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Question 1
Trespass Torts
Trespass to person
Battery
For P to prove:
- Direct – no gap in time (Reynolds v Clarke)
1. Intermediate involuntary actions does not break chain of directness (Scott v
Shepherd)
2. If act is entire and immediate cause of consequence then direct (Haystead v
Chief Constable of Derbyshire)
- Intentional – voluntary act wanting to achieve contact but not necessarily cause
harm (Wilson v Pringle)
1. A person is generally taken to have intended the consequences of an act
which are substantially certain to follow from it (Scott v Shepherd)
2. If A intends to hit B, but hits C intention is still satisfied (James v Campbell)
- Positive – not a passive act (Innes v Wylie)
1. Not moving can be ‘positive’ (Fagan v Metropolitan Police Commissioner)
- Causing direct interference with the person of another (Cole v Turner)
1. Not interference if part of ordinary conduct of daily life (Rixon v Star City Pty
Ltd)
2. Lord Goff: Hostility not required in Australia (In re F (Mental patient:
Sterilisation))
3. Anything that invokes a physical reaction is interference e.g. shining a light in
to someone’s eyes (Kaye v Robertson)
4. Interference with object P is holding is included (SH Kress v Brashier)
Assault
For P to prove:
- Direct – no gap in time (Reynolds v Clarke)
- Intentional – intention to cause apprehension is sufficient not carry out threat – (Hall
v Fonceca)
1. Recklessness is sufficient (Hall v Fonceca)
- Positive – must have means of carrying out threat (Stephen v Myer)
1. Conditional threats may vitiate a positive act if condition is unequivocally
satisfied (Tuberville v Savage)
2. Conditional threats are still assault if they are of the form ‘your money or your
life’ – the old highway adage (Barton v Armstrong)
- Which causes P to reasonably apprehend – whether D has reasonable means to
carry out threat (Brady v Schatzel)
1. Verbal threats or telephone can cause reasonable apprehension (Barton v
Armstrong)
2. Verbal threats cannot constitute assault s245 of the Queensland Criminal
Code – has to be bodily gesture (White v Connolly)
3. If P has reason to believe D has means of carrying out threat then its
reasonable apprehension but if P has reason not to then it isn’t (Logdon v
DPP)
4. Repeated silent telephone calls can amount to assault (R v Ireland)
- Imminent threat of contact with his/her person – undefined time frame is still
imminent as long as it is reasonable (Zanker v Vartzokas)
False Imprisonment
For P to prove:
- Direct –no gap in time (Dickenson v Waters Ltd)
1. 3rd party could still be direct (Coles Myer Ltd v Webster; Coles Myer Ltd v
Thompson)
2. Threats to other people or personal property can constitute directness
(McFadzen & Ors v CFMEU & Ors)
- Positive & Intentional – must intend to deprive P of liberty (Myer Stores Ltd v Soo)
1. If inevitable consequence of D’s decision then intentional i.e. reckless
(Ruddock v Taylor)
- Totally Deprives P of his or her personal liberty – (Bird v Jones)
1. Reasonability of escape route: if escape route endangers “life and limb” then
not reasonable (Burton v Davies)
2. Knowledge of imprisonment is not required (Murray v Ministry of Defence)
3. Does not have to be physical imprisonment it’s sufficient if P feels they have
no other option of escape (Symes v Mahon)
4. Not total deprivation if P impliedly consented to conditions of exit (Balmain
New Ferry Co Ltd v Robertson)
5. Cannot willingly go in to a dangerous place (Herd v Weardale Steel Coal
and Coke Ltd)
6. Being stuck on a boat includes total restraint (R v Macquarie & Budge)
7. Threats to property include personal liberty (Ashland Dry Goods Co v
Wages)
8. Threats to 3rd party include personal liberty (R v Garret)
9. Threat to P, threat to property (including others), distance and time it will take
to exit, legality of exit all must be considered (McFadzen & Ors v CFMEU &
Ors)
10. P has to know about means of escape e.g. hidden trapdoor isn’t sufficient
(Talcott v National Exhibition Co)
Defences
- Necessity (Southwark London Borough Council v Williams)
1. If interference is reasonably necessary as a means of protecting persons from
the threat of real and imminent harm (Southwark London Borough Council
v Williams)
§ Urgent situation of peril has to exist actually (Cope v Sharpe)
§ Don’t have to prove efforts to protect that means adopted to preserve
or protect life was successful (Cope v Sharpe)
2. Does not justify treatment which is against the will of person of full capacity
even if it is needed to keep them alive (Hunter New England Area Health
Service v A)
- Consent (Marion’s Case)
1. Consent has to be truly voluntary in false imprisonment (Myer Stores Ltd v
Soo)
2. Need to consent to nature and quality of act (R v Williams)
3. Medical procedure consented to must be carried out (Murray v McMurchy)
4. Information about act is not required for consent to be valid (Chatterton v
Gerson)
5. If a child is Gillick competent they can consent (Gillick v West Norfolk)
6. Contact outside rules and usage of game does not come under implied
consent of sport (McNamara v Duncan)
§ If consent is given to conditions of exit, they must be met (The
Balmain New Ferry Co Ltd v Robertson)
7. P who revokes consent to deprivation of liberty is only entitled to liberty if it is
reasonably convenient for D to release them (Herd v Weardale Steel Cole
and Coke Co Ltd)
- Discipline (R v Terry)
1. Parents can discipline their children as long but it has to be (R v Terry)
§ Moderate and reasonable
§ Proportionate to the age, physique, mentality of child
§ Carried out with a reasonable means of instrument
- Illegality (Miller v Miller)
1. If tort is directly linked to illegal enterprise then it apples (Miller v Miller)
2. If D hits P, while P is in illegal activity then contributory negligence (Revill v
Newberry)
- Self-defence (Fontin v Katapodis)
1. Threatened or attacked and reasonably believes they’re in danger of death or
serious injury, or on reasonable grounds thinks they could be attacked (Hall v
Fonceca)
2. Threat doesn’t actually have to exist (Ashley v Chief Constable of Sussex
Police)
3. Force must not be excessive (Fontin v Katapodis)
4. Elements: (Rozsa v Samuels)
§ Was it necessary for D to stand her ground?
§ Could she have used some other means of escape?
§ Was it necessary for her to use object that was used?
5. Assault is rarely justified as a self defence as before applying force in self
defence person must take reasonable steps to avoid using force (Rosza v
Samuels)
- Insanity
1. Insanity is not a defence (Carrier v Bonham)
2. Unless the act could be described as involuntary (Lawson v Wellesley
Hospital)
- Provocation
1. Not a defence but can reduce or prevent exemplary damages (Fontin v
Katapodis)
2. Queensland it is a defence s269 Criminal Code – (White v Conolly)
- Lawful authority
1. FALSE IMPRISONMENT
CRIMINALCODE1899
545AChapterdoesnotapplytopoliceofficersThischapterdoesnotapplytoapoliceofficer.
546ArrestwithoutwarrantgenerallyWhenanoffenceissuchthattheoffendermaybearrestedwithoutwarrantgenerally--(b)personassistingpoliceofficertoarrestsomeoneundersuspicioniftheyknowthepersoncallingthemisapoliceofficerunlesstheyknowthereisnoreasonablegroundforsuspicion
ASSISTINGPOLICE
(c)personfindstheothercommittingoffenceREDHANDED
(d)ifoffencehasbeencommitted,thenlawfultoarrestanyoneunderreasonablesuspicionregardlessoftheirguilt POSTOFFENCE
(e)personfindssomeoneatnightwhotheythinkiscommittinganoffencethenlawfultoarrest NIGHTTIME
Remedies
Damages
- Nominal damages for battery and assault as actionable per se
1. If injury then compensatory, aggravated or exemplary damages
- False imprisonment same as battery and assault plus any deleterious effects
on P’s health may be compensated (Myer Stores Ltd v Soo)
Trespass to Land
For P to prove:
- Interference must be with land in lawful possession of P (Delaney v T.P. Smith
Ltd)
1. Landlord can bring an action in damages for damage to reversion (Loxon v
Waterhouse)
2. Person in possession of one layer of land can bring an action against another
possessing a different layer (Mason v Clarke)
3. P has to have actual or constructive possession of land not just be entitled to
it or prove that establish possession through paper title or as the paper owner
(Powell v McFarlane & Another)
4. Person with superior right of ownership is considered to have possession
(The Baker’s Creek Consolidated Gold Mining co v Hack)
5. If subsequent trespasser, trespasses, under the authority or as an agent of a
third person whose lawful claim to title was interfered with by the second
trespasser then the defence of jus tertii can be raised by subsequent
trespasser (Glenwood Lumber Co v Phillips)
6. Licensee can sue third party in trespass (Pemberton v Southwark Borough
Council)
7. Even if someone has wrongfully taken possession of land, as long as
possession is exclusive they have right to sue in trespass (Newington v
Windeyer)
- Positive act and direct interference (Esso Petroleum Co Ltd.v Southport
Corporation)
- Interference with or entry upon must relate to land (Kelsen v Imperial Tobacco
Co Ltd)
1. Transient intrusions can amount to trespass (Graham v K D Morris & Sons
Pty Ltd)
2. Land includes airspace (Kelsen v Imperial Tobacco Co Ltd)
3. Griffiths J: Balancing rights of public to take advantage of what science offers
with right of individual to his or her land – air space only extends to height
required for ordinary use and enjoyment of land (Bernstein of Leigh (Baron)
v Skyviews and General Ltd)
4. Subterranean interference can constitute trespass (Di Napoli v New Beach
Apartments Pty Ltd)
5. Distinction between airway and subsoil as subsoil did not carry as much
public interest (Bocardo SA)
6. If licensee does not vacate land after reasonable time then they are
trespassing (Cowell v Rosehill Racecourse Ltd)
7. Trespass continues until D has done all it can to stop interference (Hudson v
Nicholson)
- Fault (Public Transport Commission of New South Wales v Perry)
1. Recklessness or substantial chance that interference is likely to follow from
act is actionable (Watson v Cowen)
2. Indifference to risk can satisfy intention (League against Cruel Sports v
Scott)
- Lack of consent (Halliday v Nevill and Another)
1. If a person is granted lawful authority to enter but enters for a purpose other
than that intended when being granted authority then they are committing
trespass from moment of entry (Inglis Electrix Pty Ltd v Healing (Sales) Pty
Ltd)
2. If D enters under lawful authority and does something unlawful then trespass
begins at time of unlawful conduct (Barker v R)
3. Implied license vitiated if malicious intent (Lincoln Hunt v Willesee)
4. If lawful entrant commits unlawful act on land then trespass (Singh)
5. If consent given for one purpose enters for another (Barker v R)
6. If he takes extra goods from land (Healing Sales)
7. If asked to leave officers cannot stay on land unless they have common law
or statutory justification (Kuru)
Defences:
- Necessity (Southwark London Borough Council v Williams)
1. If interference is reasonably necessary as a means of protecting persons from
the threat of real and imminent harm (Southwark London Borough Council
v Williams)
§ Urgent situation of peril has to exist actually (Cope v Sharpe)
§ Don’t have to prove efforts to protect that means adopted to preserve
or protect life was successful (Cope v Sharpe)
§ Defence not available if necessity was result of D’s conduct (Rigby v
Chief Constable of Northamptonshire)
§ Acts done in public necessity are defensible (Southwark London
Borough Council v Williams)
- Re-entry upon land
1. A person who is exclusively entitled to possession of the land is allowed to re-
enter the land and evict the person who is no longer in lawful possession of
the land without being liable in torts, if no more force is used than is
reasonably necessary. (Aglionby v Cohen)
- Inevitable accident
1. A defendant who succeeds in showing that the act was not done intentionally and that it was done without negligence or carelessness (Public Transport Commission of NSW v Perry)
- Consent
1. Implied consent to enter driveway (Halliday v Nevill)
2. Express license is vitiated if D is given license for one purpose but enters
property for a different purpose (Barker v R)
3. Implied license can be revoked and D must be given reasonable time to
vacate land and if they refuse they can be forcefully removed without P being
liable for trespass to person (Cowell v Rosehill Racecourse Co Ltd)
