MLL213 TORTS EXAM NOTES

Transcription

1 MLL213 TORTS EXAM NOTES Table f Cntents DAMAGES / REMEDIES... 5 Categries f damage:... 5 ECONOMIC LOSS... 7 Medical and hspital expenses... 7 Gratuitus attendant care services (GCD)... 7 Lss f ability t care fr thers:... 8 Lss f earning capacity... 8 NON-ECONOMIC LOSS... 9 Significant injury... 9 Lss f amenities/enjyment f life: Pain and suffering: Lss f expectatin f life Claims upn the death f a persn NEGLIGENCE (DUTY OF CARE) Damage Elements f negligence DUTY OF CARE Mdern day requirements - what the plaintiff needs t prve Established categries f duty f care Reasnable freseeability Unfreseeable t the plaintiff Salient features/cntrl factrs What factrs? The scpe f the duty f care and issues f persnal respnsibility Plicy cnsideratins: Immunity frm liability Wrngful birth and wrngful life claims Liability f landlrds t ccupants Occupier s liability Duty f parents t children and the rights f the unbrn child

2 BREACH OF DUTY OF CARE Statutry prvisins affecting determinatin f breach: S 48(2) CALCULUS OF NEGLIGENCE Prbability f harm ccurring Likely seriusness f the harm Burden f taking precautins Scial utility Individual respnsibility Obvius risks Specific breach situatins: Failure t warn Specific breach situatins: Public authrities and recreatinal activities Statutry prvisins applying t public authrities STANDARD OF CARE Standard f the reasnable persn Mdificatin f the standard f care Children Parental liability: Special skills Uncnsciusness r autmatism SPECIFIC STANDARDS Industry standards Prfessinal standards medical prfessinals CAUSATION Sectin 51 Wrngs Act: Factual and Legal Causatin Para (1)(a): Factual Causatin Wrngful diagnsis r treatment Para (1)(b): Legal causatin Scpe f liability : Nvus Actus Interveniens Intervening negligent act f TP: Intervening deliberate act f TP Intervening negligent acts f Plaintiff Intervening deliberate acts f P Multiple successive events Tw successive trtius events

3 Subsequent events is nn-trtius Failure t warn f a medical risk Res Ipsa Lquitur REMOTENESS OF DAMAGE Wagn Mund cases Manner f ccurrence f harm Extent f harm suffered Egg shell skull rule MERE OMISSIONS Definitin f an missin : Examples f failures t act that are nt missins (defendant is liable) Exceptinal cases where a duty t take affirmative actin is required Duty t act t prevent harm t P frm criminal activities f third persns Duty t act t prevent P harming self? Liability f publicans t drunken patrns Liability f public authrities fr missins Summary f cntrl factrs frm these PA cases Plicy vs peratinal decisins Liability f Highway Authrities Ftpath cases LIABILITY FOR MENTAL HARM (Psychiatric injury; nervus shck) Recvery fr pure mental harm S 73: claims arising frm the death r injury f anther persn Cases nt falling within s73: Cnsequential mental harm DEFENCES TO NEGLIGENCE CONTRIBUTORY NEGLIGENCE Negligence by P (s62 f W.A) Standard f care: Children Sudden emergencies: b) Causatin Apprtinment principles VOLUNTARY ASSUMPTION OF RISK Drunken passengers and drivers

4 EXCLUSION CLAUSES / DISCLAIMER / WAIVER Wrding requirements: LIMITATION PERIODS PRIVATE NUISANCE General principles: Material damage: Intangible interferences: Test fr determining unreasnableness Title t sue: Wh can sue? Wh is liable? Defences: REMEDIES: Abatement using self help Damages Injunctin BREACH OF STATUTORY DUTY Elements The statute intends t cnfer a right t bring a private trt actin The statute impses a duty n D P is within the class f persns prtected by the statutry duty The harm suffered by P is within the class f risks t which the statute is directed D is in breach f the statutry duty P s injury was caused by D s breach Defences

5 DAMAGES / REMEDIES Trts is a mixture f civil wrng miscnduct by trtfeasr r defendant. Put plaintiff back in the psitin they were in befre wrngding. Categries f damage: Cmpensatry Aggravated Exemplary / punitive Damages fr living plaintiffs Fundamental principles Tdrvic v Waller (1980) 1. Cmpensatry bjective Place the plaintiff in the mnetary psitin that he/she was had the wrngding nt ccurred 2. Once and fr all rule Damage in respnse f injury nce and fr all lump sum Cnsequences f a lump sum = Fetter v Beal (1701); Gilchrist v Estate f Late Sara Alexander Taylr (2004) Predictins abut future health = Wynn v NSW IMC ; Malec v JC Huttn Wynn v NSW IMC (1995) Facts: Pre-existing injury Aggregated the first accident Gave up jb due t back injury Earning capacity drpped Held: Adjustments were made f 5% Key ntes: Can nly g t curt nce t seek damages Pre-existing injuries (revisin) What happens when the plaintiff has a pre-existing injuries that wasn t at the hand f the defendant? Lk int the textbk chapter n Malik Balance f prbabilities mre prbable than nt The Curt can apprve can nw apprve an agreement t settle by a structured settlement Sectin 28N Wrngs Act Nt tax cnsequences 5

6 Advantages financial management Limitatins n pwer t rder parties t enter int a structure settlement nly applies t settlements The Curt desn t care hw r if the plaintiff spends the mney The plaintiff bears the burden f prf n damages (n the balance f prbabilities) Special vs General damages Special damages - can be quantified with a degree f precisin (past ecnmic lss) General damages - cannt be quantified with a degree f previsin (future ecnmic lss, nnecnmic lss) Nminal and Cntemptuus damages Nminal damages awarded fr an infringement f a persnal right $10-$15K Cntemptuus damages same as abve, very lw mnetary figure Ecnmic Lss (pecuniary damages) Can wrk ut with mney i.e. medical, hspital, rehabilitatin expenses includes damages fr gratuitus attendant care services Lss f earning capacit Nn Ecnmic Lss (nn-pecuniary damages) Pain and suffering Lss f amenities f life Lss f enjyment f life (s28lb) Lss f expectatin f life Legislative refrm (revisin): Significant legislative refrm Part VB and Part VBA f Wrngs Act caps and threshlds n damages Surce f damages = cmmn law! 6

7 ECONOMIC LOSS Medical and hspital expenses *all must be reasnable csts Actual medical expenses; and Gratuitus care damages (i.e. carer [even if wn family]) Sharman v Evans (1977) Gibbs and Stephens JJ: reasnable expenses recverable Medical expenses denied if the cst is great but the benefit is nt great r is speculative Allmann v Dumming (1992) Cst incurred as a result f an injury must be reasnable fr the curt t award damages Gratuitus attendant care services (GCD) Gratuitus free f charge (curts will ignre that it s free) Griffiths v Kerkemeyer damages These damages are nly awarded if there is a need It is irrelevant whether the plaintiff will reimburse the carer N guarantee that the carer will assist fr the rest f their life Curt desn t care what yu d with the mney Even if it is the defendant wh is assisting yu Example Kars v Kars (1996) Limitatins s28b f the Wrngs Act Has t be: Services f a dmestic nature Cking, cleaning, husewrk Services relating t nursing Services that aim t alleviate the cnsequences f an injury Taking t appintments, medicatin etc Des nt include anything f a cmmercial nature i.e. running business Sectin 28IA(1) Must be reasnable need fr the service Need arising slely and cmpletely t the injury in which the damages relate defendant s actins nly Cnsider sectin 28IA(2) preclusin If it is fr a minr already minr, i.e. already caring Nt if less than 6 hurs a week and fr less than 6 mnths (need t satisfy bth prvisins) 6 mnths - des nt need t be cnsequent mnths Quantum (put $ n) Van Gervan v Fentn (1992) Cap 28IB f Wrngs Act 7

8 Where services fr greater than 40 hurs a week -cannt exceed average weekly wage Where less than 40 hurs pr rata Lss f ability t care fr thers: At cmmn law nt available as a separate head f damages CSR LTd v Eddy [2005] Wrngs Act permits damages fr lss f ability t prvide services t family members but it has limitatins: S28ID n damages unless criteria is satisfied that the care: Was prvided t the claimant s dependants (at the time f the injury nly and fr at least 6 hurs a week and fr a cnsequent 6 mnths); and Lss f earning capacity Plaintiff s pre-accident r withut injury earnings between date f accident and date f trial. Future earnings speculative Take the pre-accident earnings multiple hw many years yu wuld be earning Reductins Sharman v Evans i.e. travel expenses, crprate wardrbe, child-bearing age Cnsider sectin 28F(2) f Wrngs Act Limit f what yu can claim 3 times the average weekly wage (regardless f what yu were earning befre) Tuhey v Freemasns Hspital [2012] VSCA 80 s.29f Wrngs Act cnsidered Facts: Befre accident, plaintiff earned $10, (p/w) After accident, plaintiff earned $6,442 (p/w) Cnclusin where a persn s pst-accident earnings is abve the cap, yu cannt earn lss f capacity earnings (mre than three times the average wage) Held: Curt if the difference between yur pre-accident wage is within the cap ($3,069), yu can claim it Pst-accident earnings = mre than $3,069 (p/week) cannt claim, dn t get anything Tuhey culdn t claim KEY NOTES RE DAMAGES AWARDED Tax must be deducted s28a Deductins f saved items f expenditure (i.e. unifrm, tls etc) Child care nt deducted Adjustment fr the vicissitude f life Usual discunt is between 5-20% N deductins fr super r insurance 3% discunt at cmmn law sexual assault, r intentinal 5% - Wrngs Act negligence 8

9 NON-ECONOMIC LOSS Lsses the plaintiff suffered as a result f the defendant s negligence that yu can t physical put a price n. Pain and suffering Lss f amenities f life Lss f enjyment f like (s28lb) Plus lss f expectatin f life Legislative refrm: Wrngs Act enacts caps and threshlds hw much yu can claim refrms are nt applicatin where fault is intentinal act dne with intent t cause death r injury (ss28c, 28LC) S28G Wrngs Act Nn-ecnmic lss (NEL) capped at $371,380 subject t indexatin (s28h) -max amunt n apprx. $470,000 -try and discurage claims that are small r minr Threshld test in Part VBA Wrngs Act -NEL nly recverable where plaintiff has sustained a significant injury -must be permanent impairment (e.g. sprained limb that fully heals is nt a permanent injury) Significant injury (defined in s28lf): Greater than 5% physical impairment as assessed by apprved medical practitiner Greater than 10% psychiatric impairment as assessed by apprved psychiatrist (des nt include a secndary psychiatric impairment ne which arises frm a physical impairment) Lss f a fetus Lss f a breast Psychiatric injury arising frm lss f a child NB: nt applicable fr intentinal harm, sexual assault and sexual miscnduct Degree f impairment determined by reference t AMA Guide 4 th ed Pints t remember: Onging cnsequences t plaintiff Nt smething that has been healed r fixed 9

10 Insignficant injury Lss f taste - 3% Lss f smell - 3% Lss f little finger r big te - 5% Significant injury Sprained wrist, minr lss f mtin - 6% Sft tissue back injury - 12% Mderate dislcatin f shulder - 15% Lss f sight in ne eye - 28% Lss f ne arm - 60% Quadriplegic wh needs a venilatr - 100% KEY QUESTIONS: Degree f impairment assessed bjectively a medical determinatin f lss f physical and/r psychiatric functin (nt subjectively) When determinatin extent f physical impairment, psychiatric cnsequences nt taken int accunt Lss f amenities/enjyment f life: Cmpensatin fr disability/impairment f plaintiff s ability t enjy life Hbbies, sprts Things that yu used t like t d that yu cannt d anymre Largely subjective mdest sum if plaintiff is permanently uncnscius (e.g. $10,000-$20,000) Skeltn v Cllins Best way t answer exam questins: Lk at the facts that are prvided in hypthetical situatin Mre infrmatin = a reasn and relevance P was active hrse riding, years, all the time etc damages = lss f enjyment f life Answer is in the questin! 10

