Torts : cases and commentary

✍ Scribed by (Lawyer) Kylie Burns; David Hambly; Genevieve Grant; Joachim Dietrich; Harold Luntz; Sirko Harder; Neil Foster

• Publisher: LexisNexis Butterworths
• Year: 2017
• Tongue: English
• Leaves: 2556
• Series: Cases & materials series
• Edition: Eighth edition.
• Category: Library

✦ Table of Contents

Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
Chapter 1 Introduction
1 Injury compensation and the law of torts
The size of the problem: some statistics
The cost and incidence of injury
Where injuries occur and their severity
Personal injury litigation before and after the Ipp Report
The role of the law of torts
Collateral benefits
Commonwealth income support
Enter the law of torts
Compulsory insurance
A blame society?
2 Property damage and insurance
Loss spreading and loss shifting
3 Critique of the fault system
Thurston v Todd
Notes
Disability Care and Support: Inquiry Report
Disability Care and Support: Inquiry Report
Notes
Criminal law a more effective deterrent
Search for fault obscures real, remediable cause
Monetary compensation helps only individuals
4 Other compensation schemes
Workers’ compensation
No-fault motor accident insurance
Victoria
Tasmania
Northern Territory
New South Wales
Criminal injuries compensation
Other particular compensation schemes
Comprehensive accident compensation schemes
New Zealand
Australian Woodhouse Report
Sickness
National Disability Insurance Scheme and the National Injury Insurance Scheme
Lawyers need to be familiar with multiple regimes
5 Nature and definition of a tort
The protection of interests at common law
Unprotected interests
Cabassi v Vila
Question
Notes
Definition of a tort
Aims of the law of torts
6 Economic analysis
Injuries and injury-prevention costs
Externalities and general deterrence
Resources allocation and the ‘Coase theorem’
Criticism of the economic approach
7 Gender, tort law and feminist legal theory
A Lawyer’s Primer on Feminist Theory and Tort
Notes
Women and tort law reforms
8 Other tort theories
Disability jurisprudence and tort law
Corrective justice, rights and tort law
Some other legal theories
Chapter 2 Negligence: Duty of Care
1 Elements of the tort of negligence
The duty concept
2 The search for principle
Donoghue v Stevenson
Notes
Subsequent developments
Current Australian test
Sullivan v Moody
Questions
Notes
3 The meaning of reasonable foreseeability
Chapman v Hearse
Questions
Notes
Level of abstraction
Reasonable person in the position of the defendant
Degree of probability
Comparison with breach and remoteness
The unforeseeable plaintiff
Sydney Water Corporation v Turano
Question
Notes
Cases establishing the principle
Asbestos exposure of non-employees
4 Proximity of relationship
Intermediate examination
Voli v Inglewood Shire Council
Question
Notes
Other lack of proximity
Agar v Hyde
Notes
Conflict with statutory duty
Hunter and New England Local Health District v McKenna
Question
Notes
5 Scope (or content) of the duty
Scope of landlord’s duty of care to non-tenant
Jones v Bartlett
Question
Notes
Uncertainty as to where ‘scope of the duty’ fits
Statutory (and other) limits on the scope of the duty of care
6 Policy considerations
Joint illegality
Self-induced intoxication
CAL No 14 Pty Ltd v Motor Accidents Insurance Board
Questions
Note
The advocate’s immunity
D’Orta-Ekenaike v Victoria Legal Aid
Questions
Notes
Question
Child protection agencies
The police
Cran v State of New South Wales
Questions
Notes
Armed forces
Governmental policy
Graham Barclay Oysters Pty Ltd v Ryan
Notes
7 Function of judge and jury, appellate court and trial judge
Chapter 3 Negligence: Breach of Duty
1 The standard of care
Relationship between s 5B and the common law
Common law duty to take care
Foreseeability
Reasonable response to foreseeable risk
The ‘calculus of negligence’
Non-economic factors
Law and fact
‘Duty’ and obligation
Balancing the factors
Wyong Shire Council v Shirt
Questions
Note
Foresight, not hindsight
Probability that harm would occur if care not taken (s 5B(2)(a))
Roads and Traffic Authority of NSW v Dederer
Questions
Notes
Likely seriousness (gravity) of harm (s 5B(2)(b))
Paris v Stepney Borough Council
Questions
Notes
Burden (cost and difficulty) of taking precautions to avoid risk of harm (s 5B(2)(c))
Graham Barclay Oysters Pty Ltd v Ryan
