LAW203 TORTS

INTRODUCTION TO TORTS
Torts: The law of torts concerns the obligations of peopleto respect the safety, property and
personality of their neighbours [Torts] involves questions of how people should treat one
another and the rules of proper behaviour that society imposes on each citizen for avoiding
improper harm to others, and for determining when compensation for harm is due (Owen,
SVW pp 3-4).
Aims, purposes and role of tort law:
1. Compensation
- Compensation is the reparatioin of a wrong by a provision of a sum of money
(damages) awarded by a court
- Damage/harm to a person/property/economic/other e.g. reputation
- Idea of comparator essential e.g. wrongful life? Harriton (HCA, 2006) life as
a harm?
- Fault
- Restitutio in integrum
- Once and for all rule
- Knowledge of the future being denied to mankind there really is only one
certainty: the future will prove the award to be either too high or too law Lord
Scarman Lim Poh Choo (1980, HL).
2. Deterrence
- Industrial safety?
- Consumer goods and services?
- Occupiers liability? Public or private
- Professional neg?
- Roads?
- Effect of insurance?
3. Promotion of safety
4. Punishment?
Tort theory
A) Economic theorists Calabresi, Posner, Coase theorem
- Search for efficiency i.e. minimize costs of accidents + cost of avoidance +
transaction costs societal perspective
- Main focus negligence fault is failure to take interests of others into account
reasonable person precautions
- Action as a rational cost/benefit analysis loss shifting/spreading, but the evidence is
weak
B) Corrective justice
- Morality as basis of tort normative wrongs, e.g. negligence
- Duty to repair harm to others correct wrongs, cf punishment
Examples:
- Fault vs strict liability
- Responsibility personal vs. collective, e.g. Cole v Sth Tweed Heads Rugby League
FC Ltd (2004) 217 CLR 469
- Foreseeable (avoidable) vs direct consequences, WM I, Polemis
- Weinrib, Perry
- Dominant theory in tort
C) Distributive justice
- Distribution of loss and risk in society
- Loss shifting and spreading
- Insurance
- Favour please?
D) Feminist analysis
- Fairness?
- From whose point of view?
- E.g. Griffiths v Kirkmeyer claims
- E.g. nature of reasonable person Rabidue v Osceola
- E.g. definition of harm physical, property, cf mental, early nervous shock cases
Tort law: common law and statute
Pre-2002 mainly common law (cases) + specific statutes eg Workers Compensation
Act 1987; Motor Accidents Compensation Act 1999
Post 2002 need to integrate C/L with CLA
Tort reform Civil Liability Acts - post 2002
Context: The insurance crisis
Collapse of: HIH Insurance group 2001 + United Medical Protection (medical
insurers) + impact Sept 11 on global reinsurance
Perception: incr litigation, incr damages, pro-Pl courts - Simpson v Diamond 2001 -
record $14m
"Negligence: the last outpost of the welfare state [which] encourage[s] individuals
to hold others responsible for looking after them and protecting them from the
consequences of their own conduct Spigelman CJ (2002) 77 ALJ 432
incr in public liability premiums early 2002
Causes? solutions?
Federal legislation introd to accommodate tort law reform by states
Negligence review panel estab chair Justice David Ipp Ipp committee
Ipp Terms of reference : The award of damages for personal injury has become
unaffordable and unsustainable desirable to examine a method for the reform of the
common law with the objective of limiting liability and quantum of damages arising
from personal injury & death
Ipp Reports 2002
2002 - all Australian jurisdictions passed legislation or Bills to deal with insurance
crisis
Civil Liability Act 2002 (NSW)
- CL Act 2002 mainly regarding damages, backdated back to 20 March 2002
- CL Amendment (Personal Responsibility) Act 2002 mainly regarding liability 6
Dec, 2002
- Consolidated
- See also Civil Liability Act 2003 (Qld); Wrongs Act 1958 (Vic); Civil Law (Wrongs)
Act 2002 (ACT); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Civil
Liability Act 2002 (WA); Review of the Law of Negligence, Final Report (2002) (the
Ipp Report)
- D Villa, Annotated Civil Liability Act 2002 (NSW), LawBook Co, 2012
Tort law and human rights
- Human Rights Act 2004 (ACT)
- Charter of Rights & Responsibilities 2006 (Vic)
- Both modelled on UK Human Rights Act 1998
- No national Bill of Rights or equivalent
- Role of tort law?
- E.g. protect individual liberty against govt actions against stat authorities, tort of
misfeasance in public office; false imprisonment, assault/ battery
- Doctrine of crown immunity abolished
- Interpretation of common law in UK is influenced by internet conventions of human
rights
- This is less so in Australia but see e.g. ABC v Lenah Game Meats P/L (2001) 208
CLR 199 (HCA) and Grosse v Purvis (2003) Australian Torts Reports 81-706 (Qld
D/C) whether tort of privacy?
- Human Rights Act 1998 (UK), s 6 unlawful for a public authority to act in a way
which is incompatible with a [European] Convention [on Human Rights] right
INTRODUCTION TO INTENTIONAL TORTS
Trespass and actions on the case
Reading SVW Ch 2, pp. 25-37.
Historical context:
- Tresspass law French transgression = wrongs
- C12- Peremptory writs or forms of action (pleadings)
- Vi et armis et contra pacem regis (with force and arms against the Kings peace)
- Direct forcible interference with person, goods or land of another incl assault, battery,
false imprisonment
- Peace keeping function similarities with criminal law
- Later trespass on the case negligence, nuisance, etc
- Important procedural differences
- Trespass all direct physical contacts
- Case consequentially inflicted injury
- Procedural reforms UK C19 abolished forms of action followed in all Australian
states NSW last 1972 (Supreme Court Act 1970)
- Maitland: The forms of action we have buried, but they still rule us from their
graves
The following are elements of trespass:
1. Directness
The invariable principle is that where the injury is immediate on the act done,
there trespass lies; but where consequential, there the remedy is in case: Leame v
Bray (1803) per Le Blanc J; similar Scott v Shepard (1773)
Hutchixns v Maughan:
[1947] VLR 131; SVW p 28
Facts:
PI drover warned of poison baits (unlawlful) laid on Defs land took his dogs on
poisoned sued in negligence, nuisance and trespass. First instance: PI lost in
negligence and nuisance (i.e. actions on the case), won in trespass.
Issue:
Injury direct or consequential?
Held:
Consequential no trespass
NB log on highway example from Scott v Shepberd / endorsed Leame v Bray
Scott v Shepard
(1773) 96 ER 525 (notes SVW p 29)
Facts
Lighted firecracker thrown in crowded market passed on by 2 intermediaries exploded
and injured PI
Held
Direct because intermediaries acted from compulsive necessity for their own safety and
self preservation
2. Actionable per se
- No proof of damage needed (liability) but relevant to damages (quantum)
- Possible exemption trespass to chattels
- Reflects importance attached to bodily integrity and land in early common
law
3. Fault
- No man shall be excused from trespass except it may be adjudged utterly
without his fault Weaver v Ward (1616)
- Trespass does not lie if the injury although direct was caused
unintentionally and without negligence: Fowler v Lanning [1959] 1 QB 426
- Fault = intent or negligence NB intention re act not consequences
Negligent trespass v negligence:
The distinction between trespass and case is obsolete instead of dividing actions for
personal injuries into trespass (direct damage) or case (consequential damage), we divide
causes of action now according as the defendant did the injury of intentionally or
unintentionally [where unintentional] his only cause of action is in negligence:
Lord Denning, Letang v Cooper [1965] 1 QB 232
^^ this is the law in UK, but NOT IN AUSTRALIA
Williams v Milotin
High Court (1957) 97 CLR 465; SVW p 33
Facts
PI on a bicycle struck by truck driven negligently PI statute barred re trespass but not
negligence won in negligence def appealed def argued that action could have been
framed as trespass therefore statute barred boh
High court
The two causes of actions are not the same now and they never were. When you speak of a
cause of action you mean the essential ingredients in the title to the right which it is proposed
to enforce. The essential ingredients in an action for negligence for personal injuries include
the special or particular damage it is the gist of the action and the want of due care.
Trespass to a person included neither. (p 33-34)
Appeal dismissed.
Ch 3 intentional interference with the person
Reading SVW ch 3 pp 39-58
1. Battery
Elements ie what PI must prove
- Positive act
- Direct and intentional or negligent act
- Touching/contact
Rixon v Star City (2001) 53 NSWLR 98; SVW p 41
Facts
- PI patron sued casion for unlawful arrest, false imprisonment, assault
- PI subject to exclusion order under Casino Control Act 1992 (NSW) detained by
e/ee in interview room at casino 1.5 hours before police arrived stress/anxiety
- At trial no assault beause no intention no battery because no hostile attitude
- PI failed re false imprisonment and unlawful arrest because Def acting within power
CC Act
Court of appeal
SHELLER JA:
- The least touching of another in anger is battery: Cole v Turner (1704)
- Except for normal every contact: Cole
- Touching need not be hostile (Wilson v Pringle [1987] QB 237) nor in anger Cole
- Any touching of anothers body is, in the absence of lawful excuse, capable of
amounting to battery and a trespass: In re F (Mental Patient: Sterilisation) [1990] 2
AC 1 at 73 per Lord Goff of Chiveley; Collins v Wilcock
- Collins v Wilcock [1984] 1 WLR 1172, per Robert Goff LJ (later Lord Goff) every
persons body is inviolate principal of autonomy. Refer Blackstones Commentaries
(1830) SVW p 42
- Exception exigencies of everyday life implied consent to contact: Collins - or
general exception
- Pls appeal dismissed
2. Assault
Elements
1. Reasonable apprehension of imminent contact: Zanker v Vartzokas
Facts
PI accepted lift from def stranger refused offer of money for sex def speeded up
when she asked to get out opened door and threatened to jump Im going to take
you to my mates house. He will really fix you up van doing 60km/h PI jumped
injured.
Def charged with assault only denied conceded false imprisonment magistrate
found for def because no fear of immediate violence on facts PI appealed
White J (Supreme Court SA)
o Discusses assault and false imprisonment Macpherson v Brown (1975, SA)
student demo at Flinders Uni
o Present fear of relatively immediate imminent violence immediate and
continuing fear while in car
o Barton v Armstrong (1969, NSW) held: serious threats by phone can put
reasonable person in fear of later violence = assault, even though PI does not
know when depends on circs
o Gist of the offence of assault is putting a person into apprehension of
impeding physical contact: Taylor J Barton
o The effect on the victims mind is the material factor, and not whether the
def actually had the intention or the means to follow it up: Taylor J Barton
o Significant in Zanker that PI imprisoned car continuing fear
o Some doubt re Barton circs as assault
o Held: appeal allowed conviction for assault occasioning ABH
o Harm from jumping = occassioned whether def foresaw or not
o If threat produces fear or apprehension of physical violence the law is
breached, although the victim does not know when that physical violence
may be effected
2. Interaction to use force or create apprehension re use of force: Hall v Fonceca
Fault:
Facts
Action for battery def claimed acted in self defence to assault during argument
defence upheld at trial PI appealed arguing no assault as no finding of intent
Smith and Kennedy JJ:
- Must be intention on the part of assailant either to use force or to create an
apprehension of the use of force (SVW p 50)
- This is an element of assault
- Appeal dismissed
3. False imprisonment
Elements:
1. Direct act
2. Intention/fault
3. Deprives PI of liberty without lawful justification
Total imprisonment:
Balmain New Ferry Co v Robertson (1906) 4 CLR 379 (HCA) SVW p 55
Facts
Defs operated ferry private wharf notice near turnstiles: fare of one penny must be paid
on entering or leaving wharf PI paid missed ferry prevented from exiting turnstile by
defs e/ees unless paid again PI forced way out
Sued for assault and false imprisonment lost re both
Griffith CJ PI free to leave premises by water, so no imprisonment, no assault
O Connor J abridgement of a mans liberty is not under all circs actionable restraint of
liberty here an implied term of a contract.
The company of being lawfully entitled to impose that condition and the PI being free to pass
out through turnstile at any time on complying with it, he has only himself to blame for his
detention, and there was no imprisonment (p 392).
Assault defs entitled to prevent PI from squeezing through and justified in meeting PIs
forcible attempt with as much force as was necessary to defeat it if assault, then justified
Robinson v Balmain New Ferry [1910] AC 295 (Privy Council)

Upheld HCA - Finding for def Pl entered wharf of own free will defs entitled to
impose fair conditions Pl could wait for next ferry

Symes v Mahon [1922] SASR 447 (SVW p 57 notes [3.115])
Facts
Pl told by police with arrest warrant that he had to go with police by train because of warrant
Pl went next day in separate carriage and bought own ticket - mistaken identity
Held
Murray CJ - false imprisonment from time of entering train until formal release, because
complete submission of Pl to control of def reasonable belief that no reasonable way of
escape
Murray v Ministry of Defence
[1988] 1 WLR 692 (H/L); SVW p 58

Facts
Pl detained on suspicion of IRA involvement period in own house not told under arrest
until later C/A held knowledge of imprisonment essential, relying on Herring v Boyle Pl
not imprisoned until told of arrest
Lord Griffiths (H/L) all others agreed

Not essential element of false imprisonment that victim be aware of imprisonment
Herring wrong
Discusses Meering v Graham-White Aviation (SVW p 58) e/ee held for questioning
at work over suspected theft unaware that
Instruction not to allow him to leave - knowledge not essential eg can be
imprisoned while asleep or unconscious but affects damages
Note reference to USA Restatement of Torts Pl must be aware of confinement or
harmed by it but not law in UK, Aust
The law attaches supreme importance to the liberty of the individual wrongful
interference actionable without proof of special damage (SVW p 59)
ACTION ON THE CASE
Indirect intentional infliction of
personal injury
(ie NOT trespass)

Wilkinson v Downton
[1897] 2 QB 57 (Queens Bench); SVW p 61
Facts
Pl (Mrs W) told by Def that H seriously injured practical joke travel expenses serious
and permanent physical consequences threatening her reason
Wright J Def has wilfully done an act calculated to cause physical harm to Pl and has in
fact thereby caused physical harm That proposition, without more, appears to me to state a
good cause of action (test)
Wilkinson

Not trespass indirect (speech)
Not negligence intentional + Victorian Railways Commissioners v Coultas P/C
1888
NB Wright J in Wilkinson v D distinguished Coultas & Allsop v Allsop (1860)
because there was notany element of wilful wrong
Action on the case indirect intentional injury
o A on C for physical injury based on intentional statements?
o Extension of A on C for physical injury cf Bird v Holbrook
(1828 spring gun case)
Meaning of intention

Wilfully done an act calculated to cause physical harm W v D
Trespass: intentional act not consequences (actionable per se)
Action on Case intent re both
Defs act so plainly calculated to produce some effect of the kind which was
produced that an intention to produce it ought to be imputed to the Def
Reckless indifference? (objective test?)
Nationwide News v Naidu (2007) 71 NSWLR 471 (C/A); SVW p 62

Facts
Pl 30 y/o Fijian male security guard employed by Group 4 to work at Nationwide
under NW e/ee Chaloner
v extreme bullying over 4 years PTSD & depression
Sued both e/ers in negligence and Group 4 in contract also in W v D
At trial (S/C) - both defs liable no finding on W v D Pl awarded $1.9m.
NSW Court of Appeal
Spigelman CJ

Appeal on neglig should be allowed so necessary to consider W v D
Recognises W v D cause of action as accepted by HCA in Bunyan v Jordan (1937)
and NT v Mengel (1995)
W v D cases now either neglig or intentional infliction P. I.
P.I. requires recognized psych condition as in neglig
Foreseeability & reasonableness not relevant to intention
But meaning of calculated?
Psych injury reasonable foreseeable on facts re neglig but more certainty needed for
intentional tort
Discusses Carrier v Bonham (see notes below)
McPherson JA Carrier calculated capable of meaning either subjectively
contemplated and intended, or objectively likely to happen SVW p 65
Actual subjective intention not required
Enough if test of substantial certainty satisfied
Reckless indifference estab on findings at trial enough to prove intention as in Crim
L
Nature & scale of Chaloners conduct recognized psych injury natural & probable
consequence
C would have been liable in W v D if sued
Carrier v Bonham [2002] 1 Qd R 474 (C/A Qld) - discussed in Nationwide News v
Naidu and notes SVW p 65

Facts

Mentally ill patient B escaped from Qld state hospital - attempted suicide by jumping in
front of bus driver C emotional injury & adjustment disorder unable to work econ
loss sued B & state - W v D

