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Method for answering a Tort Problem Who? the parties; What happened?

? The facts; What interest was infringed? Physical/Mental integrity, Property, Reputation, Liberty, Privacy; What is nature of the infringement? Direct or Indirect + Intentional or Negligent; Cause of Action Trespass to person, Trespass to land, Negligence, Defamation, Private/Public Nuisance; Elements; Defenses; Onus of Proof; Remedy. TRESPASS "Trespass intentional/negligent/reckless act of D which directly causes injury to Ps person or property without lawful justification trespass to person/trespass to land. McHale v Watson. Elements of Trespass 1] Intentional, negligent, or reckless act (voluntary) Fault required 2] Injury must be direct 3] Injury may be to the plaintiffs person or property 4] No lawful justification Direct -Injurious effect upon P must follow directly upon Ds act: directly cause interference. -Immediacy is way of establishing directness; but not always necessary where there is no intervening causes between the act and its consequences. Direct vs. Indirect Scott v Shepard D threw lighted squib into crowd injuring P DIRECT Hutchins v Maughan D laid baits for dogs on unfenced land - dogs died- INDIRECT Southport Corporation v Esso Petroleum D discharged oil into water to save vessel and oil carried by tide onto Ps beach (trepass to land? nuisance?) INDIRECT Intentional Act The D does not have to intend the damagejust the act causing the interference D must have intended to be reckless/negligent with interference w Ps person/property. Voluntary Act The act must be voluntary Not brought on by epileptic fit or force of a third party Must be a POSITIVE act NOT omission to act Burden/Onus of Proof in Trespass Onus is on P to establish direct interference Then shifts to D to disprove fault (ie// not intentional, negligent). -For Highway trespass, P must prove all the elements: Venning v Chin. Actions on the Case Unlike trespass, act could be indirect, and unintentional, dam. Actions on the case arose to compensate for damage from consequential actions flowing from the trespass, b/c trespass cover only direct interference, not consequen. Torts of negligence, nuisance and defamation are actions on the case NOTE HYBRID SITUATION called Negligence Trespass Where damage caused directly by Ds negligence both causes of action available Negligent trespass or negligence: Williams v Milotin Advantages to suing in Trespass: onus of proof: P need only show direct intererfence: Hackshaw v Shaw(P had to show negligence) Proof of damage-trespass actionable per se- not necessary to prove actual damage: (can still get aggravated/exemplary damages); easier OofP; more remedies available.

Trespass to Person- Battery Protected Interest Personal Autonomy of P Ps physical integrity/bodily security Gist of Action Physical interference unwanted touching/contact with the body of another person [P], will be successful in an action for battery if [he/she] can show an intentional/negligent act of [D] which directly causes a physical interference with the body of [P] without [Ps] consent or lawful justification. Innes v Wylie. Here [APPLY what happened The nature of [Ds] interference was Direct/Intentional. This establishes a cause of action in Trespass in the form of battery. Elements of Battery 1] Direct 2] Intentional act of D (reckless/negligent conduct) 3] PHYSICAL interference with the body of P (touching) 4] Without lawful justification Direct -[Ds] direct act of [APPLY] had an injurious effect upon [P]. [Ds] direct act of [APPLY what act] caused contact so immediately upon the act that it is part of the act: Scott v Shepard: D threw lighted squib in audience -hit P intermediacy but dir. conn [APPLICATION] As such, in this case. Intentional Act - The D does not have to intend the damage, just the act causing the interference [D] must have intended, reckless disregard and/or been negligent with respect to the consequences of his/her actions: McNamara v Duncan: By [APPLY] it shows the act was voluntary and she intended to be reckless/negligent. P received sharp blow-head deliberate injury solely done with the view to causing hurt was not justified by game. The D must mean to do the act which causes the offensive contact It is not necessary that the D meant to hurt or cause injury to the P [APPLICATION] As such, in this case. Physical Interference There must be positive touching involving bodily contact not merely passive obstruction: Innes v Wylie: policeman stood passively at door, no contactno battery [APPLICATION] As such, in this castOR Distinguishably. Without Lawful Justification DEFENCES Consent-D to show P consented: McNamara v Duncan o if playing in game, not consent if outside the rules and intentional: Giumelli v Johnston. BUT is consent if playing within the rules of the game. Self-defence (proportional): Fontin v Katapodis: P provoked D glass only assault Defence of others Discipline Emergency/necessity: Marions Case Inevitable accident Defences: (Choose one option) D] [can/can not] show that [P] consented to the contact by [apply facts], and as such [D] [has a/ has no] defence: McNamara v Duncan. In playing contact sport, a certain amount of contact is consented to, but something intentional and outside the rules, will constitute battery: Giumelli v Johnston. The question then becomes was [apply facts] consented to? From the facts of the case this [was/was not] consented to and as such [D] [does/does] not have a defence.

[Ds] contact [was/was not] in self-defence Fontin v Katapodis, and [was/was not] also proportional to the threat from [P]. As such [D] [does/does] not have a defence. [Ds] contact [was/was not] provoked and as such he [does/does] not have a defence: Fontin v Katapodis. However, provocation is not available to reduce compensatory damages, but is available to reduce exemplary damages.

[Ds] contact with [P] was required by medical necessity, and while every surgical procedure is battery unless it is authorised, necessity excuses this: Marions Case. However, defence does not apply where the patient has given a certificate of refusal. As such [D] [does/does] not have a defence. NOTES: MISTAKE IS NOT A DEFENCE Does P need knowledge of battery being committed?: No where P asleep or under anaesthetic can discover Is every unwanted contact a battery?: No must be offensive outside the accepted usages/accidental contacts of life- not every day occurrence: Collins v Willcock Do you need hostility?: No but hostility can make permitted contact a battery presence of hostility can affect damages: Rixon v Star City. Is the motive/purpose of D relevant?: No the Ds motive to commit the act however beneficent does not affect trespass: Murray v McMurchy: tumour-tied tubes. Examples : punching, shining light on eyes, spray water, weapon to strike, unwelcome kiss, snatch book, doc giving treat w/o consent, using 3 rd parties body to touch other. The onus is on [P] to show the interference and then shifts to [D] to disprove Fault. [P] need not suffer actual harm since battery is actionable per se. If no damage [P] entitled to nominal. If [P] suffered actual harm then [Ps] remedies would include compensatory, aggravated (where an element of recklessness was shown) or exemplary damages. (Bunyan v Jordan) Remedies (Choose elements required and join with facts) OPTIONS: 1. If there fear of ongoing battery, [P] can seek an injunction. 2. As there were no actual damages, [P] can expect to receive nominal damages. 3. For suffering actual damage, compensatory damages are available. 4. As well as aggravated damages where there is loss of dignity or humiliation Watts v Leitch. 5. In some cases exemplary are awarded for unconscionable conduct which requires punishment. 6. It should be noted that provocation can reduce damages, Fontin v Katapodis, also the presence of hostility may affect the amount of damages awarded.

Trespass to Person-Assault [P] will have an action in assault if [he/she] can establish intentional or negligent act or threat of the D that directly places the P in reasonable apprehension (fear) of an imminent physical interference with her/his person, or the person of someone under her/his control without lawful justification. Assault is an exceptional tort in that it allows recovery for pure emotional reaction. Protected interest Right to freedom from unreasonable interference with MENTAL integrity Assault is exceptional tort can allow for pure emotional recovery Gist of Assault -Apprehension of imminent physical interference/contact. - P must have knowledge of the assault unlike battery Elements of Assault Any direct threat by the D Which intentionally (or recklessly, or negligently) creates in another person An apprehension of imminent (about to come) harmful/offensive contact Without lawful justification Direct [Ds] [APPLY] caused an apprehension in [P] of imminent contact (Barton v Armstrong). [P] placed [D] in reasonable apprehension of an imminent physical interference with his [person or someone under his or her control]. Threats maybe words, acts or both which directly cause an apprehension of imminent contact (fear): Threat: Verbal/conduct[D], by [apply facts] issued a threat to [P]. [Ds] means to carry out the threat into actions merely has to be apparent in the [Ps] eyes:: Stephens v Myers: D said he would rather pull P out of chair than be ejected from hall. [D] Behaved in a threatening manner by [apply facts]. [Ds] means to carry the threat into actions merely have to be apparent in the [Ps] eyes: Stephens v Myers: Conditional threat If the threat is conditional, it is not assault if the accompanying condition renders the threat harmless: Tuberville v Savage. If the condition requires a police officer to stop in performing a lawful duty, then it is assault because [P the police officer] is lawfully entitled to do what the condition prohibits: Police v Greaves Assault if fear of imminent violence of threat not complied with by victim: Police v Greaves: Dont you bloody move, you come a bit closer and you will ge t this straight through your guts this is conditional. Intention By doing [WHAT DID HE DO?], [D] had the [intention/was reckless/negligent] to cause apprehension in [P] that physical contact was about to occur (Police v Greaves). The necessary intention to establish assault is an intention to cause apprehension in [P] that physical contact is about to occur - Reckless/negligent conduct may satisfy this element. Apprehension of Imminent Harmful Conduct [P] mind anticipated physical contact with the fear/knowledge and expectation that it will take place and [D] had the actual or apparent present ability to carry out the threat (Brady v Schatzel) because [APPLY], [D] also acted without [Ps] consent or lawful justification for [D] actions. Anticipate physical contact with fear in the knowledge/expectation that it will take place Focus is on mind of P not whether D was actually going to follow up threat. D must have actual/apparent present ability to carry out the threat (no disability). Brady v Schatzel Without Lawful Justification See Defences battery!!

1. D] [can/can not] show that [P] consented to the assault by [apply facts], and as such [D] [has a/ has no] defence: McNamara v Duncan. [2. Ds] conduct [was/was not] in self-defence McClelland v Symonss, and [was/was not] also proportional to the threat from [P]: Fontin v Katapodis. As such [D] [does/does] not have a defence. [3. Ds] conduct [was/was not] in self-defence of others Howard v Wing, and [was/was not] also proportional to the threat from [P]. As such [D] [does/does] not have a defence. Note: Mistake is not a defence. Other defences open to [D] are emergency and inevitable accident and need to be applied as required. NOTES: Is it necessary that P be aware of the assault?: Yes apprehension no asleep etc Is it necessary that P be afraid?: No apprehension means to anticipate contact can be knowledge instead of fear Can a conditional threat be an assault?: Yes if imminent fear of violence etc: Police v Greaves. Can words alone constitute assault?: Not generally, but maybe if directly raise apprehension in Ps mind: Barton v Armstrong: threats of violence comm. over tele.may not be mere words; Tuberville v Savage words can contradict conduct. Does it matter if P is unusually brave or timid?: Not generally test is objective threat to a reasonable person EXAMPLES : threatening to hit another; threatening unwelcome sexual contact. Remedies If no actual harm then nominal damages If actual damage compensatory, aggravated, exemplary for outrage to Ps feeling. OPTIONS: 1. If there fear of ongoing assault, [P] can seek an injunction. 2. As there were no actual damages, [P] can expect to receive nominal damages. 3. For suffering actual damage, compensatory damages are available. 4. As well as aggravated or exemplary damages for any outrage to [Ps] feelings. It should be noted that provocation can reduce damages, Fontin v Katapodis Onus of Proof -P need only prove direct contact with his/her person caused by Ds act -Burden shifts to D to show act was involuntary or not at fault o Note exception for highway trespass where P must prove either intention or negligence on the part of the D

Trespass to Person: False Imprisonment [D]will be liable for false imprisonment if [P] demonstrates the wrongful total restraint on [his/her] liberty, directly caused by the intentional, reckless, or negligent act of [D] without lawful justification. Here [APPLY] Protected Interest: Personal liberty, Freedom of movement, Ps dignity/reputation Gist of the Action: The gist of the action for false imprisonment is the mere imprisonment total restriction of Ps freedom of movement: Actionable per se. Elements of False Imprisonment Wrongful Total restraint of the liberty of the P Directly brought about by the D Intentionally, recklessly, or negligently Without lawful justification Wrongful Restraint must be against will of [P] and [he/she] does not have to be aware of the restraint: Murray v Ministry of Defence: (doc). If P goes voluntarily, not restraint. If [P] not aware of restraint may affect recoverable damages: Myer Stores Ltd v Soo Total Restraint of Liberty of P The restraint was total since there was no reasonable means of escape able to be achieved without the risk of injury known to [P]. The restraint must be total and in all directions, with no reasonable means of escape, OR, where only means of escape is not known to the P: Bird v Jones: here only part. 1. Restraint Must be TOTAL and NO REASONABLE MEANS OF ESCAPE R v Macquarie boat: wanted to get out, D said when reach sh. (FI) Burton v Davies moving car: not possible to jump out of car (FI) Restraint Need Not Be Physical Acts -Mere words can constitute false imprisonment -P must have submitted to Ds power, not necessary for D to have used force -Direct acts or words may constitute restraint where P believes imminent or direct force will be used if the P does not submit (meaning words that show restraint coming) Psychological Restraint In this instance, [P] is [apply facts]. [P] feels there is no alternative but to submit to [Ds] restraint. Coercion (Symes v Mahon) along with fear of public humiliation (Myer Stores v Soo), is sufficient for psychological restraint. -Where P has no alternative but to submit to overbearing the will of the D and submission is not free or voluntary: Symes v Mahon: P thought if refused to go with policeman or tried escape he would be arrested. -Fear of embarrassment or public humiliation is sufficient: Myer Stores v Soo: Embarrassment and public attention would come if refused to go with store security. 2. Reasonable Means of Escape This can depend on the amount of knowledge available to the P: Robinson v Balmain New Ferry Co Action failed as the court held restraint not total P could have escaped through another route P new of conditions before he entered the wharf Directly Brought About by the D D may affect the Ps FL personally or by the agency of a third party Ds conduct must be voluntary False imprisonment may occur where no positive act o ie// Failing to release prisoner at his end of sentence. Intentionally, Recklessly, or Negligently [Ps] FI followed directly upon [Ds] act. (apply) Scott v Shepard [Ds] act was reckless/negligent with regards to [APPLY]