11 Pain and suffering: Cmpensatin fr physical pain and psychlgical cnsequences (wrry, frustratin, anxiety) Past and nging expenses Cmpletely subjective Skeltn v Cllins uncnscius = nt d receive cmpensatin fr pain and suffering Lss f expectatin f life Where a plaintiff s life has been shrtened because f the defendant s negligence Cmpensatin because f lst years cnslatin r slace fr plaintiff fr shrted life Mdest awards (cmp) = $10,000-15,000 Des nt vary n age r years lst Sharman v Evans Query whether still available fr negligence claims t which Wrngs Act applies i.e. where reductins are made Simpsn v Diamnd [2001] NSWSC 1048 Held: Lss f earnings $72,980 Lss f future earning capacity $809,869 Nn-ecnmic $564,175 Medical expenses (pas) $1,122,957 Future needs $2,029,240 Gratuitus care $6,983,700 TOTAL = $14,900,000 Claims upn the death f a persn NB: cmpletely different than damages brught by the actual injured persn TWO claims available 1. Claim by Estate ( survival and actin claim ) Administratin and Prbate Act Date f accident until the date the persn died (likely t be medical expenses) 2. Claim by dependents fr lss f financial supprt Pt III Wrngs Act (dependent s claims) Lss f financial supprt and dmestic surfaces 11

12 Bth claims are available in cnjunctin Estate past ecnmic lsses Dependants future lsses N cause f actin arises in respect f the death f anther persn except as prvided by this legislatin Barclay v Penberthy [2012] HCA 40 N ne ther than dependents can claim 1. Survival f actin claim Estate may prceed with the cause f actin, the deceased wuld have had, had they lived Administratin and Prbate Act 1958 (Vic) s29 Applies when deceased died as a result f the trt Where deceased died as a result f the trt, executr can recver: Ecnmic lss (medical expenses and lss f earning capacity) between date f injury and date f death (subject t caps) Gratuitus care Future ecnmic lss Funeral expenses Nn-ecnmic lss = nt recverable Cnsider: what is the psitin f a persn wh dies instantaneusly? 2. Dependant s claim (dependant = claimant) S15 f Wrngs Act: Claimant (dependent) must shw: The death was caused by a wrngful act, neglect r default Haber v Walker (1963) (supplement) Lisle v Brice [2002] 2 Qd R 168 The deceased culd have maintained a cause f actin fr damages had he/she nt died The claimant was whlly r partly dependent n the deceased, r wuld have been but fr the death (dependent fr financial r dmestic supprt) S17(2) WA dependants means such persnas as were mainly r in part dependent at the time f their death r injury NB: must be a financial dependency nt merely a persnal relatinship Ultimately, questin is whether the claimant wuld reasnably expect a financial benefit frm the relatinship Can claim fr: Lss f expectatin f financial supprt Reasnable expectatin f financial supprt, lss f chance f financial supprt recverable A vicissitudes f life analysis applied De Sales v Ingrilli [2002] HCA 52 Ultimately need t wrk ut hw much f that future lss f incme wuld have benefited the dependants and fr what perid f time Remember cap in s28f Lss f dmestic services f spuse/parent 12

13 Nt relevant whether the widw/widwer has spent mney t replace the services (Nguyen v Nguyen (1990)) BUT deductin t be made frm this sum fr prvisin by a new partner r carer See als nt s19a and s19b S19A -care must have been prvided fr at least 6 hurs a week fr a cnsecutive 6 mnths befre the death (r injury that caused death) S19B limitatin t average weekly earnings (r pr-rated) N slatium N cmpensatin fr emtins, grief r distress Discunt rate f 5% applied t future ecnmic lsses, including lss f dmestic services Must make a deductin fr: Amunts decreased wuld have spent n private needs (what the persn wuld have spent n themselves) Benefits the claimant received under the deceased s will Any cntributry negligence by the claimant (nt deceased) Cnsider: what is the psitin where the deceased is a child 13

14 NEGLIGENCE (DUTY OF CARE) Damage Plaintiff must have suffered a recgnisable frm f damage: Persnal injury Prperty damage Ecnmic lss Psychiatric cnditin/injury PTSD Nervus shck Transient emtins (e.g. stress, anxiety, fear) r incnvenience are nt cmpensable frms f damage Emtins that cme and g Elements f negligence 1. Duty f Care Defendant must we a duty t the plaintiff nt t create the risk f injury that ccurred 2. Breach f duty 3. Causatin Defendant must have fallen belw the standard f care expected f a reasnable persn engaged in that activity The breach must have caused the injury t the plaintiff 4. Remteness f damage The injury caused by the breach must have been reasnably freseeable Once the elements are established 5. Are there any defences available t the defendant? a. Cntributry negligence b. Vluntary assumptin f risk 6. What damages are available t the plaintiff? 14

15 DUTY OF CARE Relevant legislatin: Wrngs Act 1958 (Vic) Part 10 sets ut basic general principles that need t be met fr negligence Part 11 relevant types f principles fr psychiatric injury (mental harm/nervus shck) Part 12 claims against public authrity Histrical verview: Plaintiff must establish the defendant wed a duty f care Duty f care riginally restricted t: Certain legally recgnised relatinships e.g. Persns in cmmn callings and their clients Public fficer and members f the public Occupier and invitee Heaven v Pender Cases where there was a privity f cntract between the parties Winterbttm v Wright Dnghue v Stevensn [1932] AC 562 (snail in bttle case) Facts: Plaintiff went ut with friend in Sctland Ordered an ice cream flat with a ginger beer (beer was paque) D Stevensn = manufacturer Fills nce and drinks Refills it fr secnd and decmpsed snail appears in glass Dnghue successful sued manufacturer as she suffered severe gastr and mental harm Held: Manufacturer shuld have freseeably seen that ne f his cnsumers culd end up suffering harm Key ntes Superseded the persn wh the pl dealt with (cffee shp) and culd sue the manufacturer directly Lrd Atkin redefined what was duty f care Frmulated a principle called the neighbur principle the rule that yu are t lve yur neighbur becmes in law, yu must nt injure yur neighbur; and the lawyer s questin, Wh is my neighbur? Receives a restricted reply. Yu must take reasnable care t avid acts r missins which yu can reasnably fresee wuld be likely t injure yur neighbur. Wh, then, in law is my neighbur? The answer seems t be persns wh are clsely and directly affected by my act that I ught reasnably t have them in cntemplatin and being s affected when I am directing my mind t the act r missins which are called in questin Cnsumer = neighbur Reasnable care must be taken t avid acts r missins that yu can reasnably fresee will injure yur neighbur A neighbur is a persn wh is s clsely and directly affected by my act that I ught reasnably t have them in cntemplatin when engaging in that act. Duty f care is anyne wh can reasnably be affected by yur reasns and cnduct 15

16 Mdern day requirements - what the plaintiff needs t prve Reasnable freseeability f harm Special relatinship between the parties Established categry Salient features NB: a duty f care will be denied where plicy factrs supprt an immunity frm liability Established categries f duty f care Vast majrity f cases fall int recgnised categries f duty f care, including: Dctr/patient (Rgers v Whitaker) Slicitr/client (Hill v Van Erp) Driver/rad user; driver/passenger (Chapman v Hearse) Occupier/entrant (relating t the physical cnditin f the premises) (Australian Safeway Stres Pty Ltd v Zaluzma) Manufacturer/cnsumer (Dnghue v Stevensn) Emplyer/emplyee (McLean v Tedman) Schl/student (Geyer v Dawns (1978) 17 ALR 408) 16

17 Reasnable freseeability Reasnable freseeability needs t be shwn in all cases f negligence In mst negligence cases, this f itself will determine whether there is a duty f care KEY QUESTION: Culd the defendant reasnably fresee that negligence perfrmance f the relevant activity wuld create a risk f injury t the plaintiff r t a class f persns including plaintiff? Keep in mind that Defendant need nt have been able t fresee the precise sequence f events that led t P s injuries enugh that culd reasnable fresee the a cnsequence f the same general character as that which ccurred. Chapman v Hearse (1961) Facts: 1958 rainy dark night Chapman negligently cllided with anther vehicle Chapman s dr swung pen and he was thrwn ut n t the rad Dr Cherry was driving n the rad and stpped t help Chapman Whilst Dr Cherry was assisting, Hearse was driving alng the rad and hit Dr Cherry wh is helping Chapman and later died Issue: Did Chapman we Dr Cherry a duty f care? Held: High Curt held that it was nt necessary fr the plaintiff t shw the precise manner in which his injuries were sustained and that the defendant shuld f knwn he might be injured It shuld have been freseeable t Chapman that smene may have tried t rescue him and that smene may want t help him Key ntes Negligently driving have an accident smene will prbably help him smene may hit him = Chapman shuld have knwn what his reckless driving may have caused Unfreseeable t the plaintiff Palsgraf v Lng Island RR C Bale v Seltsam Pty Ltd Burbill v Yung Palsgraf v Lng Island RR C Facts: Man at train statin carrying parcel and jumped abard the train Guard n the train thught he wuld fall ut and reached ut his hand Man n platfrm tried t help and pushed him n t the train Parcel disldged frm his arm and fell n train tracks and it cntained firewrks = explsin Struck the brass strap and hit a bystander Issue: Was it freseeable? Held: Chief Justice Cardz held that it was nt freseeable event The guardsmen were nt required t see that the disldge f the parcel wuld injure smebdy n the ther side f the platfrm Held it was far-fetched/fanciful 17

18 Bale v Seltsam Pty Ltd Facts: Suffered injuries by washing her husband s clthes which held asbests Issue: Culd the emplyer reasnably fresee the wife may be injured? Held: T far-fetched and unfreseeable t knw that the wife wuld suffer injuries Jnes v Suthern Grampians Shire Cuncil (2012) Facts: Husband died wman washed the clthes cvered in asbests dust Successfully sued manufacturer f the asbests pipes James Hardy Successfully sued emplyer (Suthern Grampians Shire Cuncil) Sydney Water Crpratin v Turan (2009) Facts: Laid dwn a water main (20 yrs earlier) and it affected a tree Tree fell ver and hit a car and hurt the driver and his family Held: Did nt we duty f care because they culd nt see that laying the water main wuld undermine the tree, 20 years later. Salient features/cntrl factrs Where case des nt fall within an established categry, curts use ther factrs/salient features t determine duty questin. These include claims fr: Psychiatric injury Injury caused by an missin Liability f defendant fr serving alchl Ecnmic lss Injury caused by an independent cntractr What factrs? In the nvel cases, curts evaluate a number f factrs t determine whether a duty f care shuld be impsed Cntrl f the activity by D (Crimmins v SIFC) Vulnerability f P (inability t take steps t prtect self (Crimmins v SIFC) Knwledge by D f the risk (Crimmins v SIFC) P s individual autnmy and persnal respnsibility (Kirkland-Veenstra v Stuart; CAL N14 v Sctt) The need t preserve the cherency f the law (Sullivan v Mdy; CAL N 14 v Sctt) Indeterminacy f liability (Harritn v Stephens) Whether impsitin f liability wuld lead t defensive practices (Sullivan v Mdy; Tame v New Suth Wales) Demise f prximity and rise f a multi-factrial apprach Prximity is nt a legal cncept in its wn right and shuld nt be used as a determinant f a duty f care Nvel matters (salient factrs) Hill v Van Erp 18