Held at trial

B liable for intentional act calculated to cause Pls harm W v D
State not vicariously liable
LECTURE 2
TORTS
TRESPASS TO LAND
Meaning of land:
Bernstein v Skyviews [1978] QB 479; SVW p` 79
Facts
Defs aerial photographers took pictures of PIs stately home and tried to sell to him PI
wrote alleging breach of privacy no tort of privacy at that time in UK sued for trespass
Issue
Meaning of land for trespass? From heaven to hell (Latin maxim)
GRIFFITHS J
- Must balance owners rights to enjoy property against publics rights to benefit from
technology planes, satellites, etc
- Owners rights in air space restricted to such height as is necessary for ordinary use
and enjoyment of land and structures upon it
- No trespass
- NB see Bocardo v Star Energy [2011] AC 380 (SVW 80) re substrata
Title of the plaintiff
Newington v Windeyer (1985) 3 NSWLR 555 (C/A) SVW p 82
Facts
Pls occupiers of properties adjoining the grove deceased estate in Woollhara treated as
own def also occupied adjoining property wanted to share Grove at trial pls won in
trespass to land
MCHUGH JA
- Pls not owners but can still sue in trespass
- Re old system title possession gives good title against all except those with better
(older) titles
- Person in adverse (to true owner) possession still has legal interest
- Authority that also applies to Torrens title land conceded in Newington
- Conduct that indicates taking of possession here 50 years, employed gardener and
maintained land, used for parties/weddings etc, paid council rates, vigorously
excluded others
- Held pls won in trespass
Trespassory conduct entry to land
Kuru v State (2008) 232 CLR 410; SVW p 86
GLEESON CJ, GUMMOW, KIRBY, HAYNE JJ
Facts
- Police called to violent domestic Ms K had left and Mr K in shower when police
arrived
- Door open police entered later asked Mr K if the could look around he agreed
- Later K angrily and repeatedly told police they did not
- K started a fight with the police
- K sprayed with capsicum and handcuffed fell down the stairs arrested and taken
to the police station released after few hours
- K sued for trespass to land, trespass to person, false imprisonment
- Won at trial
Court of appeal
- Only issue whether police trespassing in flat at time fight began, i.e. parties agreed
that outcome of trespass to person and false imprisonment claims must be same as
trespass to land
- Unanimous finding for NSW police not trespassers Crimes Act and CL
justification for police to remain on land after permission withdrawn
High court
- Appeal allowed no CL or stat justification to remain on premises police were
trespassing
- Should have left and sought warrant safeguard for individuals civil liberties
- Plenty v Dillon (1991) 171 CLR 635 can only enter land with consent or by lawful
authority police no special rights apart from this
- Authority can be revoked then must leave ASAP
- Halliday v Neville implied licence for all to enter if no physical barrier to notice
but only for legitimate purpose where no interference with occupier or injury
Halliday v Neville (1984) 155 CLR 1 discussed Kuru SVW p 88-9
Facts
- Police saw Halliday driving out of neighbours driveway knew he was disqualified
- H saw police and drove back in
- Police walked down open drive and arrested H
- H ran to own house police chased into house scuffle H charged with escaping
lawful custody, resist police, assault
At trial
- Held driveway arrest unlawful because police are trespassers dismissed from
arrest
S/C Vic
- Arrest lawful even though trespass occurred PI guilty of escape from lawful custody
police entry to home justified Crimes Act (Vic)
- Encroachment
HIGH COURT GIBBS CJ, MASON, WILSON, DEANE JJ
- Important issues re liberty
- Agreed that appeal can only succeed if police trespassing when arrested PI
- Police had implied licence from neighbour to enter driveway
How to determine licence?
- Means of access (open, locked gate, etc)
- Lawful communication with or delivery to occupier
- Public may enter for legitimate purpose that involves no interference with occupiers
possession nor injury to occupier
- Implied licence includes police in execution of duties
Held no trespass arrest lawful
NB note dissent Brennan J case about privacy in home public authority v private
dwellings
Lincoln Hunt Aust P/I v Willessee (1986) 4 NSWLR 457 (S/C NSW) see SVW notes p 90
Facts
- Consumer dispute unhappy client went to PIs premises with TV reporter and film
crew who harassed staff and filmed incl opening interior doors
- PI applying for injunction to stop film being shown on TV because it will bring
prejudice to business goodwill
Issue
- Trespass licence was def a trespasser from outset or only once licence revoked?
- NB this case is about competing principles of publics right to know (freedom of
press) vs individuals right to privacy and freedom from harassment and invasion of
property rights
YOUNG J
- H/C reviewed authorities in Neville v Halliday
- Common sense attitude to entry onto private premises without express permission
- Must analyse express or implied invitation from occupier in each case
- Implied invitation generally for limited purposes entry for other purposes is trespass
from outset
- On facts, implied invitation to members of public by business to enter for legit
business purposes only, not purposes of own contrary to interests of occupiers
- S/C has jurisdiction to grant injuction to restrain publication of videos, photos, etc
taken by trespasser even if confidential
- But will only do so where publication unconscionable
- PI must also show that irreplacable damage will be suffered if no injuction +
balance of convenience favours PI (standard test for injunction Castlemaine
Tooheys v Sth Aust)
- PI shown prima facie trespass but not shown irreparable damage
- Injunction refused remedy in damages open
Plenty v Dillon (1991) 171 CLR 635 discussed in Kuru SVW p 87-88
Facts
- Police entered PIs premises to serve summons on his daughter as neglected child
- PI had previously told police entry to premises refused and should serve by mail
- PI sued in trespass
Full court S/C SA
Held no trespass because entry justified to execute legal process includes service of
summons PI appealed to HCA
High court Mason CJ, Brennan, Toohey JJ
- 3
rd
rule in Semaynes case (1604) entry justified at common law for execution of
kings process
- Does not justify breaking down the door to serve summons on present facts
- No statutory power either in circs
GAUDRON AND MCHUGH JJ
- Irrelevant that there was no damage to land
- Purpose of trespass to land is not just compensation for harm but also vindicates PIs
right to exclusive use and occupation of own land
- Irrelevant that PI uncooperative or unreasonable
- Held appeal allowed judgment of full court set aside sent back to FC to assess
damages for trespass
INTERNATIONAL INTERFERENCE WITH CHATTELS
SVW ch 5 pp 95-128
Definition chattel moveable property or goods, i.e. not attached to land, tangible e.g.
cheque, and intangible e.g. $ value of cheque
Interference with chattels (POSSESSIONS/BELONGINGS) possible causes of action:
- Trespass
- Conversion
- Detinue
- NB consider action on the case or negligence if chattel is damaged (harm present)
Which cause of action?
- Significant overlap between trespass/conversion, and detinue (a legal claim to collect
wrongfully obtained goods)/conversion (the changing of real into personal property,
or joint into separate property)
- Use trespass to chattels where conversion excluded
- Main remedy damages, but detinue (only) also allows restitution of chattels
Factors to consider:
- Title to sue actual possession
- Whether harm?
- Remedy sought damages or restitution?
Trespass to chattels:
- Same elements as other forms of trespass direct, fault, actionable per se? (query
whether chattels actionable without harm)
- Act by def which intentionally or negligently directly interferes with PIs actual
possession of chattel at time of interference without lawful justification
- Only the person with actual possession (control) has title to sue, must also have
intention to control (SVW p 99)
- Possession means factual control, not ownership (e.g. Newington v Windeyer)
- Need not to be lawful possession
- Exceptions to need for possession bailment at will (terminates on demand) or for
a term (agreed period e.g. until car repaired by garage)
- Bailment = transfer of possession for a limited time by a bailor to bailee may be by
contract but not essential
- Bailor at will can sue for trespass to bailees possession but not true for bailor for a
term
Title to sue possession
Penfolds Wines P/L v Elliott (1946) 74 CLR 204; SVW p 100
Facts
- Penfolds customers bought wines in trademarked bottles from P P owned bottles
- Customers included Es brother left bottles with def Elliott to be refilled with Es bulk
wine P sued E in trespass and conversion
- NB see above on bailment
Issue
- Whether P has title to sue in trespass, i.e. meaning of possession
DIXON J (maj)
- Trespass depends on invasion of possession
- Here, no invasion brother gave possession of bottles to E brother may be bailee
but not important
- A has title to sue for trespass to goods in Bs possession where B is bailee, servant or
agent of A
- Termination of bailment may allow bailor to sue in conversion but not in trespass
- Bailee cannot commit trespass to goods which holding for bailor unless e.g. complete
destruction or significant change to nature of goods
- Held no trespass
Chairman National Crime Authority v Flack (1998) 86 FCR 16 (Fed C/A) SVW p 103
Facts
- Police searched Sydney premises
- Sole occupant tenant Ms Flack
- Search warrant to look for drugs belonging to adult son son and others had keys
- Found briefcase with large amount of cash F denied any knowledge police
confiscated
- No prosecution by NCA 3 years later still refused to return briefcase
- Argued F not sufficient title to sue for return (finder case)
- Finding for F at trial appeal by NCA
Issue
- Whether an occupier of premises manifests a sufficient intention to control (possess)
all chattels, known and unknown, which are on the premises (subject to only one
superior right) to give title to sue? (SVW p 104)
HEERVEY J
- Relevant time re intention to possess is immediately prior to finding of chattels
- F ordinary residential tenant therefore possession of premises sufficient to
establish intention to possess all chattels on premises
- Endorses Parker v British Airways Board (UK C/A) occupier of private home
normally manifests necessary intention to control better claim than finder
- Possessory right exists even where chattel hidden or deliberately placed on premises
- F has possessory rights against all except true owner common law
- Statutory rights? Police may only seize for purposes of investigation/prosecution
- NB the power to enter on private property and seize goods is a substantial
interference with ordinary liberties and should not be extended
- Appeal dismissed
TAMBERLIN J
- Largely agrees with Heerey J - Appeal dismissed
- Others with keys to Fs house licensees of F not extinguish Fs possession &
control of premises
- Possession depends on occupiers power to exclude others (control)
- Intention to possess chattels which not aware of legal fiction - prefers rebuttable
presumption of fact
- Nature of premises & location of goods v important
CONVERSION (TROVER)
Definition
The essence of conversion is dealing with a chattel in a manner repugnant to the immediate
right of possession of the person who has the property in the chattel Penfolds v Elliott per
Dixon J
Title to sue
- Either actual possession when wrongful act done
- OR right to immediate possession at that time
NB conversion actual possession OR right to immediate possession compare trespass
actual possession only
Right to immediate possession: at time of conversion
- Where bailment, bailee has immiedate right to possession
- If stolen, bailee (not bailor) has title to sue
- See Sadcas v Business and Professional Finance
Sadcas v Business and Professional Finance [2011] NSWCA 267 SVW p 113
Facts
- Cedars leased food shop from landlord Sadcas rented kitchen equipment from defs
for 4 year term
- Business failed Cedars moved out leaving equipment behind but continued to pay
reduced rent on equipment
- Sadcas re-let shop Feb 2006 new tenant used equipment although not included in
lease
- August 2006 defs (resp) terminated lease on equipment and demanded its return
Issue
- Whether landlord re-leasing shop containing rental equipment conversion of
equipment?
GILES JA
1. PI must have possession or right to immediate possession at time of conversion to sue
in conversion
- Conversion is wrong against possessory interest not ownership interest so finder
can sue in conversion
- Def bailed equipment to Cedars via contract (rental agreement) so could not sue in
conversion unless right to immediate possession
- No such right in February 2006 as agreement still on foot
Defs argument:
1. Had common law rights in addition to contract under C/L bailment ended when
Cedars parted with possession by vacating shop cite Union Transport v BCA and
Penfolds
Accepts that could be termination of bailment at C/L but not necess to decide
No bailment on present facts must be conduct of bailee wholly inconsistent with
bailment vacating shop not obvious breach of agreement and maybe not constitute
parting with possession not inconsistent with Defs rights
2. Argument based on Smith v Bridgend County Council rejected
If no conversion by landlord in Feb 2006 then def no immed right to possession
- Landlord an involuntary baillee re-leasing shop did not prevent Def from taking
equip back
- Mere possession (equip in shop) not conversion
- Transfer of possession to new tenant does not purport to transfer title to tenant, or
right to possession
- Use of goods is not a conversion: Penfolds (Dixon J) (SVW p 117)
- Held no conversion
- Whealey and Handley JJA agreed
Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 (UK C/A);
SVW p 114
Facts
- Pls Union T sued defs for conversion of car
- Defs auctioned car in good faith for Smith to innocent 3
rd
party Smith bailee of car
under HP agreement selling goods breach of HP agreement terminiate by default
notice and repossession. Pls won at trial (Lawson J) appeal by auctioneers
ROSKILL LJ (Maj Bridge and Cairns LJ similar)
- Common law if bailee acts in way that destroys basis of contract of bailment, bailor
may end C and acquired right to immediate possession of chattel
- Only issues whether C/L varied by contract on facts
- Possible to contract out of C/L position, but requires very clear language not here
- Smith had possessory title only under HP agreement lost when destroyed agreemt
by dishonest act (selling car)
- So S could not convey any form of title incl possessory title to auctioneer or innocent
purchaser
- Therefore auctioneer liable in conversion
- Appeal dismissed
- NB intent re act (selling)
Conversion and fault
- Mental element must be intent cf trespass (intent or negligence)
- I.e. intention to deal with chattel not to commit tort
Dealings constituting conversion/acts repugnant to right of possession
Using anothers chattels
Penfolds v Elliott (extract 2, SVW p 120) as above
LATHAM CJ
- Taking (asportation) of bottles without intent to exercise permanent or temp dominion
not conversion could be trespass
- Actual use of bottles for benefit of def & brother is conversion
- Essence of conversion is dealing with anothers goods as owner
- Def liable in conversion
DIXON J
- Not conversion
- The essence of conversion is dealing with a chattel in a manner repugnant to the
immediate right of possession of the person who has the property in the chattel
(SVW p 121)
- Damage to the chattel is not conversion, nor is use, nor is a transfer of possession
otherwise than for the purpose of affecting the immediate right to possession (p 121)
- Intent to deprive true owner of immediate right to possession or impair it is essence of
conversion
- No injunction, appeal dismissed
WILLIAMS J
- Allow appeal, grant injunction
- Conversion because Defs knowledge that bottles Ps property
- Period of dispossession relevant to damages but not liability
- Taking or receiving possession, delivery, detention of goods, denial of title see
SVGW pp 124-128
DETINUE
SVGW p 128 -132
Definition: Demand + refusal wrongful refusal to tender goods on demand by person
entitled to possession
- Detinue wider than conversion avail against person no longer in possession at time
of demand
- Abolished in UK and merged with conversion
LECTURE 3
Defences to intentional torts:
1. Consent
2. Necessity
3. Self defence and defence of others
4. Provocation?
5. Contributory negligence?
6. Others
1. CONSENT
Valid consent requires:
1. Volition +
2. Information +
3. Capacity
There is an onus in Australia on the def to prove consent defence.
Cf UK Freeman v Home Office (No 2) and NZ onus on PI to prove no consent, ie lack of
consent is an element of offence. Consent can be express or implied, oral or written.
- Fundamental right to self determination (autonomy) competes with other dominant
medical principle of beneficence (good of patient)
- Autonomy is so important that patient cannot be compelled to have treatment even
where death will result in In re T (Adult: Refusal of Treatent) [1993] Fam 93 (CA);
Malette v Shulman (1990) 67 DLR (4
th
) 321 (Jehovahs witness succeeded in battery
re blood transfusion)
- Possible exemption for pregnant women where foetus will die: In re T, 102 (Ld
Donaldson MR). See also in In re s (Adult: Refusal of Treatment) [1993] Fam 123; St
Georges Healthcare NHS Trust v S [1999] Fam 26 (CA)
- But held pregnant women not exception: R v Collins [1998] 3 WLR 936, 957 (Judge
LJ)
INFORMATION
- USA informed consent rejected in Australia, UK and Canada
- Australia doctors must inform patients in broad terms of nature of procedure:
Chatterton v Gerson, Ellis v Wallsend District Hospital; Rosenberg v Percival
- Failure to warn of risks is negligence, not trespass, unless goes to the basic nature and
character of procedure (i.e. vitiates consent): Rogers v Whitaker
CAPACITY
Adults presumption of capacity
Children and intellectually disabled
- Gillick v West Norfolk Area Health Authority (HL UK)
- Marions case (HCA Australia)
Secretary Department of Health and Community Services v JWB and SMB (Marions case)
(1992) 175 CLR 218; SVW p 146
MASION CJ, DAWSON, TOOHEY, GAUDRON JJ
Issues:
1. Parental consent as exception to need for personal consent to medical treatment of
others
2. Is sterilisation an exception falling outside parental power to consent?
Consent
- Gillick minor can consent when achieves a sufficient understanding and
intelligence to enable him or her to understand fully what is proposed (Lord
Scarman)
- Approved HCA
- Intellectually disabled children higher age for consent
- No presumption of incapacity for intellectually disabled children
- On facts Marion not capable of valid informed consent
Sterilisation
- Limits of parental power separate issue from childs capacity
- Where parental power, must have subjective consent of parent and welfare of child
(objective)
- Authorities unclear Re Eve (Canada) non therapeutic sterilisation never in best
interests so never can be authorised under parens patriae jurisdiction
- Cf USA sterilisation for contraception outside parental power but within parens
patriae
- Reasons for treating sterilisation differently: fundamental right to procreate,
fundamental right to bodily integrity/inviolability
- Sterilisation not within parental power court order needed safe guard
- Reasons: significant risk of making the wrong decision + serious consequences of
wrong decision
- Risk of wrong decision because:
o Complexity of consent
o Medicalization of decision ignores social/psych consequence
o Gravity of sterilisation and ethical, social, personal consequence
o Potential conflict of interest between childs and parents interests
o Gravity of consequences of wrong decision flows from:
Inability to reproduce, and denial of personal autonomy social and
psychological issues
Held
- Non therapeutic sterilisation is special case no parental power to consent court
authorisation essential
- NB discussion of cost issues re court proceedings
- NB High Court unwilling to endorse right to reproduce decision depends on right
to personal inviolability
NB many Statutory Provisions affect consent & may modify common law