Cowell v Corrective Services Commission - Mistake as to right to imprison P is not a defence Without Lawful Justification (Defence) - Consent is defence: it is a defence if complainant consented to restraint Herd v Weardale Steel Co: held P chose to go down; Balmain New Ferry v Robertson Mistake is not a defence if D arrests P under mistaken belief as to identity P may be entitled to damages against the D for FI for mistake Main defences are statutory authorization and justification: D auth. to detain P Defences: Test 1: Did P give consent: (Choose one option) 1. The argument that [P] gave consent through the course of their employment, is conditional on what was agreed to fall within the course of employment: Herd v Weardale. [Ps] [apply facts] [does/does not] fall within what was agreed, and as such she [has/has not] consented and [D] [is/is not] liable. 2. The argument that by entering into a contract [P] consented to [D] imposing reasonable conditions of restraint, regardless of [P] knowing, is unlikely to carry weight today because the sanctity of contract doesnt prevail over principles of liberty & freedom: Balmain New Ferry v Robertson: a. If you revoke consent, you need to do it in a reasonable way. Ie you cant do it mid way of an airline flight. 3. The argument by [D] that there was legal justification is supported by statutory authorisation that says [apply facts], and as such [D] is not liable for false imprisonment. (Persons who are authorized to detain individuals include hospital staff, parents, schoolteachers etc) 4. [Ds] claim that there was actually reasonable means of escape [is/is] not supported by the [apply facts] and as such, [D] [is/is not] liable for false imprisonment. 5. Because P was mistakenly imprisoned by there is no case for false Imprisonment. P can sue for neg instead if there is actual damage to P, however If [D] has without fault directly imprisoned [P], then [D] is liable if s/he fails to take reasonable steps to release [P] once the plaintiffs predicament is discovered: Fagan v Metropolitan Police Commissione; Cowell v Corrective Services Commission EXAMPLES : D driving too fast; taking ladder away while P on roof; lock room w/o check. Remedies -False Imprisonment is actionable per se, therefore, nominal damages are recoverable even though no actual damage. -Compensatory: recover inj. to liberty, rep., feelings (mental suffering/humiliation). -Aggravated Myer Stores v Soo -Exemplary Bahner v Marwest Hotel C Ltd Onus of Proof -Onus of proof is on P to show the interference -Then shifts to D to disprove

TRESPASS TO LAND NOTE: IF INDIRECT GO TO NUISANCE [D], will be liable for trespass to land if [he/she] intentionally, recklessly, or negligently interferes directly with [Ps] exclusive possession of land without consent or lawful justification Protected Interest: It is the protection of the exclusive possession of land and the privacy and security of its occupants. Gist of Action interference with the exclusive possession of land: Actionable per se Elements to Trespass to Land Voluntary act of the D which must be intentional, reckless, or negligent Constituting a direct interference With Ps exclusive possession of land Without the consent or lawful justification Voluntary Act Ds] act of [apply facts] was an [intentional/voluntary/negligent] act: Public Transport NSW v Perry. No trespass if pushed onto the land (involuntary): Smith v Stone OR if epileptic fit: Public Transport Commission NSW v Perry: fell onto train line. Direct Interference Interference must be direct/physical and not limited to entry by a person Enough if force causes object/substance to be directed onto Ps land: Davis v Bennison: D shot - killed cat sitting on neighbors roof-bullet passing in air over land. Exclusive Possession: gives title to sue. P had actual exclusive possession or occupation of land [PICK ONE] P has actual exclusive possession/occupation of the land( Newington v Windeyerdefacto possession is enough) and therefore has locus standii P is a tenant of leased property and has a legal right to exclusive possession (Rodriguez v Ufton) and therefore has locus standii / Co-owners- Greig v Greig. P is the grantee of an interest in land (such as an easement) and therefore can sue in trespass for direct interference with the possession of that interest (Mason v Clarke) Kelsen v Imperial Tobacco Co Ltd-a tenant may sue a trespassing lessor A mere licensee does not have sufficient title to sue for trespass to land (Hill v Supper) Trespass protects exclusive possession or occupation of land, not ownership Defacto possession (occupier) is enough with no need to prove legal or equitable ownership: Newington v Windeyer. But ownership may be of considerable importance: Ocean Estates v Pinder. Land: Land includes the actual land, dirt, the airspace above it and the area beneath it including what is reasonably necessary for enjoyment of land: Bernstein of Leigh v Skyviews and General Ltd: plane - no tres.- b/c airspace of owner restricted to height necessary for use and enjoyment of land Bendal Pty Ltd v Mirvac Project Pty Ltd Without Lawful Justification: Defences MISTAKE IS NOT A DEFENCE TO TRESPASS TO LAND In Common law there is an implied license to enter for lawful communication or bona fide business transactions. Consent Here [P] [has/has not] revoked consent by fact as [He/She] has a fence and locked gate. (Halliday v Nevill) expressly withdrawn consent by advising [D] of withdrawal or [D] has an alternative means of communicating the message. (Plenty v Dillon) withdrawn consent and gave [D] reasonable time to leave (Cowell v Rosehill Racecourse) given [D] a limited license. Therefore DS failure to remove the debris or object constitutes a continuing trespass (Konskier v Goodman)

Can take form of express or implied license to go on land. Implied License In ordinary life implied licence to enter property: ie to retrieve ball (child) Not trespass to go to the front door to discuss business The implied license extends to entry by the police for the purpose of questioning or arresting occupant: Halliday v Neville: (defense). Plenty v Dillon (no defense) P expressly revoked consent to enter his premises to serve summons Summons could have been mailed so trespass, b/c entry of police not just. Implied Consent for Lawful Purpose Consent will not extend to cover purposes not implied or expressed such as robbers and camera crew: Lincoln Hunt Australia v Willessee: only ext. to clients Withdrawal of Consent Consent once given can be withdrawn: Cowell v Rosehill Racecourse NOTE: necessity is not a defence to trespass to land: Southwark London Borough Council v Williams Inevitable Accident: D may be able to raise inevitable accident since he neither committed a voluntary act or did not intentionally invade P interests and took all reasonable care to avoid doing so (Public Transport Commission v Perry). Self Defence/ Provocation (alleged that the acts of P induced D to loose self control) D may raiseafter he responded to the direct action of Y with such force as was reasonably necessary to protect himself from an immediate danger of imminent violence (Fontain v Katapodis). Defence of Property: D may be able to.since he used reasonable force to defend his land and chattels (Bird v Holbrook). Discipline D may ...since as a parent/teacher he was using reasonable force to discipline Y/ship captain against anyone threat safety. EXAMPLES : remain on land after consent withdrawn; entering land; throw/remove objects from land; resting ladder against wall; parking car on someones land. Remedies OPTIONS: 1. As the tort is ongoing, [P] can seek an injunction. 2. Where there is no damage, nominal damages. 3. For suffering the loss of freedom, compensatory damages are available. 4. As well as aggravated damages where there is loss of dignity or humiliation Watts v Leitch. 5. In some cases exemplary are awarded for unconscionable conduct which requires punishment. 6. It should be noted that an apology reduces damages: Walter v Alltools Trespass to land is actionable per se Without proof of actual damage nominal damages Compensatory damages Exemplary Injunction: to stop intruder Self-help Onus of Proof - Onus of proof on the P to show the direct interference then shifts to D to disprove fault (that conduct wasnt intentional, reckless, or negligent.

TCN Channel Nine Pty Ltd v Anning: recent decision: Journalist filmed raid & Channel 9 broadcast the film. Although no phys. dam. to prop., P awarded aggregated damages. DEFENCES TO TRESPASS 1. CONSENT: where P gives consent to trespass by the D, there will be no trespass. Consent can be express or implied: ie// patient hold up arm for injection implied. Consent conditional and withdrawn at any time. ONUS OF PROOF: consent is a defence to battery and therefore must be proven by D Requirements of valid consent: To be real or valid, the consent must be given by P in relation to act complained of: Consent to one act does not necessarily authorize act of different type o McNamara v Duncan implied consent to injuries w/n rules of the game o Giumelli v Johnston implied consent to certain rule infringements tripping/pushing o Bugden v Rogers no consent to deliberate acts of violence not directed towards playing of the game. Voluntarily [duress/deceit will nullify] Given by competent person Adult patient can refuse blood transfusion even if life threatening A parent guardian can consent for child Child who reaches sufficient age of understanding can consent: Gillick Where child not understand best interests paramount o Marions Case With knowledge P must consent to nature and character of act o R v Williams: girl consented to sexual intercourse b/c D said it was a surgical operation that would help her singing: consented to operation, and not legal consent to sexual intercourse. Withdrawal of Consent: Consent once given can be withdrawn Maybe not immediate if contractual effect preventing immediacy Bailman New Ferry Co Ltd v Robertson Halliday v Nevill: police officers had implied license to enter premise. Plenty v Dillon NECESSITY The act must be reasonably necessary to protect the person or property URGENT SITUATION OF IMMINENT PERIL MUST BE PRESENT Protection of lives is generally on a different scale to protection of property Mouses Case property thrown overboard for necessity of saving lives NOTE: defence of necessity is carefully circumstanced Not available where: Shipwrecked crew killed/ate cabin boy: R v Dudley and Stephens Hunger not excuse for stealing/homelessness not defence to trespass: Southwark London Borough Council v Williams Necessity in Med. Emergencies Where doctor needs to act and not practicable to communicate with patient: Re F (Mental Patient Sterlization) NOTE: competent adults can refuse medical treatment though life endangering INEVITABLE ACCIDENT D argue act committed not voluntary or did not intentionally invade Ps interest and took all reasonable steps to avoid doing so Public Transport Commission of NSW v Perry: D epilepsy and fell on railway.

SELF-DEFENCE Where immediate danger of imminent violence, D may use such force as is reasonably necessary to protect oneself: Fountain v Katapodis Force used must not exceed what is reasonably necessary to beat off attack DEFENCE TO PROPERTY Land/chattels can be defended by reasonable force such as barb-wire fences. BUT cannot set devices intended to kill-unreasonablespring guns: Bird v Holbrook DISCIPLINE Parents/teachers can use reasonable force to discipline children Ship captains/aircraft captains can use reasonable force against anyone who threatens safety of aircraft/ship CONTRIBUTORY NEGLIGENCE At common law contributory negligence is not a defence to intentional torts: Horkin v North Melbourne Football Club: Contributory negligence is not a defence to intentional battery NOTE: defence may operate where trespass is negligent b/c unintentional

NEGLIGENCE The law of negligence is concerned with a duty to take reasonable care to avoid foreseeable risk of injury to another (indirect & Must prove damages unlike trespass Protected Interests: Tort of negligence protects our right of physical and emotional integrity against unintentional wrongful conduct; also protects against property damage and economic interest. [P] will have a possible cause of action in negligence against [D] if [he/she] can prove on the balance of probabilities that: ELEMENTS [D] owed [P] a duty of care, and [D] breached that duty of care, Causing [P] to suffer damage, That was not too remote or too far-fetched, meaning reasonably foreseeable. The onus will be on [P] throughout to establish all the elements of the cause of action. It will then be for D to establish possible defences on the balance of probabilities. Here [D] did [APPLY DAMAGE] to [P]. [Ds] actions are an infringement of [Ps] right of physical and emotional integrity against unintentional wrongful conduct/ actual property damage. The nature of the interference was indirect/ unintentional. This establishes a cause of action in negligence (Donoghue v Stevenson).: DUTY OF CARE [P] must show that it is reasonably foreseeable that the possibility of careless conduct of any kind on the part of [D] may result in damage of any kind to [Ps] [person/property]: Donoghue v Stevenson. In order to establish this must show: Established Category [Ps] interest in physical and emotional integrity enjoys legal protection against unintentional invasion. The duty of care owed falls within the established category of: [case] Examples of Established Catergories Road user to Road user - Bourhill v Young Manufacturer to Consumer - Donoghue v Stevenson Driver to passenger Cook v Cook Driver to passengers unborn child upon live birth Watt v Rama; Employer to Employees Smith v Charles Baker Doctor to patient Rogers v Whittaker Occupier to Entrant Australian Safeway Stores v Zalunza and creates a duty of care owed by [D] to [P]. As there is an established category between [P] and [D] it is necessary to examine if D breached that duty. Novel Category [Ds] actions of [APPLY] do not already have a duty or its content established by precedent and are thus an example of a Novel Category. Where the relationship between [P] and [D] is not an established category, it is necessary to establish that [D] owed [P] a duty of care in relation to the circumstances in which [P] was injured (reason. foresee, if one then other gets injured). [He/she] must show that the facts giving rise to the injury fall within a special duty category. The reasonable foreseeable test determines if it is reasonable foreseeable that any kind of conduct on [D] part would cause and kind of harm to [P] or class of persons to whom P belongs (Donoghue v Stevenson). This test is perhaps too wide and therefore is used in different classes of cases that give rise to different problems as per to determine the nature and scope of the duty. (Sullivan v Moodly) (In this case it is necessary to characterize the harm and conduct caused by [D], identify indeterminacy issues while preserving the coherence of the law.)