Question
Notes
Social utility (justifiability) of activity that creates risk of harm (s 5B(2)(d))
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba
Question
Notes
Inherent risk
Relevant time for assessing risk
Questions
Defective product design
O’Dwyer v Leo Buring Pty Ltd
Notes
Public authorities’ choices
Conformity with general practice
Compliance with statutory regulation
2 The reasonable person
Young age
McHale v Watson
Question
Note
Mental disability
Carrier v Bonham
Question
Note
Old age and physical disability
Professionals
Rogers v Whitaker
Questions
Notes
Learner drivers
Imbree v McNeilly
Questions
Note
Inexperienced doctors
Question
Participation in games
3 A question of fact
Fox v Percy
Questions
Notes
Precedential value of decisions on the standard of care
4 Proof of breach
Holloway v McFeeters
Questions
Notes
Res ipsa loquitur (the thing — or matter, or event — speaks for itself)
Schellenberg v Tunnel Holdings Pty Ltd
Notes
More than one possible negligent party
Chapter 4 Factual Causation and Scope of Liability
1 The general approach to causation
Civil Liability Act 2002 (NSW)
2 Factual causation
Strong v Woolworths Ltd t/as Big W
Questions
Notes
The ‘but for’ test
Application of ‘but for’ test
Omissions
Response to warnings
Subjective test of what plaintiff would have done
When departure from the ‘but for’ test may be permitted
Scientific uncertainty
Amaca Pty Ltd v Ellis
Questions
Notes
Inference of causation
Increased risk
Unsuitability of trial process
More than one negligent defendant
Material contribution
Multiple sufficient causes
3 Scope of liability
Relevance of cause of action and of policy
Application of s 5D(1)(b) and (4)
Wallace v Kam
Questions
Notes
Categories of intervening event
Voluntary human action
Coincidence
Subsequent negligent conduct
Vicissitudes of life
Subsequent motor accident
Foreseeability of damage
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1))
Question
Notes
The meaning of ‘reasonable foreseeability’
Questions
Notes
Manner in which harm came about
The extent of damage
Foreseeability of initial injury or of consequence?
Family circumstances
Alcoholism
Allowance for contingencies
Wrong must have been committed
Property damage
Mitigation of damage
The kind of damage
Kavanagh v Akhtar
Questions
Notes
Chapter 5 Damage
1 The gist of negligence
Definition in civil liability statutes
Minimum damage that is required
Alcan Gove Pty Ltd v Zabic
Question
Notes
Mental harm
Property damage
Loss of a chance
Tabet v Gett
Questions
Notes
Birth and death
2 Limitation of actions
Brisbane South Regional Health Authority v Taylor
Notes
Historical sexual abuse
Property damage
Economic loss
Abuse of process
Chapter 6 Defences to Torts Involving Negligence
1 Introduction
2 Contributory negligence
Wrongs Act 1958 (Vic) Pt V
Notes
What is contributory negligence?
Joslyn v Berryman
Question
Notes
Standard of care: calculus of negligence
The objective standard and personal factors
Allen v Chadwick
Question
Notes
Sudden emergency
Caterson v Commissioner for Railways
Notes
Anticipation of others’ negligence
Sibley v Kais
Notes
Workplace environment
McLean v Tedman
Notes
Standard of care: children and old age
Kelly v Bega Valley County Council
Questions
Notes
Causation
Apportionment of responsibility
Pennington v Norris
Questions
Notes
Presumptions of contributory negligence
3 Voluntary assumption of risk
Knowledge or awareness of risk
Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3)
Question
Notes
Kent v Scattini
Questions
Acceptance of risk
Carey v Lake Macquarie City Council
Particular fact situations
Employer and employee
Rescue
Participants and spectators at sporting events
Passengers of drunken drivers
Exemption by notice
Chapter 7 Particular Negligence Situations
1 Introduction
2 Plaintiffs with a special sensitivity
Levi v Colgate-Palmolive Pty Ltd
Questions
Notes
The unborn plaintiff
Harriton v Stephens
Question
Notes
Plaintiff injured in the womb
Plaintiff injured in the womb by mother
Actions by parents in respect of the birth of a child
Cattanach v Melchior
Questions
Notes
3 Product liability
Strict liability v negligence
Scope of liability for negligence
4 Mass torts
Courtney v Medtel Pty Ltd (No 5)
Question
Notes
5 Occupiers’ liability
Australian Safeway Stores Pty Ltd v Zaluzna
Questions
Note
Who is an occupier?
