Torts Exam Notes

False Imprisonment
Definition
False imprisonment is a total restraint of the Ps freedom that is
directly, and intentionally or negligently, brought about by the
voluntary and positive act of the D without lawful justification
Actionable per se
Actual damage not required
Voluntary and positive act of D
Public Transport Commission of NSW v Perry D suffered fit and fell
from platform onto railway track. D does not commit an actionable
trespass by going on to a Ps land involuntarily
Innes v Wylie policeman standing at entrance of club, man injured
bumping the policeman, no positive act from just standing there
Total restraint
Bird v Jones total restraint is required, a partial obstruction (ie only in
one direction), does not count
Balmain New Ferry Co Ltd v Robertson failed to pay a penny to leave
the wharf, no total restraint, could have paid the penny or jumped in
the water
Herd v Weardale Steel Coke & Co taken down to a coal mine
Say that a person who is not permitted to leave an area until
entry conditions are fulfilled is not falsely imprisoned
Nature of restraint physical/psychological
Symes v Mahon police officer arrested P with warrant, person
arrested was not the right one,
where there is no application of physical force on the plaintiff, it
is necessary that there have been a complete submission by
the P to the control of the D
McFadzeann v CFMEU picket line around the P set up by the D, scared
that if they crossed there would be violence
In determining whether a physical means of egress (leaving a place) is
reasonable, there are four factors to consider:
Threat or danger to the self
Threat or danger to property
Illegality
Distance and time unreasonableness means more than mere
inconvenience, and depends on the circumstances of the case
Need to look at: footwear and clothing, physical fitness, what
kind of distance, terrain, was it a reasonable means of egress

Knowledge of restraint
South Australia v Lampard-Trevorrow taken from parents and left with
foster parents
A person can be falsely imprisoned without knowledge of the
circumstances of restraint and without knowing that they are
actually being imprisoned
Directness
Hutchins v Maugham an injury is direct when it follows so
immediately upon the act of the defendant that it may be termed part
of the act
Coles Myer Ltd v Webster two Ps accused pf using false credit cards,
held by Coles then held by police, an agent does not disrupt the
element of directness
Myer Stores Ltd v Soo police thought Soo was a thief, wrong person,
interviewed him for an hour, Soo willing went with the police to the
station
Human actions may constitute an intervening act
Fault (intention or negligence)
Must have intended the outcome Williams v Milotin
Trespass to person: Defences
Consent
Onus of proof and scope
Secretary, Deparment of Health and Community Services v JWB
(Marions case) onus is on the defendant to prove consent
Form of consent (express or implied)
Halliday v Nevill driving without license, arrested in own driveway,
police did not have expressed license or expressed consent
There are circumstances where a license will, as a matter of law,
be implied
If the path or driveway is unobstructed and the entrance gate is
unlocked, the law will imply a licence in favour of any member of
the public to go onto the path or driveway for a legitimate
purpose that involves no interference with the occupiers
possession.
such an implied licence may be precluded at any time, by the
occupier of the house, either impliedly or expressly
Lincoln Hunt v Willesse reporter and cameraman into shop, implied
license because premise was a business seeking members of the
public
Judge said there was license, but it did not cover the activities of
the D
The implied invitation by the plaintiff for the public to visit its

premises was limited to members of the public bona fide seeking

information or business with it, or to clients of the firm.
Revocation of consent
To be effective, the revocation must be brought to the ds attention
Cowell v Rosehill Racecourse Co paid 4 shillings for entry but was
asked to leave, said that the money allowed him to stay for the whole
event
Once the consent is revoked, the d will have a reasonable
amount of time to leave the ps land.
Not trespassing until told of the revocation
Self Defence
Response to force, actual or apprehended
A person is entitled to act in self defence where:
there is an unlawful infliction of force to her person; or
she is under a reasonable apprehension that force is about to be
unlawfully inflicted to her person.
Conduct constituting self-defence must be reasonable in the
circumstances
Reasonable means of avoidance
Before resorting to violence, the person claiming self-defence
must have taken whatever reasonable means were open to him,
other than the use of force, to avoid the infliction of force against
him (see eg Fontin v Katapodis, Rozsa v Samuels )
Proportionate response
It is generally the case that in order for the actions constituting
self-defence to be reasonable in the circumstances, the degree of
force employed in the self-defence be proportionate to the
degree of force that is being defended against (see eg Fontin v
Katapodis)
Defence of others
Goss v Nicholas the defence of others can be relied upon even if the
person being defended is a stranger.
Necessity
Pursuant to the defence of necessity a person will be held not to be
liable for trespass if the trespass was reasonably necessary to protect
a person or goods or land from imminent danger.
Southwark London Borough Council v Williams - The danger which is
being protected against must be imminent
The action must be necessary in order to protect a person or property
from great harm.
whether or not the action was necessary is assessed by

reference to what was known at the time the interference took

place;
it is not necessary that the defendant was successful in
protecting the relevant life or property, in order for him to rely on
the defence
In this context, the court considers whether the harm likely to be
caused by the defensive action is less than the harm that would have
been caused if the danger had not been averted in the first place.
But the court will not place too much weight on this factor,
particularly if the d acted on the spur of the moment (Proudman
v Allen)
Southport Corporation v Esso Petroleum Co The action sought to be
defended against must not be necessary as a result of the ds own
negligence.
Necessity in medical treatment
For the defence of necessity to negative battery where a person has
been subjected to medical treatment, it must have been impracticable
to communicate with that person (In re F)
Only medical treatment that is necessary to protect a persons life or
health may be justified by the defence of necessity (See Murray v
Murchy)
The doctor must take such actions as would a reasonable person acting
in the best interest of the patient (In re F).
Lawful arrest
A person will have a defence against trespass to the person if his
actions are sanctioned by the law, either common law or statute. Eg,
the power of arrest
Citizens power of arrest
s 458 of the Crimes Act
any person, whether or not a police officer, may arrest another
person whom she finds committing an offenceif she believes on
reasonable grounds that the apprehension is necessary
to ensure the appearance of the offender before a court;
to preserve the public order;
to prevent the continuation or repetition of the offence, or the
commission of a future offence; or
for the safety or welfare of members of the public or of the
offender.
s 461 - even if it turns out that the person arrested was not
committing an offence, as long as the arrestor made the arrest on
reasonable grounds, then the arrest will be lawful and authorised by
statute.
s 458 a person may also arrest another person if
he or she is instructed to carry out the arrest by a member of the
police force with authority to arrest the person; or

 he or she believes, on reasonable grounds, that the person is

escaping from legal custody or avoiding apprehension by some
person having authority to apprehend the person.
Damages
Likely to just be nominal damages awarded

