standard of care required is that of the ordinary skilled person exercising and professing to have that special skill.� (Heydon v NRMA) Hill v Van Erp 1. Proximity between the parties corresponded with the solicitor�s contractual duty to testator. (168 per Brennan CJ & 233 per Gummow J) 2. The loss of the benefit was a direct consequence of the solicitor�s negligence. 3. The court noted testators� inevitable and direct reliance upon the particular skills of their solicitors. 4. Although prior to the testator�s death, there exists no relationship between the solicitor and intended legatee, solicitors assume a form of responsibility in respect of beneficiaries. Medical Negligence The Bolam Principle Standard of care is the standard of the ordinary skilled man exercising and professing to have that special skill. Law imposes a duty of care but the standard of care is determined on medical principles. Medical negligence is cover in section 5P of the CLA. A doctor has a duty to warn a patient of a material risk inherent in the proposed treatment. (Rogers v Whitaker) Causation factors; 1. The remoteness of the risk

2. 3. 4. 5. 6.

A patient�s desire for the treatment Previous and later procedures undertaken Degree of faith in the medical practitioner The knowledge of the patient The need for treatment and alternatives available

�Any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.� (Rosenberg v Percival) Wrongful birth case. Parents were allowed recovery from negligent gynecologist. (Cattanach v Melchior) Now CLA says that recovery is not allowed from pure economic loss suffered from the ordinary costs associated with rearing a child.

VICARIOUS LIABILITY Involves the law holding one person responsible and liable for the misconduct of another It has long been accepted, as a general rule, that an employer is vicariously liable for tortious acts of an employee, but that a principle is not liable for the tortious acts of an independent contractor. �Hollis v Vabu Whether a person is an employee or an independent contractor depends on how much control you have over them. -Stevens v Brodribb For Vicarious Liability the tortfeasor needs to be; 1. An employee 2. Acting in the course of their employment Lighting up a cigarette close to flowing petrol causing extensive fire damage is said to be in the course of employment. -Century Insurance Co. Ltd. v Northern Ireland Road Transport Board He [the employer] is ordinarily liable if the employee does in an illegitimate way what he was employed to do in a legitimate way. But the employer will not be liable if what the employee has done is so far beyond what he was employed to do that liability should not be imposed. Canterbury Rugby League Club v Rogers Acting in the course of employment � Bugge v Brown Overall act was not too far removed from the authorised act. Generally the act was

authorised, only location was unauthorised. Acting on a �frolic�: Employer will not be liable for employee acting on a frolic of his own. -Joel v Morison In Hollis v Vabu the couriers were independent contractors as they had to supply and maintain their own vehicles, and their own equipment apart from uniforms. On appeal found that this was a employer-employee relationship. Employee � Contract of service Independent contractor � Contract for service Indicative of contract of service (employee) 1. Right to have a particular person do the work 2. Right to suspend or dismiss the person engaged 3. The right to the exclusive services of the person engaged 4. The right to dictate the place of work, the hours of work and the like. Indicative of contract for services (independent contractor) 1. Work involving a profession, trade or distinct calling on the part of the person involved 2. Provision of a person�s own place of work or his own equipment 3. The creation by him/her of goodwill or saleable assets in the course of his/her work 4. Payment by him/her from his/her remuneration of business expenses of any significant proportion 5. Payment to him/her of remuneration without the deduction of income tax Sweeney v Boylan Nominees Result 5-1 no vicarious liability. Mechanic was negligent in fixing fridge which fell on appellant (P). May be vicariously liable for; 1. Principle and agent - Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Insurance Co of Aust 2. Car owner and driver - Soblusky v Egan Non-Delegable Duties If you have a duty of care in certain activities you cannor delegate it to an independent contractor. The employer may be liable even though the independent contractor exercised reasonable care in doing what he was employed to do, because the employer authorized the running of the risk and the employer may be in breach of his own duty for failing to take necessary steps to avoid the risk which he authorized. Northern Sandblasting Pty Ltd v Harris