Eg
Minors (Property and Contracts) Act 1970 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Guardianship Act 1987 (NSW)
Mental Health Act 1990 (NSW)
Human Tissue Act 1983 (NSW)
Migration Act 1958 (Cth)
Parens Patriae jurisdiction
- Supreme court has parens patriae jurisdiction essentially protective in nature:
Marions case
- Empowers court to give consent on behalf of minors or other persons unable to
consent, e.g. disability or unconsciousness
- E.g. MAW v Western Sydney Area Health Service [2000] NSW SC 358 court order
sought to permit taking of sperm from dying comatose patient to impregnate wife
after his death
- Refused OKeefe J parens patriae jurisdiction: does not extend to authorising a
non therapeutic surgical procedure [which] is not a procedure that will preserve the
life of the patient[nor] which will safeguard, secure or promotethe physical or
mental wellbeing of the patientrecognition of yet another special case [in addition
to sterilisation in Marions case, would] operate to weaken the general principle of
inviolability of the body of the individual. pars [41] and [42] MAW v Western Sydney
Area Health Service
Consent must not be exceeded sporting cases
- Issues usually regard degree of force in contact sports especially contact outside rules
of game
- Players do not consent to blows which are both deliberate and outside rules:
McNamara v Duncan; Guimelli v Johnson (1991) Aus Torts reps 81-85; Canterbury
Bankstown Rugby Football Club v Rogers (1993) Aus Torts reps 81-246
- Stronger case for implied consent where rougher sports occur, e.g. boxing Pallante
v Stadiums Ltd (No 1) [1976] VR 331 distinction between blows mainly intended to
injure and blows of skill in accordance
McNamara v Duncan (1979) 45 FLR 152 (S/C ACT); SVW p 154
Facts deliberate head high tackle in Aussie rules fractured PIs skull breach of rules PI
sued in trespass (assault)
Issue consent?
FOX J:
- No consent
- Contrary to rules/deliberate
- Endorses difference between breach of skill
- Rules and breach of safety rules
- PI succeeds
Revocation of consent
- Can be revoked but may not operate immediately
- E.g. Herd v Weardale Steel & Coal CO [1915] AC 67
- Miners strike during underground shift management refused to bring up miners in
cage until end of shift held no false imprisonment
2. NECESSITY
- Act must be reasonably necessary to protect person/property
- Must be urgent situation of imminent peril
- Defs act reasonable in circs and proportionate to risk
- Complete defence
Protection of property
Proudman v Allen [1954] SASR 336; SVW notes p 166-7
Facts
- Actions for trespass to goods
- Defs car parked in by PIs car 3 others pushed car out of way lost control of it on
slope crash likely
- Def tried to put on hand brake failed turned car away from other car car ran over
embankment into sea
- At trial finding for def action reasonable in circumstance PIs appeal only on law
The test is grave and imminent peril !
HANNAN AJ
- Discussion various textbook authorities; review of case law
- Magistrate correct, appeal dismissed
- Necessity a defence to trespass to goods where reasonable steps taken on an occasion
of urgent necessity to safeguard property
- NB reasonably judged in context of emergency
- Does not require interest in property or duty
London Borough of Southwark v Williams [1971] Ch 734 UK C/A; SVW p 167
Facts
Homeless family squatted in PIs empty house PI sought court order for immediate
possession defence of necessity
LORD DENNING
- Necessity is defence to trespass to land in some cases of great and imminent danger
- May destroy property to save life Mouses case (1608) ok to throw valuables
overboard in a storm
- Ok to pull down house to prevent spread of fire (Great Fire London 1666)
- Not OK killing and eating cabin boy R v Dudley & Stephens murder
- Not OK stealing because hungry larceny
- The reason is because, if hunger were once allowed to be an excuse for stealing, it
would open a way through which all kinds of lawlessness would pass Necessity
would open a door which no man could shut So the courts must, for the sake of law
and order, take a firm stand and trust that [the needys] distress will be relieved by
the charitable and the good (SVW p 168)
- NB See cases discussed in Notes pp 168-9 - similar strict approach Aust, NZ - high
level of danger needed for necessity
- NB Proudman v Allen circs - Def has damaged Pls property, Pl left with losses
fair? - cf USA Def may be liable for partial compensation
Necessity and protection of a person
In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (H/L) SVW p 169
Issue does necessity justify medical treatment in interests of patient where theres no
consent?
LORD GOFF
- Public and private necessity acting for public good or own
- 3
rd
cat good of another
- Necessity principle may be emergency but not essential
- Persons unable to consent e.g. through incapacity not an emergency
1. Must be necessity to act when cannot communicate with assisted person, and
2. Action must be reasonable in all circumstances, and in best interests of assisted
person
- Intervention not justified if more appropriate person is available to act, and
- Not justified if contrary to known wishes of assistee, e.g. Jehovahs Witness cases
Malette v Shulman trespass
- Where incapacity temporary (e.g. unconsciousness) minimum intervention only you
must wait for consent for additional treatment
- Where permanent or semi permanent incapacity doctor must act in best interest of
patient need not show treatment necessary law will treat as consent
- Doctor must act in accordance with a responsible and competent body of relevant
professional opinion: Boalm v Friern Hospital Management Committee [1957] 2 All
ER 118
- [NB re negligence, see Rogers v Whitaker and CLA]
- Intervention by non professionals justified by necessity
- See Marions case consent not necessary where emergency and no capacity and no
one else able to consent
- See notes SVW pp 172-75, pregnant women, refusal of treatment, children, force
feeding prisoners, lawful killing e.g. conjoined twins (kill one by surgical separation
to save other)
- NB exception cannot rely on necessity where own negligence caused or contributed
to the necessity
3. SELF DEFENCE
- Defence of self
- Defence of others possibly confined to family/household but probably wider
- Defence of property OK to use reasonable force to eject trespasser/deter entry
Fontin v Katapodis (1962) 108 CLR 177; SVW p 158
Issues
1. Whether reasonable for def to defend self?
2. Whether reasonable/proportionate force?
Facts
- Argument between shop assist F and customer K in glass shop
- K hit F on arm with set square
- F threw glass at K cut ulna nerve in hand serious
- K sued F for assault and battery and employers re vicarious liability
- Def argued self defence e/ers argued no course of employment
AT TRIAL BRIDGE J
- Held K assaulted F first, but F exceeded right of self defence finding for PI + no
vicarious liability damages payable by F
- Damages mitigated (reduced) because of provocation 2850 pounds down to 2000
- F appealed re self defence; K cross appealed on Vic L and mitigation
MCTIERNAN J
- Throwing glass out of all reasonable proportion to emergency
- Trial judge correct in finding not necessary
- Personal quarrel no course of employment no vicious liability
OWEN J
- Agrees with trial judge
- Available means of escape not decisive in judging reasonableness
- No vicious liability
Civil Liability Act 2002 (NSW)
NB s 3B, Pt 7, especially s 52
3B Civil liability excluded from the Act
(1) The provisions of this Act do not apply to or in respect of civil liability (and awards
of damages in those proceedings) as follows:
(a) civil liability of a person in respect of an intentional act that is done by the person
with intent to cause injury or death or that is sexual assault or other sexual misconduct
committed by the person- the whole Act except :
(i) section 15B and section 18 (1) (in its application to damages for any loss of the kind
referred to in section 18 (1) (c)), and
(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of
an intentional act that is done with intent to cause injury or death
PART 7 - SELF-DEFENCE AND RECOVERY BY CRIMINALS

Division 1 - Limitations on damages
51. Part applies to civil liability for death, injury or property damage
52. No civil liability for acts in self-defence
53. Damages limitations apply even if self-defence not reasonable response
54. Criminals not to be awarded damages
54A. Damages limitations if loss results from serious offence committed by mentally ill
person
52 No civil liability for acts in self-defence
(1) A person does not incur a liability to which this Part applies arising from any conduct
of the person carried out in self-defence, but only if the conduct to which the person
was responding:
(a) was unlawful, or
(b) would have been unlawful if the other person carrying out the conduct to which the person
responds had not been suffering from a mental illness at the time of the conduct.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct
is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of
another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any
such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional or
reckless infliction of death only:
(a) to protect property, or
(b) to prevent criminal trespass or to remove a person committing criminal trespass
4. PROVOCATION?
Frontin v Katapodis
- Provocation not a defence to battery
- Does not reduce compensatory damages
- But may reduce exemplary (punitive) damages
- Frontin approved HCA in Lamb v Cotogno (1987) 164 CLR 1 at 13
- See also Horkin v Nth Melb Football Club
5. CONTRIBUTORY NEGLIGENCE?
- Not absolute defence qualified
- Apportionment Law Reform (Miscellaneous Provisions) Act 1965 (NSW) pt 3
- Common law cannot have 100% contribution: Wynbergen v Hoyts Corporation
High Court 1997 but overturned by CLA (NSW) s 5S
Horkin v Nth Melbourne Football Club Social Club [1983] VR 153; SVW p 164
Facts PI drunk licence to be on defs premises revoked ejected more force than
necessary PI resisted injured defs servants guilty of battery
Issue whether contributory negligence is a defence to battery? (Intentional)
BROOKING J
- At common law contributory negligence is not defence to battery
- Distinguish between contributory negligence as a defence and as relevant to
mitigation of damages
- Cases in UK, NZ and QLD discussed where contributory negligence can lead to
apportionment in battery
- Contributory negligence in causation? overlap but not total: Alford v McGhee
- PI cannot escape contributory negligence by pleading car accidents in trespass
- Endorses prosser contributory negligence no defence to intentional injury
- Based on difference between fault of PI and def different in both kind and degree
NB see State NSW v Riley note 1 SVW p 165 exception
Day v Bank NSW (1978) 18 SASR 163 (S/C SA) SVW notes p 165
Facts P real estate agent 2 cheques, one or bearer, other endorsed by 3
rd
party Ps agent
(3
rd
party) received chequeks and deposited to own account with def bank bank collected
cheques for 3
rd
party P sued bank in conversion bank argued contributory negligence
Held contributory negligence not defence to conversion
6. OTHER DEFENCES
Mistake innocent mistake is usually no defence to intent torts, may be regarding,
e.g. arrest
Inevitable accident either no intentional act, or no intentional invasion of PIs
interest + all reasonable care taken
Self help: reception of chattels retaking of chattels where right to immediate
possession reasonable force allowed no cases since C 19; similar entry on land to
re-possess
Discipline: C/L defence regarding e.g. corporal punishment may be available to
parents, teachers
Illegality: may be defence to intent torts and negligence
Legal process: entry on land for purposes of legal process may be a defence, e.g. eg
Halliday v Neville (arrest, implied licence, no trespass), Plenty v Dillon (serve
summons, explicit refusal of licence, trespass) can be via authority eg search
warrant (NCA v Flack) or statutory
Holder of unwanted goods: various statutory defences e.g. Uncontrolled Goods Act
(NSW); former Trade Practices Act 1974 (e.g. unsolicited goods through mail)
Nuisance
NB strict liability
SVW Ch 16
2 separate torts:
- Private nuisance from action on case
- Public nuisance from crime
Strict liability vs fault based liability:
- Strict means fault not an element of the tort, i.e. P need not prove fault (but not
Stockwell v State of Victoria, SVGW p 764)
- CF intent based torts and negligence
- Does not necessarily mean def is not at fault
- Trend in torts away from strict liability since mid late 19
th
century
- E.g. trespass originally strict liability since 19
th
century industrial revolution,
urbanisation, rapid transport Stanley v Powell 1890 not trespass unless fault
- Nuisance strict? Influenced by same historical factors as trespass and rise of
negligence
- See Burnie Port Authority v General Jones P/L (1994) 120 ALR 42 defs building
destroyed by fire caused by contractors welding PIs frozen goods ruined at trial
PIs won in R v F
- HCA in Burnie overruled two strict liability torts Rylands v Fletcher (1866) and
strict liability regarding damage by fire subsumed into negligence (NB not in UK)
- R v F derived from nuisance or maybe trespass (discussed in Burnie) non natural
user of land + bring onto land anything likely to do mischief as it escapes
- Nuisance variable regarding fault, e.g. damage caused by spreading tree roots strict:
Davey v Harrow Corporation [1858] 1 QB 60; Barton v Chibber (1988) Aust Torts
Reports 80-185
- But, no strict liability unless def knows or ought to know: Proprietors of Strata Plan
No 14198 v Cowell (1989) 24 NSWLR 478)
- CF criminal liability actual knowledge or ought to know (mens rea) vs strict
(mental element irrelevant e.g. speeding)
Private nuisance
Elements
- Substantial and unreasonable interference by def with PIs right of quiet enjoyment of
land
- Interference may be physical or intangible, direct or indirect
- Must cause injury (more harm than trivial) to property or interference with personal
comfort (harm): Hasley v Esso Petroleum SVW p 771
Balancing competing interests
- Nuisance not about wrongdoing, but about clash of interests/rights
- Both parties seeking to use/enjoy own land for own purposes
History
- Dates from early 13
th
century as adjunct to assize of novel disseisin
- From 15
th
century action on the case for nuisance direct or indirect requirement
of damage may be tangible/intangible damags
Title to sue
- Only those with property rights have standing to sue, e.g. owner/tenant in actual
possession or right to exclusive possession Hunter, Stockwell
- E.g. Oldham v Lawson (No 1) [1976] VR 654 H & W lived together in property
W owner noise nuisance from adjoining premises H not owner or tenant therefore
liscencee H no standing in nuisance
- eg Khorasandjian v Bush [1993] QB 727
- Nuisance phone calls to daughter from ex partner new tort of harassment?
- UK C/A allowed standing altho no proprietary interest
- Based on Canadian Motherwell v Motherwell (1976) 73 DLR )3d) 62 (Alta App Div)
- H/L later said incorrect on nuisance - Hunter v Canary Wharf [1997] AC 655
Nature of interests protected
Munro v Southern Diaries Ltd [1955] VLR 332; SVW p 763
Facts PI owner and occupier of premises def neighbour milk delivery business horses
stabled on defs premises PI sued in nuisance for noise, smell, flies
SCHOLL J
- Must be a substantial degree of interference with the comfort and convenience of
occupier or with some other aspect of use and enjoyment of his land
- Must be so substantial as to cause damage
- Must cause injury to property
- OR material interference with physical comfort (need not show injury to health)
- Material interference judged not merely according to elegant or dainty modes and
habits of living, but according to plain and sober and simple notions among the
English people: Walter v Selfe (1851) 4 de G & sM 315 at 322
- Not the test of abnormal sensitiveness
- Utility and legality of defs business not relevant
- Coming to a nuisance no defence
- Must judge nuisance in social and local setting
- Held nuisance
- Injunction granted re keeping horses on premises
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468; SVW p 767
Facts neighbour dispute over sign, PI breeder of silver foxes, very sensitive, def deliberately
short on own land near foxes to cause miscarriage, P sought damages and injunction for
nuisance of noise
MACNAGHTEN J
- Bradford Corp v Pickles distinguished
- No absolute right to act on own premises qualified by competing rights of
neighbours re nuisanece
- Finding for PI injunction granted
Material physical damage
- Damage may be physical and/or intangible Halsey v Esso
- Where physical damage, no need to consider locality and similar factors (relevant to
non physical interference)
Who can be sued?
- Creator of nuisance
- Person authorising nuisance
- Person adopting or continuing nuisance
Continuing or adopting nuisance
Stockwell v State of Victoria [2001] VSC 497 (S/C Vic); SVW p 773
Facts PI sued State for permitting wild dogs on its land to move onto PIs land and kill and
injure his sheep
Issue
- Whether an owner/occupier of land is under an obligation to protect neighbours land
from damage caused by natural causes or trespassers, where damage emanates from
Defs land
- I.e. where def continues nuisance which knows of but fails to take reasonable steps
to abate
GILLARD J
Detailed discussion of three cases:
Sedleigh-Denfield v OCallahghan (1940) AC 880 (escape of water from pipe
on Defs land installed by trespasser damaged Pls land)

Goldman v Hargrave (1966) 115 CLR 458 (Def tried to extinguish fire in tree
struck by lightning on own land not properly put out fire spread to Pls
land by wind and caused damage)

Leakey v National Trust (1980) QB 485 (soil & rubble on Defs land fell onto
Pls land by natural weathering over time crack opened up thru dry
conditions Def knew unstable - large amt soil etc fell onto Pls land causing
damage)
Def found liable in nuisance in all 3 cases
Recognized liability of landowner for damage to adjoining property by things
occurring on Defs property, even where caused by trespassers or natural
causes

Pl must establish:
1. Pl in actual possession of land, either freehold, tenant, or licensee with exclusive
possession
2. That activity complained of is a nuisance ie interferes with right of quiet enjoyment
3. Nuisance created by Def or by actions or omissions of another or by natural causes
AND Def has knowledge of existence or circs where ought to have known
(constructive knowledge) and allows nuisance to continue
4. Once Def has actual or constructive knowledge and if reas man could foresee that damage
might be caused, a measured duty of care arises
Measured duty of care comes from Ld Wilberforce in Hargrave v Goldman ie a
duty to abate nuisance/protect neighbours property

Duty to do what is reas in circs to prevent or minimize known risk of damage to
neighbours property Leaky v National Trust per McGaw LJ
Relevant factors for breach (not exclusive list):
(NB goes to whether Def reqd to do anything at all, and if so, what)