ELEMENTS: Duty of Care-Novel Cases 1]In determining a duty of care in novel cases the courts use the TEST of Reasonable Foreseeability (Would a reasonable person in the Ds position have foreseen that there was a real risk that carelessness on his/her part could cause loss/harm to people in Ps position) Donoghue What CLASS OF PEOPLE might possibly be put at some risk of injury in some way if the D failed in some way to take reasonable care? Is P a member of a class of persons likely to be injured by Ds conduct 2] Proximity = special close relationship: physical (closeness in time & space), circumstantial (ie//employer/ee) or causal (b/w Ds act and Ps injury) proximity. Neighbors are those persons so closely and directly affected by the act that D should ought reasonably to have P in contemplation as being so affected when directing mind to the act. It is not sole determinant of whether duty exists. Other relevant factors: Sullivan and Moody. However, This test is perhaps too wide. Since different classes of cases give rise to different problems in determining the nature and scope of duty, we must further apply the multi-factorial approach using the following elements as per (Sullivan v Moody). 1. Identify type of harm e.g. nervous shock, pure economic loss, statutory authorities in the exercise of their powers &/or land managers 2. Measure specific control (Rogers v Whitaker) 3. Measure of knowledge by D (Rogers v Whitaker) 4. Measure vulnerability of P (Rogers v Whitaker) 5. Characteristics of Ds conduct 6. Consider nature of relationship between P & D [proximity- Jaensh v Coffey] (compared with other duty relationships) 7. Compare to previous decisions 8. Policy decisions what will be the consequences to society if D held liable (floodgates?) Examples of Novel Categories: 1] Driver to Father of dead Passenger: Hancock v Wallace (nervous shock) duty. 2] Employer to Parents of Dead employee: Annetts case (nervous shock) duty. 3] Solicitor to Beneficiary under a dead clients will: Hill v Van Erp duty owed. 4] Doc - par. of patients with psych injury and eco. loss (sex abuse claim): Sullivan: no 5] Occupier duty to protect against crim attack by third party: Anzil case no duty. 6] Wrongful life Harriton v Stephens no duty owed (2006) Tentative Conclusions: As it would appear (insert & apply above answers) it would be likely/unlikely that D would owe P a duty of care.

Duty of Care Owed in Novel Categories -Nervous Shock

THIS IS MENTAL HARM, OR RECOGNIZABLE PSYCHIATRIC INJURY (note grief/sorrow). Primary Victims: As [P] was primary victim and has suffered physical injury, consequential nervous shock is also recoverable: Donoghue v Stevenson THUS The facts suggest that here [P] suffered from consequential psychiatric injury of [APPLY] associated with the foreseeable physical [injury/ risk] caused by [Ds] actions. (Victoria Railway v Coultas) It was reasonably foreseeable that any kind of conduct on the part of [D] would cause consequential nervous shock to [P] or a class of persons to whom [P] belongs despite [P] not being of normal fortitude (Donoghue v Stevenson). Therefore [D] owed [P] a duty of care as the primary victim of his actions. It is not certain if direct sensory perception is a requirement for primary victims in nervous shock as extended from Secondary victims as per Annets. (jaensch v Coffey) Secondary Victims: Here [P] suffered pure nervous shock as a result of witnessing the death/ serious injury/ threat to a close relative/ co-worker, [Z] while there was no threat to [Ps] personal safety. (Boardman v Sanderson) The mental harm suffered by [P] is a recognized psychiatric illness (MIM vPusey; Hinz v Berry) called [CHOOSE CATEGORY] and is more than mere grief, fright , distress and sorrow (Tame;Annetts). However, if reasonable care was not taken, [D] will not owe [P] a duty to take care not to cause [P] mental harm unless he ought to have foreseen that a person of normal fortitude might suffer a recognized psychiatric illness. The following factors determine [D] foreseeability of [Ps] injury Shock = the sudden sensory perception - seeing, hearing, touching, affronts or insults P's minds, must encounter or perceive it Gradual deteriation not allowed Cambelltown CityC v Mackay To determine Duty of Care existed in NERVOUS SHOCK CASE P must show: (Tame; Annets) (No liability for pure mental harm unless it is a recognized psychiatric illness) Secondary Victims ELEMENT 1: As a result of the actions of [D], [P] has suffered a recognized psychiatric injury in the form of [APPLY] Gifford v Strang Patrick Stevedoring. ELEMENT 2: [Ps] recognized psychiatric injury was the result of the sudden shock of [seeing/hearing] that [APPLY], rather than mere grief or emotional exhaustion: Jaensch v Coffey: P as a secondary victim, was able to recover damages for nervous shock as she was at the aftermath of the accident (not at the scene but at the hospital). Ask the question of whether P was at the scene of the shocking event, or whether the P witnessed them in the aftermath with their own unaided senses. ELEMENT 3: [Ps] psychiatric injury must have been reasonably foreseeable to [D] at the time: McLoughlin v OBrian. [P] does not have to have normal fortitude as long as the impact would be the same for a person of normal fortitude: Chapman v Hearse. Tame To establish reasonable foreseeability, the following factors affecting [P] must be taken into consideration: [Ps] mental harm of [APPLY] was as a result of a sudden shock to his sensory perception (Tame;Annetts). (a) Close relationship of [P] with original victim (Pre-Existing and Nature of Relationship): extends to anyone who is bound by a relationship of love and affection. Certain classes (parents/spouses) are presumed to have this relationship: Alcock v Chief of South Yorkshire Police. Here [P] was a close friend/ relative/parent/spouse of [Z] which got [killed/ injured/ put in peril]. [APPLY INDICATIONS THAT THEY WERE CLOSE FRIENDS] Here [P] had contact with [injured person] by way of a conversation [APPLY]. This established a pre-existing relationship between [P] and [injured person]. (Tame Annetts). Direct Sensory Perception/Aftermath (Hearing is sufficient):

i) Secondary Hearsay Victims: Hancock v Wallace: son accident, telephoned father; father was not at scene, or hospital, but rather third party communication was sole source of shock; father and son had close relationship, and thus father recovered for pure economic loss. ii) Seeing: It is insufficient to see it on TV if individuals cannot be identified it is limited to those actually present: Alcock. By [APPLY] [P] was placed at the scene of the shocking event and directly witnessed the event with his unaided senses (Jaensch v Coffey) iii) Aftermath: Jaensch v Coffey: only saw victim go into operating room; Spencer v Percy: aftermath limited by time; death of victim after 3yr coma is too far removed in time; Alcock: identification of morgue is not close enough. By [APPLY] [P] witnessed the aftermath of the persons original injury [APPLY] with his unaided senses (Jaensch v Coffey) iv) Control: degree of control exercised by [D] over safety of victim: Gifford v Strang Patrick Stevedoring: duty of care owed to children because so closely and directly affected; however mother did not recover when suing for psychiatric injury as she did not suffer from a recognized psychiatric injury. . Gifford v Patrick Stevedoring: an employer owes a duty to protect all ppl in a loving & caring relationship with their employee from psychological harm Weighing up the factors, [the sudden shock/witnessing the aftermath/pre existing relationship/the close relationship between [P] and [person injured] I can conclude that by doing [APPLY], [D] ought to have foreseen that [P], being a person of normal fortitude might suffer a recognized psychiatric illness in the type of [CHOOSE CATEGORY] if reasonable care was not taken by [D]. (Tame;Annetts).

(b)

Duty of Care-novel category-Liability for Omission (Non-feasance)

When do we owe an affirmative duty to act? General Rules: Omission must be pure omission, a nonfeasance being a failure to act. AT CL no duty to take positive action to protect safety of others: Stovin v Wise. IF WE SEE BYSTANDER QUESTION, COME HERE. Exceptions to General Rule that there is no duty to take positive action: 1.) Positive duty to act imposed where D is in pre-existing protective rship with P Teacher/student Richards v Victoria Employer/employee Paris v Stepney Borough Council Occupier/Visitor Romeo v NT Conservation Commission Prison Authorities/prisoners L v Cth: prison auth. liable for failure to act. 2.) Duty to prevent 3rd party from causing harm to P (cant omit to act) Smith v LeursParents owe Dof C to control kids to stop harm to others: in this case, parents had not breached duty cause had warned kids-disch. duty Modbury Triangle: omission to leave lights on in car park not cause of Ps inj. D had no control over the third party criminal who assaulted P. 3.) Exercise of powers by statutory authorities [SA] neg. failure to exer. stat. pwr. [P] will have an action in negligence against [SA] if [he/she] can establish that [SA] was under a common law duty to exercise statutory powers and the [SA] was required to take reasonable care when exercising the powers. [SA omitting to act]. Anns v London Borough of Merton. [then] Key Features: Court will not interfere in discretionary power unless the SA exceeds its discretion: Anns v London Borough of Merton: here is a claim for councils failure to act; council omitted to inspect the foundations of the building: Held council owed duty to give consideration. Operational acts will give rise to liability if they lacked reasonable care: Sutherland Shire Council v Heyman. Distinguished b/w Specific Reliance of P & General Reliance: Pyrenees Shire Council: SC issued warning about bad fireplace failed to follow up burnt shop down, and thus due to specific reliance, and b/c it was reasonably foreseeable that this could happen, SC (SA) liable for failure of Duty of Care. As [P] claims that the [Statutory Authority] owed [him/her] a duty of care the courts will examine the following salient factors: [then] Key Principles: Anns If SA exceeds its powers and thereby causes damage it will be liable If SA has duty to act and its failure to act causes damage it will be liable If SA is under no statutory obligation to act it is not liable for any failure to act The SA will be liable if by its conduct it brings liability on itself Where SA exercises powers in respect of operational functions it will be liable TEST: [then] Key Principles: Crimmins Stevedoring Industry i) Reasonable Foreseeability: that their act or omission might result in injury to [P] (Pyrenees Shire v Day; affirmed in Barclay Oysters). ii) Control: was the authority in a position of control (Crimmins v Stevedoring Industry Finance Committee). iii) Vulnerability: [P] was especially vulnerable and could not reasonably be expected to adequately safeguard himself or interests (Crimmins v Stevedoring Industry Finance Committee). iv) Knowledge: knew or ought to have known of an existing risk of harm Pyrenees Shire v Day; affirmed in Barclay Oysters Pty Ltd v Ryan) v) Impose Liability: would the imposition of a duty of care impose liability with respect to the [Ds] exercise of core policy making or quasi-legislative functions? vi) Legislation: the consistency of the asserted duty of care with the terms, scope and purpose of the legislation. Quasi. vii) Resources: the ability of the SA to afford to undertake measures.

viii)

Supervening Policy Reasons: e.g. floodgate (a) Pyrenees Council v Day 1998: Council failed to follow up an order directing tenant to repair fireplace; fire broke out and damaged neighboring property; held council owed a duty to neighbors because: Council had specific knowledge Council had power to prevent it P was vulnerable, so power to prevent amounted to a duty [then] Key findings: Barclays Oysters Case Was the SA in position control? (hep.A) Ability of the SA to undertake measures to protect (did SA have resources to protect) HELD: no duty of care owed to eliminate the risk of viral contamination in lake o degree of regulation of an industry was a fundamental govt. choice. o power given was to protect public, not specific class of persons. o state not aware of any risk as no recorded outbreak (thus not RF) o No relationship between State and consumers Land Managers 4.) Occupation of Land: Liability of Statutory Authorities acting as Land Managers An exception to the rule regarding omissions is the case of a duty of land managers. Here, to establish that P injuries were as a result of the non-feasance on the part of [the land manager] a duty of care on behalf of the [land manager] must be established in order to protect P against any foreseeable risk (Nagle v Rottnest Island Authority-). The elements that must be established are: Control The [land manager] had control of the area since it was under its jurisdiction (Nagle v Rottnest Island Authority; Bennett v Manly Council & Sydney Water Corporation) Benefit The area was established for the benefit of public utility. Therefore, members of the public are bound to occupy the area (Nagle v Rottnest Island Authority) Promotion of the area The [land manager] promoted/encouraged (Nagle v Rottnest Island Authority) the area for P and provided facilities such as [put in facilities provided] However, if D did nothing to encourage the use of the area or to suggest it was managing the area then [land manager] is not liable (Wilmot v South Australiaenvironment policy considerations). Proximity By encouraging people to [do what] in the area, the [land manager] brought themselves into a relation of proximity with the visitors. Therefore, the land managers control over the promotion of the area for public benefit and their relation of proximity establishes a duty to care owed to P (Nagle v Rottnest Island Authority). Hidden Danger Here, P had no way of knowing about the hidden danger (Dederer v Roads & Traffic Authority & Anor). If there is an obvious risk, then the [land manager] does not owe a duty of care to the P (Romeo v NT Conservation Commission; Wyong Shire Council v Shirt; Mulligan v Coffs Harbour City Council.) *Duty of Land Managers* Nagle v Rottnest Island Authority: P dived, hit rock alleged failure of D (occ. of res) Held: D under statutory duty to manage and control reserve for benefit of public Promoted area as venue for swimming By encouraging people to swim they brought relationship of proximity Thus had duty of care to protect against foreseeable risks Wilmot v South Australia: P failed to negotiate sharp turn (used by bike riders)- cliff Held: policy decision not operational decision thus no duty owed.

