TORTS LAW EXAM NOTES [ VICARIOUS LIABILITY ] (if it applies) Imposed on certain relationships (e.g. employer/employee, principal/agent, partnerships) Policy reasons: 1. a person who employs others to advance their own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise; 2. that the master is a more promising source of recompense than his servant who is apt to be a man of straw without insurance; and 3. that rule promotes a wide distribution of tort losses, the employer being a most suitable channel for passing them on through liability insurance and higher prices. This puts deterrent pressures on employers, encouraging them to discipline employees by efficient organisation and supervision. [taken from extract by Prof. Flemming 13.45] Two elements: 1. Employer/employee relationship 2. The tortious conduct took place during the course of the employment. Hollis v Vabu Pty Ltd (2001) " cyclist strikes Hollis, all that is seen is the 'Crisis Couriers' on jacket, which is owned and operated by Vabu " Who is an employee? Not as simple now, so the 'totality of the relationship' must be examined. (The 'control' test can no longer apply.) Employee Independent Contractor set hours equipment provided cannot delegate job (unusual to) renumeration not bargainable employer determines tax and super etc determines own hours provides own equipment delegates the job bargainable, paid on completion of job has to determine own tax obligations employer has right to control control belongs to contractor " In this case, the cyclists were found to be employers because: 1. couriers had no special qualifications 2. couriers had very little control 3. couriers were emanations of Vabu (presented to the public as belonging to him) 4. deterrence considering Vabu's knowledge of danger to pedestrians 5. Vabu superintended finances (there was no scope for couriers to bargain their pay) 6. while couriers provide the bikes, the capital outlay for equipment is small 7. Vabu had considerable control of couriers #allocating and directing work etc " Ultimate question for Wilson and Dawson JJ in Stevens v Brodrigg: 'Whether a person is acting as the servant of another or on their own behalf'. "1
TORTS LAW EXAM NOTES New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) HC held no non delegable DOC is available where the conduct of the teacher was intentional sexual assault. " Children assaulted by school teachers. " 'The legal responsibilities of such an authority include a duty to take reasonable care for the safety of pupils. There may be cases in which sexual abuse is related to a failure to take such care.' (Gleeson CJ) " Gleeson CJ, Gaudron and Kirby JJ: all used language used language in Canada and overseas to describe the second limb of determining if there is VL whether there is sufficient connection between the tortious act and the employment. " Gleeson CJ: in certain circs, where the work of the teacher may include pastoral care and put the student and the teacher in a different type of relationships in which the inappropriate touching may arise the employer may be liable vicariously. Mere employment as a teacher does not create sufficient connection. Neither is it a sufficient connection if the employment simply created the opportunity for the tortious conduct. " Gummow and Hayne JJ: related the conduct to the traditional course of employment notion, and considered may exist in two circumstances: 1. if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. 2. where the wrongful act is done in ostensible pursuit of he employer's business or in the apparent execution of authority which the employer hold out the employee as having. " they thought if the conduct arose in the context of excess chastisement (corporal punishment as part of discipline in a child's schooling) it might fall within 1. but not 2. " HC held no non-delegable DOC owed to students by the state. The majority was 6:1 for no non-delegable responsibility (duty to ensure reasonable care is taken) with sexual misconduct. CLA s 5Q Liability based on non-delegable duty It outlines the extent to which one is liable for a breach of a non-delegable duty. That extent is: the defendant will only be vicariously liable if the wrongful act takes place in the course of the carrying out of the work or delegated task assigned by the defendant. "2