1. Extent of risk
2. Chances of damage occurring = foreseeability
3. Foreseeable extent of damage if risk eventuates
4. Whether practical to prevent or minimize any damage
5. Difficulty and cost of preventative measures
6. Time betw becoming award of risk and damage occurring
NB Note similarity with negligence the modern law of nuisance in cases where the Def
does not create the nuisance is v similar to the modern law of negligence: Gillard J (SVW p
776)

NB Basis of liability in these circs is FAULT knowledge + inaction

Held - State liable

Defences to nuisance
See list SVW p 779
Prescription
Contrib. negligence
Conduct or consent of Pl
Statutory authorization (see Allen v Gulf Oil Refining Ltd SVW p 781
WEEK 4 LECTURE
Negligence approaching the duty of care:
Elements of negligence:
- Duty
- Breach (and standard of care)
- Causation
- Harm
- Duty? Question of law
- Relevant standard of care? Law
- Breach of duty?
- Breach = departure from standard of care question of fact but standard is Q of law
- Causing? (fact + law)
- Compensable type of harm? not too remote question of law
Negligence: historical development
- C12 - trespass / trespass (action) on the case
- Litigated via rigid system of writs (forms of action)
- C14 - liability for careless conduct in specific cases eg surgeons, smiths, innkeepers
- Early C19 - separate civil (private) wrong of negligence (Govett v Radnidge 1802)
but no recognised field of tort law
- C19 - failure to take care + caused Ps injuries
- Dramatic change mid C19 breaking down of writ system
- Pressures of industrialisation incr in accidents between strangers railroads,
steamboats, factories
- 1837 1842 duty as relation betw Pl and Def emerges:
- Vaughan v Menlove (1837)
- Langridge v Levy (1837)
- Winterbottom v Wright (1842)
- 1883 - Heaven v Pender - duty of care - Brett MRs general test not adopted by
majority, but duty concept accepted
- 1893 - Le Lievre v Gould
- Neighbourhood / proximity Lord Esher narrows Brett MRs principle
- 1932 - Donoghue v Stevenson - Lord Atkins neighbour principle - not accepted by
majority
- Ld Atkin adopted Brett MRs view in Heaven as qualified by Lord Esher in Le Lievre
> modern tort of negligence
Burnie Port Authority v General Jones P/L (1994) 179 CLR 520, [25]
(Mason CJ, Deane, Dawson, Toohey, Gaudron JJ):
Lord Esher (then Brett MR), in Heaven v Pender (1883) formulated the general or larger
proposition which constituted the first step in the perception of a coherent jurisprudence of
common law negligence. Almost half a century later, the House of Lords in Donoghue v
Stevenson (1932) effectively completed the process.
The judgment of Brett MR in Heaven v Pender and the speech of Lord Atkin in Donoghue v
Stevenson were both concerned with identifying a general unifying proposition which
explained why a duty to take care to avoid injury to another had been recognized in past cases
in the courts.
Burnie Port Authority v General Jones P/L (1994) 179 CLR 520, [25] (Mason CJ, Deane,
Dawson, Toohey, Gaudron JJ):
Essentially, the methodology of both was identical: the identification of a general proposition
which selected recognised cases suggest, and which is therefore to be deduced from them
[Heaven, 509; D v S, 580]and the confirmation of the validity of the proposition by
ascertaining that no obvious case can be stated in which the liability must be admitted to
exist, and which yet is not within this proposition. [Heaven, 509-510; D v S, 583-584].
On the trail of the tale of the Paisley snail:
Donoghue v Stevenson [1932] AC 562 (HL) SVW p 181
Facts
Snail in ginger beer purchased by PIs friend opaque sealed bottle PI drank shock and
gastro
Lord Atkin neighbour principle
Personal injury physical harm caused by acts
Grant v Aust Knitting Mills [1936] AC 85 Privy Council; SVW p 185
Facts
PI doctor bought long woollen underpants wore for two weeks, changed weekly very
severe dermatitis, itchy from day 1. 17 weeks in bed, later 4 months hospital. Sued
manufacturer and retailer, free sulphites in garment? Probably re evidence as garments
washed
History
PI won at trial in Sth Australia against retailer in contract and against manufacturer in tort D
v S applied lost in HCA appealed to P/C
Issues
Note two factual issues two issues were thus involved
1. PI abnormally sensitive skin?
2. Too high comfortable concentration of harmful chemical in garment?
Lord Wright
- Not sufficient evidence to disturb trial finding that PIs skin normal
- Cause of illness? Fair deduction that free sulphites in pants combine with sweat to
form sulphuric acid
- Still question re quantity impossible to prove after washing
- Def failed to discharge onus on proof on appeal i.e. to show lower court finding
wrong P/C not satisfied that CJ wrong
- Therefore accepted that disease and damage caused by defective condition of garment
- Retailers liable in contract negligence not relevant
Development of duty of care
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (H/L) SVW p 190
Facts
- PI (HB) advert agents placed big ads for client Easipower on credit i.e. HB
personally liable
- Asked own bank to check EPs financial status with EPs bank
- Free phone and written advice given by defs that EP sound
- 2
nd
enquiry written advice that good ordinary business engagements disclaimer
- PI relied on advice EP in liquidation PI lost 17,000 pounds sued bank for
negligent advice
At trial: Mc Nair J
- Defs negligent
- But no duty of care
C/A
- No duty
HL (unanimous)
- Pls failed because of disclaimer
- Clear that H/L would have allowed recovery otherwise and accepted existence of duty
House of Lords
LORD REID
- Innocent but negligent misrepresentation gives no cause of action
- Must be something more than mere misstatement
- Person giving advice accepts responsibility to exercise care
+ trust by recipient + reasonable
+ knows or ought to know (reasonable man test) of recipients reliance
LORD DEVLIN
Categories of special relationship give rise to duty to take care in word as well as deed
include relationships which are equivalent to contract ie an assumption of responsibility
in circumstances in which, but for the absence of consideration, there would be a contract
Effect of Hedley Byrne
Persons (eg bankers, auditors, accountants, architects, designers) negligently
supplying false information which is justifiably relied on by others owe a duty of care
in tort to those requesting the information
Subsequently extended beyond information and advice to any undertaking to supply a
specialty service, whether in word or deed
Based on assumption of responsibility
Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL); SVW p 191
Facts
7 Borstal trainees escaped from camp on island under supervision of def all crim records,
5 records of scape stole yacht crashed into PIs yacht heavy damage (facts assumed to
test prelim point re duty)
Issue
Duty? (re acts of 3
rd
parties)
Lord Reid
In later years steady trend towards regarding law of neglig as depending on principle so
that, when a new point emerges, one should ask whether recognised principles apply to it.
D v S may be regarded as a milestone
[& neighbour principle] as a statement of principle. It is not to be treated as if it were a
statutory definition. It will require qualification in new circs. But I think that the time has
come when we can and should say that it ought to apply unless there is some justification or
valid explanation for its exclusion
Liability not based on responsibility for trainees
But on knowledge by Def that damage of this kind probable ie remoteness of
damage issue
Q: novus actus interveniens because voluntary human action?
Where human action part of causal chain, must be very likely otherwise novus actus
Mere foreseeable possibility not enough
Where intervening action likely to happen, irrelevant whether innocent, tortious or
criminal
Public policy not favour govt immunity
NB causation or duty?
Lord Diplock
Issue: is duty to prevent escape owed to persons whose property likely to be damaged
by escapees?
Looks at prison cases duty distinguishable
Discussion of liability of stat authorities (Home Office)
Public law concept of ultra vires replaces civil law concept of neglig as test re stat
authorities
No intention by parlt to give civil cause of action to those injured by exercise of stat
powers
No general duty to members of public injured by criminal acts
BUT duty owed to persons whom [officers] could reasonably foresee had property
in the vicinity previous record of escapee + place of escape relevant
Def owed Pl duty to prevent escape
Anns v Merton London Borough Council
[1978] AC 728 (HL); SVW p 192)
Facts

Pls lessees in flats built 1962 8 yrs later cracks in walls, floors sloping etc sued
builders in contract & council in neglig failure to inspect foundations properly
At trial Pls held statute barred
HL held property damage not pure econ loss so cause of action arose when present or
imminent danger to health not statute barred
NB v similar facts to Sutherland SC v Heyman - Aust HC 1985
Re duty of care:
2-stage test:
1. Suffic relationshp of proximity?
2. Reasons negativing duty?

I.e defining the principle for estab duty
Anns test Adopted Canada & NZ
Rejected in Aust in Sutherland SC v Heyman (HC 1985) - incrementalism
Caparo Industries v Dickman H/L 1990 replaced Anns in UK
Caparo 3 stage test:
1. Foreseeability
2. Proximity
3. Fair, just & reasonable
Caparo test adopted Kirby J (HCA) Pyrenees v Day, Perre v Apand, Crimmins

Sullivan v Moodie Caparo 3 stage test discussed by HCA not the law in Aust
Salient factors approach to duty
Perre & Others v Apand P/L
(1999) 198 CLR 180; SVW p 196

Facts
Pls grew potatoes on their property in SA for export to WA
Disease negligently introduced by Defs onto other property
Resulted in healthy crops on neighbouring properties (incl Pls) being prohibited
from export to WA because of State legislation
Pls claimed econ loss arising from loss of export opportunity
Held

All 7 members of HCA found for Pls, although for different reasons Majority
Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ
McHugh J restricted recovery to Pls falling within ascertainable class, distinguishing
between them and second line victims (no duty)

Hayne J found in favour of only those Pls who suffered direct damage

Significant features of judgements
Differing views strongly expressed by McHugh and Kirby JJ on appropriate method
to be adopted in deciding duty of care generally and re econ loss
Discussion of concepts of indeterminacy, plus interference with commercial
behaviour
3 different methods adopted to determine duty of care:
Impairment of legal rights (Gaudron and Gummow JJ)
Incremental approach - prevails at present
3 stage Caparo Industries v Dickman test (Kirby J only, following own views
expressed in Pyrenees v Day)
Agreed principles from case
No longer any general exclusionary rule re econ loss
Concern to avoid dangers of indeterminancy (Ultramares v Touche) and to avoid
converting ordinary commercial practices into tortious conduct
Urgent need to identify single unifying principle re duty of care and in particular, re
econ loss (not found yet)
Establishing categories of duty
1. FOR MOST standard cases
SVW pp 210-211
Damage to person / property
Donohuey v Stevenson - neighbour principle + foreseeability of harm
2. Novel cases
SVW p 212
Sullivan v Moody
(2001) 207 CLR 562; (SVW p 212)
Facts
DOCS suspected children of being sexually abused - Pl fathers accused DOCS neglig Pls
suffered psych injury + financial loss
Issue - whether DOCS owed duty to fathers?
GLEESON CJ, GAUDRON, MCHUGH, HAYNE, CALLINAN JJ
Previous approaches to duty based on search for unifying principle (D v S, proximity)
or category of relationship
Proximity rejected
Caparo 3 stage test rejected
Diff classes of case give rise to diff problems in determining the existence and nature
or scope, of a duty of careharm suffered by Pl Def is repository of statutory
power difficulty of confining class to whom duty may be owed within reasonable
limits need to preserve coherence of other legal principles [then need] judicial
evaluation of the factors which tend for or against a conclusionas a matter of
principle (SVW p 213)
Law of negligence over last 30 years reveal[s]Difficulty of identifying unifying
principles that would allow ready solution of novel problems [not to be decided] by
reference only to some intuitive sense of what is fair or unfair(p 214)
Coherence of the law duty to fathers incompatible with duty to children
Appeals dismissed
Here no duty to fathers because would undermine other principles - cf defamation
SALIENT FEATURES FOR DUTY
a. Foreseeability off harm
b. Nature of harm
c. Degree/nature of control by Def
d. Vulnerability of Pl
e. Reliance by Pl
f. Assumption of responsibility by Def
g. Proximity of Pl to Def
h. Category of relationship betw Def and Pl
i. Nature of Defs activity
j. Degree of danger from Defs conduct
k. Defs knowledge that conduct will harm Pl
l. Indeterminacy of liability
m. Nature/consequences of potential action to avoid harm
n. Imposition on indiv autonomy
o. Conflicting duties
p. Consistence with statute
q. Coherence in the law

CIVIL LIABILITY ACT 2002 (NSW)
DIVISION 2 DUTY OF CARE
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) The risk was foreseeable (that is, it is a risk of which the person knew or ought to
have known), and
(b) The risk was not insignificant, and
(c) In the circumstances, a reasonable person in the persons position would have taken
those precautions.
CLA - 5B (cont)
(2) In determining whether a reasonable person would have taken precautions against a
risk of harm, the court is to consider the following (amongst other relevant things):
(a) The probability that the harm would occur if care were not taken,
(b) The likely seriousness of the harm,
(c) The burden of taking precautions to avoid the risk of harm,
(d) The social utility of the activity that creates the risk of harm.
Reasonable foreseeability
Chapman v Hearse
(1961)106 CLR 112; SVW p 218

Duty of care / foreseeability
Rescue case public policy moral and social duty (maj)

Facts
Chapman (C) collided from behind with another car
C thrown out on road unconscious
Dr Cherry went to Cs rescue
Dr Cherry killed by later car driven by Hearse
At trial
Action by Dr Cherrys estate
Held: H & C (drivers) both negligent - 75% H / 25% C
C appealed to S/C Sth Aust lost; Appealed to HCA

Issues
1. whether person injured thru own neg owes duty to his rescuer?
2. Foreseeability

DIXON CJ, KITTO, TAYLOR, MENZIES, WINDEYER JJ
Duty based on foreseeability
Test: whether consequence of same general character reasonably foreseeable as not
unlikely
Liklihood depends on circumstances of each case (majority)
Not unlikely to occur: Caterson v Commissnr for Railways (Barwick CJ)
Reasonable man standard objective
Precise manner of injury need not be foreseen
Injury foreseeable to class (rescuers)
Test of reasonable foreseeability easily satisfied eg Kirby J in Crimmins
Unforeseeable plaintiffs

Palsgraf v Long Island Railroad Co
248 NY 339 (1928) (USA);
SVW p 221

NB 4/3 finding for Def on appeal, reversing 3/2 decision for Pl - controversial case
Facts
Railway platform
Guards pushing/pulling passenger onto train
Exploding package
Falling scales
Pl injured
Held
No liability - negligence in the air will not do
Cannot sue derivatively
NB need to separate proximate cause (closeness of causal connection) from duty
in this case
Negligence depends on relation between Def and Pl (duty), founded on forseeability
of harm to specific Pl
ANDREWS J (DISSENT)
Negligence not dependent on relation between Pl and Def, duty is owed to world at
large
Aust

Bale v Seltsam P/L [1996] QCA 288; SVW p 221
Pl wife of asbestos worker wife mesothelioma Held no duty owed by Hs e/er
unforeseeablwe, but see Dawson v James Hardie similar facts- Pl won (SVW p
221)

Chester v Waverley - HCA 1939
No N/S for mother who saw drowned body of child

Annetts v Australian Stations P/L (2002) 211 CLR 317 parents successful
Both nervous shock parents n/shock re neg death of child duty and foreseeability
issues

POLICY AND DUTY OF CARE
NB Civil Liability Act 2002 (NSW)

Pt 6 Intoxication - esp s 49 - Effect of intoxication on duty and standard of care

& s 50 - No recovery where person intoxicated (presumption of contrib. neg if injury
would have occurred anyway)

& Pt 7 esp s 54 Criminals not to be awarded damages (see Qld equivalent SVW p
223-4)
LECTURE 5
Physical harm caused by omission:
Example of case brief:
Romeo v Conservation Commission NT (1998) 192 CLR 431 (HCA); SVW 230
Facts
15 y/o PI and friend fell 6.5m off unfenced cliff at night in nature reserve some alcohol no
direct evidence re accident PI paraplegic
Litigation history
PI lost at trial and in CA; lost HC 5:2 (dissent McHugh, Gaudron JJ)
TOOHEY AND GUMMOW JJ
Refer maj judgment in Nagle v Rottnest (HCA 1993) Pl injured diving off cliff
paraplegic stat authority Def - Pl won Nagle - failure to warn
Romeo - Pl must fail breach depends on what reas person would have done to guard
against foreseeable risk of injury allowing for possibility that Pl may fail to take care
for own safety
but this does not mean that [Def] was obliged to ensure, by whatever means, that
[entrants] would not suffer injury by ignoring an obvious danger
Pl pleaded concealed danger the care to be expected of members of the public is
related to the obviousness of the danger
Duty not extend to fencing off cliff where obvious - No breach
KIRBY J (MAJORITY)
(p 232)
Foreseeability & proximity present on facts - duty estab
But scope of duty?
the measure of the care reqd will take into account the different ages, capacity,
sobriety, and advertence of entrants
Occupier is generally entitled to assume that most entrants will take reasonable care
for their own safety
**where a risk is obvious to a person exercising reasonable care [for own safety] the notion
that the occupier must warn the entrant about that risk is neither reasonable nor just
Scope of duty needs to be tested before event not with hindsight
Romeo diff from Nagle because here obvious danger, there hidden danger
Suggested precaution to fence cliff would mean fencing not just site of accident but
all 8km of cliff not reasonable
No breach

HAYNE J (SVW P 233)
the duty is a duty to take reasonable care, not a duty to prevent any and all reas
foreseeable injuries
Case should be based on breach of statutory duty
Ratio
?
No uniform approach to duty see indiv judgments

Held
Pls appeal dismissed 5:2
Duty and proximity
Per Gaudron J - proximity useful but not without its difficulties
Only Kirby J supported proximity as essential re duty