4. Potential customer can enter firm for bona fide purpose of seeking information
or doing business with it (Lincoln Hunt Australia Pty Ltd v Willesee)
5. As long as one reason for entry falls within licence, other reasons for entry
does not constitute trespass (Barker v R)
6. Person can become trespasser if they overstay consent and don’t leave
within reasonable time (Plenty v Dillon)
- Lawful authority
1. Gives statutory right for unreasonable interference (De Pasquale Bros
P/L & NJF Holdings P/L)
2. S180 Property Law Act 1974 (QLD)
180Impositionofstatutoryrightsofuserinrespectofland
(1) Right exists to use servient land in interests of dominant land subject to s3
RIGHT EXISTS
(3) An order of the kind referred to in subsection (1) shall not be made unless
the court is satisfied that—
(a) Public interest
PUBLIC
(b) money is sufficient compensation for loss or disadvantage
MONEY
(c) either--
(i) servient land’s owner unreasonably refused to accept obligation
REFUSAL
(ii) no one can be found with capacity to accept obligation
CAN’T FIND
Remedies:
- Damages (Dumont v Miller)
1. Even though no damage P is entitled to nominal damages (Dumont v Miller)
2. Damages will be awarded according to what is fair compensation in
circumstances (Evans v Balog)
3. Aggravated or exemplary damages may be awarded in some cases (Pollock)
- Injunction (Patel)
1. Prohibitory injunction will apply to most circumstances (Patel)
2. Awarded when P wants continuing trespass to end (mandatory) (Kelsen v
Imperial Tobbaco Co Ltd)
3. Awarded to stop threatened (quia timet) or repeat of trespass (prohibitory)
(Lincoln Hunt)
- Abatement by self-help (Tulley v Reed)
1. Trespasser can be ejected (Tulley v Reed)
2. Force used must be reasonable (Hemmings v Stoke Pages Golf Club)
Action on Case
Nuisance
Private Nuisance
For P to prove:
- Interference with use and enjoyment of land – distinguishing material damage or
amenity (St Helen’s Smelting v Tipping)
1. Material damage it’s easier to prove unreasonableness (St Helen’s Smelting
v Tipping)
2. Cannot prevent against someone merely looking in to property (Victoria Park
Racing and Recreation Grounds Co Ltd v Taylor)
3. TV can be actionable if emanation (Hunter v Canary Wharf Ltd)
§ Distinguished between interference from mere presence of building
and emanation from building
§ Lord Goff of Chievely said it could be interference if it was an
emanation
- Unreasonable – Relevant factors
1. Triviality (Walter v Selfe)
2. Give and take (Kennaway v Thompson)
3. Hypersensitive (Robinson v Kilvert)
§ Maliciousness can overcome hypersensitivity (Hollywood Silver Fox
Farm v Emmett)
4. Locality (Pitta v Alvarez)
5. Time (Munro v Southern Dairies), Duration (Daily Telegraph Co Ltd v
Stuart), Character
6. Motive for D’s conduct (Hollywood Silver Fox Farm v Emmett)
7. Precaution by D makes nuisance less likely (Painter v Reed)
8. Public interest cannot vitiate a claim in nuisance (Dennis v Ministry of
Defence)
- P has exclusive possession of land (Hunter v Canary Wharf Ltd)
- Who can be sued?
1. D does not have to have any interest in land (Halsey v Esso Petroleum Co
Ltd)
2. Landlord liable for nuisance from trespasser or licensee occupants if
(Steward v Enfield MC)
§ they know or ought to have reasonably known about and
§ fail to take reasonable steps to bring nuisance to an end
3. Landlord liable for tenant if (Peden v Bortolazzo)
§ it authorized nuisance or
§ it was ‘certain to result’ from the purposes for which land was leased
Defences
- Prescription
1. If P ignores nuisance (Sturges v Bridgman)
- Coming to the nuisance
1. Not a defence (Miller v Jackson)
2. Coming to the nuisance was not argued in Challen v McLeod County Golf
Club
- Statutory authorization
1. Authorized if ‘necessarily incidental to’ an activity authorized by statue
(Howard v Bega Municipal Council)
2. Distinguish specifically required or merely permitted by provision
§ If specified activity is required by provision then authorized unless
caused by negligence (R v White)
§ If activity is merely permitted then D must show it was inevitable
consequence and not caused by negligence (Nalder v
Commissioner for Railways)
• Inevitable = nuisance could not be prevented by D taking
reasonable care (Carmichael v Sutherland SC)
o Current state of technology
o Location of activity
o Cost of avoiding nuisance
Remedies
Injunction (Kennaway v Thompson)
- Where nuisance is proven and likely to be repeated, P is prima facie entitled to an
injunction (Kennaway v Thompson)
- The injunction could be:
1. Prohibitory (Kennaway v Thompson) OR
2. Mandatory injunction (Kelsen v Imperial Tobacco)
Damages
- D is entitled to damages in lieu of injunction if: (Shelfer)
1. Damages is adequate remedy: AND
§ Injury to P’s rights is small
§ Damages can be estimated in money
§ Can be compensated by small monetary payment
2. Awarding an injunction will be unfair to D
- Common law damages for past loss (Manson)
Abatement
- Right to take one’s own steps to put an end to a nuisance even though such steps
might ordinarily amount to a legal wrong (Richter v Risby)
Public Nuisance
For P to prove:
- Interference with a class of her Majesty’s subjects – how much is a class is a
question of fact (AG v PYA Quarries Ltd)
- Harm different in nature to public (Benjamin v Storr)
- Harm was to a great extent than public (Walsh v Ervin)
Interference with chattels
Trespass to Goods
For P to prove:
- In possession of another – has to be actual or constructive (Penfold Wines)
1. 4 exceptions to actual/constructive possession
§ Trustee may sue for interference to goods in possession of beneficiary
(Barker v Furlong)
§ Executor/administrator prior to them getting goods (Tharpe v
Stallwood)
§ Franchiser may sue for interference of franchise goods which takes
place prior to franchisee taking possession of those goods (Dunwich
Corporation v Sterry)
§ The person with right to immediate right to possession may sue in
trespass to goods where the direct interference by a third party is
against goods in the possession of a servant, agent or bailee holding
under a gratuitous or revocable bailment. This exception does not
apply if the bailee voluntarily delivers possession to 3rd party. (Penfold
Wines)
- Intentional – just has to be voluntary and intend interference (Colwill v Reeves)
1. Sleepwalker is not liable because involuntary (Beals v Hayward)
- Direct – no gap in time (Hutchins v Maughan)
- Interference with goods – (Kirk v Gregory)
1. Animals can be good (Slater v Swann)
Conversion
For P to prove:
- P was in actual possession or entitled to immediate possession (Penfold Wines).
1. Actual possession is sufficient, right to possession not required (Armory v
Delamirie)
2. If revocable bailment bailee and bailor can both sue (Kahler v Midland Bank
Ltd)
3. If bailment for term only bailee can sue during period of term (Gordon v
Harper)
4. If bailment for term and bailee commits acts so repugnant to terms of
bailment then bailment is determined and bailor can sue (Penfold Wines)
5. If bailment for term bailee can sue bailor in all 3 actions during term (Flack v
Chairperson)
6. Lienor can be sued by owner if they do something repugnant to terms of lien
as this will destroy lien and return immediate right of possession to owner
(Mulliner v Florence)
7. Property may pass without delivery of goods which gives buyer immediate
right to possession to sue in conversion (Chinery v Viall)
8. If goods are found on residential premises of which occupier has exclusive
possession then finder does not acquire possession as intention to exercise
dominion over goods by occupier of premise is presumed (Flack v
Chairperson)
- Intentional; not accident with intent to affect possession or right to possession (Ashby v
Tolhurst)
- Dealing with goods in a manner which is repugnant to the immediate right of possession
to the person who claims property to the chattel (Penfolds Wines v Elliot)
1. Slight deprivation is not sufficient (Model Dairy Pty Ltd v White)
- Repugnant if conduct that excludes P from use and possession of goods (Fouldes v
Willoughby)
1. Wrongful destruction or alteration of goods (Hollins v Fowler)
2. Wrongful delivery of goods – the person has lawfully obtained possession of
goods, and then transfers them to somebody with no lawful right (Foster v
Franklin)
3. Wrongful detention of goods (Flow Fill Packaging)
4. Wrongful use of goods (Penfold Wines)
5. Wrongful taking of goods with intention to exercise dominion over them
(Healing Sales)
Detinue
For P to prove:
- P has to have immediate right to possession (Penfolds)
1. Had to have been in actual possession at some point (Jones v Dowle)
- Demand by P for return of P’s goods (Llyod v Osborne)
1. Clarity that P is requesting the return of goods (Hampson)
2. Sufficiently clear instructions regarding delivery (Llyod v Osborne)
§ Specific place of delivery not required (Quality Bakers Australia)
• Specific place can negate demand (Capital Finance)
3. If P says they will come and remove goods on a certain date and D replies
that any such attempt will be resisted demand and refusal can be inferred
(Caley & Others v Rogers)
- Refusal by D to return goods (Llyod v Osborne)
1. Not taking notice of demand by failing to respond within reasonable time
constitutes refusal (Llyod v Osborne)
2. Action can be maintained even if P doesn’t have goods anymore (Goulding
Pty Ltd v Victorian Railway’s Commissioners)
Action on the case for Damage to a Reversionary Interest
- Trespass, conversion, detinue has to result in permanent damage to goods so that when owner gets them back they are worth less (Penfold Wines)
Defences
- Necessity
1. If interference is reasonably necessary as a means of protecting persons from
the threat of real and imminent harm (Southwark London Borough Council
v Williams)
§ Situation must have existed actually not just in D’s belief (Cope v
Sharpe)
§ D does not have to prove efforts to prevent injury were successful
(Cope v Sharpe)
§ Defence not available if necessity was result of D’s conduct (Rigby v
Chief Constable of Northamptonshire)
- Illegality
1. Irrelevant if P’s possession is thought to be illegal (Flack v Chairperson)
2. Illegality is only available is connection between tort and join illegal enterprise
(National Coal Board v England)
- Distress
1. If someone doesn’t pay rent you can seize their goods (Wood v Fetherson)
2. If someone’s livestock screws over your land, then you can seize lifestock
until compensation is paid (Swenson v The Council of the Shire of
Drayton)
- Consent
1. Consent is a defence (Kendle v Melsom)
- Lawful authority
1. Defence as long as within statute
- TRESPASS: Jus tertii (right of a 3rd party) is only available if (Wilson v Lombank)
§ D defends action behalf of and under authority of person rightfully
entitled to possession of goods
§ D commits act complained of by authority of person rightfully entitled
to possession of goods
- CONVERSION: Jus tertii (right of a 3rd party) is only available if
1. Actual possession: D defends action behalf of and under authority of person
rightfully entitled to possession of goods (Standard Electronic Apparatus
Pty Ltd v Stenner)
2. Immediate right to possession: Can plead jus tertii (Leake v Loveday)
§ Exception: Bailee cannot dispute bailor’s title unless they have already
given goods to person with immediate right to possession or is
defending action on behalf of and under authority of person (Edward
v Amos)
Remedies
- Trespass to goods
1. Nominal damages (Dymocks Book Arcade Ltd v McCarthy)
- Conversion
1. Damages equivalent to full market value of goods (Ley v Lewis)
- Detinue
1. P gets damages for detention of chattel (Flowfill Packaging Machines
Pty Ltd v Fytore Pty Ltd)
2. Return of chattel if P wants (Wade Sawmill Pty Ltd v Colenden Pty
Ltd)
OR
3. Value of goods on date of judgment (Gaba Formwork Contractors
Pty Ltd v Turner Corporation Ltd)
Negligence
Duty
S2 CLA – CLA applies after 2nd December 2002
S7(5) CLA – CLA is not a code
S7(1) – CLA does not add any more duties
S5(1) – CLA does not apply if
S5(1a) – injury covered by Work Cover Queensland Act 1996
S5(1b) – injury covered by Workers Compensation and Rehabilitation Act 2003
S5(1c) – an injury that is a dust related condition
S5(1d) – an injury resulting from smoking or tobacco products including smoke
Common Law:
- Reasonable foreseeability – Is it reasonably foreseeable that any kind of carelessness
conduct by D may result in some kind of harm to P? (Donoghue v Stevenson)
1. Precise sequence of events need not be foreseeable, only class of persons
affected (Chapman v Hearse)