TORTS LAW EXAM NOTES [ DUTY ] Looks at the relationship between P and D and any salient features of it. Donoghue v Stephenson (1932) " Lord Atkin closeness of the relationship and foreseeability of risk of harm Sullivan v Moody; Thompson v Connon (2001) " Circumstances where duty of care would not be imposed. " Parents who had been accused of child sexual assault and then later cleared. Sued investigating authorities claiming they failed to exercise duty of care. " High court determined the obligations of the authorities is the best interests of the child so no duty of care. " Foreseeability of harm not enough " To impose DOC cuts across other legal principles e.g. Defamation " Under relevant legislation, interests of child = paramount " If expand DOC to parent, would any suspect be owed a DOC? RTA v Dederer (2007) " 14 yo boy jumping o$ bridge. " Council argued that under Part 1A of the CLA that the P s action in diving was a dangerous recreational activity (defined by s 5K) and that the risk was an obvious one (defined by 5F), and therefore the P was presumed to know about it (s 5G) and therefore there was no proactive duty to warn of it (s 5H). " (trial) Dunford J was not satisfied it was an obvious risk ; the boy had seen many people jump o$ it for many years without any attempt by the police or council rangers to stop them and no known cases of injury, and by the circumstances the risk of serious permanent physical injury would not have been obvious to him. Thus, s 5H, 5L and 5M do not apply. " (Court of Appeal) Ipp, Handley and Tobias JJA held that the Council was protected by the CLA; the activity was a dangerous recreational one and the risk was obvious, even to a 14 yo boy. " (High Court) Gummow J The RTA s duty of care was owed to all road users of the bridge, whether or not they took ordinary care for their own safety...however the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care for their own safety. The essential point is that the RTA did not owe a more stringent obligation to careless road users as compared with careful ones. (?) Romeo v Conservation Commission of the Northern Territory (1998) " Plainti$ fell o$ a cli$ after having a lot to drink, had previously gone beyond the low log fence indicating to stop continuing towards the cli$. Little evidence regarding the fall, but plainti$ argued negligence for not having a higher fence. " Plainti$ ignored obvious danger and failed to take care in her own actions. " Kirby J it is not the law that all foreseeable risks need to be addressed. Duty and scope of duty are di$erent concepts. Plus it was a policy issue massive resources are required to alleviate the risk. " The risk was obvious, site had been used without such an accident and so was not reasonably foreseeable. "3
TORTS LAW EXAM NOTES Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) Lights had been switched o$ in the centre car park prior to employees of the video store leaving work. Employee was injured by the deliberate criminal act of a third party. Plainti$ argued inadequate lighting. Regarding duty of care it was reasonably foreseeable the plainti$ would be on the premises, but doesn t mean a duty was owed. Are employees of tenants part of a class with a duty to be protected? Court found Shopping Centre not liable because they had no knowledge or control that they could reasonably exercise over the third party. Relationship between the 2 parties can result in one being liable for the criminal actions of the other i.e. school and teacher but not in this case. 4 to 1 judgment for the defendant. (Widely accepted as a tough decision). Considers the concept of scope of duty. Shopping centre didn t have duty to control the criminal actions of a third party, but perhaps had duty to protect employee. However court decided no. Duty of the occupier in terms of the static condition of the premises is one thing, but is not su%cient in regards to uncontrollable conduct of a third party. You must be able to link the harm to the duty. Adeels Palace Ptd Ltd v Moubarack (2009) Adeels won because there was no causation between the presence of security guards and the shootings. " Adeels Palace Pty Ltd v Moubarack (2009) licensee of a restaurant owed DOC towards patrons to take reasonable care to prevent the risk of injury from violent conduct by other patrons (though P failed to prove causation). " Issue was in causation and scope of liability in damage: " The evidence at the trial did not show: " that the presence of security would have deterred the gunman from entering, or " That the security would have prevented the re-entry of the gunman " Recognising that changing any of the circumstance in which the shootings occurred might have made a di$erence does not prove factual causation. " [Thus,] the absence of security personnel at Adeels Palace on the night the plainti$s were shot was not a necessary condition of their being shot. Because of the absence of security personnel was not a necessary condition of the occurrence of the harm to either plainti$, s 5D(1) was not satisfied. [And s 5D(2) was found to not apply.] " Neither of the reasons above, even if they might have changed the outcome, are enough to conclude that this is an exceptional case where responsibility su$ered by the plainti$s should be imposed on Adeels Palace. To impose that responsibility would not accord with established principles. " It should not be accepted that negligence which was not a necessary condition of the injury that resulted from a third person s criminal wrong was a cause of that injury. "4