Romeo v NT Conservation Commission: drunk 15 yr. old fell down cliff near beach Held: duty owed but not breached b/c danger was not obvious. BREACH [D] will have breached the duty of care owed to [P] if conduct falls below that expected of a reasonable person in the same position as the defendant: Blythe v Birmingham Waterworks Company Elements 1] What is the appropriate standard of care? 2] Has the standard of care been breach? [1] What is the appropriate Standard of Care? The standard of care owed is that of a reasonable person in the circumstances. It is an objective test. Here [D] did not take the same amount of care that a reasonable person would have taken (Donoghue v Stevenson). The standard of care owed is that of a reasonable road user in the position of the defendant. (Blyth v Birmingham). What circumstances/characteristics of D are relevant to determine this? Age Youth a minor who engages in activities of adult/child must be judged to the standard of that age: McHale v Watson: a 12 yr old judged on standard of a reasonable 12 year old. Old old people lack physical agility but generally expected to take steps to avoid being placed in position that requires agility to avert danger to others: Daily v Liverpool Corporation Disease/Disability Insanity not defense to neglig.: Adamson v Motor Vehicle Insurance Trust Stroke while driving: Roberts v Ramsbottom Bee sting while driving - not negligent: Scholz v Standish Coughing fit - still negligent: Leahy v Beaumont Skill A person must exercise the level of skill they hold themselves out as having and will be judged according to that: Phillips v William Whiteley Ltd The standard of care observed by a person with some special skill or competence is of the ordinary skilled person exercising and professing to have that special skill: Rogers v Whittaker: doctors -Medical Professionals standard of care is to be determined by the court -Inexperience/Knowledge - Lack of knowledge that might be expected of a reasonable person will not lower the standard of care: inexperience is not an excuse while actual knowledge may increase standard Learner drivers: Cook v Cook: D who had never driven b4 was found to be negligent in accelerating to avoid another vehicle. Reasonable Person Test It is irrelevant that the D did everything they thought necessary if a reasonable person might have done more. Now that the standard of care owed by [D] in the circumstances has been set, it is a question of fact whether [D] has achieved that standard or is in breach. To determine whether the standard of care has been breached the two tiered test of Wyong Shire Council v Shirt must be applied. [2] Has the standard of care been breached? Two tiered test: Wyong Shire Council v Shirt 1.) Was the Risk of injury to the P Reasonably Foreseeable? Would a reasonable person in Ds position have foreseen the conduct involved a risk of injury that was not far fetched or fanciful (Wagon Mound No2) to the P or a class of persons including P?: Wyong Shire Council v Shirt: IF YES THEN; A reasonable person in [D] position would have foreseen that his conduct involved a risk of injury to [P] or a class of persons including [P]. Here the risk is [APLLY] and as such is one which is not far fetched or fanciful (Wagon Mound No2) but real and therefore foreseeable (Wyong Shire Council v Shirt). Therefore the risk was reasonably foreseeable to [D] Although reasonable foreseeability is necessary in determining

whether a standard of care has been breached alone it is not sufficient. The reasonableness of the Ds response must be assessed. The magnitude of the risk must be balanced with the burden of taking precautions. 2.) Was the response of the D to the risk reasonable? what did D provide to reduce This is measured by balancing the magnitude of the risk against the burden of taking precautions: the less serious the risk, the less precaution; if not, then not reasonable. CALCULUS OF NEGLECT: failure to warn: case illustrations below a) Magnitude of Risk: A real risk is one which would occur to the mind of the reasonable person (Bolton v Stone). It is not enough that the risk was not far-fetched or fanciful (Wagon Mound No.2). There must be little difficulty in eliminating the real risk and a low cost of preventing the harm/injury (Nagle v Rottnest Island Authority). This was an incident with a high/low probability of occurring. (something from the facts). The likelihood of the risk eventuating was so (low/high) that (the response) was below the standard of the reasonable person. Probability of Harm: - [D] need only guard against reasonable probabilities, not fantastic probabilities: Bolton v Stone. - The risk of injury must have been foreseeable, not far-fetched or fanciful: Wagon Mound (No 2) - Standard of care expected of a reasonable man requires him to take into account the possibility of inadvertent and negligent conduct by others: McLean v Tedman [APPLY] Seriousness of Harm: Here, the gravity of the (harm/injuries) if the risk of harm eventuated was high. The greater the harm to the plaintiff of the risk of injury eventuates, the greater the precautions required to be taken by the D (Paris v Stepney Borough Council). Here, Compare this with the likelihood of the risk eventuating and state that a higher degree of care was required. The greater the harm to the P if the risk of injury eventuates, the greater the precautions required to be taken by the D - the more serious the potential consequences to P more precautions must be taken by D: Paris v Stepney Borough Council: nail-chip in eye; D neg.-no goggles [APPLY] b) Burden of Taking Precautions: P must show that it was reasonably practicable for D to take precautions against the risk. The onus is on [P] to show the calculus of neglect were such that reasonable measures were available to [D] to limit the risk to [him/her]. If shown, onus shifts to [D] to show that they were unreasonable/impractical in the circumstances: Caledonian Collieries Ltd v Spiers: precautions should have been taken. Here, it was reasonably practicable for the D to take precautions against the risk of____. Here, (doing what the D should have done) would/not have been expensive/burdensome/difficult. (Caledonian Collieries Ltd v Spiers) Cost of Precaution: in Nagles case: the placing of app. warning signs would not have been expensive or difficult. Must take into account the possibility that the persons to who duty is owed might fail to take care himself. Ease of Precaution: if [D] has later provided for this risk (i.e after injury occurred) then shows the ease of taking precautions: Calledonian Collieries v Spiers Knowledge of Risk: Mulligan case: P injured after diving into creek. But he was an experienced swimmer, and therefore should have known the risk: Held: duty of care did not extend to posting warning signs: (more below). Justification of Ds act: Social Utility Overrides failure to take precautions.

There is a need to balance the utility of the Ds activities with the threat of harm to the P. The test is whether the D has exercised reasonable care in all the circumstances.(Daborn v Bath Tramways) emergency vehicles. Here, (If personal, N/A. if social (emergency vehicles then applicable). SOCIAL UTILITY OVERRIDES FAILURE TO TAKE PRECAUTIONS (Daborn v Bath Tramways unreasonable to drive 5m/hr would be fewer accidents but unreasonable) Court must balance the risk against the end to be achieved. Watt v Herfordshire SC: standard of care modified by utility of task undertaken (saving lives justifies considerable risk). Patterson v McGinlay: utility does not extinguish the standard of care, just modifies it: thus care still owed. Obvious cases as well. Customary or Statutory Standards: The fact that [P] was not adhering to the standards of careful conduct doesnt mean [he/she] is acting unreasonably, e.g. traffic rules. Whilst customary standards are not proof that the duty of care has not been breached (Mercer v Commissioner for Road Transport and Tramways), they remain persuasive in considering whether the Ds conduct was reasonable in the circumstances. Appropriate professional standards (Rogers v Whitaker). Doesnt matter what common practice in trade/industry is (except doctors - Bolam): Mercer v Commr Road Transport. Once risk known of, must implement precautions: Thompson v Smiths Shiprepairs. Statutory standards (not action for breach of stat duty) are evidence of negligence just highly persuasive: Tucker v McCann. Calculus of Neglect (failure to warn cases): Anticipation of carelessness of others: A reasonable person should take into account the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety (Nagle v Rottnest Island Authority). Here, the defendant should have taken into account that eg someone might dive etc. Woods v Multi-Sport: P injured eye playing cricket and alleged D failed provide eye protection and warn of risk: no breach because risk was obvious, and not reasonable to list all risks possible in sign. DIVING Cases: Borland case: P injured from diving from a fence into canal: Held: D not liable because such an injury was obvious, thus signs not essential. Swain case: diving into sand bank injured flags: Held: D breach duty to prevent injury. Vairy case: obviousness of risk should not be used as a concept to determine duty. the greater the magnitude of risk or prob. of injury, more likely warning is required [then]Tentative Conclusion Therefore after weighing up the calculus of neglect it would appear that [D] [has/has not] breached the duty of care by [APPLY] ie// not providing signs. If this is correct, it is necessary to determine whether [P] has suffered damage that was caused by [D] and that damage was not too remote.

CAUSATION The Ds act/omission must have contributed to the harm for which P seeks damages While P has suffered damage in the form of [APPLY], it is necessary to determine whether on the balance of probabilities that D has caused Ps damage. We must look at if Ps damage was caused by D and if the damage was not too remote. [P's] injuries would not have been suffered BUT FOR [Ds] negligence: Barnett v Chelsea [Ds] carelessness, on the balance of probabilities, [materially contributed to or increased the harm] to the [P]. [P] should be aware that the court will examine the issue of causation in a practical, common sense way, imbued with policy considerations: March v Stramare. Merely causing [P] to be to be at the scene of the accident is insufficient to establish a causal connection, unless it materially increases the risk of injury: March v Stramare: where [D] negligently parked a truck in the middle of the road, which [P] crashed into. McKiernan v Manhire: where [P] tripped in the hospital while recovering from her primary injury suffered as a result of [Ds] negligent act, held that tripping couldve occurred anywhere, it was not caused by being at the hospital. Pyne v Wilkenfield: where [P] was wearing a neck brace from her primary injury suffered as a result of [Ds] negligent act, which caused her to trip and suffer further injury. Held that [Ds] negligent act was the reason for wearing the neck brace, therefore able to recover. Queensland v Keeys: where an officer suffered psychiatric injury after being struck by a bullet, held that by failing to warn him of the threat made against the unit, the commissioner had materially increased the risk of serious injury, because had the officer known, he would have taken precautionary measures. Necessary cause: Ds act necessary occurrence for Ps loss. Sufficient cause: 2 or more events each of which was suff, to bring about Ps loss, or Ds relied on sup. cause [but be weary of] Multiple Causes Originally the BF test was the effective cause for damage (Barnett v Chelsea Hospital), however difficulties arise with multiple causes of harm (March v Stramare). Where there are alternative causes, for [P] to discharge the onus of proof, [he/she] must show one of the causes is more probably the cause: If there are multiple causes, the But for test is not sufficient and the following measures must be looked at (March v Starmare): Here there are [2/more] acts or events which would each be sufficient to bring about [Ps] injury [and/or] [P] has a claim that superseding event of [APPLY] provided a break in the chain of causation of the injury, which would otherwise have resulted from an earlier wrongful act. (March v Starmare in some cases more than one event can be the cause of Ps harm and in some cases the court will draw inferences favorable to P even though the connection is lacking: Bonnington Castings v Wardlaw: exposure to fumes, P contracted lung disease in which some emp/er liable and other not: Held: the fumes materially contributed to disease. Here based on ordinary commonsense and experience, [THIRD PARTY or X] actions were not a break in the chain of causation since it was reasonable foreseeable in the ordinary course of things that [INTERVENING EVENT] may occur to X (March v Stramare). Where a person has by breach of duty of care created a risk and injury occurs within the area of risk the loss should be borne by that person unless some other cause: McGhee v National Coal Board: high exposure to brick dust; D had not provided showers and thus P got dermatitis: Held: P cannot use but for b/c multiple causes, however courts favoured P b/c Ds fault materially inc. risk of Ps inj.- sufficient cont. The law requires proof of fault causing damage: Wilsher v Essex Area Health Authority

D will have to prove that there was a break in the chain of causation and that a superseding/intervening event caused the harm/injury to P. [note: Australian Position] If injury occurs in area of foreseeable risk the breach will have been taken to caused/materially contributed to the risk: Bennet v Minister of Community Welfare Here [Ds] [act/ omission-fault] [materially contributed to [Ps] harm OR [materially increased the risk to [P] suffering [damage] (McGhee v National Coal Board-rejected in Wilsher v Essex Area Health Authority) in the area of foreseeable risk and therefore [Ds] breach caused or materially contributed to the risk]. Onus: Here [P] will have to show that a breach of a duty has occurred which is closely followed by damage. It is then for [D] to show that [P] should not recover (Chappel v Hart). Therefore there is a causal relationship between [P] injury and [Ds] actions. Once breach of duty has occurred which is closely followed by damage, prima facie caus. conn - it is for D to show that there should be no recovery: Chappell v hart Novus Actus Interveniens (NAI): [D] will argue that the [APPLY] is an intervening act that breaks the chain of causation. However, if the [subsequent injury] to [P] is a predictable consequence of [Ds] original negligence [and was likely to occur even without the intervening act], the defence cannot be relied upon to protect [D]: Adelaide Chemical v Carlyle. 1.) Subsequent intentional action of 3rd party breaks chain of causation: Here after the accident occurred, [THIRD PARTY/ D] decided to do [APPLY] (Yates v Jones). [THIRD PARTY/ D] subsequent intentional act as a third party was not Novus since there was not an unbroken sequence of cause and effect between [D] negligence and [P] injury(The Oropesa). The Oropesa: P son died argued that O had been cause, but O argued M as NAI b/c it was Ms decision to cross b/w ships in the lifeboat. Curmi v McLennan: where the intentional act of firing a gun was not found to break the causal connection, because it was a predictable consequence of leaving the gun unattended and there was also a breach of duty not to expose other children to the risk. Yates v Jones: Addiction is caused by a NAI from the intentional actions of the drug pusher & the addict to consume heroin. The addiction wasnt caused by the original accident caused by Ds neg. Havenaar v Havenaar: Voluntary consumption of alcohol broke the causal chain between D & alcoholism. However if alcohol was considered the only method to relieve the pain then it isnt a NAI. 2.) Subsequent negligent conduct of a third party: Bennet v Minister for Community Welfare: P injured at Ds detention center; D argued that previous incorrect legal advice by barrister was NAI: H: would not have happened if D did not breach duty by failing to seek legal advice for P. Here the subsequent negligent conduct of THIRD PARTY by doing [APPLY] was not a Novus Actus since if [D] had performed his duty of care to [P] of [APPLY], there would have been no occasion for THIRD PARTY to do [APPLY] Note: subsequent medical negligence will not break chain of causation (Chapman v Hearse) unless it is inexcusably bad: Mahoney v J Kruschich (Demolitions) P/L. Here Dr. [D] actions were inexcusably bad amounting to negligent medical treatment and therefore broke the chain of causation between [D] actions and [P] harm 3.) Subsequent negligent/intentional conduct of P 1. deliberate conduct of P to take heroine NAI: Yates v Jones 2. negligence of P where D caused no NAI: March v Stramare: since RF D leaving car in road could be hit, P hitting not NAI. 3. injury depression and subsequent suicide no NAI: Haber

Here the very thing that [D] should have taken reasonable care to guard against is the subsequent event of [APPLY] and is thus not regarded as a Novus (March v Stramare). Therefore the event was a Novus in for of [APPLY]. Therefore there is no causal connection between [P] injury and [Ds] actions. NOTES: Proof Res ipsa loquitor the thing speaks for itself effect is occurrence of accident constitutes evidence of negligence 3 conditions: 1. The accident must raise presumption of negligence 2. The thing must be under control of the D 3. The actual cause of the accident must not be known Causation Checklist: Causation in fact: is there a relationship between Ds breach and Ps injury Would damage have happened but for Ds actions Commonsense was the breach a materially contributing factor or did it materially increase the risk of harm? Novus Actus Interveniens a new act by P or third party which comes after Ds act which may break the chain of causation (defence for D).

