LLB240 Study Guide - Final Guide: James Atkin, Baron Atkin, Shire Of Pyrenees, William Gummow
INDIRECT TORTS – NEGLIGENCE
1. DUTY OF CARE?
ONUS – P on the balance of probabilities
UNLESS STATED OTHERWISE
STATUTORY AUTHORITY – s 42-43A: NON-DELEGABLE DUTIES – s 5Q of CLA:
-Less likely to impose DOC (Sutherland Shire)
-Established DOC categories are still relevant
-Reasonable foreseeability + Salient features
-Salient features – Caltex:
Control & Vulnerability (Crimmins)
Objective determination of knowledge of risk (Crimmins)
Policy – effect on core policy making/quasi-legislation (Perre)
Statutory scheme – consistency (C.A.L No.14)
-D’s personal responsibility, liability cannot be delegated (ensures responsibility)
-arises in situations of ‘control or supervision’ – Burnie Port Authority
-established categories:
school authorities to pupils – Commonwealth v Introvigne
hospital to patient – Cassidy v Minister for Health
employer to employee – Kondis v State Transport Authority
occupier to neighbour – Burnie (NOT landlord to tenant)
ORDINARY SITUATION:
Established categories
-Manufacturers to consumers (D v S)
-Doctors and hospitals to patients (Rogers v Whittaker)
-Educational institutions (Commonwealth v Introvigne)
-Employers to employees (Bankstown Foundry Pty Ltd v Braistina)
-Drivers to road users (Bourhill v Young)
-Occupiers to entrants (Australian Safeway Stores v Zaluzna)
-Builders to subsequent purchasers (Bryan v Maloney)
duty to take care – not a duty to ensure no injury occurs
b. Novel categories must reference s
5B(1)
-reasonable foreseeability: ‘real risk that injury of the kind
sustained by the P would be sustained either by the P, as an
identified individual, or by a member of a class which included the
P.’ – Jaensch
-salient features: vulnerability/control; knowledge; physical
proximity; indeterminacy of liability; legitimacy of pursuing
commercial interests; avoiding inconsistency of law – Perre;
Sullivan; Graham Barclay
VICARIOUS LIABILITY – s 5Q:
-Generally occurs in employee/employer relationships
-Must be in the course of employment or sufficiently connected with employment
-Does not extend to independent contractors – Hollis
Test depends on level of independence rather than title
-Course of employment – ‘The precise terms of the authority are not the criterion of liability: the function, the operation, the class of act
to be done by the employee, is the criterion’ – Bugge
-New and independent journey, no liability – Storey v Ashton
-Criminal acts –
Held liable for material increases in risks in other jurisdictions (Bazely and Lister)
Possible in Aust. – Lepore
VL isn’t automatically precluded – French
NDD and VL are now treated the same by courts
WILFUL INFLICTION OF NERVOUS SHOCK:
a. Wilful statement by the defendant intended to shock, being an
act
must be wilful as opposed to careless – Wilkinson
b. Calculated to cause harm
c. In fact, causing harm
Rarely used as P has a difficult burden to discharge and there are
better available causes of action
PURE MENTAL HARM – Tame & Annetts (see s 30-32 of CLA):