Thompson v Woolworths (Qld) Pty Ltd
Notes
Standard of care
Obvious dangers
Entrants pursuant to a contract
Other entrants as of right
Occupier’s duty to control others on the premises
Modbury Triangle Shopping Centre Pty Ltd v Anzil
Question
Notes
6 Statutory authorities
Graham Barclay Oysters Pty Ltd v Ryan
Notes
Policy/operational distinction
General reliance
Summary of common law principles
Statutory reforms
Civil Liability Act 2002 (NSW)
Questions
Notes
Highway authorities
7 Omissions
Stuart v Kirkland-Veenstra
Question
Notes
Assumption of responsibility
Creation of risk
Occupation of land
Hargrave v Goldman
Goldman v Hargrave
Question
Notes
Subjective standard of care
Protection for ‘good Samaritans’, volunteers and others
Duty to protect someone or something under one’s control
Parent and child
Robertson v Swincer
Question
Notes
Duty to plaintiff to control child or other person
Smith v Leurs
Questions
Notes
School authority’s duty to plaintiff to control child
8 Employer and employee
Hamilton v Nuroof (WA) Pty Ltd
Question
Notes
Personal duty
Conformity with general practice
Current community standards
Proof of acceptability of practicable alternative by workers
Experienced employees
Inexperienced employees
Psychiatric injury
The role of the employee’s privacy
Property damage and pure economic loss
9 Medical liability
Standard of care in relation to warnings
Therapeutic privilege
Failure to attend in an emergency
Loss of chance
Wrongful birth and life
Apologies
Alternative dispute resolution
Alternatives to the tort system
10 Mental injury
Tame v New South Wales; Annetts v Australian Stations Pty Ltd
Question
Notes
Recognisable psychiatric illness
Sudden shock
Reasonable foreseeability
Employer and employee
Tortfeasor is primary victim
Reform
Civil Liability Act 2002 (NSW)
Notes
11 Illegality
Civil Liability Act 2002 (NSW)
Notes
Chapter 8 Damages
1 Types of damages
‘Damage’ and ‘damages’
Nominal, contemptuous, vindicatory and restitutionary damages
Aggravated damages
Exemplary damages
Availability at common law in Australia
Lamb v Cotogno
Questions
Notes
2 Compensatory damages for personal injury
Basic principles
Heads of damage
Once-and-for-all assessment
Departures from the once-and-for-all rule
Use of the money
Method of assessment
Sharman v Evans
Question
Notes
Itemisation of damages
Institutional versus independent living
Difficulty of assessment
Loss of earning capacity
Relevant earnings
Net earnings
Earnings cap
Superannuation
Where earning-life shortened
Residual capacity
Questions
Needs created
Kars v Kars
Questions
Notes
Policy reasons for damages for gratuitous services
Valuation of gratuitous services
Interest on damages for gratuitous services
Services rendered by injured person
Remedies available to recipients of services
Future loss
Discount rate
Contingencies
Collateral source rule
Principle
Sick pay
Accident insurance and superannuation benefits
Medicare, nursing home benefits and residential care subsidies
Social security
Other compensation schemes
Non-pecuniary (non-economic) harm
Tariff or scale
Purposes of award
Skelton v Collins
Questions
Notes
3 Property damage
Powercor Australia Ltd v Thomas
Question
Notes
GST
Cost of repairs or diminution in value
Date at which damage to be ascertained
Betterment
Cost of repairs not paid for by the plaintiff
Consequential loss
Cost of hiring replacement motor vehicle
Chapter 9 Wrongful Death
1 Survival of actions
Lotter v Salmon Street Ltd
Questions
Notes
Reasons for the legislation
Non-pecuniary damage
Actions based on negligence
Tortfeasor and victim both dead
2 The dependants’ action
Civil Proceedings Act 2011 (Qld)
Question
Notes
Nature of the action
De Sales v Ingrilli
Notes
Wrongful act
Deceased must have been able to sue
Foreseeability of death
Limitations on defendant’s liability
Contributory negligence
Damages
Reasonable expectation of benefit
Past and future loss
Non-pecuniary loss
Parental care and guidance
Needs created and the replacement of lost services
Limits on recovery
Taylor v The Owners — Strata Plan No 11564
Notes
Collateral benefits
Re-partnering
Survivor’s earnings
Chapter 10 Breach of Statutory Duty
1 The nature of the action
‘A genuine exercise in interpretation’
Workplace health and safety
An attempt at harmonisation
The merit of the action
2 Elements of the action
Creation of a civil action