2. Unforeseeable P (Palsgraf v Long Island Railroad Co.)
3. Proximity is no longer a factor (Woolock Streets Investment Pty Ltd v CDG
Pty Ltd)
- Salient features
1. Manufacturer/consumer (Donoghue v Stevenson)
2. Road users (Manly v Alexander)
§ Control of speed and direction
§ Know what is happening in vicinity
§ Have time to react
§ Take reasonable steps
3. Occupier/entrant (Thomson v Woolworths)
§ Reasonable care
§ Reasonable care that system doesn’t harm people like P
4. Employer/employee (Czatyrko v Edith Cowan University)
§ Place
§ System
§ Plan and equipment
Breach
Common Law
- Risk is not too far-fetched or fanciful (Wyong Shire Council v Shirt)
1. Is it possible the specific kind of carelessness charged against D might
cause some kind of damage to P? (San Sebastian)
2. Tightened by CLA
- According to the standards of a reasonable & prudent man (Blyde v
Birmingham Waterworks)
- Probability of harm (Bolton v Stone)
1. Magnitude can be more important (Goode v Nash)
- Magnitude of harm (Paris v Stephanie Borough Council)
- Cost of avoiding harm (Caledonian Collieries Ltd v Speirs)
- Social utility of harm (Watt v Hertfordshire Council)
CLA
For P to prove:
S9(1)a CLA – Reasonable foreseeability of risk
S9(1)b CLA – not insignificant risk (Drinkwater v Howarth)
S9(1)c CLA – reasonable person would have taken precautions according to 4 factors in
s9(2)
Exceptional situations
- Children have lower standard of care than adult as they have less foresight, experience
and prudence (McHale v Watson)
- Inexperienced drivers have same standard of care (Imbree v McNeilly)
- Inexperienced doctors owe same standard of care (Jones v Manchester Corporation)
- Unsound minded person has same standard of care as sound minded person (Carrier v
Bonham)
- People who profess to have a special skill are judged by the competent standards of
reason applicable to those who have that skill (Rogers v Whittaker)
1. Doctor has to warn of risk that a reasonable person in the doctor’s position
would warn of unless it’s an emergency or they have therapeutic privilege that
knowledge of risk would do more harm than good. (Rogers v Whittaker)
- Occupier to entrant has no strict standard of care regarding risks which are common in
households (Neindorf v Junkovic)
- S22 – standard of care relating to professionals
1 – if widely accepted by significant number as competent professional
practice then no breach
2 – if judges believe one view is irrational or contrary to written law peer
professional is overruled
3 – fact that there are different opinions doesn’t mean 1 or more opinions
cannot be considered
4 – peer professional opinion does not have to be universally accepted to be
widely accepted i.e. some people might not agree
5 – does not apply to warning or failure to give warning
- S46(1)c – intoxication does not increase standard of care
S9(2)a CLA – probability that harm would occur in absence of care (Bolton v Stone)
S9(2)b CLA – the likely seriousness of harm (Paris v Stephanie Borough Council)
S9(2)c CLA – the cost of avoiding harm (Caledonian Collieries Ltd v Speirs)
S9(2)d CLA – the social utility of activity that creates harm (Watt v Hertfordshire
Council)
S10 – Other principles
(a) burden of avoiding risks includes risks of similar harm (b) doesn’t matter If there was another way of doing something (c) trying to take action to avoid risk after harm occurred is not an admission of guilt
Res ipsa loquitur
(Schellenberg v Tunnel Holdings Pty Ltd)
Resipsaloquitur=theeventspeaksforitself
Thewaytoapplythismaximisasfollows:
(1) Ifthething(causingtheaccident)beshowntobeunderthemanagementorcontrolofthedefendant;and(2) Theaccidentissuchasintheordinarycourseofthingsdoesnothappenifthosewhohavemanagementusepropercare;then(3) Itmaybeinferredthattheaccidentwascausedbythedefendant’snegligencewiththeresultthataprimafaciecaseismadeoutandthecasecangotothejuryandthejurymaybutisnotrequiredtoinfernegligence.
Damage
Causation
For P to prove:
- S11(1)a CLA – Factual causation – “but for” test (Barnett v Chelsea & Kensington)
1. On the balance of probabilities, would P have suffered the damage if not for
Ds negligence?
2. If Multiple sufficient causes/ novus actus intervenience i.e. where ‘but for’ test
provides ‘counter intuitive results’
3. Multiple sufficient causes it fails (Nilon v Bezzina)
4. Novus actus intervenience – Was it reasonably foreseeable that novus actus
interveniens would occur? If yes, then causation is proved.
§ 3rd party breaks causal chain – was not reasonably foreseeable that
squatters would enter the house (Lamb v Camden LBC)
§ 3rd party does not break causal chain – someone may come to help
and get injured was reasonably foreseeable (Chapman v Hearse)
§ 1st party breaks causal chain – 2nd injury wasn’t natural result of the
first one – D going down stairs broke chain of causation (McKew v
Holland)
- If not, S11(2) CLA –
1. Application of “common sense” test (March v Stramare)
§ Is the harm suffered by P the very thing likely to occur as a result of
D’s conduct?
• Yes – legal causation exists
- S11(3) – what would P have done if breach hadn’t occurred
1. a – subjective decision according to ss(b)
2. b – what P would have done is irrelevant unless against P’s interest i.e. leads
to P losing case
- S12 – balance of probabilities and onus of proof on P
Remoteness
For P to prove:
- S11(1)b CLA – Scope of liability – only extends to harm caused by breach itself
- S11(4) – external factors including ‘policy’ matters may be considered
1. Was the kind of damage that occurred reasonably foreseeable as a result of
the kind of carelessness charged against D? (Wagon Mound No 1)
2. Extent of damage and manner of occurrence does not have to be foreseeable
just the ‘kind of damage’ (Hughes v Lord Advocate)
3. There is a distinction between kind of damage and varying extents of the
same kind of damage. As long as the initial degree was foreseeable, damage
is not too remote. (Tremain v Pike)
4. Egg shell skull rule (think skull rule) - Scope of liability is extended – even
unforeseeable damage is not too remote if result of pre-existing susceptibility
in P
§ Doesn’t matter if they had unusually think skull or unusually weak
heart – D must take the victim as found (Duliev v White & Sons)
§ Pre-existing vulnerability (Smith v Leech Brain & Co.)
§ Pre-existing vulnerability applies to psychological harm (Brice v
Brown)
§ Vulnerability can be relevant in calculating damages (Smith v Leech
Brain & Co.)
Multiple Tortfeasors
Step 1: Classify
Joint Tortfeasor – two or more same damage acting together (Thompson v
Australian Capital Television Pty. Ltd)
1. Vicarious liability
2. Joint accusation of breach – husband and wife both accused for breach in
their home
3. Two people acting in concert towards common goal
Several concurrent Tortfeasors (
Two or more people responsible for same damage but not acting together – two drivers in two different cars collide and affect passenger in one car
Several Tortfeasors (Nilon v Bezzina)
Two or more people different damage
Step 2: IF JOINT OR SEVERAL CONCURRENT Apply law reform act Law
reform act 1995 (QLD) contribution
- S6a – judgement against one tortfeasor does not bar an action against another
(CHANGES COMMON LAW – (Brinsmead v Harrison) – APPLICATION –
Thompson v Australian Capitol TV)
- S6b – cannot recover damages over and above what was awarded in first
judgement
- S6c – Right to contribution: contribution can be sought if negligence is
proven
- S7 – judge’s discretion for amount of damages which have to be ‘just and
equitable’
1. P does not have to disentangle exact amount of contribution (Nilon v
Bezzina)
IF SEVERAL Aggravation
- Three possibilities (SGIC v Oakley)
1. But for first injury second one wouldn’t have occurred – first person
liable for both
2. Aggravation of – first person liable for aggravation, second person for
any new injury
3. Causally independent – each liable individually for individual damage
- Applied in Hunt v Protonotarios
Step 3: D should be advised they need to serve a 3rd party notice to ____(fill in name with other tortfeasor they’re seeking contribution/aggravation from).
Defence
Volenti Non Fit Injuris
Common Law
- This is a complete defence
- P accepted risk voluntarily
- having full knowledge of the nature and extent of risk (Imbree v McNeilly)
- Note: only clearest cases could exonerate D i.e. very high threshold
CLA
- Introduces new concept of obvious risk
- Makes the defence much more accessible and reasonable
S13 Obvious risk
S13(1) Risk would have been obvious to reasonable person
S13(2) Includes patent risks and matters of common knowledge
S13(3) Probability of risk occurring is irrelevant
S13(4) Does not have to be prominent, conspicuous or physically observable
S13(5) Risk created due to failure of person is not included, unless failure is obvious
S14 Presumption of P’s awareness
S14(1) Onus of proof is on P to prove they weren’t aware of risk on balance
of probabilities
S14(2) aware of risk without precise extent/nature or manner of
occurence as type/kind of risk is enough
S15 No proactive duty to warn of risk
S15(1) D has no proactive duty to warn of obvious risk
S(15)2 They do if -
S(15)2a P requested information about risk
S(15)2b D was required to warn P by written law
S(15)2c D is a professional other than doctor and his service to P
contained obvious risk
S16 No liability for materialization of an inherent risk
S16(1) No liability for materialization of inherent risk
S16(2) Inherent risk = something that cannot be avoided by exercise of
reasonable care/skill
S16(3) Does not exclude liability for duty to warn (s15 still applies)
s18 – dangerous recreational activity = activity engaged in for enjoyment,
relaxation or leisure that involves a significant degree of risk of physical
harm to person and obvious risk has same meaning as in division 3
S19 No liability for obvious risk of dangerous recreational activities
s19(1) – Not liable for materialization of an obvious risk
s19(2) – P does not have to be aware of risk
Contributory Negligence
Common Law
- Complete defence if P had in any way shown disregard for his/her safety
- To overcome strictness “last opportunity rule” was developed where if P had last
opportunity of avoiding incident it would be a defence if not D remained liable
- To overcome strictness of that rule apportionment legislation was introduced (s5&
s10 of LRA 1995(QLD))
- McHugh J: P guilty of contributory negligence where P exposes him or herself to a risk of
injury which might reasonably have been foreseen and avoided. So, where P fails to take
reasonable care of his/her safety in the particular circumstances. (Joslyn v Berryman)
i.e. no need to consider breach from P’s POV
1. Carelessness – distinction between “careless” and “mere attention and
inadvertence” (Maclean v Tedman)
2. Agony of moment – when considering whether carelessness can take in to
account agony of moment – P is excused from taking extreme measures in
agony of moment – weight up 2 factors (Caterson v Commissioner for
Railways)
§ Degree of inconvenience to which that person is subjected
§ The risk that person takes in order to try to escape from that risk.