McHugh and Kirby JJ agreed that content of duty should be determined by principles
in Nagle but diff view on facts McHugh for Pl (dissent)
Notes re Romeo
NB cf obvious risk CLA s 5H note this case pre-dates CLA rejection of Nagle
turning point away from Pls based on distinction betw facts in Nagle and Romeo?
Or a contraction of attitudes to liability by HCA?
see notes p 233-36 comments in Woods v Multi-Sport (see Breach ch) re
obviousness esp per Gleeson CJ on Kirby J comment (**):
right to describe that observation as a comment. It is not a proposition of law. What
reasonableness requires by way of warning is a Q of fact not law and depends on
all the circs, of which obviousness of risk may be only one. Kirby J agreed in Woods
Modbury Triangle Shopping Centre P/L v Anzil
(2000) 205 CLR 254 (HCA); SVW p 238
Facts
Pl employee in video shop closed shop Sunday 10.30pm lights off in carpark 10pm -
attacked in carpark with baseball bat by 3 unknowns badly injured
Issue - Does occupier owe duty re physiical injury inflicted by criminal acts of 3
rd
parties?
GLEESON CJ
Occupier owes duty to lawful entrants
Owes duty re physical state of premises
Basis of duty is control + knowledge re premises: Cmssnr Railways v McDermott
[1967] 1 AC 169
Control is key in Dorset Yacht
No control here by Def
No reliance and no assumption of responsibility
No duty
NB relationship betw 2 parties may give rise to duty to protect from 3
rd
parties eg
employer/employee, school/pupil, bailor/bailee, but exception
General rule is there is no duty to prevent a third party from harming another the
common law does not ordinarily impose liability for omissions
Imposing duty re 3
rd
parties would conflict with general rule that no duty to rescue
HELD
Appeal allowed (Hayne, Gaudron, Callinan JJ agreed w/ Gleeson CJ)
Adeels Palace P/L v Moubarak; Adeels Palace P/L v Najem
(2009) 239 CLR 420 (NB major extract causation SVW p 495)
Facts
Adeels Palace large licensed restaurant Padstow New Years Eve party fight broke
out
Escalated
man punched by Mr M
left but returned with gun
shot patrons M & N (Pls)
Pls sued Adeels for
injury inadequate security
Pls won at trial (D/C) &
NSW C/A. Lost HCA.
Significance: occupiers liability for crim acts of 3
rd
parties Modbury reviewed interprets
duty (s 5B) and causation provisions of CLA
Issues
1. Whether occupier owes duty to patrons to control/prevent criminal actions of 3
rd
parties ie
same issue as Modbury Triangle.
2. Breach
3. Causation
High Court appeal allowed 5:0 (Pls lost)
Must consider CLA (NSW) + Liquor Act 1982 (NSW) + Modbury
Defs owe Pls duty to take reas care to prevent injury from violent, quarrelsome or
disorderly patrons (reqd by Liquor Act) L Act impt
Duty not absolute
Reas care in circs means taking reas care to control activities occurring on licensed
premises
No breach unless risk to be foreseen was kind of risk that reqd bouncers as reas
precaution not proved
Even if breach estab, no causation absence of security staff not necessary condition
of occurrence of harm
Question of whether duty owed relies on common law
Modbury Triangle distinguished
Product liability
Graham Barclay Oysters v Ryan
(2000) 177 ALR 18 Full Court Federal
Court; SVW 243
NB TPA (now Competition and
Consumer Act 2012 (Cth))
+ common law negligence
Graham Barclay Oysters v Ryan
(2002) 211 CLR 540; SVW 251
Facts
184 Pls got hepatitis A from eating contaminated oysters grown in lake
Class action - sued producer/distributor + local council + NSW govt which regulated
waterways
faecal contamination after severe storm complied with mandatory NSW policy to
disinfect reduces but does not eliminate viral load water quality testing also
needed

Representative (class) action under Pt IVA Fed Crt of Aust Act 1976
3 defs council, state govt, Barclay coys & others (growers & distrib)

Neglig - failure to exercise stat powers to control water pollution

History
at trial all Defs liable Fed Crt Wilcox J common law duty and breach

Note 6 diff duties alleged in Pls statement of claim

appeal by council upheld (not liable) in Full Fed Crt - maj found no duty owed to
consumers; other appeals dismissed (state & Barclays liable in neglig)
HIGH COURT

Appeal by state & Barclays allowed (not liable)

& by Ryan against Council (dismissed council not liable)

ie no duty

5 separate judgments main Gummow & Hayne JJ, Gaudron J agreeing

Gummow, Hayne and Gaudron JJ agreed on framework for analysis other 4 judges
each proposed own diff framewk

NB no unifying principle re duty some agreement re distinguishing Pyrenees v Day

GUMMOW & HAYNE JJ

Knowledge of risk of harm (foresight) + power to avert/minimize (capacity) not
suffic for duty
Depends on totality of relationship betw parties salient features

turns on terms, scope & purpose of relevant legislation

where neglig operates, it co-exists with stat rights, duties & liability

stat regime may exclude neglig directly/indirectly eg Sullivan v Moody coherence
principle

but clear legisl intent re duty not reqd
eg no liability in Agar v Hyde because control weak (whether members of Internat
Rugby Football Bd owed duty to players re rules - Pls broken necks - No
but cf Brodie, Pyrenees liability because high level control
In Ryan council low control
Control over some aspect of physical environmt not likely to found duty where harm
caused by 3
rd
party eg Modbury Triangle (assault in shopping centre carpark
occupier not liable)
relevant legislation is focu
Signif that commercial interests (growers etc) engaged in risky enterprise for profit
standing betw council & consumers

Council no duty to consumers appeal by Ryan dismissed

State also no duty to consumers appeal by state allowed
GRAHAM BARCLAY (2002 HCA)
KIRBY J
Re duty: The search for such a simple formula may indeed be a will-o-the-wisp. It
may send those who pursue it around in never-ending circles that ultimately bring the
traveller back to the very point at which the journey began. Thus we seem to have
returned to the fundamental test for imposing a duty of care That is, a duty of care
will be imposed when it is reasonable in all the circumstances to do so.
Duty: Sport & recreation

Agar v Hyde
(2000) 201 CLR 552;
SVW 255

Facts
2 Pls seriously injured playing rugby scrum collapse argued rules exposed them to
unnecessary risk- sued Internat Rugby board
History
Pls lost at trial (Grove J) no duty won C/A lost H/C trial judge upheld
Issue
Whether voluntary sporting body IRFB (Internat Rugby Football Board) which makes rules
of rugby owes duty to all players to avoid risk of unnecessary harm?
GLEESON CJ

Duty of Board to frame & interp rules of game risk of injury obvious in rugby
In C/A control & reliance ID as key elements for duty
Signif that adults participating voluntarily disting school sport
Participation does not imply volenti so as to negate duty
But signif in determining existence & scope of duty
Indiv autonomy & public benefit of sport relevant
Floodgates argumt potential liability to all in world playing rugby
Defs no control in any real sense as indivs
unnecessary risk key risk of any injury could not be actionable in contact sport
how define unnecessary?
Highly subjective factor which weighs against duty

None of existing categories of duty covers this case
No duty finding for Defs
GAUDRON, MCHUGH, GUMMOW, HAYNE JJ
No duty
If duty owed to these Pls, must be owed to all rugby players in world so unreal as
to border on the absurd
Positive acts disting from omissions no duty where Def not created risk by positive
act
Here complaint is failure to change existing rules

Indiv members no power to change + rules vary at local level
Therefore Defs no control:
Voluntary participation by Pl v diff from workplace injury
Also not analogous to Crimmins v Stevedoring Ind
No trespass (assault) by players acting within rules of game consent
Then how can rule makers be liable?
Indiv autonomy stressed - with autonomy comes responsibility
Duty by Defs not arguable

NB possible exception re school children
CLA (NSW)
see sections SVW 260-61
s 5K defines obvious risk, dangerous recreational activities
s 5F meaning of obvious risk
s 5H no duty to warn of obvious risk
DUTY OF CARE: PSYCHIATRIC OR MENTAL HARM
SVW p 261

Distinguish consequential from pure psych harm both covered Pt 3 CLA Mental
harm
Pure mental harm (ie not consequence of injury to person or property of Pl) =
nervous shock
Must be reas foreseeability of psych injury
Mt Isa Mines v Pusey (1970) 125 CLR 383 per Windeyer J:
Sorrow does not sound in damages cannot recover damages for a shock, however
grievous, which was no more than an immediate emotional response to a distressing
experience, sudden severe and saddening. It is, however, today a known medical fact
that severe emotional distress can be the starting point of a lasting disorder of mind or
body, some form of psychoneurosis or a psychosomatic illness. For that damages
may be had.
Milestones in the development of nervous shock:
Victorian Railway Commissioners v Coultas (1888) 13 AC 222
Pls driving horse and carriage gatekeeper at level crossing indicated to cross almost
collided with train pregnant Pl miscarriage & illness
Vic S/C allowed recovery for nervous shock first case
Privy Council reversed - shock not natural & probable consequence of neglig & too remote
Pl lost
Milestones in development of nervous shock


Bourhill v Young [1943] 1 AC 92 H/L Pl pregnant fishwife heard but not saw
traffic accident and death prem birth & death of her child duty owed betw drivers
but no duty to Pl
Chester v Council of Municipality of Waverley (1939-40) 62 CLR 1
Pl mother witnessed drowned body of her 7 y/o child recovered from rain filled
trench in road severe shock Def admitted neglig re leaving trench unattended
Maj found no duty because Pl not physically present at scene and did not witness
drowning - a reasonable person would not foresee that the neglig of the Defs towards
a child would so affect a mother: Latham CJ
outrageous decision - Note powerful dissent by Evatt J
Law Reform (Miscellaneous Provisions) Act 1944 (NSW) passed in response to
Chester statutory cause of action for N/S created NSW - ss 3, 4 but Coultas still
the law in other states until reversed in Pusey ss 3, 4 LR(MP)Act now repealed in
part by CLA
Mt Isa Mines v Pusey (1970) 125 CLR 383 reversed Vic Railway v Coultas
Pl assisted co-workers badly burnt in explosion at work heard but did not see
explosion
Did not know victims suffered schizophrenia and depression unemployable
Standard that e/er has duty to provide safe work environment
Therefore HCA held Pls action in assisting and the possibility of shock and some
form of mental illness was reas foreseeable and not too remote
ie need only foresee recognised class of psych illness not exact illness (see quote
above)
Jaensch v Coffey (1984) 155 CLR 549
PI wife of victim badly injured in motor vehicle accident negligence. PI not present at scene
saw husband later at hospital. Case extends requirement of witnessing event with own
unaided senses to include immediate aftermath.
Duty to avoid inflicting psychiatric harm
Tame v NSW; Annetts v Aust Stations P/L
Facts
- 2 nervous shock cases heard together leading Australian case
- NB 6 different judgements
- Tame PI in car accident told by solicitor that police wrongly recorded her as drunk
from blood tests depression
- Annetts pls told by phone 16 year old son missing from jackaroo job on remote WA
cattle station Dec e/er had promised to supervise sent to remote station alone ran
away died in desert parents travelled NSW to WA 9 times over 5 months police
search and big publicity ID skeleton April
GLEESON CJ
- Control devices of sudden shock and direct perpcetion or immed aftermath not
definitive tests of liability N/S not so limited
- Agrees with Gummow and Kirby JJ re above
- Endorses Brennan J in Jaensch see quote p 256 exigencies of proof [of neglig]
impose the appropriate limits
- Tame no duty same reasons as per Sullivan v Moody i.e. conflicting duties +
intersection with defamation + coherence
- No reasonable foreseeability of psych injury on facts
- Annetts need to look at factual indicators re duty not inflexible rules
GUMMOW AND KIRBY JJ (pp 265-71)
Protection of mental integrity from the unreasonable infliction of serious harm answers the
general public sentiment underlying the tort of negligence that there has been a
wrongdoing for which, in justice, the offender must pay (p 265)
Negligence:
the assessment of reasonableness, which informs each element of the cause of action, is
inherently adapted to the vindication of meritorious claims in a tort whose hallmark is
flexibility of application (p 265)
Discussion of:
- Control mechanisms normal fortitude/sudden shock/direct perception all
unsound at common law but see CLA re normal fortitude
- Psych harm 4 reasons for differentiating from physical harm
- Relationship between pls and def sufficient + reasonable foreseeability to establish
duty
- Promise made re supervision relevant to foreseeability
- Agrees with Gummow and Kirby JJ
- All rejected negligence has its own control devices (fault, causation, remoteness
etc) + must be recognisable psych injury not mere distress etc
- Normal fortitude rejected as pre condition to recovery
- Central enquiry is:
Whether, in all the circs, the risk of PI sustaining a recognisable psychiatric illness
was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful:
Wyong Sc v Shirt (1980) 146 CLR 40
- Direct perception and immediate aftermath Jaensch v Coffey
- Bearers of bad news no duty in law to break bad news gently
Summary Annetts
- Reasonable foreseeability fundamental test for duty re physical and psych injury
- Normal fortitude not pre condition to liability relevant but not essential for N/S
(Annetts)
- Sudden shock not required but relevant factor re nature of relationship
- Direct perception factors not required but relevant factor re relationship
- Mere knowledge no duty to break bad news gently Pusey per Windeyer J
- Nature of relationship between parties Gifford v Strang includes non family (but
reversed CLA (NSW) see below))
NB
- CLA s 32 (1) no duty not to cause PI mental harm unless def ought to have
foreseen that a person of normal fortitude might, in the circumstances suffer a
recognsised psych illness
- I.e. not necessary for PI to demonstrate normal fortitude, only that the breach was
such as might foreseeably cause injury to the person of NF
- Then eggshell skull rule operates re extent of harm suffered
Gifford v Strang Patrick Stevedoring P/L (2003) 214 CLR 269; SVW n 3 p 272
Facts
Pls teen children of father crushed to death in work accident suffered N/S on hearing news
HCA
- Lack of direct perception not critical also accepted that friends may sue
- Key is closeness and affection of the relationship rather than the legal status of the
relationship
- NB decided on pre CLA law not excluded NSW by s 30(2) CLA
Contraction of liability for nervous shock Civil Liability Act 2002
CLA Pt 3 Mental Harm
- Ss 27-33 inclusive
- s 30(1) N/S from seeing another (the victim) being killed, injured or put in peril
by def
- s 30(2) PI must witness at scene or be a close family member
- s 30(3) reduction for secondary victims based on contributory negligence by
primary victim NSW only state with this
- s 31 must be recognised psych illness
- NB NSW provisions on N/S narrower than common law exclude Gifford v Strang
(H/C 2003) decided on pre CLA law also narrower than CLA in other states
S 32 duty of care re mental harm
- s 32(1) no duty unless def ought to have foreseen that a person of normal fortitude
might in the circumstances suffer a recognised psych illness
- NB does not affect eggshell skull rule: Annetts per McHugh, Gummow, Kirby, Hayne
JJ eggshell skull rule is principle relating to compensation not to liability i.e.
relevant to damages only
Circumstances or relevant factors Common Law and CLA
- Correct approach now based on assess factors not specific rule Annetts & CLA all
relevant but not essential normal fortitude (essential CLA)
1. Normal fortitude rejected by majority in Tame, Annetts but required by CLA s
32(1)
2. Shock no shock required re primary victims see NSW v Seedsman [2000]
NSWCA 119 PTSD claim by police officer working with abused children no safe
system of work relevant factor but not essential same CLA s 32(2)(a)
3. Direct perception relevant but not essential for primary victims same CLA s
32(2)(b)
4. Secondary victims limited by s 30(2) witness at scene or close family member
no recovery on facts of Pusey (workmates)
5. Nature of relationship between PI and def s 32(2)(c) also limited by s 30(2)
6. Pre-existing relationship s 32(2)(d) e.g. employment or similar duty found in
NSW v Seedsman but pre CLA
Psychiatric injury in the workplace
NB - Koehler discusses Tame, Annetts - significantly more stringent approach taken in
Koehler to psych injury than in Annetts, Gifford v Strang

Koehler v Cerebos
(2005) 214 ALR 355; SVW p 273

Facts
Pl worked P/T as merchandising rep constant verbal and written complaints that job
impossible in time avail after 5 mths major depressive psych illness sued e/er in
negligence for no safe system of work + breach contract + breach OH&S
History
Pl won at trial workload excessive & injury foreseeable
Reversed by WA Full Court S/C not foreseeable
H/C found for Def unanimously

MCHUGH, GUMMOW, HAYNE, HEYDON JJ
(NB separate but similar judgment by Callinan J)

