Torts notes Paper Example

Vicarious liability is the liability of an employer for a tort committed by an employee within the course of employment Stevens v Brodribb sawmilling ? the existence of control between an employer and employee is not enough to prove a relationship for vicarious liability. Further criteria such as obligation to work, hours to work etc is also considered Elazac pty ltd v Sheriff ? the plaintiff was not an employee but a contractor. He considered himself to be self-employed also everything he did in his work showed that he was an independent worker Hollis v Vabu ?

The plaintiff who was hit by a cyclist (cyclist worked for Vabu and was in the course of employment. ) Issue explored = Vicarious liability (requisite relationship). Was held that there was a requisite relationship due to reasons such as control of Vabu on the employee, the fact that they had to wear Vabus work uniform etc. Thus defendant (Vabu) was held vicariously liable Sweeney v Boylan nominees ? an employer of an independent contractor is not vicariously liable Limpus v London General Omnibus ?

employer still held liable for employee even if the actions of the employee was negligent during the time of employment Oceanic Crest Shipping Co v Pilabara Harbour Service ? an employer is not vicariously liable for the employee if the employee exercises some independent discretion or authority NSW v Lepore ? plaintiff (Lepore) was the victim of sexual harassment by a public school teacher. Issue = Vicarous liability and non delegable duties.

Decision = no vicarious liability because sexual harassment (aka criminal conduct) is outside the scope of the teachers duties. He had no authority and essentially the actions of the teacher had nothing to do with the employment therefore the state could not be held vicariously liable for the teachers actions. A non-delegable duty is a duty of the school to provide care for the children in it. However the scope of sexual harassment escapes the authority of the school due to its broad nature.

Civil Liability Act 2002 5Q Liability based on non-delegable duty (1) The extent of liability in tort of a person ( “the defendant”) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

? This can be seen in NSW v Lepore however the judges ruled that the nature of the criminal act escaped the scope of a non-delegable duty that is entrusted upon schools (2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A. Introduction to Negligence ? 7. 05 – 7. 15, 7. 30-7. 40, 7. 45-7. 115, 7. 135, 7. 155 – 7. 160-7. 170 Tort of negligence also known as duty of care The defendant must have owed the plaintiff a duty of care That duty of care must have been breached.

And that breach must have caused damage to the plaintiff Donoghue v Stevenson ? first case to establish duty of care (no need for contract). The defendant owed a duty of care to the plaintiff and this duty of care was breached as he manufactured a drink that had a decomposed snail in it. Due to this the plaintiff fell sick and thus was invented the tort of Negligence, Duty of Care Hedley Byrne case ? this case established duty of care for economic loss. Pure economic loss: Negligent words Home Office v Dorset Yacht ? duty of care of third parties established.

Home office was in charge of taking care of the juveniles. The juveniles damaged the yachts. The court held that this was a foreseeable risk that home office should and could have taken precautions against Thus home office liable for the actions of the juveniles Salient factors approach: starts of assessing duty of care through reasonable foreseeability test and then the salient factors such as level of vulnerability of plaintiff compared with the power and control of the defendant and the kind of knowledge involved etc. Kuhl v Zurich finances ?

first step of duty of care is reasonable foreseeability and then further onto the salient factors of the relationship between the plaintiff and defendant Perre v Appand ? potato case. Reasonable foreseeability and salient factors used. Issue = pure economic loss : negligent actions It was reasonably foreseeable that the plaintiffs would suffer from damage due to the defendants actions Vulnerability of the plaintiff exists; the plaintiff was not able to protect himself from the harm by the defendant (salient factor) Sullivan v Moody ?

No Duty of Care for medical practitioners as they should be able to perform their duties without the fear of legal claim from a 3rd party. Chapman v Hearse ? (Dr Cherry case) a person who is negligent owes a duty of care to any person who comes to rescue/assist them Issue = Duty of care; reasonable foreseeability and Causation; intervening act It was reasonably foreseeable that driving negligent could injure someone The subsequent act (death of Dr Cherry) was reasonable foreseeable from driving negligently thus the causation chain was not broken Various categories of Duty of care ?paragraphs 8. 05, 8. 15-8. 20, 8. 30-8. 40, 8. 70, 8. 85, 8. 90 – 8. 100 & 8. 150-8. 160.

Physical harm Romeo v Conservation commission Issue = breach of duty; calculus of negligence and Obvious risk Even if the risk is foreseeable doesn’t mean defendant has to do something about it. The cliff was an obvious risk thus the defendant had no duty of care to erect a fence alongside the cliff so people would fall over No duty to rescue, unless defendant has caused the risk/damage/endangered the other person Stuart v Kirkland ? no duty of care of the police to stop the man from suiciding.