19 Sullivan v Mdy Curts nw adpt an incremental, multi-factrial apprach in determining whether a duty f care shuld be impsed in these special duty situatins. The scpe f the duty f care and issues f persnal respnsibility Questins f persnal autnmy and respnsibility will be relevant factrs determining whether a duty f care exists N general duty at cmmn law wed t custmers t mnitr r limit service f alchl r t ensure their safety nce they leave the premises Cmpare with a duty t ensure physical premises safe Cle v Suth Tweed Rugby Ftball Club C.A.L N14 v Mtr Accidents Insurance Bard C.A.L. N 14 Pty Ltd v Mtr Accidents Insurance Bard [2009] HCA 47 Facts: Sctt was driving a mtrbike frm defendant s htel and ran ff the rad and suffered fatal injuries (alchl bac) Was at a pub befrehand and drunk a large amunt f alchl Widw sued n behalf, saying he breached the duty f care t let him drink and drive Held: Curt fund that he did nt we a duty f care t Sctt Cannt judge hw drunk smebdy else is Culd nt versee everyne Mre than ne mre may serve them An adult shuld knw the cnsequences f drinking Key ntes: Bartender cannt stp smebdy frm leaving = false imprisnment Same principles shuld apply a frtiri t private hsts Plicy cnsideratins: Immunity frm liability N duty f care where incnsistent with public plicy cnsideratins: Legal advcates immune frm liability fr negligent cnduct f case Giannerelli v Wraith D Orta-Ekenaike v Victria Legal Aid Finality f litigatin Cnfidence in the administratin f justice NB: Other cuntries (UK, Canada) have ablished this immunity Child prtectin agencies investigating pssible sexual abuse Sullivan v Mdy Duty f care is t the child nly Liability wuld be incmpatible with statutry regime impsing duty t investigate Prper and effective investigatins wuld be impaired, as wuld result in defensive practices Best interests f child inherently likely t cnflict with interests f parents 19

20 Liability als incmpatible with ther areas f the cmmn law: interferes with settled principles f defamatin law Indeterminacy f claim large range f ptential suspects X (minrs) v Bedfrdshire CC [1995] 2 AC 633 Plice frce immune frm liability when investigating a crime (t suspects) Tame v NSW Hill v Chief Cnstable f West Yrkshire Tame v NSW Facts: Plice fficer mistakenly tk an alchl reading frm Tame and ther driver and recrded as 0.14 (shuld have been nil fr Tame) Tame suffered number f injuries and claimed frm ther driver Tame tried t sue plice fr nervus shck and as a result caused her t suffer severe depressin Held: That a clerical mistake f recrding the wrng amunt was nt freseeable Tk place while investigating the situatin f the car accident Incmpatible with trying t wrk ut what happened Plice fficers cntinued Nt a blanket immunity; des nt extend t all aspects f plice peratins, where exercising a specific pwer e.g. arrests State f Victria v Richards [2010] VSCA 113 When driving, we a duty f care t thers even thugh they may be in pursuit f an ffender State f Victria v Richards [2010] VSCA 113 Facts: Went t appeal where the plaintiff was sprayed with capsicum spray by plice as they were arresting an ffender at her shp Held: Nt immune t we a duty f care t ther peple Other immunities: Armed frces when engaged in enemy peratins in time f war Wrngful life claims See als Gd Samaritan and vlunteer immunity Mdern tendency: except where cmpelling plicy cnsideratin, rdinary negligence principles apply. 20

21 Wrngful birth and wrngful life claims Wrngful birth claims allwed Where baby is brn disabled, curts aware additinal csts f raiding a disabled child Parkinsn v St James and Seacrft University Hspital NHS Trust Mre cntentius has been whether curt shuld award the financial csts f raising a healthy child Cattanach v Melchier (2003) majrity cncluded that such a claim is available The legal wrng is nt the birth f the child, but the negligence f the medical practitiner; the legal harm is the ecnmic lss Nrmal negligence principles wuld permit recvery Dr has assumed respnsibility t prevent cnceptin and shuld be liable fr all casually related lss Parental autnmy t determine number f children NB: n reductin fr emtinal benefits f having a child (cf claim fr lss f enjyment f life) Abrgated in QLD, NSW and SA (Civil Liability Act 2003) Only claim cmpensatin fr claim and suffering f the pregnancy and birth nt raising the child Nt awarded damages fr having the child, nly awarded damages fr the negligence f the dctr Wrngful life claims prhibited Can be brught by the actual child shuld nt have been brn NB: medical practitiner merely deprived parents f the pprtunity t prevent r terminate the pregnancy nt causing the actual disability Harritn (by her tutr) v Stephens; Waller v James (2006) See judgment f Crennan J: N legally recgnisable lss; nt pssible t cmpare value f a life with disabilities with nn-existence Cmmunit values abut sanctity f life N significant injustice: parent have the right t bring a claim Liability f landlrds t ccupants Histrical psitin Cavalier v Ppe [1906] AC 428 n duty Mdern psitin General negligence principles apply Nrthern Sandblasting Pty Ltd v Harris Jnes v Bartlett LL must exercise reasnable care t ensure rental premises are safe N guarantee f safety Liability limited t defects A cnditin in the premises rendering them unsafe fr rdinary use LL is under a duty t remedy defects that are knwn, r shuld have been detected, n a reasnable inspectin by LL r agent Hwever, the landlrd is nt bliged t hire independent experts, such as electricians and builders, t inspect the premises fr defects 21

22 Occupier s liability Occupiers under a duty t take reasnable steps t ensure the premises are reasnably free frm defects N risk free dwelling huses N duty t remve a minr defect cmmnly encuntered that shuld be bvius Neindrf v Junkvic Duty f parents t children and the rights f the unbrn child Parents nt immune frm liability in trt Hahn v Cnley (1971) Tweed SC v Carly Eden Hwarth (by her tutr Trent Hwarth) (2009) Fetus has n standing t sue AG (Qld) v T Once child is brn, a cause f actin available against a third party trtfeasr Watt v Rama Still cntentius whether child can sue mther fr in uter injuries Lynch v Lynch v Dbsn (litigatin guardian f) v Dbsn 22

23 BREACH OF DUTY OF CARE Fundamental prpsitins: The element determines whether D has been negligent The tuchstne f liability is that f reasnableness The duty is nt an abslute duty; it is a duty t take reasnable care Adeels Palace Pty Ltd v Mubarak (2009) D nt required t guarantee P will nt be harmed, but must take reasnable care t ensure harm des nt ccur Derrick v Cheung (2001) See als s55 Wrngs Act Derrick v Cheung Facts: Derrick was driving n a rad, less than speed limit 21 mnth ld tddler walked ut n t rad Derrick tried t avid and hit the child and child suffered brain damage Held: Curt f Appeal fund that Derrick was negligent High Curt nt negligent because was driving less than the speed limit it was reasnable. The liability f D is nt t be judged retrspectively, with the benefit f hindsight Vairy v Wyng SC Adeels Palace Pty Ltd v Mubarak Statutry prvisins affecting determinatin f breach: Div 2 Wrngs Act (ss48-50) cntain prvisins relevant t determining whether a breach has ccurred Div headed duty f care This is apt t mislead as principles are evidently directed t breach Adeels Palace Pty Ltd v Mubarak at [12] Sydney Water BREACH OF DUTY SECTION 48 OF WRONGS ACT S 48(1) Wrngs Act General Principles 1. A persn is nt negligent in failing t take precautins against a risk f harm unless: a. The risk was freseeable (that is, it is a risk f which the persn knew r ught t have knwn); and b. The risk was nt insignificant; and c. In the circumstances, a reasnable persn in the persn s psitin wuld have taken thse precautins 23

24 PART A S48(1)(a) Reasnable freseeability See Masn J in Wyng Shire Cuncil v Shirt (1980) (at 48) A risk which is nt far-fetched r fanciful is real and therefre frseeable A risk might be small but still freseeable Overseas Tankship (UK) Ltd v The Miller Steamship C Pty Ltd (The Wagn Mund N 2) (1967) D des need t fresee precise sequence f events: sufficient that D culd reasnably fresee in a general way the manner in which the accident ccurred E.g. Dubleday v Kelly (2005) Dubleday v Kelly Facts: P was a 7 year ld girl and suffered injury when she fell ff a trampline n premises wed by the defendant Gt up early and went and used the trampline rller-skated n the trampline (didn t knw what it was) Rlls back and falls ff trampline Held: Was nt reasnable freseeable that the girl wuld use the trampline with rller skates n But reasnable t see they a child wuld prbably use the trampline generally Determinatin f reasnable freseeability must be based n evidence presents by the plaintiff Sydney Water Crpratin v Turan PART B S48(1)(b) Nt insignificant risks Reasnable freseeability threshld cnsidered t lw; legislature intrduced a higher threshld: Insignificant risks nt cmpensable Defined in s48(3): Insignificant risks include, but are nt limited t, risks that are far-fetched r fanciful Risks that are nt insignificant are all risks ther than insignificant risks and include, but are nt limited t, significant risks Nt significant risks are thse f a higher prbability than far-fetched r fanciful risks but a lwer prbability than a significant r substantial risk A risk that has a very lw prbability f ccurring (a rare risk) might be classed as insignificant E.g. see Bltn v Stne Rgers v Whitaker 24

25 Bltn v Stne (1951 Facts: Fencing arund cricket club, rad n ne end and husing estate Stne hit by cricket ball Evidence suggested that a ball had nt been hit ut f the grunds in mre than 30 years Held: Huse f Lrds lw prbability mre than 30 days (lw chance f ccurring) Cricket club had nt breached their duty Key ntes Wuld have been different if there is was mre cmmn fr a ball t g utside f the grunds PART C S48(1)(c) Reasnableness P must establish that it was reasnable t require the defendant t have acted in a way t prevent the ccurrence f the freseeable risk Tw steps: What is the standard f care expected f the reasnable defendant? Did D fall belw that the standard f care? determined by the calculus f negligence and ther facts such a persnal respnsibility and cmmunity standards Whether a reasnable defendant wuld have taken precautins against a risk must be determined: Prspectively, and On the basis f the facts f the case that are prved in evidence Adeels Palace Pty Ltd v Mubarak (2009) Adeels Palace Pty Ltd v Mubarak (2009) Facts: Defendant Adeels Palace (receptin and restaurant) NYE (31/12/02) threw a party (incl children and parties) and sld alchl Altercatin persn invlved came back in with a shtgun (but initially unarmed) Individual sht the plaintiffs (2) Issue: Did Adeels Palace wed a duty f care t all patrns and did nt breach by nt having security at the dr? Held: Shuld have been reasnably freseeable that there may be prblems as there was alchl invlved It is a significant harm Reasnable persn in Adeels Palace shuld have taken precautins (i.e. better security at the dr) 25

26 Breach f duty (sectin 48 f WA) Ask the fllwing three questins 1. Is the risk f harm ccurring reasnably freseeable t the defendant? 2. Is the risk f harm significant r insignificant? (the mre significant the likelihd f harm, the mre likelihd there is t be a breach) 3. Wuld anther reasnable persn in the defendant s psitin, wuld have taken additinal precautins t avid harm? S 48(2) CALCULUS OF NEGLIGENCE In determining whether a reasnable persn wuld have taken additinal precautins, curts is t cnsider, amngst ther things: Prbability that the harm wuld ccur if care was nt taken Likely seriusness f the harm Burden f taking precautins t avid the risk f harm The scial utility f the activity that creates the risk f harm These 4 factrs drawn frm the cmmn law: Wyng SC v Shirt Three imprtant pints: 1. A balancing exercise; n ne factr is determinative - See Bltn v Stne - Rme v Cnservatin Cmmissin (NT) 2. Calculus nt t be applied rigidly/mechanistically: Ultimate questin is whether D acted reasnably in all the circumstances - New Suth Wales v Faby 3. Factrs listed in s48(2) are nt exclusive: ther factrs such as individual respnsibility and autnmy als taken int accunt 26

27 Prbability f harm ccurring less likely f ccurring = less likely the defendant has t d anything abut it high likely f ccurring = mre likely the defendant shuld d smething D might be justified in ignring a very small (thugh freseeable) risk f injury Bltn v Stne (1951) Rme v Cnservatin Cmmissin (NT) (1998) A risk might be very lw because it shuld have been bvius (t the plaintiff) Eutick v Canada Bay Cuncil [2006] NSWCA 30 Likely seriusness f the harm The precautinary measures reasnably expected f D will vary accrding t the magnitude f the injury which might result Calednian Cllieries Ltd v Speirs Calednian Cllieries Ltd v Speirs Facts: Pl husband died at a crssing in an accident Pl argued that Def shuld have installed catchpints t stp the train Def argued t install catchpints was a very drastic measure Held: Def shuld have taken the measure because f the seriusness f the harm D must adpt special precautinary measures where D knws P will suffer greater damage than nrmal Paris v Stepney Brugh Cuncil Paris v Stepney Brugh Cuncil Facts: Pl was emplyed by the defendant Pl jb t repair cuncil vehicles Def knew that pl had nly ne wrking eye (left eye) While wrking, a piece f metal struck his right eye and nw was cmpletely blind Held: Def liable because he knew he was already half blind and shuld have taken extra steps t prtect the emplyee s safety Shuld have gne the extra mile Key ntes Extra special precautins where smebdy may be mre likely t harm 27