3. Carelessness must cause harm suffered not accident – (Froom v Butcher)
4. Court can take in to account P’s age – (Leyton v Caboolture Shire Council)
LRA 1995 QLD
S5 – defines damages and wrong
S10 – Apportionment of liability in case of CN
S10(1) – once CN has been established
S(10(1a)) – does not mean D no longer has to pay damages
S(10(1b)) – court’s discretion in deciding how much harm caused by P
S10(3) – where reduction is granted court will still find and record total damages P would have been entitled to if not for CN
S10(6) – If P or D avoid liability based on period of expiration of action, they cannot get damages or contribution from other party
CLA
S23 Standard of care in relation to contributory negligence
23(1) Same principles as breach of duty apply
23(2)a Standard of care of reasonable person
23(2)b What P knew or ought to reasonably have known at the time
Go to -> s9
S24 contributory negligence can be complete defence
S46 Standard of care when intoxicated
46(1)a Irrelevant when considering duty of care
46(1)b intoxication does not demand a duty of care
46(1)c intoxication does not affect standard of care
S47 Presumption of CN if P is intoxicated
S47(1)+(2) Contributory negligence presumed if P is intoxicated
S47(3) Rebuttals on presumption
S47(3)a intoxication did not contribute to breach of duty
S47(3)b intoxication was not self induced
S47(4) Contribution at minimum 25%
S47(5)Contribution at minimum 50% in motor vehicle if-
S47(5)a if alcohol concentration was more than 150mg/100mL of blood in P
or
S47(5)b P was too intoxicated to exercise effective control of vehicle
S48 Presumption of CN if P relies on care and skill of intoxicated D
S48(1) This section applies if-
S48(1)a P is more than 16 years of age
S48(1)b P relies on intoxicated D at time of breach of duty
S48(1)c was aware or ought to reasonably have been aware that D was
intoxicated
S48(2) Contributory negligence is presumed
S48(3) P can rebut allegation if:-
S48(3)a D’s intoxication did not contribute to breach
S48(3)b P had no choice but to rely on care and skill of D
S48(4) Contribution minimum at 25%
S48(5) Common law defence of volenti non fit injuria does not apply here
S49 Addition presumption for motor vehicle added to s48
S49(1) applies to P in s48
S49(2) Contribution is minimum 50% if:-
S49(2)a motor vehicle accident
S49(2)b P was passenger
S49(2)c D was driver
S49(2)d(i) if alcohol concentration was more than 150mg/100mL of blood in
D or
S49(2)d(ii) D was too intoxicated to exercise effective control of vehicle
S49(3) P is assumed to have relied on care and skill of D
Illegality
S45 Criminals not to be awarded damages
S45(1) Balance of probabilities
S45(1)a breach happened while P was engaged in indictable offence
S45(1)b conduct contributed materially to risk of harm
S45(2) if ss(1) is harsh gives court discretion to award damages
S45(3) damages must be reduced by minimum 25% if awarded as per ss(2)
S45(4) Conviction is irrelevant
S45(5) doesn’t matter whether offence is dealt with indictment or summarily
Damages
Common Law
“Once and for all” rule – lump sum damages but problem was P was over/under compensated
“damage” and “damages” – not every damage is compensable by Australian law by damages such as emotional stress
Solutions:
1. Structured settlements – much more flexible
2. Compensatory damages – to put P in position they were in before tort was
committed
Exception:
§ Exemplary damages - to send message to world court is
severely unimpressed or punish tortfeasor
§ Aggravated damages – humiliation or insult suffered by P
3. Damages: special or general damages
Special damages – can be quantified and need to show proof of loss
1. Out of pocket expenses (Paff v Speed)
2. Loss of income up to date of trial
General damages – more speculative
1. Future medical/ hospital expenses
2. Future economic loss i.e. loss of potential to earn income
3. Future loss of amenity/enjoyment of life
4. Loss of pain and suffering
5. Loss of expectation in life
6. Loss of consortium
7. Courts usually add interest payments to account for hardships while
waiting for trial
8. Adjustment of lump sum taking account of future investments (presumed
by court)
9. Discount by vicissitudes of life i.e. job loss, sickness etc.
10. If D can’t pay then make them bankrupt but if they are insured then
insurance company pays
11. Mitigation of loss: Does P take reasonable steps to reduce value of loss?
Duty on P to mitigate loss i.e. take reasonable steps to control loss
12. Griffith’s & Kirkmeyer claims: At common law it is possible to sure for cost
of help provided to you where damage claimed has not been suffered
because someone has gratuitously provided service
13. Actions died when person died but due to statute people who re dependent on deceased can sue D – dependency
CLA
S50 – only applies to damages of personal injury
S51 – outline of general damages to include
a. Pain and suffering
b. Loss of amenities
c. Loss of expectation
d. Disfigurement
S52(1) – removes exemplary, punitive, aggravated damages unless
S52(2a) – unlawful intentional act with intent to cause personal injury
S52(2b) – sexual misconduct
S53(1) – D can give notice to P suggesting how to mitigate damages
S53(4c) – if suggestion unreasonably not followed reduce P’s damages accordingly
S54(2) – regardless of your personal earnings max you can recover for loss of earnings is 3x average person’s weekly earnings
S55(2) – When court can’t precisely calculate earnings they have to take relevant matters in to consideration
S55(3) - State assumptions including methodology of how earnings was calculated
S56(1) – Super-annuation payments will be the relevant percentage payable calculated from the earning capacity
S56(2) – relevant percentage is the minimum percentage that employer is required to pay as per written law
S57 – Prescribed discount rate must be used to calculate the present value of future
loss of earning and gratuitous services which is to be awarded
S58(1) – consortium + servitium no damages unless
S58(1a) – P died from injuries
S58(1b) – general damages assessed are up to regulation threshold
S58(2) – servitium damages limited by ss3
S58(3) – no more than 3x average weekly earnings
S59 – Pre-conditions for gratuitous damages (Griffiths v Kerkemeier)
S59(1) – conditions
S59(1a) – necessary
S59(1b) – necessary because of injury from breach
S59(1c) – time limits
S59(1ci) – at least 6 hours per week AND
S59(1cii) – at least 6 months
S59(2) – damages can’t be awarded if gratuitous services of same kind were
being provided for injured P before breach happened
S59(3) – consider
S59(3a) – benefits to service provider
S59(3b) – periods where services aren’t required
S59A – damages may be provided to loss of P’s ability to provide gratuitous services
S60(1) – no interest on
S60(1a) – general damages
S60(1b) – gratuitous services
S60(2) – interest can be awarded for compensating past monetary loss
S60(2a) – appropriate interest rate AND
S60(2b) – appropriately related to period over which loss was suffered
S60(3) – appropriate rate determined by RBA
S61- court must use injure scale from 0-100 in assessing damages
Structured Settlements
S63 – structured settlements are periodic payments
S64 – court is required to informed all parties regarding terms of proceedings
S65 – gives court power to order structured settlements
S66(a) – lawyers have to write to client about availability of structured settlements
S66(b) – recommend financial advice about lump sum or structured
S67 – consider cost to D when deciding whether reasonable compromise
Damages for future loss are awarded according to probability → Malec v J C Hutton
Not permissible to award compensation for services provided by a care giver which
replace the services provided by the Plaintiff to a third party → CSR Ltd v Eddy
Assessment of damages for future loss → Ballesteros v Childlow GET INFO (re-
applies CSR v Eddy) → Kriz v King
Do not need to consider the probability of future economic loss, just if it’s a possibility → Reardon-Smith v Allianz Australia Insurance Ltd
Limitations
Limitations of Actions Act 1974 (QLD)
S10(1a) – 6 years for non-personal injury claims
S11(1) – 3 years from date of injury for personal injury
S11(2) – dust related condition is exempt from act
S11(3) – dust related does not include tobacco related
S31(2) – judges can extend one year initially then for purposes of action brought by
appellant limited circumstances where if material fact of decisive nature has surfaced relating to right of action (Queensland v Stephenson)
S29(1) – 6 years extension from expiration of disability/death
s40 Contribution between tortfeasors
s40(1) contribution expiration determined by which one comes first
s40(1a) 2 years from when D finds out they are liable OR
s40(1b) 4 years + expiration of period of limitation of initial action
against D
s40(2) finds out they are liable on date when
s40(2a) judgement is given against D OR
s40(2b) agreement is made between P and D for D’s damages
S5(2) – disability = infant or unsound mind
Question 2 Controversial Issues
Intention in tort law
1. Conduct of defendant must be voluntary but that isn’t enough
2. Defendant intended particular consequences of conduct which are tortious
3. Deceit: P deceived by false statement D has made
4. Contract: Breach of contract must be intended
5. Conspiracy to injure person’s economic interests: harm must be intended
6. Battery: D acted voluntarily and intended to cause contact, but no need for intent
to be unlawful or intent to cause harm (Wilson v Pringle Croom-Johnson LJ pg.
249 “It is the act and not the injury which must be intentional. An intention to
injure is not essential to an action for trespass to the person. It is the mere
trespass by itself which is the offence.” 7. To intend: acting with the purpose of causing contact with P
8. E.g. D kissing P – it is clear that causing contact with P’s lips is part and parcel of
D’s conduct and therefore, intention is satisfied
9. A person is generally taken to have intended the consequences of an act which
are substantially certain to follow from it (Scott v Shepherd)
10. What if a person does not turn their mind to an act, is that still intention? Yes
it is as long as evidence shows that contact was substantially likely to follow from
act
11. Can recklessness as to possible contact with P as a result of D’s act be
sufficient to establish that contact was intended?