Trespass to land
Define
A voluntary and positive act by the D which directly, and either
intentionally or negligently, interferes with the Ps exclusive possession
of land
Actionable per se
Is there land?
Bernstein v Skyviews & General Ltd airplane flying over, not trespass
because it was so far above the space, not considered intrusion

 Must balance the rights of an owner to the enjoyment of his land

against the rights of the general public to the use the airspace
Bocardo SA v Star Energy how deep ones land ownership can get
Standing to sue
Newington v Windeyer P looked after grove, did not legally own
Standing to sue is based on possession, rather than ownership
Positive and voluntary act
Interference
Lavender v Betts slightest crossing of a boundary will suffice
Action of privacy
LJP Investments v Howard Chia Investments scaffolding over Ps land,
can stay there if D pays for it
Test is NOT whether the incursion actually interfered with the Ps
actual use of land at the time
Rather, whether the incursion was at such a height that it may
interfere with any ordinary uses of the land which the P may see
fit to undertake.
Revoked License
Cowell v Rosehill Racecourse P bought ticket, D revoked right of
entry, no possessive right, became trespasser.
Entering land with a license and remaining once the license has been
revoked is also trespassory
Continuing trespass
Konskier v Goodman builders left rubbish on roof, continuing trespass
by leaving it on the roof, even though P was not owner when trespass
began
Directness
Southport Corp v Esso Petroleum oil discharged by Ds tanker carried
onto Ps foreshore property, not trespass as the oil was carried by the
tide and therefore consequential, not direct
Ds voluntary act must directly cause the intrusion upon Ps
possession
Intentionally or negligently
Defences
Refer to defences for false imprisonment above.
Damages

Nuisance
Define Nuisance
Nuisance is an unreasonable interference with the Ps use and
enjoyment of land
Nuisance differs from trespass to land in that it can be indirect
interference.
Is there land?
Trespass to land occurs when there is a voluntary, direct and
intentional (negligent) interference with land without consent of the
exclusive possessor
Does the plaintiff have standing?
A person who is in exclusive possession of land may sue
Hunter v Canary Wharf private nuisance is concerned with the
interference of the use and enjoyment of land
Oldham v Lawson husband and wife, wife owns the property,
husband does not have standing to sue

 Can the D be sued?

Fennell v Robson Excavations Pty Ltd Sedleigh-Denfield v OCallaghan council placed pipe, D blocked pipe,
water overflowed on Ps land, Ds liable even though he did not create
the nuisance
Is the interest protected?
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor enclosed
racecourse, D built a platform to view the races, not nuisance. Freedom
from view is an unprotected interest
Hunter v Canary Wharf view spoiled, law does not protect the interest
in enjoyment of an uninterrupted view from land
Is there unreasonable interference?
Two types of interference with Ps use and enjoyment of land
Material damage physical damage to Ps land look for physical
damage which is not trivial
St Helens Smelting Co action against Smelting Co due to damage
caused by the smelting on crops, trees and foliage
Damage to sensibilities interference with comfort/sensibilities of
occupants of land weigh up various factors to determine whether
interference was unreasonable
The court will consider a series of indicia in assessing whether there
has been an unreasonable interference with the land.
Locality
The less appropriate the act is, given the locality the more likely
it is that the interference will be unreasonable
Sturges v Bridgman D caused noise and vibrations to P,
fashionable residential area taken into account for deciding
nuisance
Munro v Southern Dairies Ltd no defence to argue that their
actions benefit society
Intensity of the discomfort
the greater the intensity of discomfort suffered by the P, the
more likely it is that the interference will be unreasonable
Feiner v Domachuk strong and unpleasant smells from
mushroom farm in an area described as
Polsue Alfieri
Time/duration/frequency
Seidler v Luna Park 10am-8pm operating rollercoaster, noise
was sufficiently load to constitute a nuisance
Ordinary use
Practicality of avoiding interference

 The less practical it is for the D to do the interfering act, the less
likely it is that the act would be unreasonable
Clarey v Principal and Council of Womans College used part of
the house to accommodate students, ruled that the noise was
reasonable
Social utility
Munro v Southern Dairies P claimed that using horses to deliver
milk was a nuisance
Malice
If it the interfering act is attended by malice, it is more likely that
it will be unreasonable
Hollywood Silver Fox Farm shot gun next to fox farm to disrupt
breeding, verbal threat, interference with anothers enjoyment
and use of land could be rendered unreasonable if there is
malice, malice outweighed the sensitivity
Hypersensitivity
Ps abnormal sensitivity is not taken into account
Robinson v Kilvert special brown paper damaged by hot air,
only damaged because of especially sensitive paper
Would a reasonable person be upset by the nuisance?
Conclusion: the courts will balance these competing factors, they are
highly impressionistic and therefore, will divide jurists. It is likely
results will be made
Defences
Coming to nuisance
If the P effectively exposes themselves to the nuisance, it is not a
defence but can reduce the remedy
Miller v Jackson moved into house next to cricket ground, balls
flying into garden, nuisance, but only damages awarded instead
of injunction
Statutory authorisation
The legislation has imposed a duty on the D to perform a
particular act, and
The nuisance was an inevitable consequence (Manchester
Corporation v Farnworth)
Legislation which merely permits an activity does not impose a
duty to perform that activity
Lester-Travers v City of Frankston in middle of golf course,
injunction granted
Remedies
Self help
Where legal proceedings are impractical or expensive
Trojan v Ware (1957)
Considered an alternate remedy to legal proceedings, and results
in a plaintiff losing their right

Damages
The interference with the plaintiffs use and enjoyment of land that
occurred, must have been a reasonably foreseeable consequence of
the defendants act (Cambridge Water)
Injunction
Quia timet injunctions
he fears
awarded before the activity has even commenced
show that there is a real probability that the defendants actions
are imminent
Miller v Shoalhaven
Prevent the construction of a public urinal
The awarding of injunctions is discretionary
The court decides whether you are a nice/good person
Be aware that the case of Coventry v Lawrence suggests courts
(at least in England) may grant fewer injunctions preferring to
grant damages as the appropriate remedy instead
Coventry v Lawrence
The appropriate remedy should be damages
Negligence
Duty of care
Is there an established/settled duty of care in this
situation?
Established duties include:
Doctor/patient (Rogers v Whitaker)
Employer/employee (Paris v Stepney)
Manufacturer/consumer (Donoghue v Stevenson)
Driver/other road users (Chapman v Hearse)
Teacher/student
Parent/child
Prisoner/prison authority (NSW v Godfrey)
Is this an established category where there is no duty?
Barristers/solicitors
DOrta-Ekenaike v Victoria Legal Aid barristers and solicitors do not
owe a duty to their client for:
Work done in court
Work done out of court so intimately connected with the conduct
of the case in court that it can be fairly said to affect the way the
case is conducted
Parents
Robertson v Swincer young boy injured by Ds car, D seeks
contribution from parents
No duty owed to child when there is no positive act from the

parent (omission)