28 Burden f taking precautins It must be reasnably practicable fr D t take precautins against the risk Where precautins are simple and inexpensive, this will weigh in favur f a breach Dubleday v Kelly But see failure t warn cases Expensive precautins (especially where risk lw) will militate against breach Rme v Cnservatin Cmmissin (NT) (1998) D nt liable t harm suffered by anther persn as a result f the materialisatin f an inherent risk An inherent risk is smething that can nt be avided by the exercise f reasnable care S55 Wrngs Act Thugh D still might be liable fr a failure t warn f an inherent risk: s55(3) S 49 WRONGS ACT Cnsideratin f the burden f taking precautins must include similar risks f harm fr which the persn may be respnsible: s49(a) Wrngs Act RTA (NSW) v Chandler (2008) The fact a risk f harm culd have been avided in a different way des nt f itself give rise t r affect liability: s49(b) Wrngs Act Prvisin yet t be definitively interpreted, but ne interpretatin is that intended t reflect: Derrick v Cheung See Hamsbere v Favelle [2009]: questin is nt whether different cnduct wuld have prduced a different result The subsequent taking f actin that wuld (had the actin been taken earlier) have avided a risk f harm des nt f itself give rise t r affect liability in respect f the risk and des nt f itself cnstitute an admissin f liability in cnnectin with the risk: s49(c) Reflects cmmn law principle: Gillies v Saddingtn (2004) Mulligan v Cffs Harbur CC (2005) KEY POINT - If the defendant puts up precautins after the event, it is nt an admissin f guilt! See als: S14J: an aplgy des nt cnstitute an admissin f liability, r an admissin f an admissin f unprfessinal cnduct, carelessness, incmpetence r unsatisfactry prfessinal perfrmance S 83 (public authrities): see belw must take int accunt the authrities resurces and brad range f its activities 28

29 Scial utility The scial justifiability/utility f D s cnduct will be taken int accunt E v Australian Red Crss But emergency services nt permitted t take unnecessary risks: Watt v Hertfrdshire CC Time fr assessing the risk: Nt retrspective, prspectively (at the time ) D s cnduct is t be judged in accrdance with the state f knwledge at the date f the accident, rather than the date f the trial Re v Ministry f Health(1954) See s 58(b) Wrngs Act re special skills Cmmunity standards and intxicatin: Impsitin f negligence liability smetimes said t be an applicatin f cmmunity standards Muilligan v Cffs Harbur CC at [3] Thmpsn v Wlwrths (Q land) Pty Ltd at [36] New Suth Wales v Faby (2001) at [217]: Negligence law will fail int public disrepuite if it prduces results that rdinary members f the public regard as unreasnable D nt generally under a duty t prtect P against the cnsequences f ur intxicatin Cle v Suth Tweed Heads Rugby League Ftball Club Ltd CAL N 14 Pty Ltd v Sctt Sectin 14G Wrngs Act: In determining breach f duty f care curts must take int cnsideratin: (a) whether the plaintiff was acting illegally at the time f his r her death r injury; r (b) whether the plaintiff was intxicated by alchl r drugs that were cnsumed vluntarily, as well as the level f the intxicatin Individual respnsibility Series f High Curt cases fllwing Rme emphasising individual respnsibility and autnmy Cle v Suth Tweed Heads RLFC Ltd The ultimate questin is reasnableness, i.e. whether it is reasnable t impse liability n D Persnal respnsibility/autnmy: plaintiffs have a respnsibility t exercise a reasnable measure f care fr themselves E.g. ccupier nt liable fr cmmn, everyday and apparent defects, r fr failure t warn f these. Thmpsn v Wlwrths (Q land) Pty Ltd Obvius risks Relevant cnsideratin: bviusness f the risk Rme v Cnservatin Cmmissin f the Nrthern Territry Wds v Multi-Sprt Hldings Pty Ltd Often imprtant but nt determinative questin is reasnableness in all the circumstances See Vairy and Mulligan 29

30 Specific breach situatins: Failure t warn This grund f liability favured by plaintiff because the warning wuld usually be cheap and practicable Line f authrity fllwing Rme: generally, n bligatin t warn f an bvius risk See Wds v Multi-Sprt Hldings University f Wllngng v Mitchell (retractable seat) Vairy v Wyng SC See s 50 Wrngs Act: duty f care t warn f risk satisfied if D take reasnable care in giving that warning r ther infrmatin Nte nus is n the plaintiff f prving he/she was unaware f the risk : s56(1) Wrngs Act (relates als t causatin) Plaintiff needs t shw that they wuld have dne smething differently if they knew abut the risk Wds v Multi-Sprt Hldings Facts: Plaintiff playing cricket in the premises Plaintiff gt hit in the eye with a ball Plaintiff stated that the defendant shuld have warned him abut the chance f getting hit with a ball Issue: Obvius risk? Held: Curt fund that the defendant was nt in breach because getting hit by a ball He had played cricket befre and it was an bvius risk University f Wllngng v Mitchell Facts: Plaintiff went t a university graduatin ceremny and std up t take a pht, sat dwn and missed the chair and fell t the grund Issue: Plaintiff said that there shuld have been a warning that the seat retracted. Held: N breach f duty because the seat retracting shuld have been bvius t her and she shuld have knwn 30

31 Specific breach situatins: Public authrities and recreatinal activities N general duty t warn f nrmal risks endemic t a particular recreatinal activity Enright v Clum Resrt Pty Ltd Vairy and Mulligan: relevant cnsideratins include: Obviusness f risk Range f ptential hazards and risks Natures f the accident site (particularly hazardus? Encuragement t use that site?) Knwledge f risk/previus accidents Cst implicatins fr public authrities Aesthetic implicatins (hw it lks) See als RTA f NSW v Dederer Statutry prvisins applying t public authrities Definitin f public authrity in s79 Wrngs Act: includes state gvernment departments, lcal cuncils, any ther statutry authrity Sectin 83 Wrngs Act: In determining whether a PA has a duty f care r has breached a duty f care, a curt is t cnsider the fllwing principles: a) functins required t be exercised by the PA are limited by the financial and ther resurces that are reasnably available t the authrity fr the purpse f exercising thse functins; b) the functins required t be exercised by the PA are t be determined by reference t the brad range f its activities (ad nt merely by reference t the matter t which the prceeding relates) c) the PA may rely n evidence f its cmpliance with the general prcedures and applicable standards fr the exercise f the prper exercise f its functins in the matter t which the prceeding relate 31

32 STANDARD OF CARE Reasnable psitin in the defendant s psitin (generally, n exceptin cases) Standard f the reasnable persn Objective standard Standard f care is the f the reasnable and prudent persn in D s psitin D must exercise the skill and care that a reasnable persn f rdinary intelligence, skills and experience wuld exercise The persn circumstances r characteristics (such as intelligence, experience r mental state) f the defendant are generally nt taken int accunt Imbree v McNeilly [2008] HCA 40 See als Miller v Miller [2011] HCA 9 standard f care nt generally variable Imbree v McNeilly Facts: Imbree went fr a drive t NT Tk sn and friend McNeilly (learner s permit) Accident tk place when McNeilly was driving, veered ff the side f the rad Issue: What standard f care was wed t the plaintiff? Held: High Curt reasnable persn = driver (nt learner driver) Fund the driver t be liable Mdificatin f the standard f care A mdified standard f care applies in the case f: Children Activities requiring special skills Uncnsciusness r autmatism Children The standard f care is bjective, but based n a reasnable child f that same age Child expected t exercise the same degree f skill and cmpetence and t understand risks invlved as culd reasnably be expected f a child f that age McHale v Watsn McHale v Watsn Facts: Watsn (12 yr ld) thrw a steel stick at a pst and it misses it and hits McHale in the eye Issue: Standard f care? Nt adult Held: Watsn is held t the standard f care f the rdinary reasnable 12 year ld Had nt breached the standard f care because a child wuld nt understand the dangers f the risk and danger f thrwing a steel rd in the way he did 32

33 Parental liability: N vicarius liability Parents are liable if they fail t exercise a reasnable degree f cntrl and supervisin ver their child s activities Smith v Leurs Curmi v McLennan Relevant factrs: The age f the child The dangerusness f the bject/activity The warnings given The child s training and experience Special skills Nrmal bjective standard is that f the reasnable prfessinal rdinary skills and cmpetence Defendants wh hld themselves ut as pssessing special skills must cmply with the standard f care reasnably expected f a persn wh pssesses thse skills: Clurelli v Girgis (defendant held himself ut as a medical specialist) Smith v Tabain (nn-electrician fixing pwer lines) See als s58 Wrngs Act Cf Phillips v William Whiteley Uncnsciusness r autmatism Mental illness/impaired faculties will nt f itself affect the standard f care expected f the defendant: Adamsn v Mtr Vehicle Trust Rberts v Ramsbttm If the defendant is uncnscius r an autmatn, the standard f care is reduced accrdingly Advanced warning/knwledge f symptms crucial SPECIFIC STANDARDS Industry standards Cmmn practices in the industry existing at the date f the incident will be persuasive but nt determinative O Dwyer v Le Buring Champagne bttle crk discharged nce the wrapper was pen Def claimed it was industry practice that the bttles are like that Curt held that it didn t matter if it was industry practice r nt, it was a freseeable risk Wds v Multi-Sprt Hldings Cricket ball case Plaintiff claimed that the venue shuld have prvided helmets Venue claims that it was nt the industry practice t use helmets 33

34 Prfessinal standards medical prfessinals Diagnsis and treatment The Blam test rejected in Australian cmmn law At cmmn law, it was persuasive, thugh nt determinative, that the defendant had acted in accrdance with a reasnable bdy f medical pinin Rgers v Whitaker Naxakis v Western General Hspital BUT SEE NOW s59 Wrngs Act Acting in accrdance with generally accepted medical pinin excuses liability (nly diagnsis and treatment, i.e. prescriptin f medicatin S59(1) A prfessinal is nt negligent in prviding a prfessinal service if it is established that the prfessinal acted in a matter that (at the time the service was prvided) was widely accepted in Australia by a significant number f respected practitiners in the field (peer prfessinal pinin) as cmpetent prfessinal practice in the circumstances S59 perates in practice as a defence. Onus n D prfessinal t prve that the practice cmplies with peer prfessinal pinin Brakulias v Karunabaran [2012] VSC 272 Grinham v Tabr Meats Pty Ltd; VWA v Murray [2012] S59(2) Peer prfessinal pinin cannt be relied upn if the curt determines the pinin is unreasnable This determinatin must be put in writing (unless a jury determinatin) S59(5), (6) S59(3) The fact that there are differing peer prfessinal pinins widely accepted in Australia by a significant number f respected practitiners in the field cncerning a matter des nt prevent any ne r mre (r all) f thse pinins being relied n fr the purpses f this sectin. S59(4) Peer prfessinal pinin des nt have t be universally accepted t be cnsidered widely accepted. Prvisin f infrmatin and advice by medical practitiner Rgers v Whitaker Evidence f acceptable medical practice is again influential, thugh nt determinative D must advise f material risks A material risk is a risk: That wuld influence the nrmal patient s decisin whether r nt t g ahead with treatment; r That that particular patient has indicated wuld influence her decisin See nw s48 requirement that risk be nt insignificant Duty t disclse is subject t therapeutic privilege 34