12. Recklessness: D having knowledge that contact with P was a risk associated
with conduct i.e. mindful act
13. Different from not mindful and also different from acting with purpose of
causing contact as simply aware that contact may occur
14. Objective recklessness: D ought to have knowledge of risk is not sufficient to
establish intention
15. Subjective recklessness: D had knowledge of risk is sufficient to establish
intention
16. Transferred intent can be equated to recklessness but there is no definite
authority (James v Campbell establishes liability but it’s English case not binding
in Australia)
‘Land’ in Trespass
17. Actual land soil below the land as well as airspace above the land
18. Includes any fixtures attached to or on land
Obvious Risk
1. Obvious risk = risk obvious to reasonable person
2. Obviousness is not same as probability (s13(3))
3. Obviousness of risk is a subcategory of foreseeability and not insignificant
4. Three issues of significance:
a. Negligent failure to warn of or give information about risk (s15)
i. Medical practitioners must warn of risk (s21)
ii. Distinction between proactive and reactive obligation to
inform
iii. Proactive = what reasonable person would wants, reactive =
what person wants
iv. Reactive obligation is placed upon D (s15(2a))
v. Proactive obligation only required under CLA if
1. Written by law (s15(2b))
2. Professional whose service to P includes obvious risk
(s15(2c))
b. Assumption of risk (Volenti)
c. Materialization of a risk due to failure to take reasonable precaution
i. No obligation in dangerous recreational activity (s19) – Fallas
v Mourlas
1. A does not need to protect B from obvious risk
2. Does A need to protect B from risk created by A?
5. Inherent risk = risk that could not be avoided by exercising reasonable
care i.e. engrained in nature of activity
a. Such a risk can never attract liability in negligence anyway so
provision is redundant
b. Provision is only useful if requirement to warn of risk that is not covered by s15
Negligence as an objective standard
1. Objective test of negligence = irrelevant if D did their best to avoid risk
2. D should not have taken on activity if they couldn’t protect against harm
3. D is judged as a reasonable person
4. Reasonable person = reasonable person in the position of D
5. Circumstances of D must be considered to establish standards of
reasonable person e.g. doctor has different standards to normal person
6. Certain factors are relevant when considering the reasonableness of their conduct
Causation
1. Was the negligence the cause of the harm?
2. Two types:
a. Factual causation –cause in fact
b. Attributive causation – cause in law
3. But for test - would the plaintiff’s loss have occurred ‘but for’ P’s
negligence? If not then D’s negligence was a necessary condition of P’s
loss. (Barnett v Chelsea & Kensington)
4. Making what P says after about what they would have done is often
inadmissible (other than s11(3b) CLA where it is against P’s interest)
which maintains objectivity in causation test
5. Law has to pick out legal cause from a number of factual causes (10.3.1)
a. Eg person injured by D’s negligence, on way home from hospital
shot by thief, they would not have been on way home from hospital
if not for first person’s negligence but still not cause of second
event.
6. Problems:
a. Multiple sufficient causes – What to do? (10.3.2)
Cases to Read
PenfoldsWinesPtyLtdvElliot(1946)74CLR204
Facts:
Appellantmadewineandsolditinbottlesofwhichitretainedownership.Bottleswereembossed
withappellant’snameandanintimationthattheywerethepropertyofappellant.Therespondent
anhotelkeeper,fromtimetotimesoldbulkwinetocustomerswhoprovidedinwhichtocarryit
away.Thesebottleswerefilledbytherespondent.Amongthesebottlesthereweresomeembossed
inthemannerstated.Therespondentdidnottakeanysteptoinformhimselfwhetherthebottlesso
filledorwereorwerenotownedbytheappellant.Theappellantsubmittedanapplicationforan
injuctiontorestrainanallegedtrespasstogoodsbytherespondentwhichwasrefused.Uponappeal
thisrefusalwasupheldbyStarke,DixonandMcTiernanJJwithLathamCJandWilliamsJdissenting.
Decision:Starke,Dixon,McTiernanJJ
Noinjunction
Starke+McTiernanJJ
7. Nodealingsystematicorsubstantialinconsistentwithownership
8. Onlydealingrarelyandcasual
DixonJ
9. Notortwascommitted
Judgements
LathamCJ
10. Companyonlysoldwineinbottlenotbottleitself
11. Invoicesayingbottles“arenotsold,butremainthesolepropertyofPenfoldsWines
Limited,fromwhichCompanytheyhavebeenloaned,andsuchbottleshavebeen
deliveredbysuchCompany,solelyforpurposesofenablingthecontentstobeused
onceonlyforretailing,consumingorusingAustralianWineorBrandymade,distilledor
vendedbythisCompanyandcontainedinsuchbottles.Whenthecontentsareonce
used,thebottlesmustbeforthwithondemandhandedorgivenoverorreturnedtothe
saidCompanyoritsagents.Thebottlesmustnotbedestroyedordamagedorparted
with,ormustnotbeusedforanybuttheforegoingpurposes.N.B.Itshouldbe
thoroughlyunderstoodthatthiswillstillallowforabonusbeingpaidfortheprompt
returnofourbrandedbottles.”
12. Palleged:Dhadbeenreceiving,collectingandhandlingthesebottlesandusingthemin
connectionwithhisbusinessandplacinganddeliveringthosebottlestocustomersliquid
notmanufacturedbyPenfolds
13. DdidnotsellbottlestoMoonbutdeliveredthemforasumofeightshillings
14. Preliesontransactionwithmoonbeinganassumptionofdominionoverbottleswhich=
conversion
15. PalsoreliesonfactthatDusedbottlesforpurposeinconsistentwithtermsofloan
16. TwobottleswerebroughttoDbyhisbrothertobefilledwithwineotherthanPenfold’s
17. Pknewthatbottleswerebranded,andwouldnotsellit,buthefeltifacustomer
broughthimabrandedbottletofillhecouldfillitwithanything
18. NocontractualrelationsbetweenPenfoldanddefendant
19. NotdetinuebecausenocomplaintthatDhadrefusedtoreturnbottlesondemand
20. Thebrandedbottlesoftheplaintiffwerebailedtothepersonswhoreceivedthem.
21. Bythetermsofthebailmentthebaileewasnotentitledtousethebottlesforanyother
purposethanonceonlyforretailing,consumingorusingtheplaintiff’swinecontainedin
thebottles,andhehadnorighttoauthorizeanyotherpersontousethemforanyother
purpose.
22. Phasthousandsofbottlesandcommonlawremedyofreturningonebottleorfor
breakingordirtyingonebottleisinsufficient
23. Dfounditcheapertouseotherpeople’sbottles
24. Dhadmadeapracticeoffillingbrandedbottlesignoringthebrand,evenafterthewine
wasdeliveredtoMoontherewereotheroccasions,andhethoughthehadarightto
continueit
25. InBeswixilcev.Alner(1),theFullCourtofVictoriaheldthat“wheretheplaintiffhas
establishedtheinvasionofacommonlawright,andthereisgroundforbelievingthat
withoutaninjunctionthereislikelytobearepetitionofthewrong,heis,inthe
absenceofspecialcircumstances,entitledtoaninjunctionagainstsuchrepetition”
26. Factthatactualdamageissmallornegligibleleadinguptoactionisnotaspecial
circumstance
27. ModelDairyPtyLtdvWhite->toomanycasesofconversion,Difnotrestrainedwould
beconsiderable,detectionistough,butmisuseofP’sbottlesinlargescalewillgreatly
affecthim,toforcehimtorelyoncommonlawwoulddenyhimallprotectionProblems
withcommonlawremedy
28. SoasthecasewasdealtwithinSupremeCourtinjunctionshouldbegranted
29. P’scaseInHC:NOinjunctionbecausenotortwascommittedbecausebottlesweregiven
toDvoluntarilybybrotherthereforenotrespassagainstbaileesonotrespassagainst
baileesonotrespassagainstPevenifbyreasonofdeterminationofbailmentPhad
righttoimmediatepossession
30. Abailmentisdeterminedbyanyactofthebaileewhichiswhollyrepugnanttothe
holdingasbailee,andthereuponthebailorhasanimmediaterighttopossession
31. Inthiscasethedeliveryofthebottlestothedefendantbyhisbrotherforthepurposeof
havingthemfilledwithwineotherthanPenfold’swasrepugnanttotheexpresstermsof
thebailment.Thebailmenthavingbeendetermined,theplaintiffasbailorhad
animmediaterighttothepossessionofthebottles.
32. Thenormaluseofabottleisasacontainer,andtheuseofitforthispurposeisa
trespassif,asinthiscase,itisnotauthorizedbyapersoninpossessionorentitledto
immediatepossession.
33. DoesthefacttherewasnotrespassagainstbrothershownotrespassagainstP?
34. Referstoacademicopinion–AgivesgoodtoB,BgivesittoC,notrespassbyC
35. IfAgivespossessiontoB,andCinterfereswithBthenAcansueC
36. Intheothercasementioned,namelythatofarevocablebailment,thebailorhasneither
possessionnorapresentrighttopossessionsolongasthebailmentremainsunrevoked.
37. SobyallowingAtosueC,underabailmentisallowingAtosuefornowrongdoneto
him
38. Inthepresentcasetheperiodofthebailmenthadexpired—thebailmentwas
determinedwhenthepersonwhobroughtthebottlestothedefendant,havingused
themonceforcontaining&c.theplaintiff’swine,procuredthedefendanttousethemto
containwineotherthantheplaintiff’swineandthereforeinamannerabsolutely
repugnanttothetermsofthebailment.
39. The plaintiff then became legally entitled to immediate possession of
the bottles.
40. The authorities to which I have referred support the view that the
plaintifi could therefore sue in trespass, though I agree that logical argument tends against this view.
41. Upon the assumption that the defendant’s brother was lawfully in
possession of the bottles as a sub-bailee, and upon the basis of the fact that the defendant came into possession of the bottles with the consent of his brother, it is still the case that the original bailment was determined when the defendant’s brother delivered the bottles to the
defendant to use for purposes absolutely inconsistent with the terms of the bailment, upon which alone he held them. The defen dant then used them without any regard to the plaintiff’s rights. A taking of the bottles without any intention to exercise permanent or temporary dominion over them, though it might be a trespass, would not be a
conversion ; but the actual use of the bottles for the benefit of the defendant and his brother was a conversion
42. The defendant dealt with the bottles on the basis that he was entitled
to hold them when brought to him by his brother or other customers and to use them for the purposes of his trade.
43. But, further, the defendant treated the bottles as his own when he handed them over to Moon and received eight shillings for them
44. He dealt with the bottles (as well as with their contents) as being a person entitled to dispose of them to Moon, that is as owner, and I can see no reason for holding that such a disposition was not a conversion
of the bottles.
StarkeJ
45. Dixonstateddistinctionbetweentrespass,trespassonthecase,detinue,conversion
46. Findsconversion
DixonJ
47. They do not, in my opinion, disclose the commission of any common
law tort to property or possession.
48. He supplied a few customers with wine which he poured into bottles brought by them and left with him for the purpose. Some of these bottles bore brands showing that they belonged to the sellers of wine, or of other liquor who retained ownership of the bottles. Among such bottles, on at least one occasion, were bottles of the appellants, that is, the two left by the respondent’s brother. The bottles were returned to those who brought them, no confusion in the identity of the bottles being proved. On the occasion of the visit of the inspector and the customs officer, the respondent sur rendered to them, as if in obedience to the law, two such bottles in exchange for the value of the wine.
49. What wrong to possession or property on the part of the respon dent do these facts disclose ?
50. It cannot be trespass because there is, on the part of the respondent,
no infringement upon the possession of any one.
51. It cannot be conversion, because, on his part, there is no act, and no
intent, inconsistent with the appellants’ right to possession and nothing to impair or destroy it.
