Torts: Cases, Legislation and Commentary

✍ Scribed by Harold Luntz, David Hambly

• Publisher: LexisNexis
• Year: 2021
• Tongue: English
• Leaves: 2757
• Edition: 9
• 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
The severity of injuries
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
Disability Care and Support: Inquiry Report
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
Australian Capital Territory
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
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
Women and tort law reforms
8 Disability, age, race, Indigenous Australians and tort
Disability jurisprudence and tort law
Race, Indigenous Australians and tort law
Age and tort law
9 Corrective justice, rights and tort law and other theories
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
Subsequent developments
Current Australian test
Sullivan v Moody
3 The meaning of reasonable foreseeability
Chapman v Hearse
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
Cases establishing the principle
Asbestos exposure of non-employees
4 Proximity of relationship
Intermediate examination
Voli v Inglewood Shire Council
Other lack of proximity
Agar v Hyde
Conflict with statutory duty
Hunter and New England Local Health District v McKenna
5 Scope (or content) of the duty
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
The advocate’s immunity
D’Orta-Ekenaike v Victoria Legal Aid
Child protection agencies
The police
Cran v New South Wales
Armed forces
Governmental policy
Graham Barclay Oysters Pty Ltd v Ryan
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
The relevant risk of harm
Foreseeability
Reasonable response to foreseeable risk
The ‘calculus of negligence’
Non-economic factors
Law and fact
Generalised and specific duty
Balancing the factors
Wyong Shire Council v Shirt
Foresight, not hindsight
Probability that harm would occur if care not taken (s 5B(2)(a))
Roads and Traffic Authority of NSW v Dederer
Likely seriousness (gravity) of harm (s 5B(2)(b))
Paris v Stepney Borough Council
Burden (cost and difficulty) of taking precautions to avoid risk of harm (s 5B(2)(c))
Graham Barclay Oysters Pty Ltd v Ryan
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
Inherent risk
Relevant time for assessing risk
Defective product design
O’Dwyer v Leo Buring Pty Ltd
Public authorities’ choices
Conformity with general practice
Compliance with statutory regulation
2 The reasonable person
Young age
McHale v Watson
Mental disability
Carrier v Bonham
Old age and physical disability
Professionals
Rogers v Whitaker
Learner drivers
Imbree v McNeilly
Inexperienced doctors
Participation in games
Agony of the moment
3 A question of fact
Fox v Percy
Precedential value of decisions on the standard of care
4 Proof of breach
Holloway v McFeeters
Res ipsa loquitur (the thing — or matter, or event — speaks for itself)
Schellenberg v Tunnel Holdings Pty Ltd
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
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
Inference of causation
Increased risk
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
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))
The meaning of ‘reasonable foreseeability’
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
Chapter 5 Damage
1 The gist of negligence
Definition in civil liability statutes
Minimum damage that is required
Alcan Gove Pty Ltd v Zabic
Mental harm
Property damage
Loss of a chance
Tabet v Gett
Birth and death
2 Limitation of actions
Brisbane South Regional Health Authority v Taylor
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
What is contributory negligence?
Joslyn v Berryman
Standard of care: calculus of negligence
The objective standard and personal factors
Allen v Chadwick
Sudden emergency
Caterson v Commissioner for Railways
Anticipation of others’ negligence
Sibley v Kais
Workplace environment
McLean v Tedman
Standard of care: children and old age
Kelly v Bega Valley County Council
Causation
Apportionment of responsibility
Pennington v Norris
Presumptions of contributory negligence
3 Voluntary assumption of risk
Knowledge or awareness of risk
Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 3)
Kent v Scattini
Acceptance of risk
Carey v Lake Macquarie City Council
Particular fact situations
Employer and employee
Rescue
Participants and spectators at sporting events
Passengers of intoxicated drivers
Exemption by notice
Chapter 7 Particular Negligence Situations
1 Introduction
2 Plaintiffs with a special sensitivity
Levi v Colgate-Palmolive Pty Ltd
The unborn plaintiff
Harriton v Stephens
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
3 Product liability
Strict liability v negligence
Scope of liability for negligence
4 Mass torts
Courtney v Medtel Pty Ltd (No 5)
5 Occupiers’ liability
Australian Safeway Stores Pty Ltd v Zaluzna
Who is an occupier?