35 Rgers v Whitaker Facts: Had lst her eye earlier and tried t get csmetic surgery n the eye She lst the sight in her ther eye 1 in 14,000 chance f it happening Issue: Did he breach by failing t warn f the pssibility f lsing sight f the ther act? Held: Dctr must advise f all material risk Dctr shuld have warned her NB: but nte that s59 is nt limited t medical practitiners but applies t all prfessinal prviding a service e.g. lawyers, financials advisrs etc 35

36 CAUSATION Did the defendant s negligence actually cause the injury t the plaintiff?. But fr test but fr the defendant s actin, wuld the plaintiff have suffered harm? NO causal link YES n causal link. Once breach f duty established, P must then prve a causal link between D s breach f duty and P harm RTA v Ryal P always bears the burden f prving, n the balance f prbabilities, any fact relevant t the issue f causatin S52 Wrngs Act Once causal link established n the balance f prbabilities, the damage becmes a legal certainty and P can recver the full amunt f the damage Amaca Pty Ltd v Ellis [2010] HCA 5 at [70] RTA v Ryal Facts: Rad traffic accident Sued because f the design f the negligent because ther drivers were bscured Issue: Did that cause the accident? Held: High Curt held that the bscurity was nt due t the intersectin but because the driver did nt judge the ther driver crrectly Causally irrelevant Sectin 51 Wrngs Act: Factual and Legal Causatin (1) A determinatin that negligence caused particular harm cmprises the fllwing elements: (a) (b) that the negligence was a necessary cnditin f the ccurrence f the harm (factual causatin); and that it is apprpriate fr the scpe f the negligent persn s liability t extend t the harm s caused (scpe f liability) 36

37 Para (1)(a): Factual Causatin Was the defendant s negligence a necessary cnditin f the ccurrence f the harm? A legislative enactment f the cmmn law but fr test But fr the defendant s negligence wuld the plaintiff have suffered injury? D s negligence des nt have t be the sle cause, but it must be a cause, i.e. an event withut which the accident wuld nt have ccurred But fr test rejected as a cmprehensive r exclusive test f causatin (majrity in March v Stramare) But fr effective at eliminating negligence as a cause; i.e. as a negative criterin (Tabet v Gett [2010] HCA 12 at [112] per Kiefel J) But High Curt has been increasingly strict in its applicatin f but fr Adeels Palace Pty Ltd v Mubarak [2009] Amaca Pty Ltd v Ellis [2010] Facts: Wrker came acrss asbests in pipes Died f lung cancer Hwever, he was a very heavy smker Issue: Expsure t asbests caused lung cancer? Held: P failed because culd nt establish n the balance f prbabilities that the lung cancer wuld nt have ccurred but fr the expsure t asbests Smking was by far the mst likely cause f lung cancer N evidence that expsure t asbests alne caused the cancer Epidemilgical evidence that the cmbinatin f smking and expsure t asbests can increase risk f lung cancer; but nt evidence that they must wrk tgether Inference culd nt be drawn frm epidemilgical evidence that cmbinatin f smking and asbests had actually caused P s cancer: medical evidence that P s heavy smking by far the mst prbable cause f his lung cancer Knwing that inhaling asbests can cause cancer des nt entail that in this case it prbably did at [68] But fr less effective at cnfirming negligence was the cause: 1. Identifies backgrund causes and cincidences as factual causes - see e.g. Windeye J in Faulkner v Keffalins - RTA v Ryal - Canterbury Bankstwn RLFC v Rgers 2. Unsatisfactry in determining whether a mre immediate cause is a nvus actus interveniens - these cases determined accrding t legal causatin 37

38 Inferences: But fr causatin might be established as a matter f inference frm the surrunding circumstances Strng v Wlwrths Limited t/as Big W [2012] HCA 5 But the evidence must supprt an inference that the negligent act was the prbable cause f the plaintiff s injury, nt just a pssible cause Lithgw City Cuncil v Jacksn [2011] HCA 36 Strng v Wlwrths Limited t/as Big W [2012] HCA 5 Facts: Strng slipped n a ht chip when she was already n crutches Claims the defendant shuld have cleaned the area Issue: Breach caused the injury? Held: N evidence as t when the chip was drpped and therefre culd nt prve the reasnable time taken t clean Curt f Appeal - thught the chip had been drpped at 12.10pm and that there was nt a reasnable amunt f time t clean up High Curt thught it was mre prbable that the chips were eaten befre 12.10pm because they can be eaten any time in the mrning Key ntes Cleaning 15 t 20 minutes Lithgw City Cuncil v Jacksn [2011] HCA 36 Facts: P wke up in the drain and didn t knw hw he gt there Sued the cuncil because the drain was nt fenced ff Issue: Did he fall because f the unfenced area? Held: Curt rejected that he did nt fall because it was nt fenced Curt lked at: Injuries Where bdy fund Bld spray pattern Wrngful diagnsis r treatment Htsn v East Berkshire Area Health Authrity Dctr nt liable fr misdiagnsis unless it caused the harm n balance f prbabilities (51%) Straightfrward applicatin f but fr test: P must prve n the balance f prbabilities that, but fr D s negligence, the injury wuld nt have ccurred. Damages nt available in Australia fr lss f chance f a better medical utcme i.e. lss f chance damages N/A See Tabet v Gett [2010] HCA 12 See in particular Keifel J (with whm Crennan, Hayne and Bell JJ agreed) 38

39 Damage is the gist f the cause f actin in negligence P must establish causal link between breach f duty and harm Standard f prf is the balance f prbabilities (i.e. a great than 50% prbability) Where prbability f harm is < r =50%, causal link is nt established Where a >50% prbability; P gets 100% f damages, where <=50%, P gets nthing All r nthing See als Crennan J: Radical change in standard f prf; wuld require legislative interventin Plicy cnsideratins: defensive medicine; impact n Medicare, private insurance and prfessinal indemnity Same apprach taken in UK: Gregg v Sctt Cf cases invlving lss a cmmercial pprtunity: Sellars v Adelaide Petrleum NL Para (1)(b): Legal causatin Scpe f liability : (nly lk at if factual causatin is established!) Curt must cnsider whether r nt and why respnsibility fr the harm shuld be impsed n the negligent party: s51(4) A nrmative questin: shuld liability legally be impsed? Invlves questins f principle as well as plicy cnsideratin such as persnal respnsibility See Hunter Area Health Services v Presland At cmmn law curts initially referred t value judgments and cmmn sense and experience. See March v Stramare per Masn CJ at But see nw Travel Cmpensatin Fund v Rbert Tambree [2005] HCA 69 39

40 Nvus Actus Interveniens An intervening act r event that breaks the chain f causatin between D s negligence and P s injury A vluntary human actin r causally independent event the cnjunctin f which with the wrngful act r missin is by rdinary standards s extremely unlikely as t be termed a cincidence. See Haber v Walker per Smith J at 358 If independent even nt a nvus actus D is respnsible fr fr all f the damage, perhaps jintly and severally with TP. Jint r severally liable = can be sued individually r tgether If independent event is a nvus actus, D is nt respnsible fr the damage resulting frm the intervening act r event. A TP might be liable. NOVUS ACTUS INTERVENIENS YES there is a nvus actus interveniens D is nt respnsible fr the damage resulting frm the intervening act r event. NO there is nt a nvus actus interveniens D is respnsible fr all f the damage, perhaps jintly and severally with TP A TP might be liable Test fr nvus actus: Was the act r event reasnably freseeable? Chapman v Hearse If rf, was the act r event in the rdinary curse f things the very kind f thing likely t happen as a result f D s negligence ; was the injury within the sphere f risk created by D s negligence March v Stramare per Masn CJ, p518, 519 Mahney v J Kruschich (Demlitins) Pty Ltd Travel Cmpensatin Fund v Rbert Tambree Intervening negligent act f TP: Negligent acts f third parties will nt break the chain f causatin where D s negligence generated the very risk f injury that ccurred Chapman v Hearse Medical negligence is the very thing likely t ccur where D injures P. Generally medical negligence will nt break the chain f causatin D and the dctr will be jintly and severally liable fr the additinal harm 40

41 Negligent medical treatment is a NAI where inexcusably bad r cmpletely utside f the bunds f what any reputable medical practitiner might prescribe r s bviusly unnecessary r imprper that it is in the nature f a gratuitus aggravatin f the injury Only the dctr is liable fr the additinal harm (n cases fr this yet) Intervening deliberate act f TP Mre likely t break the act f causatin A deliberate act by a TP will nt break the chain f causatin where it was within the sphere f risk created by D s negligence Adeels Palace Pty Ltd v Mubarak [2009] Curmi v McLennan (airgun case) An intervening criminal act might nt be the very risk likely t ccur Rickards v Lthian SRA (NSW) v Chu [2008] NSCA 14 Cf Drset Yacht C Ltd v Hme Office Intervening negligent acts f Plaintiff Negligent acts by P d nt break chain f causatin where D s negligence has created the very risk that ccurred P s damages reduced fr cntributry negligence E.g. see March v Stramare per Masn CJ at [28 [D s] wrngful act in parking the truck in the middle f the rad created a situatin f danger, the risk being that a careless driver wuld act in the way that [P] acted. The purpse f impsing the cmmn law duty n [D] was t prtect mtrists frm the very risk f injury that befell [P]. Intervening deliberate acts f P P s act must be truly vluntary Vluntariness negatived if D s negligence materially cntributed t P s act (ie as a cntinuing cause) Haber v Walker Medlin v SGIC Haber v Walker Facts: P suffered a brain injury due t car crash due t D s negligent driving In hspital t a lng time and rehabilitatin Suffered depressin and anxiety P cmmitted suicide left behind wife and 8 children Wife sued husband nly cmmitted suicide because f the riginal car accident (invluntary) Held: 41

42 Medlin v SGIC Facts: Prfessinal Medlin was injured in car accident at 56 yrs ld As a result he culd n lnger d his jb and he vluntarily retired (but wuld have wrked until 65 yrs ld) Sued fr lss f earnings Issue: Vluntarily retired r caused frm car accident? Held: P s cnduct must nt be judged unreasnable as between P and D r an inapprpriate respnse Medlin v SGIO Mahney v Kruschich P s cnduct must be reasnable as between P and D curts must assess whether it is apprpriate t extend D s scpe f liability t the cnsequences f P s vluntary act (s51(1)(b)) Mahney v Kruschich Facts: Emplyee sued his emplyer because he says he was negligent Ges fr medical treatment and suffered further injuries (Dr Mahney) Kruschich sued the dctr because he didn t want t be t blame entirely Issue: Freseeable t defendant further risk t plaintiff? Held: Refusal f life saving medical treatment, e.g. a bld transfusin? Mahney v Kruschich: NAI where P has acted unreasnably in the type f treatment r wh sught treatment frm See Byd v SGIC Cf Adelaide Chemical Fertiliser C v Carlyle 42

43 Multiple successive events Tw successive trtius events Baker v Willughby yu take P as yu find P The secnd trtfeasr is liable nly fr the additinal damage The first trtfeasr s liability generally remains unabated Baker v Willughby (1970) Facts: P suffered damage t ankle as a result f a car accident Tk a lnger paid jb because f the injury surcing thrugh scrap metal at factry At wrk secnd defendant tried t rb the factry and sht the plaintiff in the injured leg P needed t have his leg amputated Issue: Wh is liable? Held: Secnd trtfeasr is liable nly fr the additinal damage First trtfeasr is liable fr the riginal damage Perfrmance Cars v Abraham See nw Part IVAA Wrngs Act Cncurrent wrngders required t cntribute nly t extent f respnsibility fr prperty damage Injury 1 Defendant 1 is liable fr the harm they have dne Plaintiff Injury 2 Defendant 2 is liable fr the additinal damage that has taken place Take plaintiff as yu find them Defendant 1 (First trtfeasr) Defendant 2 (Secnd trtfeasr) 43