NUISANCE Nuisance = Smell, noise, dust, vibration, flooding, poisoning, golf balls�???? Public nuisance = an interference with a public or common right An �act or omission which materially affects the reasonable comfort and convenience of a class of Her Majesty�s subjects� A-G v PYA Quarries Ltd With public nuisance the plaintiff does not need to have property rights over land to sue as long as he/she has suffered �particular damage�. Private Nuisance = �an unlawful interference with [the occupier�s] use or enjoyment of land, or some right over, or in connection with it.� - Hargrave v Goldman �The forms of this are innumerable. Noise, smells, pollution of air or water, are the most usual instances, but there are many others. The two main heads are injury to property and interference with personal comfort. The escape of fumes which kill vegetation and cattle is an illustration of the first, and excessive tolling of church bells is the second.� - Munro v Southern Dairies Ltd Nature of private interference; 1. Material Physical Damage 2. Interference with the enjoyment of land To be actionable interferences must be; 1. Substantial, and 2. Unreasonable If a normal use would have experienced an interference then there is a nuisance � whether or not the plaintiff�s use was particularly sensitive. - McKinnon Industries Ltd v Walker Factors taken into account when establishing nuisance; 1. The character of the harm 2. The locality 3. The defendant�s conduct Character of the Harm; 1. The duration 2. Frequency of interference 3. Its extent 4. When it took place Loss of one night�s sleep is a substantial interference. - (Munro v Southern Dairies) A person with rights in or over the land in question can sue for nuisance - Hunter v Canary Wharf Ltd

In Stockwell v Victoria [2001] VSC 497 (17 Dec. 2001) Gillard J applied Hunter v Canary Wharf to hold that only the owner, tenant or person with exclusive possession had title to sue in private nuisance. People that can be sued for nuisance are; 1. The person who creates the nuisance 2. The occupier who [although he /she didn�t create the nuisance] continues or adopts the nuisance (created by a third party or natural causes) Has the defendant taken reasonable steps to abate the nuisance? Court looks at the skill, knowledge and financial resources of the defendant when considering reasonable steps to abate the nuisance. - Hargrave v Goldman An occupier is not prima facie responsible for a nuisance created without his knowledge and consent. - Montana Hotels Pty Ltd v Fasson Halsey v Esso Petroleum: 1. Money damages awarded in respect to physical damage of linen and car. 2. Injunction granted for hours of 10pm and 6am. 3. Injunction granted in respect to smell. 4. Future damage by smuts � court prepared to entertain future claim for damage from the smuts if further damage was caused.

INTENTIONAL TORTS TO THE PERSON Trespass includes assault, battery and false imprisonment. General characteristics of trespass; 1. A remedy for forcible, direct and immediate injuries 2. Done to person, goods or property of plaintiff 3. Developed to respond to breach of the peace situations

4. 5. 6. 7.

A direct interference with person or property The defendant MUST be at fault Actionable per se Onus of proof differs depending on whether highway or non-highway

Act must be done on the fault of the defendant either; 1. Intentionally; or 2. With a lack of due care If act is involuntary then there is no trespass. - Morris v Marsden Onus of proof shifts in trespass cases; Onus of proof on plaintiff to establish a direct interference, then onus of proof goes onto defendant to prove he/she was not at fault. Relationship between trespass and case; Historically, as long as a plaintiff did not make the intention of the plaintiff part of the cause of action, the plaintiff could sue in trespass [�] a plaintiff may, if he or she chooses, sue in negligence for the intentional infliction of harm. - NSW v Lepore Trespass to Land Trespass to land can be committed in three ways; 1. By going on to another�s property without permission; or 2. By remaining after the right to be there has been terminated; or 3. By throwing or placing some object or an animal (including a person) on another�s property. ASSAULT �An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person..� - Collins v Wilcock �Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact [�] does not require proof of an intention to follow it up or carry it through.� - Rixon v Star City Elements of an Assault; 1. Intention to cause fear through a positive act 2. Defendant�s ability to apply force amounting to a direct physical threat 3. Knowledge on the part of the plaintiff � must be reasonable apprehension of imminent harmful contact � As involves a reasonable expectation of infliction of force some knowledge grounding the expectation is necessary (see Police v Greaves [1964] NZLR 295)