52. It cannot be an innominate injury to the appellants’ right to posses
sion for which the remedy would have been a special action on the case, because he did no damage to the appellants’ goods, the bottles.
53. Detinue is, of course, irrelevant and so too would have been replevin.
54. Trespass is a wrong to possession. But, on the part of the respondent,
there was never any invasion of possession.
55. At the time he filled the two bottles his brother left with him, he him
self was in possession of them.
56. If A gives goods to B, B gives to C, A can’t sue C
57. It is submitted that the correct view is that the right to possession, as a
title for maintaining trespass, is merely a right in one person to sue for a trespass done to another’s possession ; that this right exists whenever the person whose actual possession was violated held as servant, agent, or bailee under a revocable bailment for or under or on behalf of the person having the right to possession
58. Confusion: effect of acts repugnant to a bailment and consequently
operating as a determination of the bailment.
59. The determination of the bailment may enable the bailor to maintain
an action of conversion, but not of trespass.
60. Only extension: bailee takes something out of package or breaks bulk
to make it a different thing from what he received
61. Issue: There is a third matter which perhaps should be' mentioned and that is the supposed distinction between the consequences of the
delivery by a bailee of possession of a chattel to a stranger and of the stranger’s taking it out of his possession by his licence.
62. A delivery of possession by the bailee, however wrongful as against
the bailor, could not work an invasion of the bailee’s own possession, so as to found trespass.
63. The plain fact in the present case is that the respondent never did any trespassory act and therefore there is no wrong of which the
appellants can complain as a trespass.
64. Conversion appears to me to be equally out of the question.
65. It is not out of the case because of the appellants’ situation as bailor. 66. On the contrary, if any conversion had been committed by the
respondent, clearly the appellants as the persons entitled immediately on demand to the possession of the bottles would be the proper party to complain of it.
67. The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel.
68. An intent to do that which would deprive “ the true owner ” of his immediate right to possession or impair it may be said to form the essential ground of the tort.
69. The re-delivery could not amount to a conversion because, though involving a transfer of possession, its purpose was not to confer any right over the property in the bottles, but merely to return or restore them to the person who had left them there to be filled
70. To fill the bottles with wine at the request of the person who brought them could not in itself be a conversion. It was not a use of the bottles involving any exercise of dominion over them, however transitory.
71. If the respondent had meant to sell these bottles to the inspector,
then, apart from the effect of the inspector’s authority to act for the appellants, no doubt the delivery to him would involve a conversion.
72. But even so, on the remaining findings, I cannot see that the trans
action would have afforded any ground at all for an injunction. It would still remain an isolated instance of a sale and one made to a person in authority. It would afford no evidence of practice or likeli hood of repetition.
73. If the chattel was held upon a bailment for a term or until the fulfilment of a
condition, it was the only action available to the bailor, if the chattel was
damaged.
McTiernan J
74. The bailment of each of these bottles had determined before it came into the respondent’s possession and the appellant then had the legal right to the possession of each bottle.
75. I have come to the conclusion that the only wrong of which there is evidence is a conversion by the respondent of two of the appellant’s bottles and that the case is not a proper one for an injunction.
76. I agree with the finding of Nicholas C.J. in Eq. that the respondent did
not intend to sell the two bottles which he delivered to Moon. As regards the two bottles, the subject of the transaction with Moon, it is therefore necessary for the appellant to rely upon the respondent’s user of them prior to Moon’s visit.
77. This user of these bottles was inconsistent with the dominion and
right of property of the appellant in the bottles; the respondent used them in his business as receptacles for the wine ordered by his brother.
78. I think in the present case that the respondent’s brother did transfer
to the respondent the legal possession in the bottles which he delivered to the respondent to fill with wine, and that the respondent took and used those bottles for the purposes of his own business and for his brother’s purposes.
79. Not substantial enough for injunction
WilliamsJ
80. Court of Equity will grant an injunction in the case of trespass to
goods where the trespass, though not of a continuing nature, is threatened to be repeated, and I can see no reason in principle why injunction should not equally be granted where there is a threatened repetition of any other unlawful dealing with the plaintiff’s goods.
81. At common law a separate cause of action would arise in respect of
each bottle and only trivial damages could be recovered. Common law would not therefore provide an adequate remedy.
82. The plaintiff’s right to an injunction cannot depend upon the number
of actual instances in which it was able to prove that the defendant so filled its bottles. It depends upon the defendant’s admission of his practice in the past and upon his claim to continue this practice in the future. If this conduct of the defendant gave the plaintiff a cause of action at common law I can see no reason why an injunction should not be granted.
83. At first the trespasser by acquiring the possession also acquired the property in the goods and the dispossessed owner was left to his personal action for damages.
84. But detinue was an unsatisfactory action because it “ did not afiord a remedy if the bailee misused the chattels, or if he restored them in a
damaged condition, nor could damages be obtained ” against a third party who had destroyed the goods.
85. The action of detinue was essentially a proprietary action implying property in the plaintiff in the goods claimed. ... It was, and still is, of the essence of an action of detinue that the plaintiff maintains and asserts his property in the goods claimed up to the date of the verdict.”
86. The person in the present case in actual possession of the bottles immediately prior to their delivery to the defendant was his brother. They had apparently come into the brother’s possession when he had purchased two bottles of the plaintiff’s wine in a shop in Singleton.
87. It must be implied, I think, from the terms of the original bailment that, upon a re-sale of the wine by the retailer, there would be a sub-baihnent of the bottles to the purchaser upon the terms of the original bailment. It was a breach of these terms for the brother to deliver the bottles to the defendant to be re-filled with wine. This breach determined the bailment and the plaintiff then became entitled to their immediate possession.
88. If there had been an asportation either the plaintiff as the person
entitled to the immediate possession or the brother, as the person in actual possession, could have sued the defendant in trespass :
89. But the bottles were not taken out of the possession of the brother by
the defendant but were delivered by him to the defendant. There was therefore no asportation of the bottles from the person in actual possession and I do not see how the plaintiff could have sued the defendant in trespass. Nor could it have sued the defendant in detinue because it is a con dition precedent to this cause of action that there has been a demand for a return of the goods and a refusal before the issue of the writ:
90. The crucial question is therefore whether there was a conversion or
threatened conversion of the bottles by the defendant. It is unnecessary to discuss whether the delivery to Moon was a conversion. This was an isolated act done under special circumstances.
91. I am satisfied that when the defendant filled and corked the two bottles, he must have seen the brands and known that he was using bottles which were not the property of his brother but of the plaintiff.
Alternatively, I am satisfied that the plaintiff gave the defendant sufficient notice that the bottles were its property.
92. The loss or deprivation of possession suffered by the plaintiff need not
be permanent. The duration of the dis possession is relevant with respect to the measure of damages, but makes no difference in the nature of the wrong
93. The use which the defendant made of the bottles with knowledge of the plaintiff’s title was an interference that would not be justified against true owner and using the goods with the intent of exercising ownership on his behalf or someone’s.
FALLA
S
-V-
MO
UR
LAS
Ipps JA
YE
S / N
O
Dangerous recreational =
particular circumstances
Obvious risk = negligence/gross
negligence
Tobias JA
YE
S/ Y
ES
Dangerous recreational =
particular circumstances
Obvious risk = reasonable m
an in
light of facts
Bastian JA
NO
/ NO
Dangerous recreational = 3 factors
Obvious risk = obvious has to be
one of the “significant risks of
physical harm”
Facts
- F
ou
r me
n w
en
t “sp
otlig
htin
g” fo
r ka
ng
aro
os. P
wa
s h
old
ing
ligh
t wh
en
D c
am
e to
ca
r with
loa
de
d g
un
an
d d
esp
ite P
’s in
sis
ten
ce
tha
t he
po
int th
e g
un
ou
tsid
e h
e
ke
pt it in
sid
e c
ar. In
an
effo
rt to u
nja
m it P
wa
s s
ho
t in le
g.
Trial Judge Decision
- Q
uirk
DC
J: D
wa
s n
eg
lige
nt a
s n
ot a
n o
bvio
us ris
k o
f a d
an
ge
rou
s re
cre
atio
na
l activ
ity
Implications
- N
SW
de
cis
ion
so
ho
w d
o w
e a
pp
ly it in
QL
D c
on
sid
erin
g n
o c
on
se
nsu
s
- A
gre
ed
: 1. O
bje
ctiv
e te
st re
qu
ired
for d
an
ge
rou
s re
cre
atio
na
l activ
ity 2
. Bu
rde
n o
f pro
of o
n D
to e
sta
blis
h d
efe
nce
Dangerous
recreational
activity
- O
bje
ctiv
e te
st re
qu
ired
to d
ete
rmin
e
wh
eth
er a
ctiv
ity d
an
ge
rou
s
- “s
ign
ifica
nt ris
k” –
trivia
l to ris
k lik
ely
to
ma
teria
lize
- C
ase
by c
ase
va
lue
jud
ge
me
nt fo
r
sig
nific
an
t risk
- O
bvio
us ris
k =
“in c
ircu
msta
nce
s” a
nd
“rea
so
na
ble
pe
rso
n in
po
sitio
n o
f D” b
ut
recre
atio
na
l activ
ity is
ge
ne
ral
- R
isk th
at m
ate
rializ
es m
ay b
e d
iffere
nt
from
the
significant risk bu
t no
thin
g in
se
ctio
n 1
9 s
ug
ge
stin
g it h
as to
be
the
sa
me
risk
- “s
ign
ifica
nt ris
k” –
rea
l ch
an
ce
of
ma
teria
lizin
g w
hic
h is
be
twe
en
trivia
l an
d
risk lik
ely
to m
ate
rializ
e b
ut m
ore
tow
ard
s
like
ly to
ma
teria
lize
- R
isk w
as m
ore
tow
ard
s ris
k lik
ely
to
ma
teria
lize
on
Ipp
’s s
ca
le b
ut real
chance of materializing w
as T
ob
ias’s
sca
le
- A
gre
es th
at d
an
ge
rou
s re
cre
atio
na
l du
e
to s
am
e re
aso
n a
s Ip
p –
tota
lity o
f
circ
um
sta
nce
s
- S
19
is d
iffere
nt fro
m c
om
mo
n la
w a
s it
do
es n
ot re
qu
ire P
s
kn
ow
led
ge
/ap
pre
cia
tion
of ris
k
- “s
ign
ifica
nt ris
k o
f ph
ysic
al h
arm
” =
eith
er s
ign
ifica
nt ris
k o
r sig
nific
an
t ha
rm
by th
em
se
lve
s s
atis
fy th
e d
efin
ition
- R
ecre
atio
na
l activ
ity =
sh
oo
ting
ka
ng
aro
os a
t nig
ht
- O
bje
ctiv
e te
st re
qu
ired
to d
ete
rmin
e
wh
eth
er ris
k s
ign
ifica
nt
- T
he
re a
re th
ree
po
ssib
le w
ays o
f
co
nsid
erin
g w
he
the
r a ris
k is
sig
nific
an
t:
- (a
) assu
me
tha
t an
y ris
k w
ill be
- N
ee
d to
de
cid
e w
ith c
on
sid
era
tion
for P
’s
pa
rticu
lar c
ircu
msta
nce
s b
y
dis
ting
uis
hin
g P
’s a
ctiv
ity fro
m g
en
era
l
recre
atio
na
l
- R
ecre
atio
na
l activ
ity =
sittin
g in
a v
eh
icle
ho
ldin
g th
e s
po
tligh
t for th
e s
ho
ote
rs
ou
tsid
e o
n th
e b
asis
tha
t at v
ario
us
time
s, o
ne
or m
ore
of th
e s
ho
ote
rs m
igh
t
lea
ve
or e
nte
r the
ve
hic
le w
ith g
un
s th
at
mig
ht o
r mig
ht n
ot b
e lo
ad
ed
- C
ircu
msta
nce
s =
ine
xp
erie
nce
d
sh
oo
ters
, at n
igh
t, no
lice
nse
for fire
arm
,
ha
d d
rive
n fo
r ho
urs
an
d d
run
k a
lco
ho
l,
co
nce
ntra
tion
an
d a
lertn
ess w
ou
ld b
e
be
low
op
tima
l
- S
ign
ifica
nt ris
k =
on
e o
f the
me
n w
hile
lea
vin
g o
r en
terin
g th
e v
eh
icle
as th
e
pla
intiff w
as o
pe
ratin
g th
e s
po
tligh
t mig
ht
ha
nd
le a
loa
de
d g
un
in a
ne
glig
en
t
ma
nn
er a
nd
ca
use
so
me
on
e in
the
ve
hic
le to
ge
t sh
ot.
sig
nific
an
t be
ca
use
the
resu
lts o
f it
eve
ntu
atin
g a
re lik
ely
to b
e c
ata
stro
ph
ic;
- (b
) dra
w a
n in
fere
nce
from
sta
tistic
al
evid
en
ce
; or
- (c
) exa
min
e th
e p
artic
ula
r circ
um
sta
nce
s
of th
e c
ase
.