General formulations
Byrne v Australian Airlines Ltd
Note
Traffic control
Subordinate legislation
Legislation on topics other than workplace health and safety
Anderson v Mackellar County Council
Note
Public authorities
Penal provisions
Questions
Duty imposed on the defendant
Darling Island Stevedoring and Lighterage Co Ltd v Long
Notes
Plaintiff within the protected class
Scope of the risk
Question
Breach of duty
Absolute liability
‘Reasonably practicable’
Question
A qualification on liability: plaintiff’s conduct
Millington v Wilkie
Questions
Causation
Failure to supply protective equipment
Licences
Onus of proof of causation
Defences
Contributory negligence
Voluntary assumption of risk
Question
Chapter 11 Intentional Interference with the Person
1 Introduction
Themes of Chapters 11–13
Law and social change
Civil liberties
History: trespass and case
Directness
Actionable per se (without proof of damage)
Onus of proof
2 Direct interference
Hutchins v Maughan
Notes
3 Trespass, intention and negligence
Williams v Milotin
McHale v Watson
Intention, motive, mistake and involuntariness
Question
4 Battery and assault
Rixon v Star City Pty Ltd
Notes
Question
Rozsa v Samuels
Zanker v Vartzokas
Notes
Domestic violence
Abuse of children
Sexual assault
5 False imprisonment
Total restraint
Symes v Mahon
Notes
Residual liberty
Reasonable means of escape
McFadzean v Construction, Forestry, Mining and Energy Union
The Balmain New Ferry Co Ltd v Robertson
Herd v Weardale Steel Coke and Coal Co
Notes and questions
Must the person detained know of the restraint?
State of South Australia v Lampard-Trevorrow
Directness
Coles Myer Ltd v Webster
Notes
False imprisonment and malicious prosecution
Initiation of proceedings
Termination of proceedings in favour of plaintiff
Malice and absence of reasonable and probable cause
6 Intentional harm: Wilkinson v Downton
Nationwide News Pty Ltd v Naidu
Giller v Procopets
Rhodes v OPO
Notes
Breach of privacy
Question
Chapter 12 Trespass to Land
1 Introduction
New South Wales v Ibbett
Notes
2 The defendant’s conduct
Continuing trespass
Konskier v B Goodman Ltd
Note
Implied licence
Halliday v Nevill
Questions
Note
Lincoln Hunt Australia Pty Ltd v Willesee
Notes
Injunctions against trespassers using film
Injunctions against use of film by non-trespassers
Exceeding licence
3 The plaintiff’s interest in the land
Newington v Windeyer
Note
Questions
4 Trespass above and beneath the surface
Bocardo SA v Star Energy UK Onshore Ltd
Aircraft
Building construction cases
Airspace
Beneath the surface
Legislation — power of court to create easements
5 Remedies
TCN Channel Nine Pty Ltd v Anning
Notes
Damages
Injunctions
Self-help
Encroachment of buildings
Question
Chapter 13 Defences to Intentional Torts
1 Introduction
2 Consent
Onus of proof
Sporting contests
McNamara v Duncan
Notes
Medical procedures
Fraud
Duress
Consent forms
Refusal of consent — the principle of autonomy
Brightwater Care Group (Inc) v Rossiter
Notes
Incapacity
Minors
Minors — non-therapeutic medical procedures
Psychiatric illness and intellectual disability
Human tissue transplants
3 Necessity
Medical procedures
Necessity and refusal of consent
Minors — blood transfusions
Other applications of necessity
State of New South Wales v McMaster
Notes
4 Self-defence and defence of others
Contributory negligence
5 Legal authority
Biddle v State of Victoria
Chapter 14 Nuisance
1 Nature of a nuisance and who may sue
Hunter v Canary Wharf Ltd
Question
Notes
Title to sue
‘Substantial and unreasonable interference’
‘Sensible material injury’
Interference with amenity
Munro v Southern Dairies Ltd
Notes
‘Give and take’ or ‘reasonable use’
Locality
Time
Duration
Defendant’s unreasonable conduct or improper motive
‘Sensitive use’
Marsh v Baxter
Question
Notes
Removal of lateral support
Protected and unprotected interests
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor
Notes
2 Who may be sued
The requirement of ‘fault’
Creators of a nuisance
Fennell v Robson Excavations Pty Ltd
Notes
Adopting or continuing a nuisance
Liability for acts of strangers
Sedleigh-Denfield v O’Callaghan
Notes
Occupier’s liability for acts of nature
Hargrave v Goldman
Question
Notes
Occupiers’ liability for acts of persons on the land with permission
Other causes of damage
3 Defences
Consent
Kiddle v City Business Properties Ltd
Note
Statutory authority