44 Subsequent events is nn-trtius Jbling v Assciated Dairies A subsequent nn-trtius event ( inncent cause ) is ne f the vicissitudes f life it will be taken int accunt in reducing D s damages D nt liable fr lsses that wuld have ccurred anyway as a result f that subsequent event Cnsistent with Malec apprach See als Faulkner v Keffalins Jbling v Assciated Dairies (1982) Facts: P suffered a slip disc (1973) Recvered and went back t wrk (light duties) and three years later and suffered a medical cnditin cmpletely unrelated He culd n lnger wrk befre trial date fr slip disc Issue: What is the defendant liable fr? Fair fr the defendant pay fr the entirety f the damage? Held: Shuldn t have t pay fr the additinal medical prblem Only pays fr their damage Faulkner v Keffalins (1970) Facts: 1968 P suffered in car accident caused by D s negligent light wrk duties 1969 P driving his car, ran int anther vehicle and suffered further injuries (p s fault) and reduced his earning capacity further psychlgical and physical effects Held: Had the secnd accident nt ccurred, the def wuld have t pay the pl earning capacity But because f the secnd accident, the pl lst all earning capacity and the def nly had t pay 1 year f earning capacity Key ntes Secnd event had nthing t d with the first event Injury 1 Defendant 1 is liable fr the harm they have dne and nt liable fr lsses that wuld have ccurred anyway as a result f that subsequent event Plaintiff If lsses wuld have ccurred anyway the trtfeasr frm the riginal negligent act is nt liable t pay damages Defendant (Trtfeasr) NON-TORTIOUS EVENT 44

45 Failure t warn f a medical risk Dctrs must warn f all material risks Rgers v Whitaker P must shw a causal link between the failure t warn and the injury suffered Causal link is established if P can shw she wuld nt have gne ahead with the peratin if warned f the risk Rsenberg v Percival Chappel v Hart Subjective, nt bjective, test! Wuld this patient have underwent the surgery if they knew f the risk? D the benefits f the surgery utweigh the risk? Rseberg v Percival Facts: The plaintiff Dr Pervcival qualified nurse (phd in nursing) Pl needed jaw peratin and cnsidered three different treatment ptins Underwent peratin and pst-perative she develped a jaw disrder and was nt warned f the risk Claimed if she had been warned, she wuldn t have underwent the surgery Issue: Subjective test, nt bjective Wuld that particular patient have prceeded with the peratin, nt wuld a reasnable patient have prceeded Held: Curt has regard t: The evidence f P (thugh inherently unreliable) In ther states (nt Vic), P s wn testimny is inadmissible The surrunding bjective facts such as: The health benefits f the peratin significant? The degree f the risk f the cmplicatin ccurring; and The extent f harm likely t eventuate. Sectin 51 Wrngs Act s 51(3) - If it is relevant t the determinatin f factual causatin t determine what the persn wh suffered harm wuld have dne if the negligent persn had nt been negligent, the matter is t be determined subjectively in the light f all relevant circumstances. Prbably intended as a statutry enactment f Rsenberg v Percival Nt just limited t medical cases 45

46 Chappel v Hart (1998) Facts: Thrat peratin plaintiff lst sme vlume in her vice Had she knwn, wuld have had peratin later n and by a mre specialised surgen Held: High Curt Majrity (Gaudrn, Kirby and Gummw JJ) Causatin established Applied the but fr test the cmplicatin wuld nt have eventuated if surgery had taken place at a later time Minrity (McHugh and Haybe JJ) Causatin nt established Dr C s negligence had nt materially increased the risk f injury t plaintiff Res Ipsa Lquitur The thing speaks fr itself - maxim used rarely absence f any direct evidence f breach r causatin Usually when things fall n peple An inference f negligence drawn where the accident wuld nt rdinary ccur withut negligence n the defendant s part Bryne v Badle (barrel fell frm a windw in the defendant s building) Shuld nly be used in the mst unusual circumstances! Three cnditins: 1. The cause f the accident is unknwn r unspecified 2. The accident wuld nt, in the rdinary experience f mankind, nrmally ccur in the absence f negligence; and 3. The bject r activity was within the exclusive cntrl f the defendant Mummery v Irvings Schellenberg v Tunnel Hldings Pty Ltd If the defendant can explain why smething happened, res ipsa lquitur will fail Thught see SJ Weir Ltd v Bijk [2011] SASFC

47 REMOTENESS OF DAMAGE Are the injuries that plaintiff suffered reasnably freseeable? Is it t farfetched, fanciful r remte? Yes nt liable. Was the specific injury suffered by the plaintiff reasnably freseeable? If n Was the injury suffered by the plaintiff the type f class f injury that is reasnably freseeable? If n Des the egg shell skull rule apply? General principles D nt liable fr all causally-related injuries Extra requirement: P s injuries must nt be t remte Overseas Tankship (UK) Ltd v Mrts Dck & Engineering (Wagn Mund N 1) Overseas Tankship (UK) Ltd v The Miller Steamship (Wagn Mund N 2) Rejects the direct cnsequences test frm Re Plemis & Furness Withy & C Ltd N specific prvisin in the Wrngs Act, but included as factr in s51(1)(b) whether it is apprpriate t extend D s liability t the injuries Overseas Tankship (UK) Ltd v Mrts Dck & Engineering (Wagn Mund N 1) Facts: Engineers in Sydney were careless when wrking and there had been an il spill in the water Cttn had fallen int the water On the wharf repair wrk t ship = welding Sparks frm welding flew int the water and ignited the cttn and il in the water Plaintiff s wharf was cmpletely destryed Issue: T remte? Fire and water nt clsely related 47

48 Held: Nt reasnably freseeable that this type f damage wuld ccur Nt liable t farfetched Overseas Tankship (UK) Ltd v The Miller Steamship (Wagn Mund N 2) (1967) Facts: Fire as abve Caused damage t tw ther ships n the wharf P claimed that there was a risk f fire because f the il spillage and they shuld have knwn Issue: T remte? Held: Curt fund that the engineers shuld have reasnably freseen that there was a risk Fcus is n the injuries sustained: was that type f injury reasnably freseeable? ( rf ) Cf reasnable freseeability requirement at duty and breach stages Risk f injury must be rf as a real risk; a nn far-fetched r fanciful risk Wagn Mund N 2 Wagn Mund cases P s injuries nt t remte if: 1. The specific injury was freseeable, r 2. The injury is f a type r kind f injury that was rf Irrelevant that: a) the precise cnditin, r b) the precise manner in which the harm ccurred, r c) the full extent r seriusness f the harm suffered was nt reasnable freseeable. Prblem is lack f guidance f apprpriate level f abstractin fr determining the kind f injury Versic v Cnners 48

49 Manner f ccurrence f harm General manner in which injury ccurred must be rf Cmpare Wagn Munds 1 and 2 It is nt necessary t prve that D culd fresee the precise sequence f events that led t P s harm See e.g. Hughes v Lrd Advcate Lrd Reid: injuries caused by burns, and burns injuries were freseeable Lrd Pearce: freseeable that bys wuld mishandle lamp; injuries suffered were a varian f the frseeable See als Jlley v Suttn LBC: freseeable risk that children wuld meddle with bat at risk f serius injury Kavanagh v Akhtar Hughes v Lrd Advcate (1961) Facts: Defendants were wrking n a rad and cvered the manhle and put a tent up arund it and placed lamps arund it Tw bys (8 and 10 years ld) went t have a lk what was under the tent and went dwn the man hle with a ladder One f the bys kncked ver the lamp and caused an explsin Eight year ld suffered burns Issue: Injury freseeable? Held: Burn injury was a freseeable injury and that a by wuld g and have a lk f the manhle Jlley v Suttn LBC Facts: Cuncil had nt remved a decaying bat frm a husing estate Bys went t have a lk at it and fell and the bys were hurt Issue: T remte? Held: Desn t matter abut the specific injury but the type f injury! Kavanagh v Akhtar Facts: Ms Akhtar 35 years ld Muslim suffered injuries t shulder, neck, arm and jaw due t a perfume bx falling n her Due t injury in arm, culd nt lk after her lng hair Had a haircut very shrt husband wasn t happy abut this = marriage brke dwn Issue: Defendant liable fr husband leaving? Held: Curt said that yu need t take int accunt her cultural backgrund Defendant shuld have been able t reasnably fresee the chance that she may have t cut her hair 49

50 Extent f harm suffered D liable prvided the injuries were f a kind rf, even if mre extensive r serius than rf See again Hughes v Lrd Avcate Lrd Reid: injuries different in degree but nt kind frm thse which were freseeable Psych injury recverable even if mre serius than rf, r exact cnditin nt rf MIM v Pusey Nader v Urban Transit Authrity Cntrast Rwe v McCartney S74 Wrngs Act Nader v Urban Transit Authrity (1985) Facts: Gerge Nader 10 year ld by struck in the head with an electricity ple when he jumped ff a bus (superficial injury and n neurlgical injuries) The bus driver was negligent in pening the bus dr t early Father went t g and see a lawyer n the same day Weeks later Gerge started suffering headaches and went t see a psychiatrist and was diagnsed with an illness Gancer syndrme Hwever, nly suffered when his family was arund. When they left he was fine. By was fit and well but because f the way his parents reacted t the accident he had a neurlgical effect n the yung by Issue: T remte and nt rf Held: Curt said that it was nt t remte and the family envirnment had t be taken in accunt Egg shell skull rule Fundamental principle: yu take the plaintiff as yu find the plaintiff D liable where P has a pre-existing susceptibility which cause P t suffer far mre severe damage than wuld nrmally be the case Dulieu v White & Sns [1901] 2 KB 669 at 681: If a man is negligently run ver r therwise negligently injured in his bdy, it is nt answer t the sufferer s claim that he wuld have suffered less injury r nt injury at all, if he had nt had an unusually thin skull r an unusually week heart Applied in Smith v Leech Brain Rbinsn v Pst Office If any ther nrmal persn wuld suffer the same type f injury then yu are liable. If that particular persn suffers a higher degree f injury bad luck. 50

51 Smith v Leech Brain Facts: P wrked in multi-metal factry fr D P burnt n lip when metal splashed ut f the cauldrn Burn activated pre-drmant cancer cells in his bdy and he gt cancer Issue: Liable fr getting cancer? Held: Yes, D was liable because the cells were nly activated by the defendant s actins Key ntes D nt cnfuse with Malec Name a misnmer: egg shell skull rule nly applicable where riginal injury was f a kind that was reasnably freseeable See e.g. Jaensch v Cffey Ie rule applies t aggravatins f an riginal injury that was rd Als applies t scial, envirnmental and ecnmic circumstances Kavanagh v Akhtar Nader v Urban Transit Authrity NB: If the predispsitin t injury might have caused the nset f the cnditin in the future, damages are reduced accrdingly Smith v Leech Brain Revise the principles frm Malec JC Huttn 51

52 In summary: Three steps t determine remteness element: Was the specific injury reasnably freseeable? Yes Defendant liable N Was the injury f a type r class which was reasnably freseeable? Yes Defendant liable N Des the egg shell skull rule apply? Yes Defendant liable N Defendant nt liable 52

53 MERE OMISSIONS Omissin = failure t act General rule: n liability fr a mere missin r nn-feasance As lng as yu are nt the persn wh has caused the harm N duty t take affirmative actin t avid a reasnably freseeable risk f harm t the plaintiff that was nt created r increased by D (ie that P has nt brught abut) Reasnable freseeability f the harm will nt f itself supprt a duty f care: The c-existence f a knwledge f a risk f harm and pwer t avert r minimise that harm des nt, withut mre, give rise t a duty f care at cmmn law per Gummw, Hayne and Heydn JJ in Kirkland-Veenstra v Stuart [2009] HCA 15. At [88] There must be special features f the relatinship befre a duty t take affirmative actin is impsed Kirkland-Veenstra v Stuart [2009] HCA 15 Definitin f an missin : A failure t act is nt an missin if the risk f harm t P was created r cntributed t by P A mere missin refers t a failure t act in situatins where the defendant did nt create r increase the risk f injury t the plaintiff (a situatin that P has nt brught abut) Agar v Hyde; Agar v Wrsley (2000) e.g. beach-ger see P drwning and fails t render assistance Examples f failures t act that are nt missins (defendant is liable) Failure by the driver f a car t apply the brakes f a car: Deane J in Sutehrland SC v Heyman Failure by an ccupier f land t manage a risk arising frm the state f the premises (eg a failure t warn f the risk): see e.g. Vairy and Mulligan; Neindrf v Junkvic A failure by the defendant wh is perating an activity r business t take reasnable steps t ensure the safety f participants: see e.g. Wds v Multi-Sprt Hldings (failing t prvide a helmet) A failure f a medical practitiner t prvide apprpriate treatment r advice t a patient with whm they re cnsulting: Rgers v Whittaker 53