- (a
) is in
co
nsis
ten
t with
sta
tuto
ry te
st,
(b)+
(c) w
ere
no
t arg
ue
d b
y D
- B
aste
n J
A h
eld
tha
t it wa
s n
ot
esta
blis
he
d th
at th
ere
wa
s a
sig
nific
an
t
risk o
f inju
ry fro
m th
e a
ccid
en
tal
dis
ch
arg
e o
f a fire
arm
wh
ilst s
ho
otin
g
ka
ng
aro
os a
t nig
ht in
the
circ
um
sta
nce
s
in w
hic
h th
e p
lain
tiff wa
s in
vo
lve
d.
Obvious risk
- Ip
p J
A d
istin
ctio
n b
etw
ee
n n
eg
lige
nce
an
d g
ross n
eg
lige
nce
.
- T
he
activ
ity w
hic
h c
om
pris
ed
of
gro
un
dle
ss re
assu
ran
ce
s a
nd
pe
rsis
ten
t
failu
res to
take
ste
ps to
en
su
re th
at th
ere
wo
uld
be
no
accid
en
t ca
use
d b
y th
e
ha
nd
gu
n, a
ll in th
e fa
ce
of th
e p
lain
tiff’s
- ‘O
bvio
us’ m
ea
ns th
at b
oth
the
co
nd
ition
an
d th
e ris
k a
re a
pp
are
nt to
an
d w
ou
ld
be
reco
gn
ise
d b
y a
rea
so
na
ble
ma
n, in
the
po
sitio
n o
f the
[pla
intiff], e
xe
rcis
ing
ord
ina
ry p
erc
ep
tion
, inte
llige
nce
an
d
jud
gm
en
t.”
- C
on
ditio
n =
facts
of c
ase
- F
or s
5L
to b
e e
ng
ag
ed
, at le
ast o
ne
of
tho
se
risks m
ust m
ate
rialis
e a
nd
resu
lt in
the
ha
rm s
uffe
red
by th
e p
lain
tiff.
Fu
rthe
r, tha
t risk m
ust b
e a
n “o
bvio
us
risk” w
ithin
the
me
an
ing
of s
5F
of th
e
Act. T
he
se
two
ele
me
nts
mu
st, to
an
exte
nt, b
e tre
ate
d to
ge
the
r.
- T
he
se
diffe
ren
ce
s s
ug
ge
st th
at th
e
ap
plic
atio
n o
f s 5
L(1
) will d
ep
en
d u
po
n
ea
rne
st re
qu
ests
to b
e c
are
ful, w
as g
ross
ne
glig
en
ce
.
- T
he
refo
re, n
ot o
bvio
us if it w
as p
ure
ly
ne
glig
en
ce
it wo
uld
ha
ve
be
en
.
- A
rea
so
na
ble
pe
rso
n in
the
pla
intiff’s
po
sitio
n s
ho
uld
be
take
n o
n th
e
pro
ba
bilitie
s, to
ha
ve
be
en
aw
are
tha
t the
de
fen
da
nt’s
rea
ssu
ran
ce
s th
at th
e g
un
wa
s n
ot lo
ad
ed
an
d th
at it w
as s
afe
,
we
re u
nre
liab
le g
ive
n h
is c
on
tinu
ed
co
nd
uct in
fidd
ling
with
the
gu
n w
hic
h h
e
ha
d a
lrea
dy in
dic
ate
d w
as ja
mm
ed
with
in
the
co
nfin
es o
f the
ve
hic
le.
- T
he
refo
re, a
cco
rdin
g to
To
bia
s J
A th
e
risk w
as o
bvio
us w
ithin
the
me
an
ing
of
the
de
finitio
n o
f tha
t exp
ressio
n in
s5
F
the
leve
l of p
artic
ula
rity a
t wh
ich
“the
circ
um
sta
nce
s” a
re id
en
tified
an
d th
ose
asp
ects
of “th
e p
ositio
n” o
f the
pla
intiff
wh
ich
are
to b
e a
scrib
ed
to th
e
rea
so
na
ble
pe
rso
n, fo
r the
pu
rpo
se
s o
f
the
de
finitio
n in
s 1
3(1
)
- R
isk d
oe
s n
ot h
ave
to b
e “p
hysic
ally
ob
se
rva
ble
” so
P d
idn
’t kn
ow
bu
llet w
as
in g
un
did
n’t m
atte
r still o
bvio
us s
13
(4)
- R
isk e
xis
ts re
ga
rdle
ss o
f pro
ba
bility
the
refo
re, e
ve
n if ris
k o
f po
intin
g g
un
tow
ard
s P
is lo
w s
till ob
vio
us s
13
(3)
- C
L: c
are
wa
s ta
ke
n to
limit th
e d
efe
nce
of v
olu
nta
ry a
ssu
mp
tion
of ris
k to
tho
se
risks w
hic
h th
e p
lain
tiff sh
ou
ld p
rop
erly
ha
ve
be
en
take
n to
ha
ve
acce
pte
d,
wh
ich
ma
y n
ot h
ave
inclu
de
d th
e ris
k
wh
ich
ma
teria
lise
d, c
au
sin
g h
arm
.
- S
tickin
g to
ge
ne
ral la
w a
pp
roa
ch
- O
bvio
us ris
k h
as to
be
asse
sse
d a
t time
it ma
teria
lize
s
- D
ha
s to
sa
tisfy
the
Co
urt th
at th
e ris
k
wh
ich
ma
teria
lise
d w
as b
oth
a ris
k “o
f” a
recre
atio
na
l activ
ity, a
nd
tha
t tha
t
recre
atio
na
l activ
ity w
as d
an
ge
rou
s
be
ca
use
tha
t risk w
as “s
ign
ifica
nt”.
- T
he
risk o
f an
accid
en
tal d
isch
arg
e o
f the
gu
n, w
hils
t sittin
g in
a v
eh
icle
, ma
y b
e o
f
a d
iffere
nt o
rde
r to th
e ris
k o
f su
ch
an
accid
en
t wh
ilst p
artic
ipa
ting
in th
e
sh
oo
ting
. Wh
ile it m
ay s
till be
an
ob
vio
us
risk, it m
ay h
ave
be
en
too
far re
mo
ve
d
from
the
activ
ity to
form
pa
rt of it. C
ou
rt’s
evid
en
ce
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Lormine Pty Ltd v Xuereb
Facts: P was on a dolphin watching cruise where she was told by captain
to sit on bow as the seas were calm. P was hit by wave from ocean and
suffered serious injuries.
Judgement:
Mason P
- Held (unrelated): disclaimer defence failed and damages were halved.
- Application of Fallas! (Defence of obvious risk) 1. D has burden of proof – Ipp, Basten JJA
2. Objectively and prospectively determine whether dangerous
recreational activity and obvious risk – Ipp, Basten JJA
3. Standard is between “trivial risk” and “risk likely to occur” –Ipp
JA!
4. Significance is to be informed by elements of both risk and
physical harm – Basten JA!
5. Characterization must take place in particular context of P’s
circumstances – Ipp, Tobias & one of 3 factors of Basten JJA
- Held: Volenti irrelevant because P had shown injury had occurred due to
D’s negligence already and risk were told to P by D so irrelevant
whether obvious risk had materialized
- IMPLICATION: Clarifies Fallas v Mourlas (DOT POINTS 1-5) HOW TO
APPLY IT!
Wade Sawmill Pty Ltd v Colenden Pty Ltd
Detinue
P can seek judgements:
1. if D does not have chattel, P seeks judgement at the value of the chattel and damages assessed for its detention or aggravated/exemplary damages
2. If it is thought to still be in D’s possession, P can seek…
Remedy of (Wade Sawmill v Colenden):
Judgement for the value of the goods at the date of judgement + damages for its detention OR
Judgement for the return of the goods OR
Recovery of its value + damages for detention (defendant chooses) OR
Judgement for the return of the goods + damages for detention
Brighton Le Sands Amateur Fisherman’s Association Ltd v Vasilios Koromvakis
Facts: P (75 years old) fell on set of slip rails in D’s boatshed. P was carrying an ice bucket at 5:30 am. P said it was dark and even though he looked couldn’t see rails so accused D of not providing adequate lighting.
Judgement:
Tobias JA
- Trial judge erred as after deciding D owed duty of care to P didn’t consider response that reasonable person might have to that situation
- Trial judge failed to recognize that D’s duty was not to ensure that no harm befell anyone in his boatshed but simply to take reasonable care
- Question should be: What would a reasonable person, confronted with a foreseeable risk of injury, do in response to that risk?
- Shirt factors: 1. Magnitude – neither high nor low 2. Probability – low because no past incidents
- Obvious risk is not relevant to P and only relevant to D for probability in Shirt - D’s duty of reasonable care was to ensure area was fully illuminated at night which
was done - P has to be aware of obvious risk – just existence of obvious risk isn’t sufficient - There was no breach of duty when considered prospectively (what reasonable
person would do) rather than retrospectively (what D could have done) - Fact that steps were later taken by D is not an admission of guilt or liability (s10c) - D was not liable to negligence
Implications:
- Shirt factors remain valid in determining breach - Determine breach prospectively not retrospectively - Taking steps to alleviate risk after breach is not an admission of guilt (s10c) in our
CLA - P has to be aware of obvious risk – just existence of obvious risk isn’t sufficient - If D tries to escape liability in the breach section by saying that because the risk was
obvious he had no duty to warn, that is not sufficient because P still had to be aware of the risk and regardless of whether it’s obvious breach is concerned with whether D took reasonable care to avoid risk
How has the CLA affected negligence?
- Duty – no affect
- Breach – tightened test of reasonable foreseeability from “not farfetched or fanciful” in
Wyong Shire Council v Shirt to “not insignificant” in s9(1b) (Drinkwater v Howarth) Still use
4 common law factors so no impact in negligence calculus.