a. P has a recognised psychiatric illness
b. Reasonably foreseeable that P would suffer a psychiatric illness
- involves a person of reasonable fortitude
- employers owe a duty of care to employee’s children – Gifford
c. Considerations; directness of perception; relationship with the
person in peril; nature of the shock; whether there’s a relationship
b/n P & D
- none are a precondition to claim - can occur over
a distance – Jaensch
- emergency workers generally can’t claim, unless continuing death
and peril is occurring – King
2. BREACH OF DUTY?
a.Formulation of standard – qn of law
Section 5B(1) – ‘foreseeable’ ‘not insignificant’ ‘reasonable person
in the person’s position’
-person of ordinary prudence – Vaughan
-children: limited capacity for foresight – McHale, Mullin
-mental incapacity: irrelevant if D was partly aware – Roberts,
Adamson
-professional services: must be accepted as responsible within
profession – Bolam – s 5O-P of CLA
b. Breach of duty – qn of fact
Section 5B(2) – ‘probability’ ‘likely seriousness’ ‘burden of taking
precautions’ ‘social utility of the activity’
-least vulnerable individual within class must be safe – Paris
-consider practicality of precautions – Romeo
-profit can never be prioritised over safety – Watt
PURE ECONOMIC LOSS:
NEGLIGENT MISSTATEMENTS NEGLIGENT ACTS
Hedley Byrne
a. D knowledge P is likely to rely on statement
b. P reasonably relies on information
c. considerations:
- special skill is not a pre-requisite to DOC – MLC
- reliance must be reasonable – San Sebastian
- Ds knowledge (objective) – Hedley; San
- auditor doesn’t owe a DOC, unless (Esana Finance Corp):
ø D knew the info would lead to a transaction
ø likelihood of economic loss
-disclaimers preclude liability (for both) – Hedley
Perre v Apand; Woolcook v CDG
a. reasonable foreseeability of loss
b. indeterminacy of liability: must be an
identifiable class of persons
c. autonomy of the individual: courts won’t
interfere with otherwise legitimate
business ventures
d. vulnerability of P:
‘… understood as a reference to the P’s
inability to protect itself from the
consequences...’ – Woolcock
e. knowledge of D to risk and its magnitude
WILFUL INFLICTION OF INJURY:
a. Deliberate act by the defendant (not merely negligent)
b. Intended to do injury
c. In fact, causing injury
- ‘intention to produce such an effect must be imputed’ – W
- must cause a recognised psychiatric illness (W) too meet the
damage requirement (Wong)
- reasonably foreseeable (Bunyan), objective test (Carrier)
- ‘natural and probable result of conduct’ – Nationwide
- extends to distant victims – Carter
3. CAUSATION?
a. Causation of damage – qn of fact – s 5D(1)
‘the q whether conduct is a cause of injury remains to be
determined by a value judgement involving ordinary notions of
language and common sense’ – March
Bennet: D should be negligent if he created the
Must be a ‘necessary condition’ – s5D(1)(a) – Adeels
original risk & P did not negate it
‘but for’ test – Barnett (recognise issues exist with test)
IDENTIFY ALL CAUSES INITIALLY THEN RULE OUT
b. Remoteness – qn of law – s 5D(4)
- Consider; remoteness; scope of damage ‘kind’ of injury – Mt Isa Mines - Successive events: D1 will be casually liable for all injuries (Chapman)
- Injury creates risk of negligent treatment (Mahoney); ‘the very risk of injury’ (March) - Causal chain breaks: unintended and unforeseeable risks (Rickards)
- Does it cause a material increase in risk?? – McGhee v National Coal Board sufficient to show on BOP (Strong; Wilscher)
- SCOPE OF DAMAGE – must conclude why or why not D should or shouldn’t be liable
DEFENCES: Contributory Negligence
Statutory presumptions of risk: Voluntary assumption of risk – Elements (Roggenkamp v Bennet): Section 5(s) of CLA – damages may be reduced by 100% if court thinks ‘just and equitable’
Not breached if P acting ‘agony of the moment’ – Caterson s 5C(b) – incorrect use D must
show P failed to take reasonable care of himself – Froom; Jones does not in itself
May be breached by failing to consider others negligence – McLean create liability
Breaching a statutory standard of care doesn’t necessarily mean a breach of DOC – Sibley v Kais
s 5G-H of CLA – injured persons are assumed to be aware of
obvious risks
Inherent risk – cannot be removed, may be liable for a failure to
warn if not obvious
a.Voluntarily accepted the risk
b.Appreciated the full nature and extent of the risk
c.Actually perceived the risk – subjective test (Joslyn)
Intoxication – presumption for contributory negligence – CLA s 49,
50 – complete Defence
TRESPASS TO PERSONS TO LAND
BATTERY: TRESPASS:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Onus p on the balance of probabilities. Doctors and hospitals to patients (rogers v whittaker) Employers to employees (bankstown foundry pty ltd v braistina) Occupiers to entrants (australian safeway stores v zaluzna) Builders to subsequent purchasers (bryan v maloney) duty to take care not a duty to ensure no injury occurs b. Reasonable foreseeability: real risk that injury of the kind sustained by the p would be sustained either by the p, as an identified individual, or by a member of a class which included the. Salient features: vulnerability/control; knowledge; physical proximity; indeterminacy of liability; legitimacy of pursuing commercial interests; avoiding inconsistency of law perre; Sullivan; graham barclay: breach of duty? a. formulation of standard qn of law. Section 5b(1) foreseeable" not insignificant" reasonable person in the person"s position". Children: limited capacity for foresight mchale, mullin. Mental incapacity: irrelevant if d was partly aware roberts,