BATTERY Definition: Battery is a direct act by the defendant causing bodily contact with the plaintiff without his or her consent. OR, Battery is the voluntary application of direct force to the person of another, whether done intentionally or merely negligently. �A battery is the actual infliction of immediate, unlawful force on another� Collins v Wilcock �Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.� - Collins v Wilcock A person may be guilty of battery but not assault. Where one person walks up to another from behind without saying anything and hits them on the back of the head. See Jones v Sherwood Elements of Battery; 1. A positive act 2. A direct act 3. The action must be intentional or negligent 4. Lack of consent Sufficient to prove that D only intended to frighten the plaintiff but in a manner fraught with serious risk of bodily injury - Gray v Barr Consent 1. The consent must be real and freely given with respect to the tortuous act itself; and, 2. Any consent given must not be exceeded. (For medical procedures you need �informed� consent � informed in broad terms of the nature of the physical contact ) At common law every surgical procedure is an assault unless it is authorized, justified or excused by law. - Marion�s case. �The evidence is only that they might constitute a hazard in the event of a further pregnancy. That might go to the quantum of damages but it does not [�] justify a trespass to the person without her consent.� �No amount of professional skill can justify the substitution of the will of the surgeon for that of the patient.� - Murray v McMurchy

FALSE IMPRISONMENT �False imprisonment [�] is the unlawful imposition of constraint upon another�s freedom of movement from a particular place.� - Collins v Wilcock False imprisonment is a complete deprivation of liberty caused by the defendant�s direct acts without lawful cause or excuse. Elements of False Imprisonment; 1. Direct Act of the defendant - Myer Stores v Soo 2. Total restraint on liberty - Bird v Jones Symes v Mahon - Identity of P mistaken for another, police officer forced him to come to town expecting he was another. �On these facts the jury might reasonably hold � that the plaintiff was wholly deprived of his liberty by being required to enter the train, although he had paid for his own fare. I think that they might also hold that the restraint continued throughout the journey, for although the plaintiff might have got out at an intermediate station, the defendant was close at hand and might have prevented him from escaping.� Balmain New Ferry Co Ltd v Robertson - As the plaintiff was free to leave by water I think there was no imprisonment. Onus of proving that imprisonment was lawful is born by the defendant (Carnegie V State of Victoria and Myer Stores V Soo): �The gist of the action for false imprisonment is the mere imprisonment. As a result the plaintiff carries the burden of establishing no more than imprisonment.� Myer Stores V Soo: COURT HELD: 1. From moment they started to escort the plaintiff through the store until the end of the interview they imposed a total restraint on the plaintiff. 2. In staying after sunset they had committed a trespass to P�s land as warrant only authorized search by day. 3. The plaintiff�s attendance at the police station was entirely voluntary and did not constitute a false imprisonment.

DEFENCES TO INTENTIONAL TORTS Necessity 1. Necessity is a defence under the common law 2. Necessity is a complete defence where a defendant intentionally interferes with the person or property of another where to do so is reasonably necessary to protect either person or property from the threat of real or imminent harm Elements of necessity; 1. The action must be necessary to prevent a real or imminent danger (Proudman v Allen) 2. The danger must outweigh the illegal activity undertaken to obviate the danger (Murray v McMurchy) 3. There must be no reasonable legal alternatives �(London Borough of Suffolk v Williams) Contributory Negligence Defence to Negligent trespass but not intentional trespass. - Horkin v North Melbourne Football Club Self-Defence Where defendant�s acts are necessary and justified to prevent the threat of harm to him or herself. 1. Must be a threat of harm by the plaintiff � Defendant must prove that they acted as they did and committed the intentional tort due to a threat of harm from the plaintiff. 2. Defendant�s actions must be reasonably necessary and proportionate � The defendant will not be able to rely upon this defence if his/her actions exceed what would be regarded as reasonably necessary in response to the threat posed by the plaintiff: see Fontin v Katapodis (1962) 108 CLR 177. Provocation Arises when it is alleged that the acts of the plaintiff induced the defendant to lose self-control At common law provocation is not a defence to battery and assault: see Fontin v Katapodis (1962) 108 CLR 177. At common law provocation is a matter which should be taken into account in assessing damages.

Inevitable Accident 1. In non-highway trespass in Australia, the defendant can raise absence of fault as a defence and proof of an inevitable accident will demonstrate the absence of such fault. 2. See McHale v Watson where child defendant was held to have thrown the dart without intention or negligence. 3. However, note that D�s lack of care in causing an accident will mean it is not inevitable. Other 1. 2. 3. 4. 5. 6. 7.

Possible Defences Include; Self-defence (Fontin v Katapodis) (1962) 108 CLR 177 Defence of property Statutory authority Disciplinary powers (parents, masters of ships) Judicial acts Mistake insanity or involuntarism