Police
Cran v State of New South Wales
Failed to get a certificate of analysis
P spent 2 months in jail
No duty of care owed to the P for the investigation of this
particular case
Policy considerations important again
Reasonable foreseeability test
Is it reasonably foreseeable that some kind of negligent action by the
defendant could cause some kind of harm to a class of persons such as
the plaintiff? (Chapman v Hearse)
Reasonably foreseeable, in the sense that the risk was not far-fetched
or fanciful (Sullivan v Moody).
This test is necessary, but not sufficient.

Salient features
The reasonable foreseeability test is not determinative, and the courts
will also consider the salient features of the case. It is a highly
impressionistic criterion.
Sullivan v Moody
Actual or constructive knowledge
Perre D knew or ought to have known that their act/omission exposed
the P to the risk
Assumption of responsibility
Johnson Tiles D did something to assume responsibility, this points
towards a duty of care
Conflict of duties
Sullivan - If imposing a DoC would cause a conflict with another duty
arising from other principles of law or statue then it is likely that a DoC
will imposed.
Annetts established duty would simply be co-extensive
Conflict of laws
Sullivan is there a better suited area of law that under which Ps
actions should be brought
Contractual regime

Johnson Tiles courts are reluctant to impose a duty of care where to

do so will interfere with a contractual regime
Consistency with statutes
Sullivan if a duty would be inconsistent with another duty arising
from other principles of law or statue then it is less likely that a DoC
would be imposed
Control
Perre D is in control of the circumstances which caused the harm to P
Floodgates
Sullivan would finding a duty of care in this scenario risk flooding the
courts will liability claims
Indeterminate liability
Perre v Apand where it is impossible to define a class of plaintiffs for
which liability occurs, it is unlikely that a duty of care will be found
Illegality
Gala v Preston P and D both drank excessively, crashed, injured P.
The court does not allow those injured by negligence while committing
a crime with a direct relationship to the negligence to profit from this
Interference with legitimate business activity
Perre if there was a duty, it would affect their commercial enterprise
Annetts it is not legitimate to expose employees to risk of harm
Vulnerability
Perre when there are no steps that P could have taken to safeguard
themselves from the harm
This is impressionistic, this is a balancing act, it is a very low
threshold.
Breach of duty
Identify the negligent act
What did the defendant do wrong?
What should the defendant have done differently?
Set the standard of care
Standard of care

s.48(1)(c) reasonable person test

A person is negligent if under the circumstances, a reasonable person
in the persons position would have taken precautions against a
possible risk of harm
Situations that modify the standard of care
Age
Mchale v Watson child threw rod and deflected to hit a small girl
A child must be taken to the standard of care of a reasonable
child of the same age
Mental incapacity/illness
Carrier v Bonham Bonham stepped in front a bus that Carrier was
driving, sued state for letting Carrier, who was a schizophrenic walk
free.
Standard of care is not modified for a defendants disabilities, will
still be held to the standard of a reasonable mentally competent
person
Inexperience
Imbree v McNeilly McNeilly was 16, no permit, Imbree lets him drive,
becomes tetraplegic
In no circumstances will the particular inexperience of the
defendant in the activity they are undertaking will be taken into
account
Special Skills (s.58)
Phillips v Williams Whiteley - the standard of care should be modified
when the D holds themselves to possessing a certain skill
i.e. a person with special skills will be held to the standard of
care of a reasonable person possessing those special skills
58 Standard of care to be expected of persons holding
out as possessing a particular skill
In a case involving an allegation of negligence against a person (the
defendant) who holds
himself or herself out as possessing a particular skill, the standard to
be applied by a court in
determining whether the defendant acted with due care is, subject to
this Division, to be determined by reference to
(a) what could reasonably be expected of a person possessing
that skill; and
(b) the relevant circumstances as at the date of the alleged
negligence and not a later date.
Apply negligence calculus (s.48)
Is it reasonably foreseeable that this act by the defendant could cause
some kind of harm to the plaintiff? s.48(1)(a)

Wyong Shire Council v Shirt Inexperienced water skier, saw deep

water sign, was mistaken about where it was deep, suffered severe
injury
The risk must be not insignificant (s.48(1)(b)), in that it is not farfetched or fanciful (s.48(3)(a)).
(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.
(2)(a) The probability that the harm would occur
Bolton v Stone cricket balls into neighbouring house, lady hit in head,
not negligence
It is justifiable not to take action when the risk is very low
Roads and Traffic Authority of NSW v Dederer lot of people jumping
off a bridge, Dederer was the first to actually die
Despite the magnitude of the risk, low probability of harm
resulting points remedies being awarded
(2)(b) The likely seriousness of the harm
The more serious the harm is likely to be, the greater degree of care
that a reasonable person would take
Paris v Stepney Borough Council P only had use of one eye, employer
knew this, should have provided safety goggles, P successful
Where the defendant/employer has no knowledge or awareness
of special susceptibility to increased gravity or seriousness of
harm, they are entitled to assume that the employee is normal
(2)(c) The burden of taking precautions to avoid the risk of harm
The greater the burden involved in taking the relevant precautions, the
less likely it is that the reasonable person would have taken such
precautions.
Graham Barclay Oysters Oysters were contaminated from defective
septic tanks, people who ate contracted hepatitis A, there was no
scientific tests that could have ben used to test
The probability and seriousness of the harm must justify the
burden of taking precautions
Bolton v Stone burden of stopping cricket matches does not match
low risk of harm
(2)(d) The social utility of the activity that creates the risk of harm
The greater the public benefit flowing from the defendants general