Duty does not flow automatically from e/ers duty to provide safe system of work
e/ers have duty to take reasonable care to avoid psychiatric injury
but content of that duty cannot be considered without taking account of the
obligations which the parties owe one another under the contract of employment
equity and any applicable statutory provisions...
The central inquiry remains whether, in all the circumstances, the risk of a plaintiff
sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense
that the risk was not far fetched or fanciful
The relevant duty of care is engaged if psychiatric injury to the particular employee
is reasonably foreseeable and that invites attention to the nature and extent of the
work being done by the particular employee and signs given by the employee
concerned.
UK position in Sutherland v Hatton: whether psych harm to Pl foreseeable not test for
Aust
Factors identified in Hatton as relevant to foreseeablity nature & extent of work,
signs from e/ee (express/implied), relevant but not a comprehensive statement of
relevant and applic considerations
Contract of e/mt important in determining scope of duty in neglig
Psych injury to K not foreseeable because agreed to do the work
Duty owed by e/er to each indiv e/ee
Requires e/er to foresee psych injury to this particular e/ee Ks complaints were
about the work not her psych health so e/er no reason to suspect
Insistence upon performance of a contract cannot be in breach of a duty of care
legal coherence
Rejected argumt that all e/ers should recognise all e/ees at risk of psych injury - Pl
lost
LECTURE 6
Psych injury/ mental harm (cont)
Civil Liability Act 2002 (NSW) Pt 3, ss 27-33
Ref D Villa, Annotated CLA (2013) 385-415
Wicks v State Rail Authority (NSW)
(2010) 241 CLR 60; SVW 280
Impt case for stat interp CLA Pt 3
Facts
Police (Pls) rescuers called to train accident many people trapped and 7 fatalities Pls on
scene for several hours psych injury SRA admitted neglig - Pls lost at trial + lost in C/A
duty not decided in both
High Court
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ

Held - Finding for Pls on duty ie Pls appeals allowed with costs & orders of C/A set aside -
remitted to C/A for hearing on facts
Both lower courts treated key issue as whether Pls witnessed, at the scene, the victim
being killed, injured or put in peril ie CLA s 30(1)-(4)
Pls lost because decided on facts that did not witness at the scene ie called to
scene after accident occurred
HCA says wrong approach need to decide duty re psych injury first before deciding
whether CLA s 30(2)(a) is engaged unless in s 30(2) indicates an exception ie a
limitation on entitlement to damages
S 27 definition s identifies consequential mental harm (consequence of personal
injury) and pure mental harm (anything not consequential)
S 31- requires harm to be recognisable psych illness not estab at trial on facts in
Wicks
S 32 defines or controls what would otherwise be duty at C/L so must be considered
before limitations imposed in s 30(2)
No provision of CLA identifies when duty re mental harm will exist
Necessary condition for duty in s 32(1) is that Def ought to have foreseen that a
person of normal fortitude might in circs suffer recognised psych illness if care not
taken
S 32(2) identifies 4 kinds of circs sudden shock, witnessing at scene, relationship
betw Pl and victim, and relationship betw Pl and Def but does not specify what
consequences flow from these
S 32 must be understood in context of C/L and Tame v NSW HCA rejected sudden
shock, normal fortitude, direct connection as essential for duty
S 32 partly consistent with C/L in Tame both accept foreseeability as central
determinant of duty
Ie shocking event, connection betw Pl/Def or Pl/victim go to foreseeability - not
essential pre-conditions for duty
But s 32 reverses Tame on normal fortitude
S 32 sudden shock neither necessary nor sufficient condition for duty
Same with witnessing at the scene also only one of circs bearing on foreseeability re
duty
Mental or nervous shock in s 29 & 30 has diff meaning from sudden shock, mental
refers to consequence, sudden refers to event or cause but shock central to both
Neither sudden shock nor witnessing at scene essential to duty - therefore not always
the case that s 30 will be engaged
S 30 only arises where claim for pure mental harm arising wholly or partly from
mental or nervous shock and in connection with another person being killed
injured or put in peril by act or omission of Def
Re applic of Pt 3, start by determining whether Def owed duty of care re mental harm
(SVW 283)
Duty is Q of law open to HCA to decide
Whether reas foreseeable that rescuer or person of normal fortitude attending train
accident of this kind caused by neglig might suffer recognisable psych injury?
Must be judged prior to accident not with hindsight
Issue re duty should be sent back to C/A for decision
Assuming duty not to cause mental harm was owed, is s 30(2) engaged? (SVW 284)
ie do Pls claims arise wholly or partly from mental or nervous shock in connection
with another personbeing killed, injured or put in peril by SRAs neglig?
Phrase must be construed as a whole
Wrong to confine shock to first impression and train crashing claim re shock is re
series of shocking experiences associated with whole of rescue
Re in connection with another person being killed (SVW 285) s 30(1) refers to
event that may but not must have been complete before the shock was suffered
S 30(2) requires witnessing at the scene ie event must be happening as Pl witnesses it
But not correct to read s 30 or s 30(2)(a) as assuming all events begin and end in an
instant OK if occur over extended time
This is what happened here even once train stopped, survivors/ victims still in peril
Being put in peril not to be interpreted restrictively the expression should be
given the meaning the words ordinarily convey as opposed to being read down
because of old C/L cases or old legislation (LR (MP) Act 1944 (NSW))
In a mass casualty [like this] s 30(2)(a) is satisfied where there is witnessing at
scene of one or more victims being killed etc no need for more specificity
DUTY OF CARE: PURE ECONOMIC LOSS
Reading: SVW Ch 8 pp 290- 301

INTRODUCTION

Pure (purely) economic loss - separate category from standard Donoghue v
Stevenson physical damage - duty differs depending on nature of the harm

Exclusionary rule re pure economic loss - dates from Cattle v Stockton Waterworks
Co (1875) LR 10 QB 453 - mainly based on denial of duty ie no duty to avoid
causing economic loss

Pure economic loss the most controversial area of torts one which has been in the
eye of the storm over the development of the duty concept itself (Fleming)
Distinguish pure economic loss from consequential - consequential loss
straightforward
Total exclusion of pure economic loss until 1964, then Hedley Byrne v Heller (HL,
neg words) and Caltex Oil v Willemstadt re negligent acts (HCA, 1976)
NB tort of deceit to remedy economic loss caused by fraudulent misrep dates from
1789 in Pasley v Freeman
Policy reasons against recovery for pure econ loss arising from negligence:

o Fear of imposing liability for an indeterminate amount for an indeterminant
time to an indeterminant class: Ultramares Corp v Touche, Niven & Co
(1931, per Cardozo CJ, New York)
o Reservations about encroaching on domain of contract law ie not allowing
tort to bypass limits such as the doctrine of privity
Competition inherent aspect of a capitalist economy - free market society
E.g. per Deane J in Sutherland Shire Council v Heyman in many commercial and
financial transactions [there is] a correlation between the attainment of personal gain
for ones self and the sustainment of economic loss by another
Distinguish negligent words from negligent acts - The law must treat neglig words
differently from negligent acts per Ld Reid in Hedley Byrne v Heller
Distinction blurred in subsequent cases
NEGLIGENT WORDS / MISSTATEMENT
Hedley Byrne v Heller (H/L, 1964)
MLC v Evatt (HCA, 1971 ) (reversed on appeal to P/C)
L Shaddock & Assoc v Parramatta CC (HCA, 1981)
San Sebastian v The Minister (HCA, 1986)
Esanda Finance Corp v Peat Marwick Hungerfords (HCA, 1997)
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (Reg)
(1997) 188 CLR 241; SVW p 291
Facts
Pl finance coy loaned funds to Excel companies relied on a/cs audited by Defs but
a/cs obtained from other source Excel placed in receivership - defaulted on loan
Pls sued auditors trial judge refused Defs applic to strike out Pls pleading as not
disclosing duty of care
Reversed by Full Court
Case in HCA was appeal from interlocutory applic by Def to strike out Pls pleading
as not properly pleading duty
HCA agreed (majority of 6) discussion of duty
Dawson J
Mere foreseeability of pure econ loss not give rise to duty to avoid
Would extend liability beyond acceptable bounds
Stifle commercial activity + limitless liability
See similar Ultramares v Touche
Foreseeability + proximity reqd
Discussion of key cases - Hedley Byrne, MLC v Evatt, San Sebastian
Reliance by Def a cornerstone of liability for negligent misstatement: San Sebastian
Must be reasonable reliance can be shown by intention by Def to induce Pl to act
(estabs proximity duty) but not essential
Distinguish betw advice given on social occasions & serious or business matters
see Hedley Byrne, MLC v Evatt
Re business advice: duty of care if:
1. Def realises Pl trusts in Defs special competence re advice
2. Reasonable for def to accept & rely on advice
3. Reasonably foreseeable that Pl will suffer loss if advice incorrect San Sebastian,
endorsing MLC v Evatt
Esandas appeal dismissed foreseeability of loss because of reliance not suffic for
duty unless relationship of proximity
Brennan CJ
No duty unless Pl proves Def knew or ought reasonably to have known that
information to be given to Pl (as indiv or class) for purpose likely to lead Pl into a
transaction and likely that Pl would rely on info and risk econ loss if not accurate
McHugh J
Without a statement to particular person re particular request for information or
assumption of responsibility to Pl, it will be difficult to estab duty unless there is
intention to induce the recipientto act or refrain from acting on it [but] lack of
intention to induce Pl not necessarily fatal because other factors may be
present (p 275 report)
Long discussion of policy reasons against imposing duty to 3
rd
parties on auditors:
o Incr cost of services
o Decrease competition
o Incr complexity for court system if 3
rd
party duty allowed
o This type potential pls able to look out for own interests
o Creditors & investors better placed to absorb loss than auditors
o Auditors neglig only 2ndary cause of pls loss mainly stems from failure of
coy
o Difficulty of proving reliance years later; etc
Held
Policy factors lead to conclusion that corrective justice not warrant imposition of duty to 3
rd

parties
NB HCA rejected proximity as determinant of duty in Hill v van Erp (1997)
NB statutory actions for misrepresentation/ misleading and deceptive conduct
TPA, Aust Consumer Law
Pl no need to estab duty or negligence
SVW 296-7
NEGLIGENT ACTS/ OMISSIONS
Caltex Oil v Dredge Willemstadt (HCA, 1976) (dredge cut pipeline)
Hill v van Erp (HCA, 1997)(solicitor neglig re will)
Perre v Apand P/L (HCA, 1999) (potato case)
Woolcock Street Investments v CDG (HCA, 2004) (defective structure)

Perre v Apand P/L (HCA,1999) per Kirby J:
The law of negligence in cases of pure economic loss is completely unsatisfactory. This
Courts duty is not to search for more rules which will last a moment but fail to afford more
than fleeting and particular guidanceour duty is to afford an approach or methodology
which is universal to the tort of negligence and appropriate to the particular sub category [of
pure economic loss.]
Caltex Oil v Dredge Willemstadt
(1976) 136 CLR 529
Facts

Dredge negligently ruptured underwater pipeline owned by AOR in Botany Bay -
carried oil products from AORs refinery to Caltex terminal on opposite side
Navigation chart supplied by Decca inaccurate
Both dredge and Decca knew of existence of pipeline
Pipeline damaged and some of contents lost
Caltex incurred expense of $95,000 in transporting products by other means while
pipeline under repair

Issues
1. Whether econ loss sustained as result of damage to 3
rd
partys property recoverable?
2. Whether person whose property has been damaged can recover for econ loss which
caused by the negligent act but not a consequence of the physical damage?
Gibbs J

Extensive discussion Hedley Byrne

Endorses distinction between words and deeds sound reasons of policy agrees
with Ld Denning in SCM (UK) Ltd v Whittal & Son Ltd [1971] 1 QB 337: still right
to say that as a general rule damages are not recoverable for econ loss which is not
consequential
Exceptional cases:
Def has knowledge or means of knowledge, that Pl individually and not merely as a
member of an unascertained class, will be likely to suffer econ loss as consequence of
[Defs] neg, and owes Pl a duty to take care not to cause him such damage
It would not be wise to attempt to formulate a principle that would cover all cases in
which such a duty is owed
Such cases should be ascertained step by step as the facts of particular cases make
it necessary to determine them Gibbs J quoting from Ld Diplock in MLC v Evatt
Material but not sufficient that some property of the Pl was in physical proximity to
the damaged property
Stephen J
See good discussion of policy considerations and reasons for and against
distinguishing between econ and physical loss
+ his views on incrementalism vs the search for principle
PURE ECON LOSS CAUSED BY
D EFECTIVE STRUCTURES

Woolcock Street investments v CDG
(2004) 216 CLR 515; SVW p 298
Facts - Commercial building designed by CDG no geotechnical inspection by engineers -
Woolcock subsequent purchaser - structural damage to building thru settling faulty
foundations

Court of Appeal no cause of action on facts - distinguished Bryan v Maloney as applic only
to residential (builder of residential premises liable to subsequent purchaser)

HCA - Gleeson CJ, Gummow, Hayne, Heydon JJ
Discussion Bryan v Maloney depended on proximity-as-principle approach to duty
no longer the law
Damage here is pure econ loss not physical follows Sutherland SCC v Heyman
pure econ loss special category impact on commercial activity
Damages for pure econ loss not recoverable if all that is shown is Defs neglig is a
cause of the loss + reas foreseeable loss
Discussion of Caltex Oil, Perre v Apand these cases show vulnerability of Pl
important in pure econ loss possibly MLC v Evatt also fits vulnerability analysis
(Prof Stapleton) not necessary to decide here
Held - Engineers not liable to subsequent purchaser Bryan v M distinguished policy
considerations strict criteria for recovery of pure econ loss no vulnerability
NB McHugh, Kirby, Callinan JJ used 5 point test in Perre v Apand (McHugh J ) to determine
duty SVW 204
DUTY: SPECIAL PARTIES

Reading: Ch 9, pp 303-326.

1. DUTY: OVERVIEW

1. D v S reas foreseeability of risk of injury to others (neighbours) ought to have in
contemplation

2. Reas foreseeability of Pl/ kind of injury
Chapman v Hearse (1961) foresee consequence of same general character as occurs

Unforeseeable Pls Palsgraf (1928), Chester v Waverley (1939)

3. Proximity
Dorset Yacht (1970, HL)
as control device - 1980s/90s HCA Deane J - Jaensch v Coffey (1984) reas
foreseeability + proximity + absence of any rule against
4. Incrementalism
Sutherland Shire Council v Heyman (1985) per Brennan J law should develop
novel categories of negligence incrementally & by analogy with estab categories.
See Crimmins.
5. Proximity rejected - Hill v Van Erp (HCA, 1997), Pyrenees v Day (1998)
6. 3 stage test Caparo Ind v Dickman (1990 HL) adopted UK no general support HCA
but favoured by Kirby J Pyrenees v Day (1998)
7. Caparo test rejected by HCA in Sullivan v Moody (2001) (unanimous Kirby J not sitting)
8. But reas foreseeability alone not suffic Sullivan v Moody
9. Incremental approach based on factors or salient features for/against duty method not
rule - Perre v Apand, Sullivan v Moody current

10. All judges diff views on duty in Perre but salient features:
vulnerability of Pl
control by Def
Defs knowledge of Pl & circs
Physical propinquity betw parties
NB + 2 Policy issues indeterminate liability + need to allow legit commercial interests

11. Vulnerability & control
Crimmins v Aust Stevedoring
Ryan v Great Lakes

12. Salient fatures Sullivan policy neglig/ defamation, coherence
13. stat authorities eg Romeo - Kirby J resource issues balanced against risk
relevant to duty & breach see also McHugh J, Brennan CJ see CLA Pt 5
14. wrongful life Harriton, Waller

15. Policy impt in certain types cases eg:
Advocates immunity DOrta- Ekenaike v Victoria Legal Aid (2005)
Police investigating crime Hill v Chief Constable West Yorkshire (1989 HL)
Yorkshire Ripper serial murderer - Pl mother of last victim no duty to public
Auditors Esanda Finance McHugh J same issue & result in Caparo Ind v
Dickman no duty to 3
rd
parties
Child protection agencies Sullivan v Moody, Hillman v Black (SA, 1996), X
(minors) v Bedfordshire County Council (1995 HL) all re sexually abused children
Joint illegality Gala v Preston (1991 HCA) whether duty owed by drunk driver in
stolen car to accomplice in crime proximity case joint illegality may (not must)
negate duty on policy grounds but see CLA Pt 7 (no recovery by criminals)
Stat authorities eg Romeo - Kirby J resource issues balanced against risk
relevant to duty & breach see also McHugh J, Brennan CJ see CLA Pt 5
Wrongful life Harriton, Waller
2. SPECIAL DEFS: PUBLIC OR STATUTORY AUTHORITIES

Common law

CLA Part 5 ss 41- 46

+ CLA Div 5 Recreational activities + Div 4 Assumption of risk

Ipp Report Ch 10

Definition public authority - CLA Pt 5 s 41:
Crown
Government departments
Public health organizations
Local councils
Any public or local authority constituted by or under an Act
Persons or bodies prescribed by regulations as relevant authorities
Any person or body exercising public or other functions of a prescribed class
Doctrine of sovereign immunity

Could not sue Crown (govt) in tort unless it consented + no direct duties owed to
public
Abolished by statute
Now judicial role to supervise public authorities in exercise of functions
Review by admin tribunals available but no compensation
Possible redress via tort?
Justiciability issues - separation of powers distinction betw reviewing merits &
reviewing process of decision eg policy vs operational errors
Courts tend to see discretionary function as exception to abolition of immunity (but
see Sutherland)
Statutory bodies which cause harm in course of exercising their statutory powers
(misfeasance) may be liable in negligence
eg Nader v Urban Transit Authority (personal injury)
eg L Shaddock v Assoc P/L v Parramatta City Council (neglig misstatements causing
pure econ loss)
Same law which applies to other Defs may apply to public authorities but not always
eg Nagle v Rottnest - quadriplegic - diving accident Def liable
H/C regarded stat authority as subject to same law as any private Def
Nagle applied general test for breach of duty - Wyong Shire Council v Shirt council
liable for waterskiing injury
Note that where a clash occurs betw private interest and public functions, eg Sullivan
v Moody (no duty owed by Dept to fathers suspected of abusing own children), the
coherence principle has been applied to protect public body from negligence
See Kirby J in Graham Barclay Oysters v Ryan cannot be incompatibility betw
public authoritys statutory powers/functions and common law duties

Should stat authorities be treated differently?