REMOTENESS -The mere fact that Ds negligence is a cause of Ps injury is not by itself sufficient to allow P to recover: [P] must show the damage suffered is not too remote in law. -The [damage] suffered by [P] must have been of such kind that the reasonable man should have foreseen: Wagon Mound No 1. [APPLY] In this case, [Ps] [damage] would be reasonably foreseeable as it is not far fetched or fanciful that [he/she] would suffer [damage] as a result of [Ds] actions: Wagon Mound No 2 The [damage] [P] suffered is of such a kind as the reasonable man would have found foreseeable despite the manner and extent in which the damage occurred. Provided the type of harm is foreseeable, the extent and the manner in which it occurred is irrelevant: Hughes v Lord Advocate. [Application] [Test 1] Is the damage of such a kind that the reasonable man should have foreseen: Wagon Mound No 1. Must consider two issues: 1. If it was reasonably foreseeable: a risk is reasonably foreseeable if it would occur to the mind of a reasonable man in Ds position and he would not brush it aside as far-fetched or fanciful: Wagon Mound No 2. 2. Kind of damage suffered is not too remote: If type/kind of damage is foreseeable, the extent of that harm and the precise manner in which it occurred is irrelevant (Hughes v Lord Advocate). DAMAGES Egg Shell Skull Rule: With respect to the extent of damage which a D is liable, the D must take the P as he/she finds them. The fact that P was particularly susceptible to injury by reason of having only an egg-shell skull, does not reduce damage for which D will be liable: Kavanagh v Akhtar. If [P] has shown that the damage is reasonably foreseeable, then [D] is liable for any consequential/compensatory damage which results because of [Ps] peculiarities: Smith v Leech Brain.

DEFENCES TO NEGLIGENCE 1] Volenti non fit injuria Volenti is difficult to raise so [D] argue first Volenti non fit injuria is a complete defence preventing a duty of care arising, as an injury cannot be done to a person who has willingly assumed the risk (consented to the risk) Elements [D] must establish that: [P] perceived the existence of the danger (Smith Baker & Sons), fully appreciated the risk or danger (Rootes v Shelton) and [P] voluntarily accepted the risk (Haynes v G Harwood & Son). IE// skydiving. [NOTE: Roggenkamp v Bennet: all three satisfied] Although courts take a narrow view of the risks assumed by P, As Volenti is a complete defense, D should argue Volenti first. To be successful, D must show the following elements: 1. P perceived the existence of the danger (aware of the risk) D must establish that knowledge of facts creating the risk (Smith v Baker Sons). Recent case Canterbury Municipal Council v Taylor P not volens to the risk b/c he had no belief that touch footballers would carelessly walk into a cyclists path. 2. P fully appreciated the risk/danger (scope of the risk) Have to see what the risk is that the P voluntarily accepted acceptance of one risk not necessarily acceptance of all risks (Rootes v Shelton). 3. P voluntarily accepted the risk (expressed or implied). P must voluntarily accept the risk. Risk must be apparent; proper warning must have been given; and nothing to show that P was forced to incur the risk/harm (Haynes v G Harwood & Son. Involuntary where P had knowledge of danger/harm but did not understand its full extent or where he or she was not given sufficient opportunity to choose whether to accept the risk or not. (Hv GH&S) Here, volenti refuted. Intoxicated Drivers and Passengers *implied assumption of risk* (1) P sober and knew D was intoxicated P volens to the risk (Dunn v Hamilton) Volenti not allowed but changed since then. (2) P knew D was going to get intoxicated P may be volens to the risk (Roggenkamp v Bennet). (3) P too intoxicated to appreciate risk P not volens but may be contributory negligent (Insurance Commissioner v Joyce). [D] must establish that the [P] had more than just mere knowledge of the risk (Smith Baker & Sons) 2] Contributory Negligence by P [D] can raise the partial defense of contributory negligence. Here [Ps] recoverable damages will be reduced to the extent the court considers just (S 10 Law Reform Act) relative to his culpability of departure from the standard of care and the relative importance of the acts. [D] must establish that [P] failed to take reasonable care for his/her own safety and that [Ps] negligence contributed to his/her own injuries (Froom v Butcher). Apportionment legislation: Ps damage may be reduced according to Ps degree of neg. How Prove: 1. Ps conduct amounted to a failure to take reasonable care of their own safety Ps conduct judged against that of a person with ordinary prudence (Shelly v Szelly) Children capable of being held contributory negligent (reduction in Standard of care): Kelly case: 11yr boy electr. Momentary thoughtlessness by e/ee not CN: Commissioner for Railways v Ruprecht: P lost legs when stepped railway.

Failure to observe statutory regulations, highway rules (not consclusive of CN): Sibley v Kais Agony of the moment: where faced with two dangers the reasonableness of Ps act judged by weighing the degree of inconvenience and risk which P was subjected to against risk taken to avoid it: Caterson v Commissioner for Railways Seat belts and crash helmets: where failure to wear then CN: Froom v Butcher 2. Was the damage reasonably foreseeable and contributed by Ps act: Causal link b/w Ps neg. and Ps damage: Gent-Diver v Neville There is also a causal link between [Ds] negligent conduct and [Ps] damage (GentDiver v Nevilli) and his injury was within the area of risk created by his negligence (Jones v Livox Quarries). 3. Ps injury must be within the risk caused by Ps lack of care: Ds negligent act, would Ps actions have contributed to injury or loss suffered by P. Must be causal link b/ws Ds negligent conduct and Ps damage (Gent-Driver v Neville). Jones v Livox Quarries: P stood on back of excav. but crushed by dumper. P argued that the risk he took on was to fall off, not to get struck: CN Fault/Apportionment Legislation Damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the plaintiffs share in the responsibility for the damage: Pennington v Norris: P pedest. hit by car by D wet dark, and D traveling fast: H: reduced CN from 50% to 20% b/c neg. by D was more culpable, more gross, then that of P. -INTOXICATION reduction of CN of at least 25%: s.47 of Civil Liability Act. Based on the facts of the case [APPLY], Ps damages could/could not be apportioned to take account of his negligence. [IF ENOUGH TIME, GO TO APPORTIONED OF DAMAGES] Apportionment of Damages 1. Comparison of culpability in degree (Pennington v Norris) of respective departures by each party from the DOC of the reasonable person Ds negligence was in a high degree more culpable than Ps. 2. Comparison of the relative importance of their respective acts in causing the actual damage (Wynbergen v Hoyts Corporation) P suffered damage as a result of his/her own fault and partly from fault of D, 100% reduction not permissible. 3] Joint Illegal Enterprise: The mere fact that P is engaged in some form of illegal conduct is not in itself a defence by D to an action in negligence: Jackson v Harrison: P & D disqualified drivers stole car-P injured due to Ds neg. driving: P recovered. Distinguish: Smith v Jenkins: P & D assault/robbed vehicle, joy ride; P inj due to Ds neg. drive: H: neg. drive sufficient closely assoc. with crim conduct; deny P remedy. Gala v Preston: Joint illegal driving negated duty of care: no remedy for P. Here D can raise defense of joint illegality, however the mere fact that P engaged in some form of illegal conduct is not in itself a defense to action in negligence since a standard of care w/o reference to the illegal act is able to be fixed (Jackson v Harris). Here, the joint illegal enterprise of doing [ACT] negates existence of Duty of care based on [proximity/special nature] of the relationship b/w the parties, therefore it serves as a defense (Italiano v Barbaro).

PRIVATE NUISANCE Private nuisance is actionable by persons with recognized interest in land: Hargrave v Goldman Gist of the Action (coming in) Interference with proprietary interests; use and enjoyment of land. [P] may have a cause of action against [D] due to the substantial and unreasonable interference with [Ps] enjoyment and use of [his/her] land as a result of [APPLY]. Elements: Title to Sue Interference with recognized legal right Nature of the interference Physical damage Interference with use and enjoyment Interference must be substantial and unreasonable Title To Sue P must show some proprietary or legal interest in the land which is effected (ownership, lease, not license): Oldham v Lawson: Husband mere lic. of wife; no TS. Mere licensee: Title to sue in UK: Khoransandjian v Bush overruled in: Hunter v Canary Wharf Ltd Aussie Position: Animal Liberation (Vic) Inc v Gasser licensee granted injunction Deasy Investments P/L v Montest P/L court of appeal relied on Khoransandjian and allowed licensee to sue in nuisance. Who Can Be Sued? D who creates the nuisance -A person who creates a nuisance (not necessarily owner/occupier): Fennel v Robson Excavations P/L: D only holding license but still liable. -A person who authorizes a nuisance: De Jager v Payneham & Magill Lodges Hall Inc: loss of sleep, discomfort as a result of hiring of hall; D liable for Nu. -A person who adopts a nuisance: Sedliegh Denfield v OCallaghan: trespass & flood onto Ps land D held liable -A person who knows/ought to be aware of nuisance: Torette House PL: D (occupier) hired plumber flood to Ps house: H: D not liable (not aware) However D cant be liable if he (1) Didnt know of the nuisance existence (2) Didnt ought to know of its existence (3) Didnt have any reasonable opportunity to repair or remedy the nuisance. Torette House v Berkman Interference with recognized legal right (Privacy) [Ps] recognized legal right is being interfered with: i) Right to quite use & enjoy. of poss. of land; ii) right to clean air; iii) right to support of land; iv) right of support of buildings; v) right of way (something blocking footpath). Historically, no right to privacy: Victoria Park Racing. Now policy is allowed: Gross v Purvis. Nature of the Interference (substantial/unreasonable)(for non-tangible) 1] Physical damage to property is unreasonable (ie// killing trees by fumes, break window by golf ball: Hasley v Esso Petroleum. 2] Interference with enjoy. of land: noise, smoke, fire, offen. sights, fresh air, light. The interference should be judged according to plan and sober notions and not merely according to elegant or dainty modes of living: Walter v Selfe 3] Personal Injury of P: action more likely in negligence. Calculus of Nuisance (reasonableness of interference)- favour D or P o Locality St Helens Smelting: occupation in neigh of other, and inj. to prop. o Timing/Duration: Day/night? Isolated/continuing: loss of single nights sleep is substantial: Munro v Southern Dairies Ltd: P complain horses noisy/smelly [Ds] [interference] is [unreasonable/reasonable] as it was continuing, [during the night/only once off] (Halsey v Esso Petroleum). o Precautions by D: D taken reasonable steps to eliminate nuisance?: Cohen o Motive/Malice - A slight degree of interference is sufficient where D is actuated by malice: Hollywood Silver Fox Farm v Emmett

[DS] [interference] was motivated by malice and therefore will give rise to an inference of Unreasonableness, where it otherwise may not. (Christie v Davey)(Silver Fox Farm) The onus is on D to rebutt this claim. o Sensitivity of P if P unusually sensitive that does not make interference unreasonable unless affects ordinary person same way: Robinson v Kilvert Damage must be Reasonably Foreseeable: Wagon Mode (No 2) The kind of damage [P] suffered is RF. Therefore [D] will be liable for all damage whether direct or indirect (Wagon Mound No.1). Here the risk of injury to [P] due to [Ds] actions is a real one that would occur to the mind of a reasonable person and that he would not brush aside as far fetched or fanciful (Wagon Mound No.2) The damage [P] suffered is of such a kind as the reasonable man would have found foreseeable despite the manner and extent in which the damage occurred (Chapman v Hearse, Hughes v Lord Advocate). There must be a real risk which would occur in the mind of [D] and not be considered far fetched (Wagon Mound 2). Only the of the type of harm incurred need be foreseeable) DEFENCES Prescription privilege to commit nuisance maybe acquired by 20 years continuous exercise of the conduct constituting the nuisance: Sturges v Bridgman: prescription starts at beginning of interference. Statutory Authority the statutory provision must apply to the act in question: [Ds] nuisance was authorized by parliament then. Therefore D is required to prove it was not possible to act without nuisance (Allen v Gulf Oil Refining) Consent merely tolerating a nuisance does not amount to consent REMEDIES Damages difficult to quantify where no tangible damage once nuisance proven unusual losses can be fully recovered Injunction usual remedy where there is a continuing nuisance and the balance of convenience favors the granting of an injunction continuing and damages will be inadequate. Abatement self help chopping off branches: Lemmon v Webb NOTE: you cannot trespass to abate unless there is emergency if no emergency give notice if you want to trespass to abate. Onus of Proof Where property damage onus on P to prove interference, onus on D to prove action not unreasonable Otherwise, P prove elements and D prove defenses