activity, the less likely that a reasonable person would have taken
precautions that would undermine the public benefit
Watt v Hertfordshire County Council Watt, the fireman, helped
women who was trapped under heavy vehicle, regular truck was not
available and there to lash it to, the truck suddenly stopped at a red
light and Watt was injured.
Must contrast altruistic activity against activity with a
commercial end to make profit
No single factor is viewed in isolation but must be weighed against the
other considerations
Romeo v Conservation Commission of the Northern Territory P was
intoxicated and fell off cliff, example of serious injury occurring where
the risk was low. P failed in both, where the probability of risk is low,
remedy is unlikely to be available
Common Practice
Professionals
s.59(1) a professional is not negligent in providing 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 a significant number of respected practitioners in the field (peer
professional opinion) as competent professional practice in the
circumstances.
Who is a professional?
S.57 a professional means an individual practicing a professions
There needs to be academic learning or extensive training
Some forms of professional insurance
Effect of divergent opinions
s.59(3) The fact that there are differing peer professional opinions
widely accepted in Australia by a significant number of respected
practitioners in the field concerning a matter does not prevent any one
or more (or all) of those opinions being relied on for the purposes of
this section.
How significant must agreement be
s.59(4) peer professional opinion does not have to be universally
accepted to be considered widely accepted
Unreasonable peer professional opinion
s.59(2) peer professional opinion cannot be relied on for the purposes
of this section if the court determines that the opinion is unreasonable.
s.60 - s.59 does not apply in failure to warn scenarios

Non-professionals
Mercer v Commissioner for Road Transport & Tramways - conformity
with common practice is not exclusive that a D has not breached their
duty of care and it is only a factor albeit a weighty factor taken into
account in determining what the reasonable person would have done.
One factor among many.
Failure to warn
Generally common law, but note:
s.50 A person (the defendant) who owes a duty of care to another
person (the plaintiff) to give a warning or other information to the
plaintiff in respect of a risk or other matter, satisfies that duty of care if
the defendant takes reasonable care in giving that warning or other
information.
FvR
In determining whether information should be disclosed, the courts
must consider the:
Nature of the matter to be disclosed
Nature of the treatment
How complicated the procedure is
More drastic the treatment, the greater the need to inform
Patients desire for information
The more notice the doctor is given
Requires the giving of more information, than less
Temperament and health of the patient
Where the doctor judges on reasonable grounds that the
patients health, physical or mental, may be harmed by
information given about the patient, the doctor is allowed to hide
some information from the individual
General surrounding circumstances
Rogers v Whittaker blind in one eye, lost sight in the other eye,
doctor did not do anything wrong, inherent risk in the operation, not
negligent
Doctors have to warn patients of material risks
A risk is material if:
A reasonable person in the plaintiffs position would be likely to
attach significance to it
The doctor is aware, or should reasonably be aware that the
particular patient, if warned of the risk, would be likely to attach
significance to it
Causation
Factual causation
s.51(1)(a) that the negligence was a necessary condition
A determination that negligence caused particular harm comprises the

following elements
(a) that the negligence was a necessary condition of the
occurrence of the harm
(factual causation);
Barnett v Chelsea & Kensington Hospital Management Committee
Night watchmen felt sick, called doctor, told to wait until morning, died
when he got home, would have died regardless
Strong v Woolworths P was disabled, walked with crutches, slipped
on a greasy chip on the ground, caused serious spinal injury
But for test for causation
But for the Ds actions, the harm would not have occurred.
Need to consider what the P would have done for the but for test
s.51(3)
If it is relevant to the determination of factual causation to determine
what the person who
suffered harm (the injured person) would have done if the negligent
person had not been negligent, the matter is to be determined
subjectively in the light of all relevant circumstances.
Chappel v Hart P had to have surgery, failed to warn about risk of
losing ability to speak, would have waited if she had been told
But for the failure to give information, the P would have gone
elsewhere, and have been statistically less likely to be injured.
March v Stramare P unloading truck with lights on, D was drunk and
drove car into truck, both negligent
The but for test is not the conclusive determinant of causation. It
must be tempered by the application of common sense, as well
as value judgments and policy considerations (s..51(2))
Causation can be established even if there are multiple causes
For failure to warn cases
s.56(1) the P must prove, on the balance of probabilities, that the P
was not aware of the risk or the information
Increased Risk cases
Chappel v Hart if the P shows that D breached the duty of care, the
breach increases the risk of injury to P, the P did in fact suffer that sort
of harm.
Amaca v Booth gradual exposure to asbestos materially contributed
to the cause of the Ps asbestos, the cumulative exposure was the
cause of the disease
Legal causation/Scope of liability
s.51(1)(b) P must show that it is appropriate for the Ds scope of
liability to extend tot eh harm caused.

(b) that it is appropriate for the scope of the negligent person's

liability to extend to the harm so caused (scope of liability).
s.51(4) the court may make value judgements when deciding Ds
scope of liability
(4) For the purpose of determining the scope of liability, the court is to
consider (amongst other relevant things) whether or not and why
responsibility for the harm should be imposed on the negligent party.
Intervening act
The harm will be beyond the scope of liability if there is a intervening
act, which is a new cause which disturbs the sequence of events.
The Oropesa to break the chain of causation, there must be
something which is unwarrantable, a new cause which disturbs the
sequence of events, something which can be described as
unreasonable or extraneous
Haber v Walker Ps husband injured in car accident, severe brain
damage, committed suicide one year later, no intervening act, the
suicide was not a positive act, as it was brought about by the harm
caused by the D
For an intervening act to be sufficient to break the connection, it must
be either:
Human action that is properly regarded as voluntary (in that they
exercised free will), and not under any substantial pressure
created by the wrongful act) ; or
A causally independent event, the conjunction of which with the
wrongful act or omission is by ordinary standards so extremely
unlikely as to be deemed a coincidence
Coincidence
An event may be an intervening act that breaks the causal chain if:
It is causally independent of the Ds negligence; and
The conjunction of this event with the Ds negligence is so
unlikely as to be considered a coincidence
Subsequent negligent acts
Mahoney v Kruschich the later negligence of the medical practitioner
providing treatment to the injured person had to fall so far outside the
scope of the original negligence that it could be described as
inexcusably bad or grossly negligent
March v Stramare the Ds wrongful conduct that generated the risk of
the injury
Is the damage legally recognised?