1. Public bodies
2. Wide discretion given by Parliament about how to perform their functions
3. Limited resources + obligation to perform
4. Powers confined to those conferred by statute
5. 5. Separation of Powers doctrine role of courts / Parlt
6. 6. Imposing liability for failure to act could = judicial review of a resource decision
by stat auth private law of torts vs public domain of admin law (Kirby J, Crimmins)
Issues re stat authorities:

1. Whether, and when, a stat authority is under common law duty to exercise its stat
powers?
2. Whether, and when, stat authority is under ordinary common law duty of reasonable
care when it does exercise its stat powers?
NB both involve questions re interaction between statute and common law. Note provisions of
CLA.

United Kingdom :

East Suffolk Catchment Board v Kent
(1941) AC 74

Facts
natural flooding of Pls land stat authority incompetent repairs no benefit to Pl but no incr
damage

Held H/L
Pl lost - duty re exercise of powers (acts) but no duty re failure to exercise (omissions) auth
failed to benefit Pl
Anns v Merton London Borough Council
[1978]AC 728 (H/L)
Discussed in Sutherland SC v Heyman (1985, H/C)
Anns similar facts to Sutherland - H/L upheld Pls claim for cost of repairs to building
(pure econ loss)
Anns 2 stage test for duty of care (proximity + any considerations negativing duty)

Held: stat authority could be liable at common law for failing to exercise its stat
powers (omissions)
If decision not to exercise primarily operational (ie rather than policy) or ultra vires
Note: Anns 2 stage approach not followed H/C - Sutherland SC v Heyman H/L
replaced with 3 stage test - Caparo Industries v Dickman [1990] 2 AC 605 (HL)
Sutherland SC approved in Caparo - test: foreseeability + proximity + fair, just and
reasonable
NB Caparo test applied by Kirby J (only) in Pyrenees v Day, Perre v Apand,
Crimmins v Stevedoring IFC
Australia:

Sutherland SC v Heyman
(1985) 157 CLR 424
Facts - Defects in building - Pls later purchasers- council failed to properly inspect
construction

H/C refused to follow H/L in Anns
Unanimously held Def not liable in negligence but for different reasons
Majority Mason, Brennan, Deane JJ held no duty of care
Minority Gibbs, Wilson JJ held duty owed but insufficient evidence of breach
On policy /operational (implementation) dichotomy:
o Distinguish betw decisions which involvefinancial, economic, social, or
political factors or restraints (no duty
o And mere products of administrative discretion (duty)
Majority agreed no common law duty to exercise stat powers exists in general (see
Crimmins)
But may arise through conduct per Mason J
Reliance - self imposed duty
Note differing views in majority on proximity re duty of care
Pyrenees Shire Council v Day; Eskimo Amber v Pyrenees SC
(1998 HCA)

Facts: Dangerous fireplace failure to follow up council inspection no warning fire -
damage

Issue : whether failure to exercise stat powers (discretionary) = breach of duty?

Ie omissions not acts
majority found for both Pls no knowledge of danger (known to council) + no
capacity to act
Ie ignorance + vulnerability
Note incremental (maj) v principle (McHughJ) approach
Majority want to confine to circs of case

Relevant factors Pyrenees:

Operational not policy
Def already begun to act
Def specific & actual knowledge of danger

Def best placed to control danger
Policy/operational distinction maintained
Control + knowledge
Cases confined to own circs
THE LEGISLATION: Civil Liability Act 2002 (NSW)

Part 5 Liability of public and other authorities

41 Definitions
In this Part:

"exercise" a function includes perform a duty.

"function" includes a power, authority or duty.

"public or other authority" means:

(a) the Crown (within the meaning of the Crown Proceedings Act 1988), or
(b) a Government department, or
(c) a public health organisation within the meaning of the Health Services Act 1997, or
(d) a local council, or
(e) any public or local authority constituted by or under an Act, or
(e1) any person having public official functions or acting in a public official capacity
(whether or not employed as a public official), but only in relation to the exercise of the
person's public official functions, or
(f) a person or body prescribed (or of a class prescribed) by the regulations as an authority to
which this Part applies (in respect of all or specified functions), or
(g) any person or body in respect of the exercise of public or other functions of a class
prescribed by the regulations for the purposes of this Part.

42 Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty
of care or has breached a duty of care in proceedings for civil liability to which this Part
applies:

(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
those functions,
(b) the general allocation of those resources by the authority is not open to challenge,
(c) the functions required to be exercised by the authority are to be determined by reference to
the broad range of its activities (and not merely by reference to the matter to which the
proceedings relate),
(d) the authority may rely on evidence of its compliance with the general procedures and
applicable standards for the exercise of its functions as evidence of the proper exercise of its
functions in the matter to which the proceedings relate.
44 When public or other authority not liable for failure to exercise regulatory functions

(1) A public or other authority is not liable in proceedings for civil liability to which this Part
applies to the extent that the liability is based on the failure of the authority to exercise or to
consider exercising any function of the authority to prohibit or regulate an activity if the
authority could not have been required to exercise the function in proceedings instituted by
the plaintiff.

(2) Without limiting what constitutes a function to regulate an activity for the purposes of this
section, a function to issue a licence, permit or other authority in respect of an activity, or to
register or otherwise authorise a person in connection with an activity, constitutes a function
to regulate the activity.
45 Special non-feasance protection for roads authorities

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

(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual
knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section: "carry out road work" means carry out any activity in connection with the
construction, erection, installation, maintenance, inspection, repair, removal or replacement of
a road work within the meaning of the Roads Act 1993."roads authority" has the same
meaning as in the Roads Act 1993.
46 Exercise of function or decision to exercise does not create duty

In proceedings to which this Part applies, the fact that a public or other authority exercises or
decides to exercise a function does not of itself indicate that the authority is under a duty to
exercise the function or that the function should be exercised in particular circumstances or in
a particular way.
Effect of CLA on common law

ss 42, 44, 45, 46 relate to duty and breach of/by public authorities

S 42: resource allocation

Exercise of functions limited by available resources
Allocation of resources not open to challenge
Functions determined in broad context of Defs overall activities
Negligence Review panel (Ipp committee) recommendations incorp in ss 42-45
Intended to reduce liability of public authorities in negligence by introducing
administrative law concept of Wednesbury unreasonableness (from Assoc Provincial
Picture Houses Ltd v Wednesbury Corporation [1948] 1 AC 223
ie not neglig unless behaviour so unreasonable that no reasonable authority would
have acted that way
s 45 Special non-feasance protection for roads authorities
Partly reverses Brodie v Singleton Shire Council (2001) 206 CLR 512 which
abolished C19 doctrine of immunity of highway authorities re non feasance & held
they were to be treated same as other stat authority cases eg L Shaddock, Heyman
Immunity did not extend to breach of duty re exercise of powers
S 45 reinstates immunity of road authorities (unless actual knowledge)
Crimmins v Stevedoring Industry Finance Ctee
(1999) 200 CLR 1 (HC) - SVW 305

Facts
Pl wharfie 1960s all work allocated by central stat authority - not employer but responsible
for paying workers indiv e/ers responsible for supplying safety equip - workers no control
over where worked - Pl exposed to asbestos mesothelioma.
Pl won in neglig in Vic S/C (jury), reversed C/A. Appeal to H/C
Issues

1. Whether authority had affirmative C/L duty to protect? (supply protective equipmt or
warn) (yes)
2. Whether current authority liable for omissions of previous authority? (yes)
Held
5:2 for Pl on duty - affirmative C/L duty

6: 0 for Pl on transmission issue

Maj (duty): Gleeson CJ, Gaudron, McHugh, Kirby, Callinan JJ

Dissent: Gummow, Hayne JJ

Gleeson CJ agrees with McHugh J

Gaudron & Callinan JJ adopt approach to duty of working from common law to
statute

Kirby & Gummow JJ diff approach (construe statute first)

Gummow & Hayne JJ no duty on facts

7 judgmts, 6 diff views ratio??
McHugh J (maj)

Starting points are Sutherland SC and Pyrenees (re breach of affirmative duties)

Incremental approach endorsed McHugh/Hayne JJ, but rejected Gummow J

The policy of developing novel cases incrementally by reference to analogous cases
acknowledges that there is no general test for determining whether a duty of care
exists (McHugh J); SVW 331

Note difference betw powers & duties discretion whether to exercise powers
NB CLA s 41 defines function as power, authority or duty

C/L courts have long been cautious in imposing affirmative C/L duties of care on stat
authoritiesperforming their functions within limited budgetary resources often
requires the making of difficult policy choices and discretionary judgments(p 331)
C/L courts have long been cautious in imposing affirmative C/L duties of care on stat
authoritiesperforming their functions within limited budgetary resources often
requires the making of difficult policy choices and discretionary judgments(p 331)
Here stat authority had positive duty to take affirmative action
See McHugh J - 6 Qs (SVW p 308-9) for determining duty in novel cases re stat
authorities v impt:

1. Was it reas foreseeable that Defs act/omission, incl failure to exercise stat powers,
would result in injury to Pl? (YES = duty)
2. Did def have power to protect specific class incl Pl (ie not public at large) from risk
of harm by reason of Defs stat or assumed obligations or control? ( YES = duty)
3. Were Pls interests vulnerable to harm (ie Pl unable to protect self)? (YES = duty)
4. Did Def know/ought to have known of risk of injury to specific class incl Pl if did not
exercise it powers? (YES = duty)
5. Would duty impose liability re Defs exercise of core policy-making or quasi-
legislative functions? (NO = duty)
6. Other supervening reasons in policy to deny duty? (eg duty inconsistent with statute,
pure econ loss case that has own principles etc) (NO = duty)

Duty should be imposed when yes to Qs 1-4, no to Qs 5 & 6:
1. Foreseeability of injury to Pl (Y)
2. Did Def have power to protect Pl? (Y)
3. Was Pl vulnerable? (Y)
4. Did Def know of risk of harm to Pl? (Y)
5. Related to core policy making or quasi-legislative function?(N)
6. Other policy reasons to deny duty? (N)
Vulnerability of Pl essential condition for duty except in limited circs
Knowledge of Def re harm to Pl also essential analogy with pure econ loss in Perre
v Apand vulnerability and knowledge go hand in hand
Graham Barclay Oysters v Ryan
SVW 315
See lecture Week 5
LECTURE 7
READING: Ch 9 pp 326 -376

RE-CAP

Duty: mental harm Wicks v SRA and Pt 3 CLA
Duty: economic loss
Negligent words
o Esanda Finance v Peat Marwick
Negligent acts/omissions
o Caltex Oil v Willemstadt
o Perre v Apand
o Woolcock Street Investments
Duty: Overview
See summary

Duty: Public authorities
Definition public authority - CLA Pt 5 s 41
Issues (common law) re stat authorities:
Whether, and when, a stat authority is under a common law duty to exercise
its stat powers?
Whether, and when, stat authority is under ordinary common law duty of
reasonable care when it does exercise its stat powers? see Sutherland SC v
Heyman (1985) 157 CLR 424 (Mason J)

Civil Liability Act 2002 (NSW): Part 5 Liability of public and other authorities
esp Ss 41, 42, 44, 45, 46
..
Crimmins v Stevedoring Industry Finance Ctee
Graham Barclay Oysters v Ryan
Amaca v NSW
RTA v Refrigerated Roadways
Crimmins v Stevedoring Industry
Finance Ctee
(1999) 200 CLR 1 (HC) - SVW 305

Facts
Pl wharfie 1960s all work allocated by central stat authority - not employer but
responsible for paying workers indiv e/ers responsible for supplying safety equip -
workers no control over where worked - Pl exposed to asbestos mesothelioma
Pl won in neglig in Vic S/C (jury), reversed C/A. Appeal to H/C
Issues
1. Whether authority had affirmative C/L duty to protect? (supply protective equipment or
warn) (yes)
2. Whether current authority liable for omissions of previous authority? (yes)
Held
5:2 for Pl on duty - affirmative C/L duty

6: 0 for Pl on transmission issue

Maj (duty): Gleeson CJ, Gaudron, McHugh, Kirby, Callinan JJ

Dissent : Gummow, Hayne JJ

Reasoning - 7 judgments, 6 diff views ratio??
Gleeson CJ agrees with McHugh J

Gaudron & Callinan JJ adopt approach to duty of working from common law to
statute

Kirby & Gummow JJ diff approach (construe statute first)

Gummow & Hayne JJ no duty on facts
McHugh J (maj)

Starting points are Sutherland SC and Pyrenees (re breach of affirmative duties)
Incremental approach endorsed mchugh/Hayne JJ, but rejected Gummow J
The policy of developing novel cases incrementally by reference to analogous cases
acknowledges that there is no general test for determining whether a duty of care
exists (mchugh J); SVW 331
Note difference betw powers & duties discretion whether to exercise powers
NB CLA s 41 defines function as power, authority or duty
C/L courts have long been cautious in imposing affirmative C/L duties of care on stat
authoritiesperforming their functions within limited budgetary resources often
requires the making of difficult policy choices and discretionary judgments(p 331)
C/L courts have long been cautious in imposing affirmative C/L duties of care on stat
authoritiesperforming their functions within limited budgetary resources often
requires the making of difficult policy choices and discretionary judgments(p 331)
Here stat authority had positive duty to take affirmative action
See McHugh J - 6 Qs (SVW p 308-9) for determining duty in novel cases re stat
authorities v impt:

1. Was it reas foreseeable that Defs act/omission, incl failure to exercise stat
powers, would result in injury to Pl? (YES = duty)
2. Did def have power to protect specific class incl Pl (ie not public at large)
from risk of harm by reason of Defs stat or assumed obligations or control? (
YES = duty)
3. Were Pls interests vulnerable to harm (ie Pl unable to protect self)? (YES =
duty)
4. Did Def know/ought to have known of risk of injury to specific class incl Pl
if did not exercise it powers? (YES = duty)
5. Would duty impose liability re Defs exercise of core policy-making or
quasi-legislative functions? (NO = duty)
6. Other supervening reasons in policy to deny duty? (eg duty inconsistent with
statute, pure econ loss case that has own principles etc) (NO = duty)

Duty should be imposed when yes to Qs 1-4, no to Qs 5 & 6:
1. Foreseeability of injury to Pl (Yes)
2. Did Def have power to protect Pl? (Yes)
3. Was Pl vulnerable? (Yes)
4. Did Def know of risk of harm to Pl? (Yes)
5. Related to core policy making or quasi-legislative function?(No)
6. Other policy reasons to deny duty? (No)
Vulnerability of Pl essential condition for duty except in limited circs

Knowledge of Def re harm to Pl also essential analogy with pure econ loss in Perre
v Apand vulnerability and knowledge go hand in hand
Graham Barclay Oysters v Ryan
SVW 315
See lecture Wk 5 and SVW pp 243-253
(product liability aspects of case)
Facts - Class action - Pls got hepatitis A from eating contaminated oysters grown in
polluted lake - sued producer/distributor + local council + NSW govt which
regulated waterways
Gleeson CJ
Re claims against Barclay companies duty conceded, main issue breach
Re council and State omissions not acts non feasance
Useful discussion re reasons for govt defs being treated differently from private
SVW 315:
When govt sued, compensation comes from public funds not same as for
private defs - govt primary responsibility is to public not indivs
Not approp for judicial arm of govt to pass judgment on reasonableness of
conduct (action or inaction) of legislative or executive arms because conduct
may be political
Justiciability separation of powers doctrine
Reasonableness is at heart of negligence
Decisions re resources or policy are political, same re regulation of
private/commercial activity
Claims here v State ands Council are re non-feasance
Ie that could and should have done more re Hep A political may involve
resources, policy priorities
Accepts that local and State govt owe duty to public re public health
But Pl must prove duty owed to him as consumer (of these oysters)
If such a duty exists, then a similar duty is owed to all consumers of all
potentially contaminated foodperhaps to all persons whose health and
safety might be affected[by] govt action or inaction. SVW 315-6 far
reaching implications (SVW 318)
Duty to do what? (content of duty) if hard to answer, maybe no duty
Reas foreseeability of kind of harm suffered by Pl NOT sufficient for duty
Re govt defs, may be a very large step from foreseeability to duty (SVW 316)
And may also be a large step from existence of power [to act] to recognition of
duty to exercise the power
Even where statute confers specific power , does not follow that public authority
owes duty to indiv or class re exercise of power
Re case v State crown immunity abolished C19 Crown Proceedings Act 1988
(NSW) s 5 - tries to put govt in same position as private defs as nearly as possible
aspires to equality before the law, but not always possible
Diffs arise from nature and responsibilities of govts led to attempt to distinguish
based on policy/operational dichotomy see Sutherland SC v Heyman (1985) 157
CLR 424 (Mason J) still relevant - quote SVW 316
Sutherland (Mason J): a public authority is under no duty of care [re]
decisions which involve or are dictated by financial, economic, social, or
political factors or constraints
Budgetary allocations cannot be made subject of duty
May be otherwise [re] action or inaction that is merely the product of
administrative direction, expert or professional opinion, technical standards
or general standards of reasonableness
Decision that duty owed to citizen in neglig necessarily implies that
reasonableness of action/inaction is justiciable (legitimate subject for curial
decision)
No duty re govt if no criterion for determining reasonableness
Re state - upholds dissent by Lindgren J (Full Federal Court)
Control well estab basis for duty but was there control by state here?
Discusses meaning of and factors relevant to control - ((a) (g) SVW 317-8)
Nature and extent of state govt involvement in oyster quality control a
matter of policysubstantial budgetary implications
Political judgment knowledge re risks to consumers not suffic to conclude
state owed duty to consumers to incr level of regulation or to further exercise
powers to control
Discussion re duty via Fisheries Management Act 1994 (NSW)
No duty owned by State to Pl
Re Council
Starting point for council is stat provisions conferring relevant powers and
functions see Gummow and Hayne JJ
Powers conferred on council for benefit of public generally not specific class
of indivs
No duty by council
Re Barclays duty accepted issue is breach
Held allow appeal by State
Agrees with last par of orders proposed by Gummow and Hayne JJ
Gummow and Hayne JJ SVW 320 326
Students to make own notes
Amaca P/L v NSW
[2004] NSWCA 124; SVW p 326