PUBLIC NUISANCE Any nuisance which affects the reasonable comfort and convenience of life of a class of Her Majestys subjects is the local community w/I sphear of nuisance enough people to constitute class of the public?: AG v PYA Quarries Ltd. Strd stricter than priv. nuis. Gist of The Action (going out) Safeguard public from nuisance emanating from Ds land (coming from Ds land) EXAMPLES : Pollute river making water unfit for drink, discharge oil into the sea with likelihood would be carried onto the shore, selling food unfit for human consumption. Elements D must have possessory interest in land D must have knowledge of the nuisance to the public D must have the means to terminate/abate it D must fail to take appropriate means to abate it thus liable ELEMENT 1: A class of people is affected: Each case is different as to who the class of persons is (A-G v Quarries ltd.) Here D did [APPLY]. His actions are concerned with the shared rights of the public against substantial and unreasonable interferences. This establishes a cause of action in Nuisance in the form of Public Nuisance. Public Nuisance is a crime according to the local govt act and s230 of the Criminal Code Act. It is essential to prove that D actions were a nuisance which materially affected the reasonable comfort and convenience of life of a class of Her Majestys subjects. ELEMENT 2: Locus Standii (ignore A & B and look at C) a) b) c) Attorney-General as protector of the common rights (usually doesnt get involved due to practical or political reasons Attorney-Generals fiat (A-G must give permission to a relator action, although permission is rarely given because of the above reasons, but if given the person must give an undertaking as to damages). [P] through [apply facts] [can/can not] show that [he/she] is a private individual suffering particular or special (different) damage over and above that suffered by the rest of the community. i) Special Damage: must distinguish [P] from the rest of the community. Strong argument if a peculiar kind is suffered (1, 4, 7), weaker argument if a peculiar degree is suffered (2, 3). (1) Boyd v Great Northern Rwy Company doctor held up at crossing for 20 min. No-one else delayed. Suffered pecuniary loss (time/money) and peculiar damage. (2) Ball v Consolidated Rutile fisherman take action for pollution of Moreton Bay. Held fishing rights same as the general publics, nothing unique in their loss (only extent of), insufficient to support action. (3) Walsh v Ervin Path of road blocked, inconvenience and delay for plaintiff. Even without pecuniary damage this loss is sufficient for peculiar damage, but only if inconvenience is appreciably greater than others. (4) Benjamin v Storr trucks constantly going past front was blocking access and light into coffee shop, owner occurred expense of having to light lanterns. Held public nuisance because peculiar pecuniary damage. (5) Teamay v Severin sale of alcohol caused nuisance in aboriginal community. Held damages too remote. Interference must be clear, a clear link between interference and damage. (6) Animal Liberation v Gasser peculiar damage because patrons put in fear and frightened away from entering circus because of protesters. (7) Castle v St Augustines Links guy hit by golf ball on public land. Personal injury is prima facie evidence of peculiar damage. Can plead nuisance or

negligence. P must establish that there is a nuisance, and causation, then D must prove a justified excuse. ELEMENT 3: The interference is unreasonable [P] Must show that the interference is unreasonable and substantial through application of an [established category or calculus of nuisance] which indicates this to be the case. a) General considerations Diamond v Pearce: i) must be unreasonable and substantial ii) Calculus of nuisance degree, duration, timing and public utility of the activity all relevant. Must still recognise need for give and take. (see private nuisance for details) iii) Standard is stricter than private nuisance as more people affected. Established categories i) interference with public amenity substantial interference with the use and enjoyment of a public park would constitute a public nuisance. Interference cant be a matter of taste.

b)

ii) Interference with travel and access if: The defendant in carrying out his business intentionally creates a crowd: Wagstaff v Eddison Bell Co. The business operates in an unconventional manner: Fabbri v Morris serving window instead of shop entrance. Not nuisance if just annoying, but doesnt block: Silservice v Supreme Bread. ELEMENT 4: The damage was reasonably foreseeable: The damage must be a reasonably foreseeable consequence of Ds nuisance. Wagon Mound (No 2) DEFENCE Statutory Authority D must establish activity was authorized by parliament and no practicable ways to do the act without causing a nuisance: York Bros (trading) v Commissioner for Main Roads: could have built bridge in diff. place not causing nuis. REMEDIES Injunction, Damages, -Compensatory & Exemplary: Walsh v Ervin where nuisance motivated by malice or disregard for public rights NOTE: never nominal as damage is the gist of the action; Onus same as private.

VICARIOUS LIABILITY Where one person held liable for a tort committed by another person not an independent cause of action this is a strict liability, and must be distinguished from personal liability. Under an independent cause of action [P] can sue [D]s employer rather then [D] himself due to VL which holds one person strictly liable for the tort committed by another. For [employer] to be vicariously liable there must be the commission of a tort, an employer/employee relationship between [company] and [employee] and the tort must have been committed by [employee] in the course of [his/her] employment. As vicarious liability is strict liability [P] will then be able to recover damages from [employer]. ELEMENTS Commission of a tort e/or and e/ee relationship between tortfeasor and D. tort must have been committed in course of employment Commission of a Tort v-liability applies to all torts: battery, assault, FI, Trespass to Land, Nuisance, Defamation or Negligence. (MUST GO THROUGH ONE OF THESE ELEMENTS FIRST, THEN COME BACK AND CONTINUE). [NOTE: non-delegable duties only applies to negligence] E/OR E/EE RELATIONSHIP To establish the required relationship it is essential to look behind the form to the substance of the relationship to distinguish between: A) Contracts of service = employment relationship with an employee: Thus liable and B) Contracts for service = non-employment relationship with an independent contractor: Therefore not liable. TEST #1-CONTROL (traditional test) of whether tortfeasor is employee or IC The employer has a right to control what employee does as well as how they do it. An employer can control what an IC does, but not how they do it. [NOTE: test difficult to apply in case of skilled workers, thus go to: TEST#2-INTEGRATION & CONTROL To overcome difficulties with control test (skilled workers) courts propose tests focusing on place the worker was occupied in the company structure: Is the worker sufficiently integrated into the organization to be regarded as its servant? Stevenson, Jordan, & Harrison v MacDonald & Evans: if workers role is integral to the business than is employee. H: Not employee, thus employer not VL for his neglig. Right to control is key factor: hours, pay, work, suspend, dismiss, place. Hollis v Vabu: Rlship b/w Vabu and courier who hit P was that of el/er & el/ee TEST#3-MULTIFACTOR TEST To determine if a relationship exists the High Court advocates the use of The Multi Factor Test: Stevens v Broadribb Sawmilling Co Ltd HC court reasserted that it is the employers right to control that is important even if control is not exercised RELEVANT MULTIFACTORS It is the right to control that is important, but is not only relevant factor It is the totality of the relationship between parties that must be considered Indicia for contract OF services E/ee - Right to have particular person do the work, right to suspend/dismiss, right to exclusive services, right to dictate the place or work hours of work Indicia for contract FOR services E/er -Working involving a profession, trade or distinct calling provision of place of work or equipment creation of goodwill or saleable assets in the course of work the payment of business expenses and payment of remuneration without deduction for income tax. Applied in Hollis v Vabu P was injured by a parcel carrier of D is parcel carrier e/ee or IC?

HELD: relationship was e/er to e/ee Little control over how tasks carried out Unskilled with no special qualifications Training, discipline & attire provided by e/er Vabu couriers provided with some equipment No negotiation of payment rates o Distinguish here: majority emphasized e/er-e/ee applied to couriers that provided own bike, may not apply to couriers who provide other vehicles From the terms of [e/ees] contract where [company] could [apply facts to do with control] it is apparent that [company] [had/did not have] the right to control as opposed to the exercising of control. This is a strong indicator of [an/no] employment relationship and [employer] [may/may not] be vicariously liable. The HC said that while there is no one universal test, the control test is surest guide. Other factors to take into consideration are [apply other general factors]: ACTING IN THE COURSE OF EMPLOYMENT [P] was acting within the course of [his/her] employment as [apply] falls within the scope and [racing/smoking] was incidental to [P]s employment (Limpus v LGO) (CI v NIRTB ) and [he/she] was acting in [D]S interest (Kay v ITW-truck parked in way of forklift) 1. [D] may be liable for acts done in the scope of employment even if there is an express prohibition against it. What is essential is whether that prohibition limits the scope or merely regulates the mode. If it is the later there may be liability. Rose v Plenty. 2. If [e/ee] engages in acts outside scope of employment, then [company] is not vicariously liable and [employee] can be said to be on a frolic of his own, the degree of deviation is important: Harvey v ODell; Beard v London Omnibus; Hilton v Thomas Burton. 3. If the employee is acting in the best interests of the employer & if his actions are reasonably incidental to employment then the employer is Vicariously Liable: Kay v ITW 4. A master can be vicariously liable for the horseplay which is found to be within the course of employment: Hayward v Georges 5. Wilful torts such as criminal conduct are not necessarily outside the scope of conduct: Morris v Martin Unathorised mode of committing authorized act Century Insurance v Northern Ireland Road Transport Board: petrol tanker employed to deliver petrol: lit cig. at work was acting within the course of employ. even though not employed for that purpose. Express prohibition If prohibition merely regulates the mode or manner in which the act is to be performed will still be within the course of employment: Rose v Plenty: contrary to instructions of employer milkman used 13 yr boy to deliver milk-boy injured-acting within COE. Frolic Doctrine [degree of deviation from duties important, but unclear how far before frolic] Harvey v ODell workers took unauthorized lunch break caused accident, held to be in course of employment cause advised not to take lunch with them. DISTINGUISH: Hilton v Thomas Burton workers who decided they had done enough work for the day went to a cafheld not in course of employment no deviation from duties. Horse Play by Servants Master can be vicariously liable for horse play within the course of employment

Hayward v Georges Ltd-slapping of waitress causing fall was w/n course of employment Cth v Connel-pushing naval apprentice off bridge was w/n course of employment VC Willful Torts-Assault Poland v Parr-servant struck thief to protect business-w/n course Petterson v Royal Oak Hotel-barman threw glass to keep order-w/n course Deatons Pty Ltd v Flew-barmaid threw glass-PRIVATE ACT OF RETALIATION-liable Canterbury Bankstown Rugby League Football Club v Rogers-head high tackle-liable Wilful Torts-Dishonesty by Servants Criminal conduct is not necessarily outside scope of employment Morris v Martin & Sons Ltd mink fur coat was stolen by servant after sent for cleaning HELD: vicariously liable for e/ee as theft wrongful mode of performance of servants duty Sexual Abuse by Teachers in Schools Lepores Case: To determine v-liability look at nature of what employee employed to do on behalf of employer only then determine v-liability Rich & Samin: Actions not regarded as methods of conducting the teaching function Tentative Conclusion: Based on the above elements the [Employer] [does/does not] have an employee/employer relationship with [employee].If this is correct and there is employee/employer relationship, it is necessary to determine if the employee was acting in the course of his employment. NON-DELEGABLE DUTIES Non-delegable duty is not a duty to take reasonable care, it is a duty to see that care has been taken if care not taken, then used to justify the imposition of liability on one person for the negligence of another to whom the former had entrusted (delegated) the performance of some task on his/her behalf [Ds] non-delegable duty is more than just a duty to take reasonable care; it is also a duty to ensure reasonable care is taken for [Ps] safety. As non-delegable duties do not impose strict liability, it is still essential for [P] to prove fault. For a non-delegable duty to arise there must exist in the relationship responsibility or control on the part of [D] and vulnerability or reliance on [Ps] part. In other words, a protective relationship. NOTE: non-d is restricted to tort of negligence unlike VL applies to all torts. NOTE: performance of duty can be delegated: Elliot v Bickerstaff NOTE: must prove fault NOTE: must prove fault thus not automatic: not strict liability. Characteristics of Non-Delegable Duties -RF is not enough need more to generate duty -Must be duty in the relationship of responsibility/control on part of D and reliance/vulnerability on part of P (ie// protective relationship school/children) Court will consider policy considerations: floodgates, coherency of law, other remedies Look at nature of the relationship D accepts special responsibility (ie// school) P has a reasonable expectation that care will be exercised-special vulnerability Categories of Non-Delegable Duties E/er to E/ee Kondis v STA: employer liable not through VL, but they had nondelegable duty to take reason. care to provide a safe place to work. Hospitals to patients Cassidy v Ministry of Health: hospital treats patients through doctors, and if the doctors are negligent, hospital is just as liable. Hosp. control; patients rely since hospitals employ other peeps to do duty for them-liable. Ellis v Wallsend: hospital not liable b/c surgeon privately consulted by patient. Schools to Students Cth v Introvigne: P injured when flagpole fell Occupiers to Visitors/3rd parties/neighbors Burnie Port Authority v General Jones Pty Ltd: D owed P a non-delegable duty to ensure IC took reasonable care.