Loss of chance
Involves the loss of an opportunity to recover from a pre-existing injury.
Tabet v Gett loss of chance in the medical context equates to a mere
possibility, which effectively involves lowering the standard of care,
policy reasons against it
Wrongful life/wrongful birth
Where as a result of Ds breach, a child will be born where they would
not otherwise have been born
Wrongful birth is where the P is the parent of the child claiming for
their own losses
Cattanach v Mechlior wrongful birth is a legally recognised harm
equating to the expenditure the plaintiff has incurred and will incur in
the future, as a result of the birth of the child
Wrongful life is where the child or the parent is suing for the childs
losses.
Harriton v Stephens wrongful life is not a legally recognised harm as
a doctor
Remoteness
A defendant will not be liable for a plaintiffs harm if that injury is too
remote.
Categorise the harm
Metrolink Victoria Pty Ltd v Inglis D caused his car to crash into tram,
delayed trams, tram drivers sued for losing their bonuses, too remote
In the ordinary case, a broad categorisation of the kind of loss
will be appropriate.
In cases which involve an unusual injury or an injury which arises
from a particular unusual sequence of event, a narrower
categorisation of the harm may be appropriate
Broad Approach
Mount Isa Mines v Pusey P suffered schizophrenia after witnessing
workmate being electrocuted and burned, P could recover damages
Foreseeable damage of shock and some kind of mental harm
Nader v Urban Transit Authority mental illness, could develop
parents overprotectiveness of their child, the failure to see proper
treatment is not a novus
Hughe v Lord Advocate 8yo boy burnt badly as a result of manhole
explosion,
Only the kind of harm must be reasonably foreseeable, not the
specific harm itself. All injuries by fire are the same kind
Narrow Approach

Tremain v Pike suffered rare disease contracted from rats urine

Although injury was foreseeable, the kind was not
Doughty v Turner Manufacturing Co Ltd asbestos cement cover into
molten liquid, P injured, burnt. Injured by the contents was foreseeable,
injury by eruption was not
Even when the damage is of a kind that is reasonably
foreseeable as a result of the Ds negligence, the action will still
fail if the manner in which the damage occurred was not
reasonably foreseeable in general way.
Reasonable foreseeability test
It must be reasonably foreseeable, in the sense that it is not far
fetched or fanciful (Wagonmound #2) that the Ds kind of carelessness
may result in damage of the same kind as that suffered by the P or to a
class of persons to which P belongs (Wagonmound #1).
Wagonmound #1 the Ds negligently leaked oil into the water when
parked next to wharf of P, P was informed that oil was not highly
flammable, allowed work to continue, caught on fire
Foreseeability becomes the test for remoteness, and the D could
not have reasonably foreseen that the oil would catch alight
The kind of injury sustained by the P must be foreseeable.
Wagonmound #2 the plaintiffs now own the ship
The risk must not be far-fetched or fanciful
Thin skull rule
If the plaintiff is particularly susceptible to the harm caused by the
defendant, the defendant will be liable for all of the harm she caused,
even if the extent of that harm is not reasonably foreseeable.
Generally arises in two ways:
Where the P suffers from a pre-existing susceptibility
Where the accident creates an abnormal sensitivity to further
injury
Pre-existing susceptibility
Smith v Leech Brain & Co people who commit torts must take the
victim as you find them
As long as the initial injury suffered was of a type that was
reasonably foreseeable, it does not matter that the victims
characteristics increase the extent of the damage.
Abnormal sensitivity
Stephenson v Waite Tileman P cut his hand, infected, subsequently
developed debilitating symptoms,
The defendant is liable for all consequences flowing from the
pre-existing special susceptibility of the victim and/or from new

risk or susceptibility created by the initial injury.

Nader v Urban Transit Authority young boy struck head on bus stop
pole, developed ganser from excessive brain damage
The thin skull principle should not be confined to the physical or
constitutional characteristics of the particular individual.
When a defendant takes their victim as they find them, he does
not take them as a naked human being divorced from the
environment.
Taking their victim as they find them includes all their
weaknesses, beliefs and reactions, as well as her capacities and
attributes, physical, social and economic. Includes taking into
account the family setting in which she lives.
Defences
Contributory Negligence
Requirements of s.26:
Failed to take reasonable care for safety (breach), and
This failure contributed to her harm (causation).
26 Liability for contributory negligence
(1) If a person (the claimant) suffers damage as the result partly of the
claimant's failure to take reasonable care (contributory negligence) and
partly of the wrong of any other person or
persons
(a) except as provided in section 63, a claim in respect of the
damage is not defeated by reason of the contributory negligence of the
claimant; and
(b) the damages recoverable in respect of the wrong must be
reduced to such extent as the court thinks just and equitable having
regard to the claimant's share in the responsibility for the damage.
62 Standard of care for contributory negligence
(1) The principles that are applicable in determining whether a person
has been negligent also apply in determining whether the person who
suffered harm has been contributorily negligent in failing to take
precautions against the risk of that harm.
(2) For that purpose
(a) the standard of care required of the person who suffered
harm is that of a reasonable person in the position of that person; and
(b) the matter is to be determined on the basis of what that
person knew or ought to have known at the time.
Duty Stage
It is presumed that one has a duty to take care of their own safety
Breach Stage
Refer back to notes on breach and apply the same principles as
breach.
Characterise the breach
Establish standard of care

 Preliminary requirements
Negligence calculus
Sudden Emergency (doctrine of alternative danger)
A reasonable person may well act with less care in a dangerous
situation than in a normal situation
Caterson v Commissioner for Railways P helped carry luggage onto
train, took off suddenly, left son the platform, P jumped off platform, 80
miles until next station, would have been partially negligent
If the P h has been placed in a situation of danger or
inconvenience as a result of the Ds negligence than whether the
Ps action is reasonable is determined by comparing the degree
of inconvenience against the risk taken to avoid it
Allows degree of leniency in addressing the Ps behavior
Not limited to situations where the Ps actions are spurred by a
risk of personal injury
Causation
According to s.62, we use the same principles as previously.
The contribution to harm may arise where:
The Ps failure to take care contributed to the accident occurring
The Ps failure to take care contribute to the injury i.e. its
nature of extent
Froom v Butcher car in opposite direction tried to overtake, hit Ps car
head on, P not wearing seatbelt, no legal requirement to wear a
seatbelt, any reasonable person would have worn a seatbelt, P was
contributorily negligent
Did Ps act contribute to their damages/injuries?
What reduction in damages is fair and equitable?
s.26 Ps damages will reduce by an amount that the court deems just
and equitable
Pennington v Norris late night, man hit by a car going very fast, only
negligent act was fail to look across the road before he started moving.
Court must determine apportionment with a comparison of
culpability
Does not equate to moral blameworthiness
Rather a comparison of each parties degree of departure from
their respective standards of care
Kelly v Bega Valley County Council 11yo child suffered burns from
electrocution from a high voltage terminal atop an electric pole that he
was climbing
If a child is disabled or in some way unable to meet the standard
of care expected of child their age, they should not be held to
such a standard (this is contrary to the one for disabled adults)
Relevant considerations include:

 The number of people put at risk by the failure to take care

(Pennington, Kelly)
The obvious dangerousness (Pennington)
Relative importance in causing the damage (Pennington)
The duration of departure from the standard of care (Kelly)
The maturity of the actor (Kelly)
Volenti Non Fit Injuria
No injury is done to one who consents or voluntary assumption of risk
The P knew the facts and circumstances that gave rise to
the risk
Scanlon v American Cigarette Company started smoking at 15yo,
everyday for 22 years, diagnosed with lung cancer, a reasonable
person ought to have known of the risk
This test is purely subjective
It is a question of whether the P actually knew of the facts and
circumstances giving rise to the risk
That the P ought to have known is insufficient
Appreciated the risk
This involves understanding that a risk may occur
ICI v Shatwell letting out explosives, P and brother were injured,
argued that he did not appreciate the risk, though he knew of the risk,
court held that he did appreciate it, because he quantified it as a
remote risk
Subjective test
It is a question of whether the P actually appreciated the risk
Banovic v Perkovic P and D are friends out drinking, D was driver and
had been drinking, did not appear drunk, drove home, swerved and hit
a pole, so drunk that they are incapable of appreciating the risk
involved, would have to fully appreciate the danger of driving with
someone that is drunk
Where a P is not sufficiently sober they are unlikely to be capable
of fully appreciating the risk involved in accepting a lift with a
drunk driver
Obvious Risk
s.54(1) - If the risk is obvious then it is presumed that P knows about
it, unless the P can prove on the BOP that they were not aware
s.54(2) obvious risks does not apply in professional or health services
or risks associated with work done by one person for another
54 Voluntary assumption of risk
(1) If, in a proceeding on a claim for damages for negligence, a defence
of voluntary assumption of risk (volenti non fit injuria) is raised and the
risk of harm is an obvious risk, the person who suffered harm is

presumed to have been aware of the risk, unless the person proves on
the balance of probabilities that the person was not aware of the risk.
(2) Subsection (1) does not apply to
(a) a proceeding on a claim for damages relating to the provision
of or the failure to provide a professional service or health service; or
(b) a proceeding on a claim for damages in respect of risks
associated with work done by one person for another.
s.53(1) an obvious risk is one that, in the circumstances, would have
been obvious to a reasonable person in the position of that person
s.53(2) risks that are common risks are considered obvious
53 Meaning of obvious risk
(1) For the purposes of section 54, an obvious risk to a person who
suffers harm is a risk that, in the circumstances, would have been
obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common
knowledge.
(3) A risk of something occurring can be an obvious risk even though it
has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or
circumstance that gives rise to the risk) is not prominent, conspicuous
or physically
observable.
(5) To remove any doubt, it is declared that a risk from a thing,
including a living thing, is not an obvious risk if the risk is created
because of a failure on the part of a person to properly operate,
maintain, replace, prepare or care for the thing, unless the failure itself
is an obvious risk.
Voluntary assumption
Inherent risk
Rootes v Shelton water skiing being driven by tow boat, collided with
stationary boat, negligent in failing to keep boat away from the boat,
this risk was voluntary assumed by the P, as this form of water-skiing
was inherently dangerous
A person is taken to have voluntarily assumed any risks that are
inherent in an activity in which they voluntarily engaged
A risk that only arises due to anothers carelessness is not an
inherent risk
The P must have voluntarily accepted the particular risk which
actually caused the harm to the P
s.55(1) D cannot be liable for the materialization of the risk if it is an
inherent risk
Voluntary Assumption
Insurance Commissioner v Joyce Car accident, Joyce seriously injured,
found driver asleep in a bush, appeared drunk
The assumption is not voluntary when the D puts pressure on P
ICI v Shatwell Shatwell brothers worked for ICI, knew of the risk and

the statutory regulations in force

Generally the Volenti defence will not be availbale to employers
in respect of risks assumed by employees in the course of
employment
This case was an exception, because the plaintiffs had acted
without any pressure
Illegality
Generally arises in two cases:
Independent illegality where the Ps illegal conduct is
independent of the Ds negligence
Joint illegality where the P and the D are acting illegality in
concert
Independent illegality
Henwood v Municipal Tramways Trust
There is no general principle that someone engaged in a duty of
care will thereby be precluded from claiming in negligence
The relevant question is whether the purpose of the law is to
negate a duty of care being owed
Factors which may indicate that there exists an intent to negate a DoC
are:
The seriousness of the mischief being addressed (If the crime is
serious, then a DoC is less likely)
Whether the conduct places third parties at risk (if the crime
places other third parties/members of the public at risk then DoC
is less likely)
Joint Illegality
Gala v Preston P and D were both drunk, the D crashed into another
car
The relevant question is whether as a matter of public policy
the court is willing or able to set the relevant standard of care
owed by the defendant to the plaintiff
Where the setting of a standard of care can only be determined
by bringing into consideration the nature of the activity in which
the parties were illegally engaged, then the court will not
establish a standard of care
Miller v Miller P was 16yo girl stole car with her companions, cousin
took over driving, ignored red lights, sped, girl was seriously injured
Relevant inquiry in whether recogniising a DoC would be
incongruous with the purpose of the law being contravened
(Miller)
Apply the Henwood factors to see if a DoC would be incongruous
with the purpose of the law that was breached
Good Samaritans
31B Protection of good samaritans

(1) A good samaritan is an individual who provides assistance, advice

or care to another person in relation to an emergency or accident in
circumstances in which
(a) he or she expects no money or other financial reward for
providing the assistance,
advice or care; and
(b) as a result of the emergency or accident the person to whom,
or in relation to whom, the assistance, advice or care is provided is at
risk of death or injury, is injured, is apparently at risk of death or injury,
or is apparently injured.
(2) A good samaritan is not liable in any civil proceeding for anything
done, or not done, by him or her in good faith
(a) in providing assistance, advice or care at the scene of the
emergency or accident; (b) in providing advice by telephone or
by another means of communication to a person at the scene of
the emergency or accident.
(3) Subsection (2) applies even if the emergency or accident was
caused by an act or omission of the good samaritan.
(4) Subsection (2) does not apply to any act or omission of a good
samaritan that occurs before the assistance, advice or care is provided
by the good samaritan.
Volunteers
37 Protection of volunteers from liability
(1) A volunteer is not liable in any civil proceeding for anything done,
or not done, in good faith by him or her in providing a service in
relation to community work organised by a community organisation.
(2) Any liability resulting from an act or omission that would but for
subsection (1) attach to the volunteer attaches instead to the
community organisation.
Limitations of actions
Limitation of Actions Act 1958 (Vic)
When did the harm occur? Has the limitation period
expired?
s.5(1) an action must be brought within 6 years
s.5(1AA) -an action for damages in respect of personal injuries
(including wrongful death) must be brought within 3 years of the cause
of action accruing
Check the dates that have been given. If they do not match up, there
may be a problem.
Are there grounds to apply for an extension
s.23A
Gives the court discretion to extend the time limits, need to
justify decision, provide evidence
Criteria that the court must abide by, just or reasonable in the
circumstances