**NB useful drawing together of principles from other cases

Facts
Pl construction worker on power station for Pacific Power
State had stat power to inspect worksites
Pl exposed to asbestos mesothelioma
Claims against e/er and Pacific P settled
Sued Amaca /James Hardie (asbestos manuf) & won
J Hardie cross-claimed against state
JH lost at trial & C/A
Appeal to HCA - allowed sent back to C/A for new hearing

Ipp JA (Mason P & mccoll J concurring)

Relevant authorities Crimmins, Graham Barclay, Pyrenees & others
No clear & universal test
Each case depends on its own circs weigh totality
Different factors signif depending on facts
Mason J Sutherland SC v Heyman (1985 HC, at 459-61):
Generally speaking, a public authority which is under no stat obligation to exercise a
power comes under no common law duty of care to do soBut an authority may by
its conduct place itself in such a position that it attracts a duty of care which calls for
exercise of the power (SVGW p 418)
Occupation of premises or ownership or control of public place/structure may attract
duty statute facilitates existence of C/L duty ie statute foundation on which C/L
can build duty (Scott v Green per Lord Denning)
Nothing in Pyrenees, Crimmins, Graham Barclay materially inconsistent with
Mason J in Sutherland
Signif propositions from Sutherland (SVW p 327):
o Where no stat obligation to exercise power, generally no C/L duty to do so
B) & c) authority can attract duty by conduct:
o By creating a danger
o Where partic circs of occupation of premises or control of structure attract
duty statute facilitates duty
o Where authority acts so that others rely on it to take care for their safety

Categories not closed - extended in later cases to include where authority has control
& knows or should know of risk of harm
Discussion Pyrenees, Sutherland, Graham Barclay - Pyrenees emphasizes sole &
actual knowledge by Def council of risk of harm to identified Pls + power to
intervene + partial prior inadequate intervention
RTA V Refrigerated Roadways
(2009) 77 NSWLR 360; SVW p 338
NB case about interaction betw common law and Roads Act similar issues to CLA
Facts Truck driver Evans killed in accident caused by concrete block deliberately dropped
on truck whilst passing under overhead bridge criminal - perpetrators convicted RTA
admitted owed duty of care to road users
Issue Scope of duty - whether includes taking reas care to prevent road users suffering
physical injury as result of intentional criminal acts of 3
rd
parties? (ie building structure to
prevent objects being dropped on traffic)
Campbell JA
RTAs duty not argued on s 42 CLA so not considered
Brodie v Singleton (2001 HCA) discussed accepted that highway authority could be
liable for failure to exercise powers
Discusses Nagle, Romeo, Pyrenees, Crimmins, Graham Barclay, Amaca
Amaca - all 3 judges accepted that duty could exist re public authority exercising its
power where partic circs of ownership/control of structure attract a duty
RTA accepts owes Brodie type duty
Modbury Triangle influential at trial and here general rule in Modbury that not
normally a duty re omissions also importance of knowledge and control by occupier
(refer Dorset Yacht)
Discusses Graham v Hall [2006] NSWCA 208 - summary from Modbury of v
restricted circs when duty to prevent harm from criminal conduct arises endorsed
here
(SVW p 341) special vulnerability + knowledge, and/or assumption of
responsibility
But there must be something special in the circs, or nature of relationship betw Pl
and def (Callinan J)
Circs here diff from Modbury there could only happen by intentional criminal
conduct, here could also happen by accident
Road users vulnerable
Stovin v Wise rejected
Discussion ss 43A, 42 CLA
Held - RTA liable
LANDLORDS AND DEFECTIVE STRUCTURES
Jones v Bartlett
(2000) 205 CLR 166; SVW p 347
Facts
Pl son of tenant injured when walked thru closed glass door glass compliant when
installed but not at date of injury no knowledge by landlord and defect not visible
Pl won at trial Def should have had house inspected by experts before renting Def
won in WA S/C duty but no breach
Gummow & Hayne JJ
Cavalier v Pope (HL 1906 - landlord immunity) rejected by HCA in Northern
Sandblasting (1997) 188 CLR 313 correct
No longer law in Aust that landlords never owe duty re condition of residential
premises to tenants but not necessarily extend to all entrants
Landlords correctly conceded duty - issue is content of duty + breach
Takes law further than in Northern Sandblasting
Start by considering relationship betw landlord & tenant that which arises under
ordinary principles of negligence duty to take reas care to avoid foreseeable risk of
injury : Northern Sandblasting
Discuss D v S close and direct relationship duty coterminous with requirement
that premises be fit for purpose
Premises not fit for purpose where ordinary would use foreseeably cause injury
Landlord had duty not to let premises with defects that knows or ought to know make
premises unsafe for purpose
Duty discharged if landlord takes reas steps to ascertain presence of defects and
remedy them once known ie landlord duty to act in manner reasonably to remove
risks depends on circs not strict liability
But is lesser duty owed to other entrants? general principle consistent with
Safeways v Zaluzna is that occupiers liable for injury to entrants on resid premises
Tenant in occupation has possession and control with power to invite/exclude
tenant in best position to know of defects and warn entrants so tenant broader duty
than landlord
But landlords duty to tenants re dangerous defects that knew or ought to have
known of extends to entrants
Held
Pl lost 5: 1 (McHugh J dissent)
No breach glass door not a dangerous defect tenants (Pls parents) in as good
position as landlord re defect
OCCUPIERS LIABILITY
Aust Safeways Stores v Zaluzna
(1987) 162 CLR 479; SVW p 352

Facts- Pl slipped on wet supermarket floor raining injured lost at trial applied
occupiers liab principles no duty - Full court Vic found duty - ordered new trial Def
appealed to HC

Mason, Wilson, Deane, Dawson JJ

Formerly occupiers liability based on categories of entrant to property licensees,
invitees, trespassers diff special duties owed
Now neglig encompasses all special duties do not travel beyond the general law of
neglig
Duty present new trial re breach
Appeal dismissed
NB many occupiers are also statutory authorities (eg local councils)
PROFESSIONALS
SVW pp 355-57
NB Refer Rogers v Whitaker (Ch 10 standard of care)

CLA Division 6 Professional negligence

5O Standard of care for professionals

(1) A person practising a profession ("a professional") does not incur a liability in negligence
arising from the provision of a professional service if it is established that the professional
acted in a manner that (at the time the service was provided) was widely accepted in Australia
by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if
the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in Australia
concerning a matter does not prevent any one or more (or all) of those 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.
5P Division does not apply to duty to warn of risk

This Division does not apply to liability arising in connection with the giving of (or the failure
to give) a warning, advice or other information in respect of the risk of death of or injury to a
person associated with the provision by a professional of a professional service.

NB re doctors HCA held in Rogers v Whitaker that standard of care was matter
for court ie Q of law not determined by industry practice rejected UK Bolam test
IMMUNE DEFENDANTS - BARRISTERS

DOrta-Ekenaike v Victoria Legal Aid
(2005) 223 CLR 1; SVW p 357

Facts

Acc charged with rape advised to plead guilty to get suspended sentence by legal
aid barrister Acc claimed innocent
Pleaded guilty at committal - later changed to not guilty at trial
First plea used as admission Acc convicted
Verdict set aside & acquitted on re-trial evidence re first guilty plea not admitted
Could not sue unless immunity overruled re work intimately connected with court
work HCA
Held - 6:1 retain immunity Kirby J dissent
Gleeson CJ, Gummow, Hayne, Heydon JJ
Gianarelli v Wraith (1988 HC) legal advocates immune from suit in neglig (acts &
omissions) re court work & closely connected other work
2 main policy argumts Gianarelli duty to court takes priority over duty to client +
abolishing immunity means civil court reviews decision of another court incl
criminal, without appeal admin of justice finality
Same UK- Rondel v Worsley (1969 HL) and Saif Ali v Sydney Mitchell & Co (1980
HL) - immunity
Abolished UK 2000 Arthur JS Hall & Co v Simons; Barratt v Ansell; Harris v
Schofield Roberts & Hill heard together unanimous re civil, by majority in
criminal
Abolished Canada, NZ
PARENTS AND CHILDREN
SVW p 359-363
No general duty owed to children to feed, clothe etc: Rogers v Rawlings [1969] Qd R
262
Driver parents always owe duty to car passengers incl own children 3
rd
party
insurance. Blood relationship not a barrier to otherwise available action: Hahn v
Conley (Barwick CJ)
See duties to unborn Lynch v Lynch pregnant mother driver owes duty to unborn
child injured in car accident where mother at fault - Lynch confined to motor vehicles
no general duty re lifestyle injuries
Parents can be liable for failure to supervise young children who injure others but
see McHale v Watson 12 y/o child injured other child - initial action against parents
dropped
Parents can be vicariously liable for their children in some circs
Hahn v Conley
[1971] 126 CLR 276 (HCA) SVW p 360-63
Facts grandparents looking after child - 3 year old called out - grandfather answered child
crossed road to him and hit by car car driver liable - at trial def insurer claimed indemnity
from grandfather grandfather assessed as 25% at fault major issue breach appeal by
grandfather
Barwick CJ
Defs claim to indemnity can only succeed if Pl had cause of action against
her grandfather
Considers view of CJ adopted in S/C that parents owe duty to child to take
reas care to prevent danger Grandparents in loco parentis - therefore
grandparents owe duty
Rejected Barwick CJ
The moral obligation of the parent, created by the blood relationship, does
not, of itself, automatically translate into a legal obligation
In some circs duty imposed on carer who has accepted responsibility to take
reas care to protect against foreseeable danger, but no general duty on parents
ie parenthood not source of the duty
No legal duty on grandfather to assist child or take positive steps to protect
no breach - finding for Pl
Windeyer J
Duty to care fort child is obligation to take reas care in existing circs not to
ensure safety in all circs
Child is neighbour (D v S) and duty based on proximity but no breach
Held Finding for Pl 3:2 (Walsh and Menzies JJ dissenting on breach)
Duties to 3
rd
parties: Unborn Plaintiffs
NB relate to other cases discussed in previous lecture on duty re 3
rd
parties Dorset
Yacht, Modbury Triangle, Jaensch v Coffey
Wrongful Life
Action by child born with disability (genetic/disease-related)
Medical negligence doctors failure to advise re abortion
Parents would have aborted if advised
Often concerns child with rubella syndrome, or genetic defects

Wrongful birth
Action by parent(s) of healthy or disabled unintended child
Often following negligent sterilisation or failure to detect pregnancy
Medical negligence
WRONGFUL BIRTH
Cattanach v Melchior
(2003) 215 CLR 1 (SVW p 364)
Facts - Wrongful birth case surgical sterilization of female Pl - failure to check Pls oral
history that one fallopian tube removed at 15 not accurate should have applied clip
neglig advice and failure to warn - Pl became pregnant healthy child

History
Qld C/A

Held : finding for Pls (both parents) - neglig failure to inform Rogers v Whitaker
Pl awarded general & special damages + allowed upkeep costs (2:1 majority)
all accepted this was pure econ loss claim
Def appealed on damages only
Pl won H/C 4:3 (Gleeson CJ, Hayne, Heydon JJ dissenting)
Issue

Sole issue in HC whether upkeep damages awardable (costs of raising child to 18 yrs)

Gleeson CJ (dissenting)

Parent/child relationship integral aspect of the damage whether actionable
damage?
Financial cost foreseeable
But no general duty to avoid causing foreseeable financial loss Perre v Apand
Classifies this as pure econ loss, in line with HL in McFarlane v Tayside impt
Indeterminacy argument
Child as blessing argument care for aged parents
Legal coherence denial of duty in Sullivan v Moody internat instruments stress
family and care of children not coherent to regard parent/child relationship as
actionable damage
Human relationship, not primarily financial to seek to assign an economic value to
the relationship is neither reasonable nor possible
Accepted approach by HC to duty in novel categories is incrementally and by
analogy with established categories[this] goes beyond that (p 232)
Appeal allowed (finding for Def)
McHugh & Gummow JJ (maj)

Public policy arguments (as above) does not explain why the law should shield or
immunize neglig Def from damages normally recoverable under general and
unchallenged principles
Damage not pure econ loss nor parent/child relationship
Relevant damage suffered is expenditure that [Pls} have incurred or will incur in
future not child itself based on damage being personal injury - What was
wrongful was not the birth of a child but the negligence of Dr Cattanach
Beguiling but misleading simplicity to invoke [broad family values]and then glide
to the conclusion that they operate to shield [neglig Def]
No justifiable diff betw healthy & disabled child
Cannot set off like with non-like re damages
Find for Pl
Kirby J (maj)
Discusses own judgment in CES v Superclinics (NSW CA) rejected sanctity of life
argument & child as blessing argumt
Discusses UK and McFarlane
Considers 5 options for damages partly set out pp 234-5 Option 1: no damages
thru to Option 5. Upkeep costs
Option 5 is correct normal application of principles of neglig & damages
To deny [upkeep costs] is to provide a zone of legal immunity to [doctors] that is
unprincipled and inconsistent with established legal doctrine
Upkeep claim avail as ord neglig not pure econ loss (more stringent)
Blessing argument a fiction
Birth of child not harm econ harm
Distinguishing betw healthy & unhealthy children arbitrary & unacceptable
Upkeep costs hardly exceptional in terms of common law principleto deny it
would be. Any such denial would be arbitraryDenial is the business, if of anyone,
of Parlt not the courts
Finds for PI
NB CLA (NSW) amended new s 71 overturned Cattenach on upkeep damages
same Qld & SA - not other states, which are still common law
Wrongful Life

Harriton v Stephens
[2006] HCA 15; SVW p 369

History
2002
Edwards v Blomeley [2002] NSWSC 460
Harriton v Stephens (461)
Waller v James (462)
3 test cases heard together before Studdert J in NSW S/C to determine whether
wrongful life cause of action recognized in NSW - rejected in all

2004
Harriton, Waller on appeal to NSW C/A
Pl lost both 2:1 (Mason P dissent)
2006
Harriton appeal HCA (2006) 226 CLR 52
Facts

Edwards - failed vasectomy neg op & neg failure to advise causation conceded rare
chromosomal disorder child intellectual & motor & behavioural disability
Harriton - neg advice to pregnant mother that had not contracted rubella child blind, deaf,
intellectual disability rubella syndrome

Waller - in vitro fertilisation father AT3 deficient passed to child - brain damage &
cerebral palsy - neg and/or breach of contract

wrongful birth claims also in Edwards, Waller - parents in Harriton statute barred -
child 21 y/o
Issues HCA
Confined to duty and damage (and damages), by agreement betw parties whether cause of
action recognized at common law

Held- 6:1 finding against Pl
Kirby J (dissent)
SVW p 369 - discuss in tuts
Crennan J (main judgment ) SVW p 370
(Gleeson CJ, Gummow and Heydon JJ fully agreed; Hayne & Callinan JJ mainly agreed)

Duty
Damage
Value of life
Compensatory principle
Corrective justice
Comparison existence vs non existence impossible
Compensatory principle re damages cannot be applied

Policy factors also against recognition
Life with disabilities, like life, is not actionable
Duty of care
Doctor has clear duty to advise mother of problems arising during pregnancy
Doctor has clear duty to the foetus which may be mediated through the mother not to
injure foetus by act or omission
But these not determinative of whether doctor has duty to foetus to advise mother so she can
terminate pregnancy in interest of foetus in not being born
ie can/should C/L recognize a right of a foetus to be aborted, or an interest of a foetus
in its own termination?
Cannot infer from decision by mother to terminate that this in best interests of child
Coherence issue - to superimpose a further duty of care on a doctor to a foetus (when
born) to advise the mother so that she can terminate pregnancy in interest of foetus in
not being born, which may or may not be compatible with the same doctors duty of
care to the mother in respect of her interests, has the capacity to introduce conflict,
even incoherence, into legal principle
If such a duty were recognized, parents could also be sued by own child for failing to abort
undesirable
Duty cannot be stated where damage cannot be proved damage the gist of
negligence - ie comparison betw life with disabilities and no life is impossible
court cannot determine whether Pl is worse off ie has sustained any damage
Not every claim for damage is actionable The analytical toolssuch as duty of
care, causation, breach of duty, foreseeability and remoteness, all dependon
damage capable of being apprehended and evaluated