Justification/Policy Considerations INCLUDE WITH YOUR ANSWER D is a financially responsible person fully aware of its responsibilities towards class of persons to which P belongs D is already vicariously liable for the fault of its own staff D will usually have insurance against v-liability

DEFAMATION A statement of a kind likely to lead ordinary decent folk to think less of them. Protected Interest: protection of reputation v freedom of speech No absolute right to free speech privilege to speak freely in absence of legal wrong Protects persons against statements that have effect of lowering persons reputation: Consolidated Trust Co v Browne. Who Can Sue? -Any living person dead cannot be defamed -Trading corporations for reputation -Members of elected authorities or organs of government -Individualssufficient if people believe it referred to P; doesnt need to actually refer to P by name. -Groups people w/ group take action: smaller class, wider accusation: better action -Unincorporated association cannot sue because has no corporate identity or personality -Any right of action dies with the person defamed. The actions does not survive for the benefit of the estate like personal injury actions. (Even in the middle of litigation) Who Can Be Sued? Those who publish the defamation to anyone other than P Everyone who disseminates defamatory material is liable i.e. TV and radio stations NO PUBLICATION BETWEEN SPOUSES Repeating what someone else said is republication attracting separate liability egnumber of different actions against publisher Elements Defamatory material the subject matter must contain defamatory imputation or bear a defamatory meaning Reference to P the subject matter must relate to P Publication the subject matter must have been published Defamatory Material @ CL statement likely to lead ordinary folk to think less of person @ CL INNUENDO (drawing inference) can amount to defamation @ Defamation Act 1889 (QLD) s4 - any statement which is likely to injure Ps reputation, or Ps profession or trade or which is likely to induce other people to shun or avoid or ridicule or despise P: s4(2) imputation may be expressed either directly or by insinuation or irony Innuendo False those that can be drawn by any reasonable reader True innocent on face but defamatory to those with special knowledge What Amounts to Reference to P? Would an ordinary reasonable recipient of the statement take it as referring to the P: Houlton v Jones: coincidence of names. What is Publication? Communication to anyone other than P D intends words to be heard by third party or should have foreseen this would occur Dow Jones & Co Inc v Gutnick: defamation on internet: H: Pub. where mat. Uploaded(USA) Downloaded(AU) DEFENCES Justification public benefit/truth if it will benefit the public, then defamatory material may be alright. Requires truth in substance and effect. Fair Comment Needs to be made honestly; expression of an opinion; can be biased or exaggerated. No Malice.Carleton v Australian Broadcasting Corp Privilege-Absolute Parliamentary privilege

Privilege-Qualified Must be reciprocity between publisher and recipient Constitutional Protection -Lange v Australian Broadcasting Commision Political Communication - must be about Remedies Interlocutory injunctionDamages Compensatory hard to gauge Cap for non-economic loss of defamation (250,000) Stop Write STANDARD OF CARE Section 22 Standard of care for professionals (modified Bolam test): Bolam was abolished and now just brought back with the CLA, and the courts decide ONLY when it is irrational. (1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. (2) Peer professional opinion cannot be relied on if the opinion is irrational or contrary to a written law (3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. (5) This section does not apply to liability arising in connection with the giving of (or failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service. BREACH Section 9 identifies breach of duty by reference to (a) foreseeability of risk of harm and (b) the negligence calculus - Original formation of test for breach of duty was in Wyong Shire Council v Shirt - Sub (1) seeks to raise the bar from far fetched or fanciful to not insignificant this is the only thing modi Sub (2) essentially restates the common law consideration of reasonable persons response to risk of harm Section 10 (a) The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and raises bar (b) The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. CAUSATION Section 11 attempts to clarify the law of Causation - The requirement to consider why responsibility for the harm should be imposed may introduce a policy consideration that does not currently exist

- S12 Onus of proof is it now more difficult for plaintiff to secure a finding of factual causation under s11 (1) (a)? Douglas, Mullins & Grant say yes it does. OBVIOUS RISKS Section 13 - Meaning of obvious risk: defines obvious risk as a risk that, in the circumstances, would have been obvious to a reasonable person Section 14 Person suffering harm presumed to be aware of obvious risks: shifts onus of proof in defence of voluntary assumption of risk to plaintiff where risk is obvious - No proactive duty to warn of obvious risks except under certain circumstances (s. 15(1) and (2))- No liability for personal injury suffered from obvious risks in dangerous recreational activities (s. 17-19) CONTRIBUTORY NEGLIGENCE Section 15 No proactive duty to warn of obvious risks Section 24 contributory negligence can defeat claim i.e. CN may reduce an award of damages by 100%. Therefore, s24 is an alternative to the defence of volenti non fit injuria (voluntary assumption of risk) Section 35 Principles concerning resources, responsibilities etc. of public or other authorities In deciding whether a public or other authority has a duty or has breached a duty (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions; (b) The general allocation of financial or other resources by the authority is not open to challenge; (c) The functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates); (d) The authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates. CRIMINALS Section 45 Crims not to be awarded damages: liab. excluded if courts find on balance of prob. that incident occurred when P eng. In indict. off. Section 46: Not relevant to consider in the standard of care that persons may be exposed to increased risk because of intoxication -Presumption of contributory negligence if intoxication, but rebuttable if plaintiff can show intoxication did not contribute or not self induced Section 47 Contributory negligence presumed if the plaintiff was intoxicated at the time of negligence if P driving drunk, going to reduce by 25% Outcome of reforms - Greater fragmentation/division of the law and confusion - We await illumination by the courts. Personal Injury Prima facie Personal Injury will be damage above & beyond that suffered by the rest of the community. Pls injury neednt have prop rights in land nuisance occurs Castle v St Augustines Links Onus of proof (1) Pl must establish nuisance (2) Pl must establish causation by the D (3) onus shifts & D must demonstrate reasonable excuse Nature of the Interference

(1) Must be unreasonable & substantial (2) Degree, timing, duration, & public utility is relevant-a calculus of nuisance- recognising the need for give & take (3) Standard is stricter than for private nuisance Dymond v Pearce Subjective test of what is reasonable at the time the nuisance occurred Examples of Interference with Public Amenity Kent v Johnson in my opinion, a substantial deleterious unlawful interference with the nature & quality of the reserve as a park for one to use & enjoy as such as a member of the public would constitute nuisance. Injury to the F&F seems to me to be in the same class of interference as would be the fouling of a public swimming pool (1) Damage to skyline is not legally enforceable as it is subjective & Court cant enforce good taste. (2) Argument of the F&F failed, as it wouldnt substantially interference with public amenity. (3) Also obstructing footpath while constructing building is not a nuisance & is not an unreasonable interference with travel & access. (4) Also public safety on highway is not a nuisance. Must expect delay & inconvenience especially with construction work etc. (5) However if it use & enjoyment then it can be Public Nuisance Public utility principle Wagstaff window display attracted crowds that obstructed roads & shop access. Held: Deliberate action to bring crowds t/f actionable. Thus Xmas lights are indeed public nuisance as they deliberately bring crowd Fabbri v Morris Walk thru ice-cream shop. Held: operating in an unconventional manner that attracted unreasonable Silservice v Supreme Bread customers lined up at shop for fresh hot bread H: Not unreas interference, as it is not the fault of the owner if their business thrives at a specific & particular time of the day CIVIL LIABILITY ACT 2003 Look for date if post 2nd December 2002 then the CLA applies >Areas of change: 1 breach; 2 causation; 3 exclude liability for obvious risks; 4 eliminate proactive duties to warn of obvious risks; 5 eliminate liability for materialisation of inherent risks. s.9: Breach Two-Tier Test s 9(1)(a) foreseeable?; s 9(1)(b) not insignificant? (changed from far fetched or fanciful- Wyong). s 9(1)(c) would a reasonable person in Ds position have taken precautions? s.10: Breach s 10(a) Burden of taking precautions to avoid harm includes risk of similar harm. s 10(b): just because something could have been done in another way doesnt give rise to liability for the way it was done; s 10(c): taking action after the event that would have avoided risk of harm if taken earlier does not give rise to liability, & does not constitute an admission of liability s.11 Causation s 11(3)(b) any statement made by P after suffering harm about what he or she would have done otherwise is inadmissible unless the statement is against his or her interest. s 11(4) requirement to consider whether or not & why responsibility for harm should be imposed s 13 Obvious Risk- Volenti s 13 Can be obvious even if there is a low probability of it occurring. NOT OBVIOUS if it is created by failure to maintain s.14 Presumption of Awareness: Reverses the onus of proof in volenti defences. 14(1) Plaintiff is presumed to be aware of obvious risk. P then must prove on BOP that s/he was not aware of the risk. s.15 No proactive duty to warn of obvious risks s.16 No liability for materialisation of inherent risk- restatement of common law s.19 No PI damages if obvious risk in recreational activities s 22 Standard of Care for Professionals (Modified Bolam Test): s 22(1)A professional has not breached their duty if established the professional acted in a way that was widely accepted by peer professional opinion by a number of respected

practitioners in the field as competent professional practice; s 22(2) Pro opinion cannot be relied upon if irrational or contrary to written law (protects practitioner on the cutting edge of practice & allows court to exercise control over exceptional cases); s22(3) if there are differing peer professional opinions concerning a matter this does not prevent 1 or more of them being right; s 22(4) Peer professional opinion doesnt have to be universally accepted to be widely accepted; s 22(5) States that this does not apply to liability in arising from the giving or failure to give warning about the risk of harm to a person associated with professional advice. s.24 Contributory negligence can reduce an award of damages by 100% s.35 Statutory authorities (a) functions required to be exercised by the authority are ltd by the financial & other resources that are reasonably available to the authority for the purpose of exercising the functions; (b) the general allocation of fin or other resources by the authority are not open to challenge; (c) functions reqd to be exercised by authority are 2 B decided by reference to the broad range of its activities (not merely by reference to the matter to which the proceeding relates) s.45 Criminals not to be awarded damages. s 45(4) irrelevant if P was convicted for the offence or not. s 45(3) a minimum of 25% off for crim offences s 46 Intoxication: No DOC arrises just because someone is drunk. s.47 Contributory negligence presumed if plaintiff intoxicated. Min. 25% reduction. Percieved Crisis in Tort: 1 unclear & unpredictable. 2 flood of frivolous claims; 3 abnegation of personal responsibility; 4 Greed; 5 Santa Clause judges. >Insurance Crisis: >Approach to reform: Ipp Report,. >Reforms: CLA 2003 (Qld); Personal Proceedings Act 2002 (Qld);. >Aim of Tort Reform: Increase affordability & availability of insurance; greater clarity & certainty in tort; limit liability & prevent unmeritorious claims. > Tort Reform- Has it gone too far? Pre Reform Wyong Shire Council v Shirt- foreseeability based on what is far fetched or fanciful Ipp Report: Justice Ipp- said Wyong set an undemanding standard of care Over time legislation expanded, not limited rights to recovery- (contributory neg no longer a complete defence, abolished rule excluding wrongful death claims) Unruly generous approach to claims: eg Nagle Found that D had breached duty in failing to erect sign warning of submerged rocks despite Ps obvious foolishness Court then began tightening approach to negligence: Ghantous v Hawkesbury Shire Cncl: tripping case- persons will be expected to exercise sufficient care by looking where they are going & avoid obvious hazards- expected to see in broad daylight. Romeo v NTCC: Applied Nagle but denied recovery because P was a voluntary participant.- i.e. greater emphasis on personal responsibility

Reforms- Cons Cap on general damages for non-eco loss $250,000 (15% of most extreme case) Cap on lost earning capacity at 2xs avg full time earnings Restrictions on recovery for gratuitous services

Result of change Premiums have not reduced. Victims get less & those who were negligent are relieved of part of their consequences Insurer has less exposure Tax payer suffers as welfare & public health system has to kick in. CASE DETAILS: The court may find one explanation is more probable than any others: TNT Management v Brooks: where two trucks crashed and the wife of a killed driver sued, held that it was more probable that the other truck was on the wrong side of the road. If there are multiple explanations, but all involve negligence by [D], then [P] must succeed, whichever explanation is chose: GIO v Best: where three possible causes where identified, all supposing [D] was negligent while driving If there are multiple explanations, the court will not speculate as to the cause in the absence of evidence which shows one cause is more probable than the others: West v Government Insurance Office: where [P], who was injured by [Ds] negligent driving, suffered amnesia and the other passengers evidence was inconclusive as to the cause. Mahoney v J Kruschich P/L: Unless medical treatment/diagnosis inexcusably bad, no break in chain. 1. Subsequent intentional action of a third party Curmi v McLennan: where the intentional act of firing a gun was not found to break the causal connection, because it was a predictable consequence of leaving the gun unattended and there was also a breach of duty not to expose other children to the risk. Yates v Jones: Addiction is caused by a NAI from the intentional actions of the drug pusher & the addict to consume heroin. The addiction wasnt caused by the original accident caused by Ds neg. Havenaar v Havenaar: Voluntary consumption of alcohol broke the causal chain between D & alcoholism. However if alcohol was considered the only method to relieve the pain then it isnt a NAI.

Catalyst for Reform Changes based on High insurance premiums, insuring community events; high medical indemnity premiums. Neg review panel set up May 2002 (Post Sept 11, HIH crash & imminent UMP collapse). Claims of litigation explosion. Reforms- Pros Medical Practitioners- Bolam test restored as long as the held view not be irrational. Rogers v Whitaker no longer in place. Foreseeability- Wyong test replaced with not insignificant; no liability for not failing to warn of an obvious risk in regard to recreational activities (i.e. Nagle=Foolish).