s.23A Personal injuries

(1)
This section applies to any action for damages for negligence
nuisance or breach of duty (whether the duty exists by virtue of a
contract or of a provision made by or under a statute or independently
of any contract or any such provision) where the damages claimed
consist of or include damages in respect of personal injuries to any
person.
(2)
Where an application is made to a court by a person claiming
to have a cause of action to which this section applies, the court,
subject to subsection (3) and after hearing such of the persons likely to
be affected by that application as it sees fit, may, if it decides that it is
just and reasonable so to do, order that the period within which
an action on the cause of action may be brought be extended for such
period as it determines.
(3)
In exercising the powers conferred on it by subsection (2) a
court shall have regard to all the circumstances of the case including
(without derogating from the generality of the foregoing) the following

(a)
the length of and reasons for the delay on the part of the
plaintiff;
(b)
the extent to which, having regard to the delay, there is or
is likely to be prejudice to the defendant;
(c)
the extent, if any, to which the defendant had taken steps to
make available to the plaintiff means of ascertaining facts which were
or might be relevant to the cause of action of the plaintiff against the
defendant;
(d)
the duration of any disability of the plaintiff arising on or
after the date of the accrual of the cause of action;
(e)
the extent to which the plaintiff acted promptly and
reasonably once he knew that the act or omission of the defendant, to
which the injury of the plaintiff was attributable, might be capable at
that time of giving rise to an action for damages;
(f)
the steps, if any, taken by the plaintiff to obtain medical,
legal or other expert advice and the nature of any such advice he may
have received.
(4)
The powers conferred on a court by subsection (2) may be
exercised at any time notwithstanding

Duty of Care (Pure Economic Loss)

Is there pure economic loss?
Caltex Oil - Pure economic loss is economic loss that is not the result of
personal injury to the plaintiff or damage to the plaintiffs property.
Reasonable foreseeability test
Was it reasonably foreseeable, in the sense that it is not far-fetched or
fanciful (Sullivan) that the P (individually or as a member of a class)
might suffer pure economic loss as a result of carelessness on the part
of the D?
Salient features
Perre v Apand diseased crop of potatoes, D owed duty of care to all
the companies affected within the 20km radius
Johnson Tiles no showers in Victoria for two weeks
Indeterminate liability
Control
Vulnerability
Interference with legitimate business activity
Actual or constructive knowledge of risk of harm
Contractual regime
Statutory regime
Reliance and assumption of responsibility

Duty of Care (Mental Harm)

Is there pure or consequential mental harm?
Pure mental harm is mental harm that does not flow from another
injury.
Consequential mental harm is mental harm that is a consequence of
any other injury of any other kind.
Section 67:
Mental Harm: psychological or psychiatric injury
Consequential Mental Harm: mental harm that is a consequence
of any other injury of any other kind
Pure Mental Harm: mental harm other than consequential mental
harm
Injury: personal or bodily injury including pre-natal injury;
psychological or psychiatric injury; disease; aggravation;
acceleration or recurrence of an injury or disease
Direct or indirect Pure Mental Harm?
Direct where the Ds negligence directly causes the plaintiffs mental
harm (e.g. places them in a situation of apparent danger)
Indirect where the Ds negligence indirectly causes the plaintiffs
mental harm the plaintiff suffers mental harm due to witnessing or
learning of another being killed, injured or put in danger
If indirect, s.73 of the Wrongs Act must be satisfied:
73 Limitation on recovery of damages for pure mental harm
arising from shock
(1) This section applies to the liability of a person (the defendant) for
pure mental harm to a person (the plaintiff) arising wholly or partly
from mental or nervous shock in connection with another person (the
victim) being killed, injured or put in danger by the act or omission of
the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental
harm unless
(a) the plaintiff witnessed, at the scene, the victim being killed,
injured or put in danger; or
(b) the plaintiff is or was in a close relationship with the victim.
(3) No damages are to be awarded to the plaintiff for pure mental harm
if the recovery of damages from the defendant by or through the
victim in respect of the act or omission would be prevented by any
provision of this Act or any other written or unwritten law.
Wicks v State Rail Authority of NSW being killed, injured or put in peril

do not necessarily occupy a time measured in minutes.

The words at the scene need to be construed broadly.
Gifford v Strang Patrick Stevedoring Ps are children of man who was
killed by forklift driver at work, claimed they suffered psychiatric
injuries
close relationship refers to the affection and closeness of the
relationship, rather than the legal status that is relevant in
determining a DoC
Was the relationship close and loving?
Reasonable foreseeability test
72 Mental harmduty of care
(1) A person (the defendant) does not owe a duty to another person
(the plaintiff) to take care not to cause the plaintiff pure mental harm
unless the defendant foresaw or ought to have foreseen that a person
of normal fortitude might, in the circumstances of the case, suffer a
recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section, the
circumstances of the case include the following
(a) whether or not the mental harm was suffered as the result of
a sudden shock;
(b) whether the plaintiff witnessed, at the scene, a person being
killed, injured or put in danger;
(c) the nature of the relationship between the plaintiff and any
person killed, injured or put in danger;
(d) whether or not there was a pre-existing relationship between
the plaintiff and the
defendant.
(3) This section does not affect the duty of care of a person (the
defendant) to another (the plaintiff) if the defendant knows, or ought to
know, that the plaintiff is a person of less than normal fortitude
(1) normal fortitude refers to a persons degree of mental
strength/resilience
(2) is it not necessary to establish all these factors but their existence
may make reasonable foreseeability more likely
Salient features
Annetts v Australian Stations Pty Ltd son missing, parents found dead
body, claimed they suffered psychiatric illness, sued employer for
negligence
Assumption of responsibility
Indeterminate liability
Vulnerability
Control
Interference with legitimate business activity
Conflict of duties
Gifford v Strong Patrick Stevedoring
Relationship between victim and P
Close and loving relationship pointed heavily towards

foreseeability and a duty of care

Indeterminate liability
Vulnerability
Control
Interference with legitimate business activity
Conflict of duties