Thompson v Woolworths (Qld) Pty Ltd
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
6 Statutory authorities
Graham Barclay Oysters Pty Ltd v Ryan
Policy/operational distinction
General reliance
Summary of common law principles
Statutory reforms
Civil Liability Act 2002 (NSW)
Highway authorities
7 Omissions
Stuart v Kirkland-Veenstra
Assumption of responsibility
Creation of risk
Occupation of land
Hargrave v Goldman
Goldman v Hargrave
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
Duty to plaintiff to control child or other person
Smith v Leurs
School authority’s duty to plaintiff to control child
8 Employer and employee
Hamilton v Nuroof (WA) Pty Ltd
Personal duty
Conformity with general practice
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
Recognisable psychiatric illness
Sudden shock
Reasonable foreseeability
Employer and employee
Tortfeasor is primary victim
Reform
Civil Liability Act 2002 (NSW)
11 Illegality
Civil Liability Act 2002 (NSW)
Chapter 8 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
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
Auditors’ liability to parties other than their clients
Knowledge of a particular transaction
Causation of damage
Remoteness of damage
Contributory negligence
3 Negligent acts causing economic loss
Loss resulting from damage to property not in plaintiff’s possession
Perre v Apand Pty Ltd
Defective structures and goods
Woolcock Street Investments Pty Ltd v CDG Pty Ltd
Avoidance of physical harm
Legislative intervention
Similar situations
Defects in goods
Chapter 9 Damages
1 Types of damages
‘Damage’ and ‘damages’
Nominal, contemptuous, user and vindicatory damages
Aggravated damages
Exemplary damages
Availability at common law in Australia
Lamb v Cotogno
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
Institutional versus independent living
Difficulty of assessment
Loss of earning capacity
Relevant earnings
Net earnings
Earnings cap
Superannuation
Where earning life shortened
Residual capacity
Loss of pension payments where retirement life shortened
Needs created
Kars v Kars
Policy reasons for damages for gratuitous services
Valuation of gratuitous services
Services rendered by injured person
Remedies available to recipients of services
Future loss
Discount rate
Contingencies
Collateral source rule
Principle
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
3 Property damage
Powercor Australia Ltd v Thomas
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 10 Wrongful Death
1 Survival of actions
Lotter v Salmon Street Ltd
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)
Nature of the action
De Sales v Ingrilli
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
Collateral benefits
Re-partnering
Survivor’s earnings
Chapter 11 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
Traffic control
Subordinate legislation
Legislation on topics other than workplace health and safety
Anderson v Mackellar County Council
Public authorities
Penal provisions
Duty imposed on the defendant
Darling Island Stevedoring and Lighterage Co Ltd v Long
Plaintiff within the protected class
Scope of the risk
Breach of duty
Absolute liability
‘Reasonably practicable’
A qualification on liability: plaintiff’s conduct
Causation
Failure to supply protective equipment
Licences
Onus of proof of causation
Defences
Contributory negligence
Voluntary assumption of risk
Chapter 12 Intentional Interference with the Person
1 Introduction
Themes of Chapters 12–14
Law and social change
Civil liberties
History: trespass and case
Directness
Actionable per se (without proof of damage)
Onus of proof
2 Directness
Hutchins v Maughan
3 Trespass, intention and negligence
Williams v Milotin
McHale v Watson
Intention, motive, mistake and involuntariness
4 Battery and assault
Rixon v Star City Pty Ltd
Rozsa v Samuels
Zanker v Vartzokas
Domestic violence
Abuse of children
Sexual assault
5 False imprisonment
Total restraint
New South Wales v Le
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
Must the person detained know of the restraint?
South Australia v Lampard-Trevorrow
Directness
Coles Myer Ltd v Webster
False imprisonment and malicious prosecution
6 Intentional harm: Wilkinson v Downton
Nationwide News Pty Ltd v Naidu
Giller v Procopets
Rhodes v OPO
Breach of privacy
Chapter 13 Trespass to Land
1 Introduction
New South Wales v Ibbett
2 The defendant’s conduct
Continuing trespass
Konskier v B Goodman Ltd
Implied licence
Roy v O’Neill
Lincoln Hunt Australia Pty Ltd v Willesee
Injunctions against trespassers using materials obtained during trespass
Injunctions against use of film by non-trespassers
Exceeding licence
3 The plaintiff’s interest in the land
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
Damages
Injunctions
Self-help
Encroachment of buildings
Chapter 14 Defences to Intentional Torts
1 Introduction
2 Consent
Onus of proof
Sporting contests
McNamara v Duncan
Medical procedures
Fraud
Duress
Consent forms
Refusal of consent — the principle of autonomy
Brightwater Care Group (Inc) v Rossiter
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
4 Self-defence and defence of others
Contributory negligence
5 Legal authority
Chapter 15 Nuisance
1 Nature of a nuisance and who may sue
Hunter v Canary Wharf Ltd
Title to sue
‘Substantial and unreasonable interference’
‘Sensible material injury’
Interference with amenity
Munro v Southern Dairies Ltd
‘Give and take’ or ‘reasonable use’
Locality
Time
Duration
Defendant’s unreasonable conduct or improper motive
‘Sensitive use’
Marsh v Baxter
Removal of lateral support
Protected and unprotected interests
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor
2 Who may be sued
The requirement of ‘fault’
Creators of a nuisance
Fennell v Robson Excavations Pty Ltd
Adopting or continuing a nuisance
Liability for acts of strangers
Sedleigh-Denfield v O’Callaghan
Occupier’s liability for acts of nature
Hargrave v Goldman
Occupiers’ liability for acts of persons on the land with permission
Other causes of damage
3 Defences
Consent
Kiddle v City Business Properties Ltd
Statutory authority
Lester-Travers v City of Frankston
Reasonable use
Corbett v Pallas
‘Coming to the nuisance’
Miller v Jackson
4 Remoteness of damage
Cambridge Water Co v Eastern Counties Leather Plc
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
Chapter 16 Vicarious Liability
1 Introduction
Necessary requirements
Relationships
2 The relationship of employer and employee
Employees and independent contractors
Hollis v Vabu Pty Ltd
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
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
Sexual abuse
Prince Alfred College Inc v ADC
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
5 Principal and agent
Sweeney v Boylan Nominees Pty Ltd
‘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
General principle
Hospitals
Schools
Occupiers and landlords
Bailees
Highway authorities and repairs
Leichhardt Municipal Council v Montgomery
Chapter 17 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)
Separate judgments in action against joint and concurrent 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
Proportionate liability legislation
Civil Liability Act 2002 (NSW)
Difficulties with proportionate liability legislation
Index