54 Exceptinal cases where a duty t take affirmative actin is required What is the relatinship between the parties?? A duty t take affirmative actin is required in sme exceptinal cases; where there are special features giving rise t a duty t act Where the relatinship between P and D implies an bligatin t act ( prtective relatinship ) because f the cntrl by D and vulnerability f P (cases where P nt fully autnmus) Eg, a hspital and patient, schl and pupil, prisn authrity and prisner, emplyer and emplyee; parent and child CAL N 14 Pty Ltd v Sctt at [38] Cnsider: Is a dctr is under a duty t g t the assistance f a stranger? General rule: n duty (Deane J in Sutherland) Cf Lwns v Wds [1996] Aust Trts Rep Duty t act t prevent harm t P frm criminal activities f third persns N general duty t cntrl the actins f anther t prevent harm t strangers Kirkland-Veenstra v Stuart [2009 HCA 15 Mdbury Triangle Shpping Centre Pty Ltd v Anzil Facts: P wrked in a vide stre lcated in a shpping centre wned by the D P was walking t carpark and was attacked by a grup f men P was seriusly injured and sued the shpping centre P claimed pr lighting Issue: D was liable fr the attack? Held: N duty t prtect r prevent the third party attack because they culd nt avid that happening Harm was caused by the peple attacking nt because f the carpark D culd nt cntrl the actins f the attacker Key ntes Officers in same psitin as any ther passer-by wh can see there is a danger, and culd take steps t minimise the risk f harm Exceptinal situatins where a duty arises t prtect P frm TP s criminal acts: (a) Prtective relatinships such as hspital and patent, emplyer and emplyee, schl and pupil, prisn authrity and prisner (New Suth Wales v Bujds [2007] HCA 76) (b) Pwer t cntrl TP s actins r the danger n the premises See Adeels Palace Pty Ltd v Mubarak; Adeels Palace Pty Ltd v Bu Najem Duty wed t cntrl access t, r cntinued presence n, its premises f persns wh might engaged in vilent, quarrelsme r disrderly cnduct See als Karatjas v Deakin University [2012] VSCA 53 54

55 Karatjas v Deakin University [2012] VSCA 53 Facts: Mrs Karatjas wrked at a cffee shp n uni premises (nt emplyed by Deakin, but cffee shp) Finished wrk at 7pm and was walking dwn a dark path which wasn t clearly lit and she was attacked Safer rute that she culd have taken but it was barricaded ff Sued Deakin because she said that they wed her a duty f care Issue: Did Deakin we her a duty f care? Held: 1 st time t curt n duty f care needed Eventually, Deakin was fund t be liable as the university had exclusive pwers f the premises including its carpark and directed staff t get back t their cars Deakin exacerbated their cntrl by barricading ne f the path Security knew abut the man litering arund the carpark Curts established that it was very easy t remve the barricades that were there Duty t act t prevent P harming self? Stuart `v Kirkland-Veenstra [2009] HCA 15 per Gummw, Hayne and Heydn JJ: N duty f care wed by plice: a duty culd nt be established merely because the plice had the pwer t act, and culd reasnably fresee that Mr V wuld harm himself if they did nt. N special features f the relatinship that wuld impse a duty t act: Persnal autnmy leaves it t the individual t decide whether t engage in selfharming cnduct P him r herself is in cntrl; nt the plice Officers themselves did nt put Mr Veenstra in harm s way Stuart v Kirkland-Veenstra [2009] HCA 15 Facts: Plice fficers were ding their runds and came acrss Mr Veenstra sitting in his car in a carpark and nticed pipe in exhaust pipe and windws up Went ver t the car and questined him and he said he was fine and he wuld g hme and wuld cnsult his dctr He later cmmitted suicide in the same way he was ging t befre Mrs Veenstra sued the plice and State f Victria fr her psychiatric injury because her husband s suicide Said they breached duty f sectin 10 f the Mental Health Act culd be apprehended and they wed a duty f care fr them nt t cmmit suicide Issue: Duty f care wed by the plice t stp him frm cmmitting suicide? Held: Duty f care was nt breached because there was n persnal relatinship established. Persnal autnmy was lked at as it was his persnal autnmy t cmmit suicide Just because they had the pwer desn t mean they have a duty t stp him S10 f MHA gives plice discretinary pwers Key ntes Plice fficers did nt put Mr Veenstra in harm s way but he put himself there 55

56 Liability f publicans t drunken patrns N general duty at cmmn law wed t custmers t mnitr r limit service f alchl r t ensure their safety nce they leave the premises Cf a duty t ensure physical premises safe Cle v Suth Tweed Rugby Ftball Club C.A.L N 14 Pty Ltd v Mtr Accidents insurance Bard; C.A.L N 14 Pty Ltd v Sctt [2009] HCA 47 (see in particular Gummw, Heydn and Crennan JJ) N duty f care Individual autnmy and respnsibility f drinkers: [I]t is a matter f persnal decisin and individual respnsibility hw each particular drinker deals with [the] difficulties and dangers [f alchl cnsumptin]. Balancing the pleasures f drinking with the imprtance f minimising the harm that may flw t a drinker is als a matter f persnal decisin and individual respnsibility. It is a matter mre fairly t be placed n the drinker than the seller f the drink. (at [54]) Liability f public authrities fr missins Liability f a PA where it has failed t exercise a discretinary statutry pwer t avid a reasnably freseeable risk t P Sectin 85 Wrngs Act: In a prceeding, the fact that a public authrity exercises r decides t exercise a functin des nt f itself indicate that the authrity is under a duty t exercise the functin r that the functin shuld be exercised in a particular circumstances r in a particular way. General rule: PA is nt under a duty t act merely because it knws f the risk f harm and has the pwer t avert the harm Kirkland-Veenstra v Stuart [2009] HCA 15 Relevant factrs determining liability laid dwn in a series f High Curt decisins: Sutherland SC v Heyman Pyrenees SC v Day Crimmins v SIFC Graham Barclay Oysters Pty Ltd v Ryan Kirkland-Veenstra v Stuart [2009] HCA 15 Sutherland SC v Heyman Facts: P sued the cuncil fr failing t inspect fundatin f prperty Huse was built n piece f land that was scping Fundatins were inadequate and unsafe Repairs were carried ut but it lst value P claimed that they shuld have enfrced building inspectins and under the Act at the time Cuncil s fault the prperty has devalued Issue: Duty f care? 56

57 Held: Cuncil did nt we duty f care because they had discretin t act but they didn t need t Obligatin t P t d their wn inspectin n prperty Pyrenees SC v Day (1998) Facts: A cuple had decided t rent ut a prperty in Beaufrd part f residual and part was business (fish and chip shp) One night P lit the lg fire and wke up t the huse in flames Family ut f prperty but entire prperty was destryed Shp next dr (wed by Mr and Mrs Day) was destryed by the fire P didn t knw that there was a defective chimney but the landlrd and cuncil did knw CFA had been invlved and they had tld the landlrd that there was a defective chimney and that it had t be fixed Cuncil had pwers t deal with specific premises that had defective chimneys (CFA als ntified lcal cuncil) Landlrd had been tld by CFA that he culd nt rent it ut until it was fixed Issue: Cuncil had a duty f care? Held: High Curt majrity held that the Cuncil did nt see thrugh that the defective chimney was fixed Did nt carry ut its respnsibilities Summary f cntrl factrs frm these PA cases P must shw that: PA knew, r ught t have knwn, f a risk f harm t a specific class f persns f which P is ne; and PA was in a psitin t directly cntrl risk; P was vulnerable and dependent n PA t prtect against the risk (risk f such magnitude r cmplexity that P culd nt prtect wn interests); The pwer was passed fr the benefit f P r a class t which P belngs, rather than fr the benefit f the public generally The failure by the PA was an peratinal matter rather than a plicy determinatin; and The impsitin f liability wuld nt be incnsistent with the statutry scheme Crimmins v Steveding Industry Finance Cmmittee Facts: Crimmins was emplyed as a waterside wrker between He unladed asbests in thin bags frm the ship (airbrn) withut prtective equipment N ne can tld him f the risk f wrking with asbests 1967 diagnsed f a disease related t asbests (fatal) Befre he died, he sued fr negligence Issue: Duty n the authrity? Held: The defendant authrity wed a duty t the P t prtect him frm the asbests Wrkers are vulnerable and dependent n their emplyer 57

58 Casual emplyee detached frm the rest f the wrkplace Did nt have chice f where he wanted t wrk Defendant knew f the risk and did nthing t prtect the plaintiff Key ntes D wed a duty t exercise its pwers t prtect the wrkers frm expsure t asbests Wrkers vulnerable and dependent n D t exercise its pwers t ensure that wrking cnditins safe D knew f the risk and was in a psitin f pwer t cntrl the risk Purpse f pwers was t prevent the kind f harm that befell P; P within the prtected class Impsitin f cmmn law liability nt incnsistent with statutry respnsibilities Graham Barclay Oysters Pty Ltd v Ryan (2002) Facts: Prducer and distributer f ysters, the cuncil and state were being sued P argued that all three defendants were liable t the P when he suffered by eating cntaminated ysters and cntracted Hep A Due t heavy rains, there was risk f viral cntaminatin and the cmpany stps cultivating ysters When the rain stpped they gt the yster tested and they came back negative t a few tests Unfrtunately, lab did nt pick up anther cntaminatin which led t Hep A Grant Ryan & rs ate ysters = class actin Cuncil didn t prtect the lake State didn t prtect the peple Issue: Wh had a duty f care? Held: Curt dismissed the claim against Cuncil N direct cntrl ver yster prductin; nly general pwers t cntrl envirnmental pllutin Oyster industry an intervening level f decisin making Pwers were fr the benefit f the public generally (and the envirnment), nt fr the benefit f yster cnsumers in particular Curt dismissed the claim against State Decisin t allw yster industry t self-regulate and nt t require regular sanitary surveys were plitical determinatin, nt justicable 58

59 Plicy vs peratinal decisins A plicy decisins nt actinable (vs day t day peratinal decisins) A decisin based n financial, ecnmic, plitical, scial r envirnmental cnsideratins Legislative r regulatry actin (r inactin) See Graham Barclay Sasin v Cmmnwealth (1984) 52 ALR 299 (plicy decisin t use a particular type f safety belt in airplanes) Gvernmental decisins n budgetary allcatins nt actinable E.g. budgetary allcatin decisins re rad maintenance, cnstructin etc nt justiciable Cf decisins made in carrying ut a particular rad repair jb Graham Barclay Liability f Highway Authrities Highway rule previusly, immunity f highway authrities frm trtius liability fr nnfeasance (a failure t maintain r repair rads) Immunity nw verturned Brdie v Singletn SC; Ghantus v Hawkesbury CC Ps tripped n an uneven ftpath and sued cunci Apply rdinary breach factrs t determine liability Three mains areas f liability: Cnstructin and design Repair and maintenance Inspectin applicatin f principles frm cases such as Vairy, Mulligan and Dederer, re persnal respnsibility, differentiatin f risk etc Cmmissiner f Main Rads v Jnes [2005] HCA 27 See nw Rad Management Act 2004 (Vic) S 102: nt liable fr failing t act t repair a defect r deteriratin in the rad r remve a hazard frm the rad unless the rad authrity had actual knwledge f the particular risk which resulted in the harm Ftpath cases See Ghantus v Hawsbury CC (cmpanin case t Brdie): PA under a duty t keep ftpaths reasnably safe Need t bring the defect t the attentin f the Cuncil Ftpaths must be safe fr persns exercising a reasnable lkut : pedestrians expected t exercise care by lking where they re ging and nting bvius hazards such as uneven paving, tree rts r hles Ftpaths are nt t be criticised at the standards f a bwling green (per Gleesn CJ at [7] PA nly liable where defect is hidden (eg inadequate lighting) r in nature f a trap Ghantus fllwed in a large number f lwer curt decisins, see e.g.: Brndara CC v Cattanach [2004] VSCA 139 Ryde City Cuncil v Saleh [2004] NSWCA 219 If yu are running, yu shuld exercise even mre cautin when yu are running because yu cannt sue fr injury 59