Tame v NSW Mrs Tame sued the police in negligence, after a police
report incorrectly said that she had been drunk during a car accident,
suffered psychotic depression, police did not owe a duty
Conflict of duties
To find a duty would conflict with the police officers statutory
reporting duties
Conflict of laws
Messengers
Annetts there is no duty of care for mental harm caused by the
manner in which bad news is communicated
Due to public policy reasons relating to the importance of open
reporting and communication
There may be a duty caused by carelessness in the accuracy of
the information communicated
Consequential mental harm
74 Limitation on recovery of damages for consequential mental
harm
(1) A person (the plaintiff) is not entitled to recover damages from
another person (the defendant) for consequential mental harm unless

(a) the defendant foresaw or ought to have foreseen that a

person of normal fortitude might, in the circumstances of the case,
suffer a recognised psychiatric illness if reasonable care were not
taken; or
(b) the defendant knew, or ought to have known, that the
plaintiff is a person of less than normal fortitude and foresaw or ought
to have foreseen that the plaintiff might, in the circumstances of the
case, suffer a recognised psychiatric illness if reasonable care were not
taken.
Limitation on damages
75 Liability for economic loss for mental harm
A court cannot make an award of damages for economic loss for
mental harm resulting from negligence unless the harm consists of a
recognised psychiatric illness.

Vicarious Liability
The doctrine of vicarious liability says that employers will be
vicariously liable for tortious acts committed by their employees.
What is employment?
Distinction between employees and independent contractors
Employers may be vicariously liable for the acts of employees, but not
for the actions of independent contractors
A variety of indicia must be balanced to determine the character of
the worker
Hollis v Vabu Pty Ltd
Control:
The greater control exercised, the more likely the court will find
the person doing the work will be an employee
The less control put on somebody, likely they will be an
independent contractor
The way in which control was exercised was central to the
relevant business
Vabu exercised considerable control over the way the bikers did
their work, given work depending on the order that they arrived
They were not able to refuse work
Holiday:
If the person for whom the work is done can stipulate when
holidays can be taken, and for how long, that will point towards
the person doing the work being an employee
With Vabu, couriers were forbidden to take some holidays in the
busy periods of the year
Granted leave depending on whether someone else had taken
leave
Points towards employment
Level of skill:
The lesser the level of skill necessary to do the relevant work
and the lesser the need for any special qualification the more
likely it was that the person doing the work is an employee
No special skill for a courier
Identification:
If a person doing work is somehow presented as an emanation of
the person paying him, then the person doing the work is more
likely to be an employee of the person paying him
This is a weighty factor
Equipment:
If the person doing the work is provided with equipment by the
person for whom he is doing the work, that will point towards the
person doing the work being an employee

 Vabu provided them with bikes and radios

Stevens v Brodribb Sawmillling
Obligation to work
Setting own hours
Ability to work for other employers
Ability to delegate work
Type of payment
Borrowed employees
Mersey Docks lent a crane to load a ship, provided a crane operator,
operator injured a third party through driving, remain the employer
Control remains the main consideration
No control over how the operator actually does his job
When will the employer be liable?
The traditional approach
Salmonds test:
A master is not responsible for a rongful act done by his servant
unless it is done in the course of employment. It is deemed to be
so done if it is either (a) a wrongful act authorised by the master,
or (b) a wrongful and unauthorised mode of doing some act
authorized by the master
An act may be in the course of employment even if the employer has
expressly forbidden the act:
Bugge v Brown instructed servant to go work on distant part of farm,
but eat lunch at a different property, did not go to the different
property, burnt down land after cooking lunch, held that cooking lunch
was in the course of employment, lighting the fire was an authorized
act done in an unauthorized manner
Limpus v London General Omnibus Co bus drivers expressly
prohibited from obstructing other companies buses, two collided,
London General was vicariously liable, was an authorized act in an
unauthorised manner
Beard v London General Omnibus Co conductor, who was unauthorise
to drive the bus, took over and crashed into P, completely outside of
his duties, not vicariously liable
The traditional approach to intentional or criminal acts
Deatons Pty Ltd v Flew threw glass at guy after he slapped her,
authorized to keep order, throwing the glass was not done in the
course of employment
not vicariously liable
Employer would not be vicariously liable for the damage caused
by self-defense either
Lloyd D was a representative of a real estate firm, tricked woman into
transferring her property to him, employers liable, done in the course

of employment
Still liable, even though the employer did not receive any benefit
from the action
Morris employee wore a jacket under his other jacket and walked out,
stealing coat, company was liable
NSW v Lepore teachers found to have sexually assaulted students,
did not create vicarious liability for the school
Sexual abuse is against the role of the teacher, so there is no
way to affix the actions of the teachers onto the school
Is the wrongful act sufficiently closely related to conduct
authorized by the employer to justify the imposition of vicarious
liability?
Gummow & Hayne JJ:
With respect to intentional torts, the employer will be vicariously liable
only if:
The employees conduct was done in intended pursuit of the
employers interests or the intended performance of the contract
of employment; or
The employees conduct was done in the ostensible pursuit of
the employers business or the apparent execution of the
authority that the employer held her out as having
The alternate approach
Bazley the employer will be vicariously liable only if the wrongful act
is sufficiently closely related to conduct authorized by the employer to
justify the imposition of vicarious liability
In determining the sufficiency of the connection, factors to consider
include:
the opportunity afforded to abuse power;
the extent to which the wrongful act may have furthered the
employers aims;
the extent to which the wrongful act was related to friction,
confrontation or intimacy inherent in the employers enterprise;
the extent of power conferred on the employee in relation to the
victim;
the vulnerability of potential victims to wrongful exercise of the
employees power.
NSW v Lepore - Kirby J and Gleeson CJ- adopt the approach set out in
Bazley.
*Always need to mention this approach for an intentional tort

Damages
For non-personal injury cases:
Compensatory principle: damages put plaintiff in position they
would have occupied had the harm not occurred
Lump sum rule: damages are paid as a lump sum that is once
and for all
For non-pecuniary loss, it must be a significant injury (s 28LE-LH) , i.e.
it must be permanent (s 28LB) and that amount to more than 5%
whole person impairment OR be the loss of a foetus or a breast (s
28LF(1)) OR a psychiatric injury resulting in more than 10% whole
person impairment (s 28LF(2))
Where damages for non-pecuniary loss can be awarded, the maximum
award is set at $371 380 but indexed to inflation as measured by CPI (s
28G-H)
Maximum award for loss of earnings is to be calculated at no more
than 3 times average weekly earnings (s 28F(2))
Where there are two or more possible wrong-doers the defendant may
recover from the other via joining them to the claim or through
contribution (s 23B(1))