2. a. Subsequent negligent conduct of a third party (Bennet v Minister for Community of Welfare: where [D] failed his duty to seek legal advice for [P] who was injured in a state ward, and subsequent to his release [P] received incorrect and negligent legal advice about his right to compensation for his injury from a third party, held that the third partys negligent advice was not an intervening cause, because the reason it had to be sought in the first place was because of [Ds] original negligence. b. Unless 3rd partys negligence was reasonably foreseeable: Chapman v Hearse: where a doctor attending to a car accident victim was struck by a car driven negligently by a third party, held that is reasonably foreseeable that a volunteer will be injured by anothers negligence during a rescue. Mahoney v J Kruschich P/L: A worker received negligent medical treatment for a injury suffered at work due to the employers negligence, which resulted in further complications, held the employer was liable for the further

complications because it is predictable that negligent medical treatment will be given. Negligent medical treatment is only an intervening act if it is inexcusably bad (gross). 3. Subsequent intentional conduct of P Yates v Jones: where [P] who was recovering in hospital became addicted to drugs and sued for the addiction as a result of being in hospital, but addiction was not from medication, rather from illicit drugs bought from a dealer, held that [Ps] free choice broke the causal connection. Havenaar v Havenaar: where [P] became an alcoholic after an accident and sued for it, he claimed it was to relieve pain, held that voluntary consumption of alcohol breaks the causal connection, unless there is no other way to relieve pain.

CASE DETAILS: Tremain v Pike Facts: Employee got a rare disease from rat wee, sued for not controlling plague Held: Disease contracted from rat bite or food poisoning would be Reasonably Foreseeable; but disease contracted from rat wee isnt Reasonably Foreseeable. Nader v UTA Facts: Boy fell off bus, minor injuries; developed a psychological disorder partly due to overprotective parents Held: Parents reacting that way is Reasonably Foreseeable & his condition is attributable to their reaction; thus its Reasonably Foreseeable Richards v State of Victoria: Teacher failed to stop schoolyard fight, boy knocked on head resulting in paralysis because of a pre-existing physical condition, D liable for paralysis. Stephenson v Waite Tileman Ltd: P developed compensation neurosis as a result of injury because of a pre-existing psychiatric condition vulnerable personality. Rowe v McCartney: Pl was driver in crash where passenger was paralysed; Pl suffered guilt neurosis. Court held Pl couldnt recover for mental illness as it resulted from her own actions (Policy considerations) Dissenting judgment reasoned that Pl would have recovered damages if she took action for Nervous Shock rather than guilt neurosis. (Hughes v Lord Advocate). P fell into manhole. D put lamps around open manhole. P tripped over lamp and fell into hole and their was an explosion. Held: reasonably foreseeable that P could suffer damage and since there was physical damage, injuries not too remote. (Chapman v Hearse) precise concatenation of events need not be found to be reasonably foreseeable (CvH). Dr. Cherry hit by Hearse while attending to Chapman. H sued C for negligence. Wagon Mound No. 1). D did not know and could not reasonably be expected to know that oil could catch fire on water P failed to recover b/c not reasonable foreseeable and too remote. Defense of contributory negligence was raised but failed b/c if reasonable foreseeable, the P should have known too. Wagon Mound No.2 - Risk need only be fairly small so here, despite fact that reasonable people would have regarded possibility of fire on the water as occurring very rarely and in exceptional circumstances, this was enough to satisfy the test.

CASE DETAILS: Bird v Jones: (failed because barrier on bridge was a mere obstruction, not total rest) Burton v Davies: dangerous to jump from a moving car, not reasonable escape. Herd v Weardale: Coal miners: if [P] consented to it through the course of his employment, he cannot claim FI; the question arises, what did the parties agree was within the course of employment. Meering v Graham-White Aviation: [P] asked to wait in room for an interview, but real purpose was not said. A guard was outside the closed door and intended to stop him if he attempted to leave; held to be F.I Myer Stores v Soo: Soo mistaken for a shoplifter and surrounded by security guards who requested that Soo accompany them to the office for an interview; when Soo attempted to protest, guards insisted; held that it was total restraint because Soo couldnt refuse for fear of public embarrassment. R v Macquarie: having to swim to escape is seriously inconvenient. Symes v Mahon: although not physically restrained, the will of [P] was subverted by [Ds] psychological pressure; [Ps] submission to go to Adelaide was not free and voluntary. CASE DETAILS Davis v Bennison: cat on neighbours garage, took shot neighbour in between sued for trespass Delaney v TP Smith Ltd: P took possession of house under a lease that was legally ineffective and which did not give him any right to exclusive possession. D forcibly evicted P. Held that Ds legal right to exclusive possession overrode the fact of the Ps possession. Graham v KD Morris: injunction granted against a crane jib Halliday v Nevil: 2 police officers walked up driveway and arrested disqualified driver held: arrest was lawful b/c of implied license to enter for lawful communication. Open and unobstructed, no gate or lock, no notice prohibiting entry. LJP Investments v Howard Chia Investments: D carrying out commercial development and requested scaffolding to go up on neighbours land injunction granted restraining them Lincoln Hunt : invaded the place with dissatisfied customers with rolling camera held: trespass Newington v Windeye: the grove def took down fence and put up low brick wall with gate giving access to the grove. [P] were not the registered owners of the grove, but could still maintain action in trespass b/c had engaged in many acts of ownership over a period of 50 yrs. Employed man to mow lawn & maintained tress garden & rockeries. On many occasions they told uninvited visitors that they were trespassing. Held: entitled to sue b/c trespass protects possession. Plenty v Dillon: father expressly revoked consent of the police, summons could have been sent by post held: trespass, might be different if they were coming to arrest Public Transport Commission of NSW v Perry: A person who had an epileptic fit and fell off a railway platform onto the train lines was held not to have trespassed on the lines. Smith v Stone the D did not commit trespass as he was thrown by 3rd parties onto the land. CASE DETAILS: Employment Albrighton v RPA: If the employee forms part of the employers business organisation then they are Vicariously Liable. It is irrelevant in the case of

CASE DETAILS: Innes v Wylie: Police in doorway no physical contact: no battery Marions case - Parent consent to sterilisation of retarded daughter. Court asked who has right to consent to sterilisation? The Court answered it by finding the sterilisation was non-consensual as Pl did not consent to the contact herself. The onus is on D to prove Pl consented to contact. Test: Did the physical contact go beyond acceptable standards of conduct? McNamara v Duncan: (1979) footballer case

hospitals that just because they have no control over how the Dr operates. Determine if [P] saw Dr or hospital. Hollis v Vabu: D a parcel and document carrier who employs vehicle and bike couriers. P pedestrian who was seriously injured by a bike courier who was illegally riding on the footpath. Held: relationship was employer / employee and endorsed enterprise risk. HC applied Brodribb factors: little control how tasks carried out; unskilled with no special qualifications; training discipline and attire directed by employer, employer supplied some equipment, no negotiation over pay rates; courier supplied own bike. (Crt said may be different for couriers who supply own vehicle) Stevenson, Jordan, v Macdonald: Contract of service: Man is employed as part of business & his work is an integral part of business contract for services: His work, although done for the business, isnt integrated into it but only accessory to it. Stevens v Brodribb Sawmilling: D was sawmilling company who employed tree feelers to cut the trees and sniggers to drag the trees onto the trucks and drivers to drive the trucks. D coordinated the three groups but left them alone to operate their systems. P was a driver who was injured by the negligence of a snigger while loading the truck. Held: snigger not employee of D, not vicariously liable, as groups were totally outside Ds control. authorised acts performed in unauthorised ways

Canterbury Bankstown Rugby League v Rogers: head high tackle, in the course of employment. Morris v Martin & Sons: Mink coat stolen by servant after sent for cleaning. Held D liable for as the theft was a wrongful mode of performance of the employees duty of cleaning it. D was liable on the basis of non delegable duty. Examples of protective relationships:

Employer to employees: Kondis v STA Hospital to patients: Samios v Repatriation Commission / Ellis v Wallsend District Hospitals Schools to students: Cth v Introvigne Occupier in control of premises onto which dangerous substances have been introduced to a lawful visitor: Burnie Port Authority v General Jones Pty Ltd Employer to Employees Albrighton v RPA Regardless of the minimal control hospitals have over Drs, they are Vicariously Liable (absolute liability) as they have a duty to the Drs take Reasonable Care. Kondis Such duties arise because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. A non-delegable duty should be imposed on employers. It is reasonable they should bear liability for the negligence of his independent contractors in devising a safe system of work.

Century Insurancev NIRT If employees actions (smoking whilst waiting for fuel tank to fill) are reasonably incidental to the scope of their employment then employer is Vicariously Liable, even though he wasnt employed to smoke cigarettes. Bugge v Brown Even if employee performs an authorised act in an unauthorised or even prohibited manner then the employer is still Vicariously Liable. CML v P&C Insurance If an Employee goes against the wished of his employer & acts with animosity towards a commercial opponent (knocked them) business then the employer is Vicariously Liable as the employee (salesman) is considered to be acting in the employers interests; trying to sell the employers product

Not liable if employee on frolic of their own Chaplin v Dunstan If a driver detours to get a drink & on this way crashes then the employer is Vicariously Liable as it is a reasonable detour; he is entitled to have a drink Crook v Derbyshire Stone Driver stopped for lunch, involved in fight. Held: that it was driver own business; once out of the truck the employer not vicariously liable. Storey v Ashton A driver backtracking off his route to visit some people is considered a frolic of his own; there was substantial diversion off route. Hilton v Thomas Burton If employees knocked off work early & had drinks, then they are considered to be on a frolic of their own; employer not Vicariously Liable. Harvey v ODell: Workers who took an unauthorised lunch break were held to be acting in the course of employment. Horseplay: Hayward v Georges: slapping a waitress in the back causing her to fall was is the course of employment. Cth v Connell: pushing a naval apprentice off the bridge in the course of skylarking was within the course of employment. Wilful Torts: Poland v John Parrs: Servant struck suspected thief, in the course of employment. Petterson v Royal Oak Hotel: Barman threw glass keeping order in the bar, in the course of employment. Deatons v Flew: Barmaid threw glass private act of retaliatory self defence, not in the course of employment.

Schools to Students Cth v Introvigne Sub contractor: negligence broke flagpole & hit kid. Cth as provider of education had a separate responsibility from merely being vicariously liable for the teachers or others it appointed to carry out and provide education. NSW v Lapore: HC held that non-delegable duties do not impose strict liability. The P is still required to prove fault. Hospitals to Patients Cassidy v Minister for Health Denning J: Hospitals are Vicariously Liable for negligence of their staff. Regardless whether it involves a contracts of service or contract for services. Roe v Min for Health Denning J The reason is because, even if they are not servants, they are the agents of the hospital to give the treatment. The only exception is the case of consultants or anaesthetists selected & employed by the patient himself. Ellis v Wallsend District Hospital: Here the hospital was not liable as the surgeon had been privately consulted by the patient and the hospital had only lent its facilities and support staff to the surgeon. Land Occupiers Safeway v Zaluzna: Land occupiers owe a duty to everyone to take Reasonable Care to prevent foreseeable injury to customers who come onto the land. What is reasonable will vary with their purpose for coming onto the land. Phillis v Daley The DOC is what is foreseeable; Duty to trespassers etc is Calin v Greater Union Perhaps a special duty is owed to contractual entrants to maintain the premises to a standard that is as safe as reasonably possible. Burnie Port Auth v General Jones Property owners owe a non-delegable duty to ensure that persons invited onto their property are protected. Depending on the

magnitude of danger, the standard of Reasonable Care may involve a degree of diligence so stringent as to amount practical to a guarantee of safety (Welding contractor started fire and destroyed part of cold storage) Rylands v Fletcher A person who for his own purposes brings on his land & keeps there anything likely to do mischief if it escapes, must keep it at his peril, & if he does not do so is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to Pls default or perhaps that the escape was the consequence of vis major or the act of God. Had to be non-natural use of the land. This case has since been absorbed by the general law of negligence.

Examples of Interference with Public Amenity Kent v Johnson in my opinion, a substantial deleterious unlawful interference with the nature & quality of the reserve as a park for one to use & enjoy as such as a member of the public would constitute nuisance. Injury to the F&F seems to me to be in the same class of interference as would be the fouling of a public swimming pool (1) Damage to skyline is not legally enforceable as it is subjective & Court cant enforce good taste. (2) Argument of the F&F failed, as it wouldnt substantially interference with public amenity. (3) Also obstructing footpath while constructing building is not a nuisance & is not an unreasonable interference with travel & access. (4) Also public safety on highway is not a nuisance. Must expect delay & inconvenience especially with construction work etc. (5) However if it use & enjoyment then it can be Public Nuisance Public utility principle Wagstaff window display attracted crowds that obstructed roads & shop access. Held: Deliberate action to bring crowds t/f actionable. Thus Xmas lights are indeed public nuisance as they deliberately bring crowd Fabbri v Morris Walk thru ice-cream shop. Held: operating in an unconventional manner that attracted unreasonable Silservice v Supreme Bread customers lined up at shop for fresh hot bread H: Not unreas interference, as it is not the fault of the owner if their business thrives at a specific & particular time of the day & prevent unmeritorious claims. > Tort Reform- Has it gone too far? Function of Torts Tortus twisted or crooked. Torts an act or omission by D, constituting an infringement of an interest of P recognized by law as being worthy of protection against an infringement of that sort, created by an act or omission of that sort, and giving rise to a right to civil action for unliquidated damages. 1. 2. 3. 4. 5. Deterring socially undesirable behaviour Compensating victims of wrongdoing note generally no liability without fault No claim without blameDistributing losses -loss shifting -loss spreadingShould loss/harm be left to lie where it falls or should it be shifted or spread