Lester-Travers v City of Frankston
Question
Notes
Reasonable use
Corbett v Pallas
Notes
‘Coming to the nuisance’
Miller v Jackson
Questions
Notes
4 Remoteness of damage
Cambridge Water Co v Eastern Counties Leather Plc
Questions
Note
5 Remedies
Self-help (abatement)
Damages
Costs of abatement
Property damage and interference with amenity
In lieu of an injunction
Coming to the nuisance
Injunctions
Statutory remedies
6 Public nuisance
Cartwright v McLaine & Long Pty Ltd
Notes
Chapter 15 Strict Liability
1 Strict Liability v Negligence
2 Liability for animals
Heads of liability for animals
Classification of animals
Behrens v Bertram Mills Circus Ltd
Questions
Notes
Propensity to injure
Collins v Carey
Notes
Loss of control
Higgins v William Inglis & Son Pty Ltd
Note
Possible defences
Contributory negligence
Voluntary assumption of risk
Plaintiff’s own act
Act of a stranger
Act of God
Reform
Statutory liability for dogs
Defences
3 Statutory product liability
The Australian Consumer Law
Notes
Chapter 16 The Negligent Infliction of Economic Loss
1 Introduction
Reasons for denial of duty of care
Overview of historical development of the law
Swick Nominees Pty Ltd v Leroi International Inc (No 2)
Approaches to determining liability for pure economic loss: duty
Statutory remedies
Civil liability statutes
2 Misrepresentation and professional undertakings
Deceit
Negligent misrepresentation
Hedley Byrne & Co Ltd v Heller & Partners Ltd
Questions
Notes
Must the defendant have special skill?
Principle as adopted in Australia
Distinction between ‘utterances’ and ‘acts’ and between physical damage and economic loss
Need for a request?
Is a disclaimer always effective?
Concurrent duties in contract and tort
Overlap with defamation
Solicitors’ duties
Hill (t/as R F Hill & Associates) v Van Erp
Questions
Note
Auditors’ liability to parties other than their clients
Knowledge of a particular transaction
Causation
Remoteness of damage
Measure of damages
Contributory negligence
3 Negligent acts causing economic loss
Loss resulting from damage to property not in plaintiff’s possession
Perre v Apand Pty Ltd
Questions
Notes
Defective structures and goods
Woolcock Street Investments Pty Ltd v CDG Pty Ltd
Questions
Notes
Avoidance of physical harm
Legislative intervention
Defects in goods
Similar situations
Regulatory authorities
Chapter 17 Vicarious Liability
1 Introduction
Necessary requirements
Relationships
2 The relationship of employer and employee
Employees and independent contractors
Hollis v Vabu Pty Ltd
Question
Notes
Distinguishing employees from independent contractors
Organisation test
‘Working in one’s own business’?
Professional staff in hospitals
Borrowed employees
3 The course (or scope) of the employment
Bugge v Brown
Question
Notes
Prohibitions and the scope of the employment
Level of generality with which the employment is described
Frolic and detour
Intentional acts
Deatons Pty Ltd v Flew
Questions
Note
Sexual abuse
Prince Alfred College Inc v ADC
Question
Notes
Acts for the employee’s own benefit
The independent authority exception
4 Theories of employers’ liability for harms inflicted by employees
Darling Island Stevedoring and Lighterage Co Ltd v Long
Questions
Notes
5 Principal and agent
Sweeney v Boylan Nominees Pty Ltd
Questions
Notes
‘Akin to employment’ in the United Kingdom
Statutory agency
Common law presumption
Car hire and taxicabs
6 Non-delegable duties
Burnie Port Authority v General Jones Pty Ltd
Question
Note
Questions
Attempted principle
Hospitals
Schools
Occupiers and landlords
Bailees
Highway authorities and repairs
Leichhardt Municipal Council v Montgomery
Notes
Chapter 18 Concurrent Liability
1 The common law
Joint tortfeasors and several concurrent tortfeasors
Solidary or proportionate liability?
Judgment or release and satisfaction
Contribution
Indemnity
2 Statutory modification
Wrongs Act 1954 (Tas)
Notes
Separate judgments in action against joint tortfeasors
Claims for contribution by settling party
Claim for contribution from a party who has settled
Claim for contribution where party sued not liable
Successive actions by plaintiff
Policy
Plaintiff’s contributory negligence
Mahony v J Kruschich (Demolitions) Pty Ltd
Questions
Notes
Proportionate liability legislation
Civil Liability Act 2002 (NSW)
Notes
Difficulties with proportionate liability legislation
Index