TORTS LAW EXAM NOTES C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board (2009) " In the particular circumstances of this case, neither the proprietor or the licensee of an hotel owed a common law duty of care to a customer consuming alcohol on the premises to telephone the customer s spouse so that she could collect him from the hotel and drive him home. " More generally, a person in the position of the proprietor or the licensee of a hotel owes no common law duty of care to customers which requires the proprietor or the licensee to monitor or minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume. It must be left to a case raising the issue whether there is a common law duty of care owed by the proprietor and/or the licensee of an hotel to a third party who su$ers damage as the result of the intoxication of a customer. Chapman v Hearse (1961) " Chapman injured from his negligent driving. Dr Cherry came to assist Chapman on road. Hearse collided with Dr Cherry, who died. Dr Cherry s wife sued Hearse. " Hearse joined (argued, if negligence, liability is shared with) Chapman. At 1st instance liability apportioned H 75% and C 25%. " C s appeal to FCSC SA re 25% contribution failed. " C appealed to HC, argued risk of harm to Dr Cherry not reasonably foreseeable. Argued that if it wasn t for the intervening act (Hearse s negligent driving) than he wouldn t be liable. " Failed RF does not require foresight of the precise chain of events; no need to foresee particular accident and harm. Court held Dr would not have been there but for Chapman s negligence. " Issue: whether it was RF that someone would come to assist at such an accident. " Answer: yes. " A person whose negligent conduct has placed himself or herself (or another person) in a dangerous situation owes a duty of car to a rescuer who responds to the situation. " Concerns causation, remoteness, contribution. CLA s 5H no proactive duty to warn of obvious risk (1) If the risk is obvious, there is no duty to warn (2) Does not apply if: (2)(a) P has asked (2)(b) D is required to warn by written law (2)(c) D is professional and the risk is material (risk of death/personal injury) (3) ^these circs, however, do not then mean that a duty is presumed. CLA s 5F meaning of obvious risk (1) it is obvious in the circs = obvious to a reasonable person (2) obvious risks include risks that are patent (self evident) or a matter of common knowledge (3) can be obvious been though low probability of occurring (4) can be obvious even if not prominent, conspicuous or physically observable& "5
TORTS LAW EXAM NOTES Mental Harm CLA Part 3 Mental harm 27 Definitions consequential mental harm = mental harm as a consequence of personal injury mental harm = impairment of a person s mental condition negligence = failure to exercise reasonable care and skill personal injury includes: pre-natal; impairment of a person s physical/mental condition; disease pure mental harm = mental harm other than consequential mental harm. 28 Application of Part 29 Personal injury arising from mental or nervous shock The P is not prevented from recovering damages just because the personal injury arose wholly or in part from mental or nervous shock. 30 Limitation on recovery for pure mental harm arising from shock (1)...outlines that in only some circumstances is damage recoverable. (2) These exceptional circumstances are when: (2)(a) The plainti$ witnessed, at the scene, the victim being killed, injured or put in peril, or (2)(b) The plainti$ is a close member of the family of the victim (there are more subsections ) 31 Pure mental harm-liability only for recognised psychiatric illness limits recovery for pure mental harm in stating that defendant can only be held liable if it is a recognised psychiatric illness. 32 Mental harm-duty of care (1) limits recovery as it outlines what constitutes a duty of care for any mental harm; and no duty if P is not of normal fortitude [e.g. Tame]; must RF that a person of normal fortitude in the circs might su$er a recognised psychiatric illness if reasonable care is not taken. (2) Factors relevant to RF of pure mental harm: (2)(a) Sudden shock (2)(b) Witness at the scene (2)(c) Nature of relationship btn P and victim (2)(d) Pee-existing relationship btn P and D (3) Relevant that P was injured and claiming shock as consequential damages (4) If D knew or ought to have known of P's susceptibility, a duty might be owed (but knowledge not equal to intention) 33 Liability for economic loss for consequential mental harm limits recovery: in the case of consequential mental harm -> harm must be recognised psychiatric illness. "6