Duties to third parties – controlling conduct of others Modbury Triangle shopping centre v Anzil ? appellant (shopping centre) does not owe the respondent a duty of care by harm of a 3rd person even though the risk was foreseeable as the appellant had no control over the third party causing harm to the respondent Sports Rootes v Skelton ? case confirms that participants in sports owe a duty of care to each other Psychiatric harm Tame v NSW ? case of police officer making a mistake in reports resulting in the plaintiff suffering mental condition.

It was ruled that there was no duty of care as it was not reasonably foreseeable that the mistake of the police officer would lead to the plaintiffs mental injury Annets v Australian stations ? duty of care established due to relationship between the parties. Also there was a foreseeable risk of death if the boy went unsupervised Wicks v State Rail Authority (SRA) ? Issue = psychiatric injury, discusses the wording of s30 of CLA Plaintiff won as this event was capable of forming mental injury Civil Liability Act 2002 (NSW)

5H No proactive duty to warn of obvious risk (1) A person (“the defendant”) does not owe a duty of care to another person ( “the plaintiff”) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. PART 3 – MENTAL HARM 29 Personal injury arising from mental or nervous shock In any action for personal injury, the plaintiff is not prevented from recovering damages merely 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)This section applies to the liability of a person ( “the defendant”) for pure mental harm to a person ( “the plaintiff”) arising wholly or partly from mental or nervous shock in connection with another person ( “the victim”) being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim.

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim. (4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5) In this section: “close member of the family” of a victim means: (a) a parent of the victim or other person with parental responsibility for the victim, (b) the spouse or partner of the victim, or (c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

31 Pure mental harm-liability only for recognised psychiatric illness There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. 32 Mental harm-duty of care (1) A person ( “the defendant”) does not owe a duty of care to another person ( “the plaintiff”) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. 33 Liability for economic loss for consequential mental harm A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. Pure economic loss from negligent words or acts Paras 8. 205, 8.

215-8. 220 Esanda Finance Corp v PMH ? Issue = Pure economic loss; negligent words Plaintiff relied on reasonable foreseeability however this is not enough to show the relationship of proximity between the two parties Plaintiff fails on its claims of reasonable foreseeability Furthermore Esanda did not claim any circumstances which might serve to establish any relationship of proximity between them and PMH thus plaintiff fails Hedley Bryne case ? first case to establish duty of care for pure economic loss Woolcock Street Investments v CDC ? CDC did not owe a duty of care to Woolcock (no relationship of proximity?

) Thus case for pure economic loss for woolcock failed Breach of duty of care and standard of care 10. 05 – 10. 15, 10. 30,10. 50 -10. 75, 10. 85 – 10. 95, 10. 105, 10. 120, 10. 135, 10. 150, 10. 160 – 165, 10. 175 Wyong Shire Council v Shirt? Issue = Breach of duty; reasonable foreseeability and calculus of negligence It was reasonably forseeable that a reasonable person would like the plaintiff (shirt) would misread the sign and thus hurt themselves Furthermore the calculus of negligence shows that taking proper precautions was not out of the scope of the defendant to perform Doubleday v Kelly ?

issue = breach of duty; reasonable foreseeability the risk of the girl hurting herself of the trampoline was perfectly foreseeable and the warning given to the girls fell below the required standard of care Calculus of negligence gives consideration to 4 main concepts Probability – if the risk of injury is very likely, the standard of care will be higher and require more protective measures. Gravity/Magnitude – if the potential injury is very serious, the standard of care will be higher and require more protective measures. Burden – however, the difficulty and expense of the measures are also taken into account.

Namely, the standard of care is lowered by economic and practical constraints. Social utility – the standard of care is raised or lowered according to the effects which the proposed measure will have on society as a whole RTA v Refrigerated Roadways ? respondent killed while driving a truck by a concrete block that dropped from an overhead bridge Case confirms that a roads authority owes a duty of care to road users to take reasonable care to prevent harm But this duty can be discharged by the exercise of reasonable care RTA was not held liable as they were exercising reasonable care Woods v Multi-Sporting Holdings ?

Plaintiff was severely injured from a game of indoor cricket, thus sued for negligence issue = breach of duty, calculus of negligence; burden this case ruled that obvious risk does not require high duty of care E v Australian Red Cross Society ? plaintiff (E) contracted aids from blood transfusion by blood supplied by red cross Issue = Breach of duty, calculus of negligence; social utility Magnitude v Social utility.

Magnitude was so low that social utility outweighed it thus the plaintiff failed Civil Liability Act 2002 (NSW) 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Standard of Care – Who is the reasonable person? 10. 220 – 10. 225, 10. 255 – 10. 260. Rodgers v Whitaker ? professional duty of care is higher Doctor has a duty to warn a patient of any material risk involved in a proposed treatment. A risk is considered material if a reasonable person in similar circumstances would attach significance to the risk, or if the doctor is, or should be, cognizant that the particular patient would express concern about the risk 5O Standard of care for professionals

(1) A person practising a profession ( “a professional”) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. 5P Division does not apply to duty to warn of risk.