60 LIABILITY FOR MENTAL HARM (Psychiatric injury; nervus shck) Recvery fr mental harm nw gverned by Part XI f Wrngs Act. Mental harm means psychlgical r psychiatric injury : s67 P can nly recver fr ecnmic lss fr mental harm if the harm is a recgnised psychiatric injury: s75 E.g. depressin, pst-traumatic stress disrder, phbias Nt grief, anger, shck, fright immediate emtinal state cannt claim P can nly recver fr nn-ecnmic lss if the impairment resulting frm the psychiatric injury is greater than 10%: s28lf Nrmal grieving prcess usually will nt amunt t a recgnised injury Smith v Llyd Facts: Plaintiff was misdiagnsed with cancer and that it was incurable and he nly had a few mnths t live 3 mnths later he revisits the dctr and they tell him the cancer is treatable and he was nt ging t die Tried t sue fr nn-ecnmic lsses lss his enjyment f life Medical Panel did nt reach threshld f 10% Tried t sue fr phbia f cancer recurring Panel said that he did nt reach threshld Recvery fr pure mental harm Pure mental harm means mental harm ther cnsequential mental harm : s67 Wrngs Act N ther injuries ther than psych ne E.g. mental distress f seeing a lved ne be killed Nw gverned by ss72 and 73 f Wrngs Act Sectin 72 Wrngs Act: (curt will cnsider these) (1) A persn (the defendant) des nt we a duty t anther persn (the plaintiff) t take care nt t cause the plaintiff pure mental harm unless the defendant fresaw r ught t have freseen that a persn f nrmal frtitude might, in the circumstances f the case, suffer a recgnised psychiatric illness if reasnable care were nt taken. Thugh nte sub-s (3):sub-s(1) N/A where D knew r ught t have knwn that P is a persn f less than nrmal frtitude (2) Fr the purpses f the applicatin f this sectin, the circumstances f the case include the fllwing (a) (b) (c) whether r nt the mental harm was suffered as the result f a sudden shck; whether P witnessed, at the scene, a persn being killed, injured r put in danger; the nature f the relatinship between P and any persn killed, injured r put in danger; (d) whether r nt there was a pre-existing relatinship between P and D. 60

61 Cmmn law backgrund: Curts riginally sceptical abut claims, and denied n basis f remteness f injury See eg Chester v Waverley Crp (1939) Psychiatric injury suffered by mther wh saw child s dead bdy said t be t remte Later allwed claims t specific classes f plaintiffs, e.g. rescuers MIM v Pusey (1970) Jaensch v Cffey (1984) Laid dwn a number f requirements: Nrmal frtitude Reasnable persn and nrmal persn Sudden shck Perceptin with wn eyes f accident r aftermath Designed t prevent multitude f claims Alcck v Chief Cnstable Facts: P while at hme had heard that her husband was in an accident Althugh nt there at the time f the crash, she saw him immediately in pstaccident treatment = aftermath Clse prximity relatinship Must have seen it yurself r heard it yurself Tame v State f New Suth Wales; Annetts v Australian Statins Pty Ltd Nrmal frtitude, sudden shck r direct perceptin f event r aftermath relevant but nt necessary requirements Might als be relevant t causatin and remteness Other imprtant factrs: Pre-existing relatinship between P and D Clse relatinship between P and victim See als Giffrd v Strang Annetts v Australian Statins Pty Ltd Facts: James Annetts (16 y) wrked fr the D as a jackar (runds up hrses) D had cnversatins with James parents and assured he was safe Sent him t wrk 100km away He went missing and plice ntified his parents Mrs Annett n hearing news cllapsed Issue: Can she claim? Wasn t there? Held: Curt allwed the claim fr pure psychiatric injury, built a relatinship with the defendant ver time because f telephne cnversatins 61

62 Wicks v SRA (NSW) (2010) Facts: Plice fficers attended t an accident where a train had derailed and by the time they gt there, the cables were lse, peple had died and peple were injured and peple trapped (witnessed n arrival) Plice fficers suffered psychiatric injury Issue: Curt had t cnsider s32 (72 f urs) Held: Curt said that the fficers culd sue fr psychiatric injury because the SRA ffered a duty f care t these plice fficers S72 must be cnsidered befre addressing limitatin n recvering damages in s73 Des nt specify the cnsequences f presence r absence f any r all factrs; must be understd against the backgrund f Tame Unlike Tame, s 72 requires that D culd fresee a persn f nrmal frtitude might suffer psychiatric harm Treating shck and perceptin as relevant cnsideratins but nt pre-cnditins is cnsistent with Tame s 72 factrs nt exclusive. Nte that ther relevant factrs include: Persnal autnmy/individual respnsibility (Plitarhis v Westpac Banking Crpratin [2009] SASC 96) Legal cherence (Tame) When claiming fr psych injury, the plaintiff has t satisfy s72 and s73. S 73: claims arising frm the death r injury f anther persn s73(1) This sectin applies t the liability f a persn (the defendant) fr pure mental harm t a persn (the plaintiff) arising whlly r partly frm mental r nervus shck in cnnectin with anther persn (the victim) being killed, injured r put in danger by the act r missin f the defendant. Meaning f shck? Wicks v SRA (NSW): a sudden and disturbing impressin n the mind r feelings Nt limited t initial perceptins, but culd be a series f shcking experiences S 73(2): needs t establish ne The plaintiff is nt entitled t recver damages fr pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured r put in danger; r (b) the plaintiff is r was in a clse relatinship with the victim At cmmn law, these were nt abslute requirements, but difficult fr P t recver if ne nt present. 62

63 S73(2)(a): Des this extend t witnessing the aftermath f the accident? Wicks v State Rail Authrity (NSW): The death, injury r peril can take place ver an extended perid Being injured : inferred psych injury/further physical injuries Being put in danger : peril t passengers cntinued after the derailment; passengers remained in peril until they had been rescued and taken t a safe place Cf instantaneus deaths Is it necessary t shw that the psych harm was caused by witnessing what happened t a particular victim? Wicks v State Rail Authrity (NSW): Des nt require a relatinship between the psych injury and what happened t a particular victim Where multiple victims, victim t be read as ne r mre persns ; therwise prvisin is unwrkable where mass casualties OR S73(2)(b): Cf NSW prvisin (clse family member) Is it the clseness f the relatinship, nt the legal status f the relatin that shuld be imprtant See Giffrd v Strang See als s73(3): P can nt recver damages if the victim wuld have been prevented frm bringing a claim fr damages (e.g. because victim was nt wed a duty f care r because had vluntarily assumed the risk) The victim must be able t claim damages fr negligence N claim = n psychiatric injury! MIM v Pusey Facts: Mr Pusey suffered acute schizphrenia and depressin became unemplyable Was wrking in the mines and he went t rescue tw electricians wh had been severely burnt in an explsin He nly heard the explsin but did nt see it and he did nt have a relatinship with his clleagues Claim fr rescuers? Issue: Owed a duty f care? Held: Emplyer wed a duty f care t their emplyee t nt cause him psychiatric harm Key ntes Ntes: S72: culd D fresee that a rescuer f nrmal frtitude wuld suffer psychiatric harm in these circumstances? Yes: Sudden shck Pre-existing emplyment relatinship with MIM P witness, at the scene, the victim being killed injured r put in danger unclear 63

64 Jaensch v Cffey s72: culd D fresee that a spuse f nrmal frtitude wuld suffer psychiatric harm in these circumstances? Yes: clse relatinship between P and victim (spusal) sudden shck Is s73 satisfied? Yes: P is the spuse f the victim (s73(2)(b)) Annetts s72: culd D fresee that a parents f nrmal frtitude wuld suffer psychiatric harm in these circumstances? Yes: Pre-existing relatinship between P and D Assurance that sn wuld be kept safe and prperly supervised Clse relatinship between P and victim sn and mther Is s73 satisfied? Yes: P s were the parents f the victim s73(2)(b) Cnsider: Can a bystander ever recver? when present at the scene! Wicks v SRA (NSW) Can a persn wh sees an accident n televisin (r ver the web) ever recver? N wuld pen the fldgates (Alcck) Cases nt falling within s73: nly based n their cnduct s72 still applies Curts t determine ther factrs n a case by case basis See e.g. Tame v State f NSW (breathalysed defendant): Psychiatric injury nt reasnably freseeable: a persn f nrmal frtitude wuld nt suffer a psych injury as a result f this minr clerical errr Duty wuld be incnsistent with duties f plice t investigate crimes Negligence liability culd interfere with settled rules f defamatin Examples f recgnised categries where duty f care wed t prevent psychiatric injury: Emplyer-emplyee Kehler v Cerebs (Australia) Ltd (2005) 222 CLR 44 (stress) Was stressed at wrk fr wrk lad Sued emplyer fr severe depressin because f her wrklad s72 wuld a regular persn suffer psychiatric injury? Curt held n it is part f yur jb Defendant shuld nt reasnably fresee that they wuld suffered harm Natinwide News Pty Ltd v Naidu [2007] NSWCA 377 (bullying) Schl-pupil Cx v New Suth Wales [2007] NSWSC 471 (bullying) Need t bring the issue t the emplyer s attentin They must have knwledge abut it 64

65 Mustafa Facts: P claimed fr psych injury because he saw dead flies in an unpen bttle f water P became bsessed with well-being f him and his family Suffered depressive episde and phbia Issue: Nrmal persn suffer the same? Held: Curt - a nrmal persn wuld nt suffered psychiatric injury Claim failed t remte Cnsequential mental harm Psychiatric injury cnsequential upn physical harm s74 Wrngs Act P is nt entitled t recver fr cnsequential mental harm unless: D shuld have freseen that a persn f nrmal frtitude might, in the circumstances f the case, suffer a recgnised psychiatric illness if reasnable care were nt taken, r D knew, r ught t have knwn, that P is a persn f less than nrmal frtitude and shuld have freseen that P might, in the circumstance s the case, suffer a recgnised psychiatric illness if reasnable care were nt taken. The circumstances f the case include the injury t the plaintiff ut f which the mental harm arse: s 74(2) NB: any exam questin will be based n a pure mental harm 65

66 DEFENCES TO NEGLIGENCE CONTRIBUTORY NEGLIGENCE s26(1) Wrngs Act established C.N. claimant's failure t take reasnable care damages may be reduced t an extent that the curt thinks just and equitable s62(1) Wrngs Act establishes the breach bjective test! a) Was P negligent? b) If s, was P s negligence a cause f the damage? And c) If yes, what reductin in P s damages wuld be just and equitable? Sectin 26(1) Wrngs Act: (1) If a persn (the claimant) suffers damage as the result partly f the claimant's failure t take reasnable care (cntributry negligence) and partly f the wrng f any ther persn r persns (a) except as prvided in sectin 63, a claim in respect f the damage is nt defeated by reasn f the cntributry negligence f the claimant; and (b) the damages recverable in respect f the wrng must be reduced t such extent as the curt thinks just and equitable having regard t the claimant's share in the respnsibility fr the damage. Nte s 26(4) claims by dependants under Part III Wrngs Act nt reduced because f negligence f deceased; damages reduced nly where claimant is negligent Sectin 25 determines that a wrng is: Act r missin that: (a) gives rise t a liability in trt in respect f which a defence f cntributry negligence is available at cmmn law 66