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service. Causation and remoteness Paras 11. 05 – 11. 10, 11. 25-11. 30, 11. 55 -11. 75,11. 95, 11. 100, 11. 165-11. 175 Rothwell v Chemical and Insulation Company ? this case held that symptomless plaques are not compensatable.

Neither do the risk of future illness or anxiety about the possibility of the risk materialising amount to damage for the purpose of creating action March v Stramare ? The defendant alleges that it was the negligence driving of the plaintiff which was the cause of his harm, and not the defendants negligence in parking the truck legal issue = causation the but for notion is not solely applicable to this case, therefore a value judgement of common sense is required thus the causation test is divided into two categories; Fact: the ‘but for’ test and Law: further public policy considerations and value judgement plaintiff succeeded in appeal

Adeels Palace v Moubarak ? It was held that the presence of security guards would not have changed the turn of events (the injury) therefore adeels palace was not held liable for duty of care to the two injured men. Thus appeal was allowed with costs Strong v Woolworths ? causation based on balance of probabilities Court held that the defendants breach was the causation of the plaintiffs injury Scope of liability and remoteness of damage 11,185 -11. 195, 11. 205,11. 220 -11. 230 Wagon mound (no1) ?

The Defendants [Overseas Tankship] negligently leaked oil into the water when it was parked by the wharf of the Plaintiff [Morts Dock]. Argument = the fire was a direct consequence of the defendants negligence Issue = remoteness Foreseeability becomes test for remoteness thus the defendant could not have seen the oil would catch fire Wagon mound (no2) ? issue = remoteness The engineers of the defendants should have foreseen a risk as the oil catching on fire was not farfetched (although unlikely) Thus plaintiff succeeds.

Hughes v Lord Advocate ? The damage was not too remote it was foreseeable that the boys may suffer a burn from the lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable. Stephenson v Waite Tileman ? question of foreseeability should be limited to the initial injury. Thus any injuries flowing from the original injury are coverable by damages from Waite Tileman. In this case, both parties agree that the initial injury was the result of a negligent action.

The judge states that it doesn’t matter if Stephenson had a pre-existing condition or not – the initial injury was foreseeable and any further resulting complications do not have to be to qualify for damages. 5D General principles A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( “factual causation”), and (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( “scope of liability”).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Defenses to negligence – voluntary assumption of risk 14. 10-14. 105 Contributory negligence Pennington v Norris ? Facts: a person (the Plaintiff) didn’t look crossing road and was hit by a car driven by the Defendant.

Held: the Defendant was mostly responsible because he was driving really fast on a misty and wet night at about the time everyone is leaving the nearby pubs. His culpability or responsibility is much greater than the Plaintiff’s. 80%-20% apportionment. Voluntary assumption of risk 14. 125 -14. 135, 14. 155 -14. 180 Reeves v Commissioner of Police ? a person may not complain of the consequences of his own choices Murray v Haringay arena ? voluntary assumption of risk but no contributory negligence (ice hockey accident) CIVIL LIABILITY ACT 2002 (NSW) – PART 1A NEGLIGENCE Division 4 – Assumption of risk.

5F Meaning of “obvious risk” (1) For the purposes of this Division, an “obvious risk” to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk.

(1) A person ( “the defendant”) does not owe a duty of care to another person ( “the plaintiff”) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An “inherent risk” is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk. Division 5 – Recreational activities.

5J. Application of Division 5K. Definitions 5L. No liability for harm suffered from obvious risks of dangerous recreational activities 5M. No duty of care for recreational activity where risk warning 5N. Waiver of contractual duty of care for recreational activities 5J Application of Division (1) This Division applies only in respect of liability in negligence for harm to a person ( “the plaintiff”) resulting from a recreational activity engaged in by the plaintiff. (2) This Division does not limit the operation of Division 4 in respect of a recreational activity. 5K Definitions.

In this Division: “dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm. “obvious risk” has the same meaning as it has in Division 4. “recreational activity” includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ( “the defendant”) is not liable in negligence for harm suffered by another person ( “the plaintiff”) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk. 5M No duty of care for recreational activity where risk warning (1) A person ( “the defendant”) does not owe a duty of care to another person who engages in a recreational activity ( “the plaintiff”) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

(2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if: (a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or (b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).

(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise).

(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.

(7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.

(9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant. (10) The fact that a risk is the subject of a risk warning does not of itself mean: (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.

(11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. (12) In this section: “incapable person” means a person who, because of the person’s young age or a physical or mental disability, lacks the capacity to understand the risk warning. “parent” of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person.

Waiver of contractual duty of care for recreational activities 5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.

(3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, “recreation services” means services supplied to a person for the purpose