- Causation – Reinstated old common law “but for” test as primary test of causation (Barnett v
Chelsea) overriding “common sense” test from March v Stramare in s11(a) but “common
sense” test is still applicable among other things by s11(2)
- Remoteness – no affect – still the Wagon Mound Test in s11(4)
- Contribution – CLA didn’t change anything but Law Reform Act overrode rule of Brinsmead
v Harrison that finding one tortfeasor not liable extinguishes an action against all other
tortfesors s6(a) – applied in Thompson v Australian Capital Television
- Aggravation – still SGIC v Oakley
- Volenti non fit injuria – made much more accessible and reasonable from common law
defence of Imbree v McNeilly where P had to be aware of full extent and nature of risk to
abolishing that (s14(2)). Plus added the concept of obvious risk (s13) where probability
(s13(3)), physical observability (s13(4)) doesn’t matter and risk is judged by particular
circumstances and what a reasonable person would do in position of P(s13(1)). P is also
presumed to be aware of risk (s14(1)). Applied in Fallas v Mourlas.
- Contributory negligence – common law did not consider breach from point of view of P
(s23(1)) however, it was quite vague and related to circumstances of P. Still relates to P’s
circumstances and still judged by standard of care of reasonable person (s23(2a)) but less
vague. Also can be a complete defence again (s24) as it used to be in common law.
Although it used to be purely question of fact, now CLA with s46-49 has added a situation
where contributory negligence has to be presumed relating to intoxicated D’s.
- Illegality at common law used to distinguish between where parties were involved in a joint
illegal enterprise and where a negligent but innocent person injured someone involved in
illegal activity. CLA with s45 has made it clear saying criminals cannot be awarded damages
as long as on balance of probabilities (s45(1)) court is convinced breach happened while P
was engaged in indictable offence (s45(1a)) and their conduct contributed material to risk of
harm (s45(1b)).
- Damages – s52 can no longer award common law damages which are punitive, exemplary
or aggravated. S54 maximum damages for loss of earnings is 3x average weekly earning.
Brambles Constructions v Helmers FACTS During course of proceedings of P against D (Helmers), D requested contribution from P’s company, saying that P’s conduct had caused or contributed to the damage. Though the date of the action commenced was within 6 years of the actual tortious event, the date that D issued the 3rd party notice was over 6 years later from the event and there was contention over whether the words ‘if sued’ 5(1)(c) of Law Reform (Miscellaneous Provisions) Act, 1946 (N.S.W.) (equivalent to 6c of LRA) Implied that there was a particular point in time at which a 3rd party action had to be brought. (D seeking contribution yet confusion over whether 3rd party liability had to be determined from the date P issued writ for proceedings against D, or from the date D applied for contribution from 3rd party.) ISSUE: Is a party that was found to be liable in negligence restricted by a time limitation to recover from another tortfeasor, under relevant provisions in the Limitations Act? OUTCOME: The words of s5(c) do not have any temporal element or place importance of the time at which the 3rd party must have been sued. - if D requests contribution after being found liable, and it can be found that 3rd party is contributorily negligent, then they are expected to contribute and are not barred from liability under any time limitations dating from the date of the actual tortious event. BARWICK CJ (McTiernan J concurring): That if a defendant files for contribution under 5(1)(c), then this is independent of the plaintiff’s initial action and there is no time limit for D to call upon a 3rd party to pay contribution. DOES NOT MATTER whether P had to sue the 3rd party at the time they sued D, or whether D should have filed for contribution at the time D was sued by P. Dismissing P’s appeal. KITTO J: agreed with the reasons given in judgements of two past cases, to which was agreed with in Barwick CJ’s judgement as well (i.e. they are effectively all agreeing for the same reasons). Dismssing P’s appeal. WINDEYER J: At any rate, the liability of D must be ascertained before any limitations can be placed on the time period D has to call for contribution. Limitation does not begin to run until this has happened. So therefore D has the right to call on contribution. Dismissing P’s appeal. OWEN J: if there was any time after the injured plaintiff's cause of action accrued when the third party, if he had been sued by that plaintiff, would have been held liable, he is a tort-feasor who may be required to make contribution to another tort-feasor against whom judgment has been given; times do not matter. Appeal dismissed.
Bonser v Melnacis FACTS The plaintiff suffered personal injuries when struck by a motor vehicle driven by the first defendant on 9 September 1997. He commenced an action against the first defendant and also against the second defendant which was the licensed insurer of that vehicle. The plaintiff was, at the relevant time of the accident, performing duties as a traffic controller at roadworks being constructed by his employer, the Maroochy Shire Council. Defendants seeked to issue a third party notice against the Maroochy Shire Council. Trial judge refused the application, essentially on the ground that in the events that had happened the employer's liability to the plaintiff for damages for the injuries sustained by him had been abolished by provisions of the WorkCover Queensland Act 1996 (The WorkCover Act made substantial changes to the rights of plaintiffs to bring claims for damages for personal injuries incurred in the course of their employment… essentially, P has to request separate compensation from work cover QLD in respect of employer, and in this case P was content to just receive standard compensation under the act, as well as damages from the defendants… Super detailed we wouldn’t need to know it) LEGAL PRINCIPLE HELD: that the proposed third party (Maroochy Shire Council) was not a "tortfeasor who is, or would if sued have been, liable in respect of the same damage" (ie the same damage as that for which the plaintiff claims damages against the defendants) and on the proper construction of the WorkCover Act, an employer can not be joined to proceedings in circumstances where the injured worker is precluded from claiming common law damages from the employer.
Reynolds v Clarke – LOG ANALOGY
Facts: P sued in trespass for damage to walls of his house caused by a water spout fixed by D. Trespass or action on case? One of first cases to make distinction.
Decision: P failed because issue was action on case as it was indirect.
Principle: Fortesque J: “If a man throws a log into the highway, and in that act it hits me; I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case. Because it is only prejudicial in consequence, for which originally I could have no action at all.” – Log analogy distinguishing direct/indirect Battiato v Lagana – DEFINITION OF BATTERY
Facts: D hit P with piece of wood.
Decision:
Principle: Moynihan J: ’ The direct intentional imposition of any unwanted physical contact on another person constitutes the tort of battery. There is no requirement to prove that the contact caused or threatened any physical harm’
Scott v Shepherd – FIRECRACKERS
Facts: D threw a lighted firework onto a stall in a market - went through the hands of several stall holders. They each threw it away, trying to get rid of it, before it struck P and exploded, injuring one of P’s eyes. Decision: D held liable in battery; injury held to be a direct act by D. The immediate acts of intervention by the stallholders were not regarded as breaking the chain of directness as they were acting under a compulsive necessity for their own safety rather than free agents. Principle: an act that sets in motion an unbroken series of continuing consequences, the last of which ultimately causes contact with the plaintiff, will be sufficiently ‘direct’ for the purposes of trespass.
Innes v Wylie – POLICEMAN BLOCKS DOOR
Facts: P was expelled by society without notice of decision. P was stopped from entering room by D (policeman) standing in doorway. Decision: D was not liable as policeman had stood entirely passive. Principle: Denman CJ: if the defendant had stood ‘entirely passive like a door or a wall put to prevent the plaintiff from entering the room’, this would not constitute a battery.
For there to be battery, the act has to be positive.
Fagan v Metropolitan Police Commissioner – CAR ON FOOT
Facts: P had driven car wheels on to D’s foot accidentally. Despite D’s pleadings P took considerable amount of time to remove wheels from foot. Decision: Majority held D was liable as failure to move off policeman’s foot was positive. Principle: Driving the car onto the police officer’s foot and then failing to remove it was part of one positive act. Not moving can be positive. Candy v Thompson – KANGAROO ON ROAD
Facts: P (property owner) found a joey on road. Obtained permit to look after it until it could be released back in to the wild. When permit expired, P did not extend it even though he knew he needed to in order to keep joey. The Queensland Parks and Wildlife Service decided to remove the kangaroo from Candy household. Decision: D were not liable in trespass to land, trespass to goods, conversion, detinue. Principle:
1. As P was not authorized under Nature Conversation Act 1992(Qld) to keep kangaroo, as he had no permit, D were authorized persons who could take the kangaroo. Therefore, no trespass to goods as kangaroo was not in his lawful possession.
2. There was no trespass to land as he gave consent for them to come and consent was unrevoked.
3. P could not sure in conversion or detinue as under the aforementioned Act, the kangaroo was deemed to be the property of the state as a native animal, therefore, state had a better claim to possession than him.
Czatyrko v Edith Cowan University – PLATFORM LOWERED
Facts: [P] employed by university, [D] – duties involved unloading trucks – one day [P] stepped back expecting a metal platform which had been carelessly lowered by [D] – [P] was injured. Decision: D was liable and no contributory negligence. Principle: Employer/employee Duty of Care
§ Place § System § Plan and equipment
Thomson v Woolworths – GARBAGE BINS
Facts: [P] moved garbage bin which was obstructing her and felt sharp pain in her back – sued [D] whose premises she was on. Decision: D was liable in negligence but P was also liable for contributory negligent. Principle: Occupier/entrant
§ Reasonable care § Reasonable care that system doesn’t harm people like P
Manly v Alexander – DRUNK SLEEPS ON ROAD
Facts: [P] drunk twelve stubbies of beer – walked onto road and sat down – [D] was driving truck and distracted by person to the side of road and struck [P]. Decision: D was negligent because he gave too much attention to the distraction. Principle:
§ Must appreciate context of duty § Includes remote scenarios § Control of speed and direction § Know what is happening in vicinity § Have time to react § Take reasonable steps
Donoghue v Stevenson – GINGER BEER
Facts: P fell ill from snail in ginger beer purchased for P by her friend. Decision: D owed P a duty of care and was liable in negligence. Principle: Manufacturer/consumer liability. Negligence is a tort. Lord Atkin’s neighbor principle. Consideration of those who are closely and directly affected by act and should be considered when considering an act or an omission. Chapman v Hearse – DR CHERRY Facts: The first collision was negligently caused by Chapman. As a result of that accident, Chapman was thrown out of his car and lay injured on the road. Dr Cherry arrived and went to Chapman’s assistance. The second collision took place – Hearse negligently collided with Dr Cherry as he was treating Chapman and killed him. Dr Cherry was therefore involved as a victim in the second accident. Hearse was successfully sued for this accident but then brought in Chapman for contribution to the damage he was required to pay. Decision: Chapman was also liable for negligence as Dr Cherry was a reasonably foreseeable P.
Principle: 1. Precises nature of events need not be predictable – it was reasonably
foreseeable that Chapman’s poor driving could lead to an incident such as the tragedy that ensued – the circumstances created by were those conducive of the events which occurred.
2. Intervening negligence of Hearse (i.e. driving into Dr.Cherry) –a novus actus interveniens– was not recognised as an interruption of the causal chain from the point of view of Chapman’s negligence/ involvement in death of Dr. Cherry. Why? Failure of ‘but for’ test but under ‘common sense’ test it was reasonably foreseeable. It is ‘common sense’ to consider whether the actual damage to [P] was the very thing likely to occur as a consequence of the conduct of [D] (March v Stramare).
Palsgraf v Long Island Railroad Co. – HIT BY SCALES
Facts: [P] ‘unforeseeable’ on other side of train – [D] helping man get onboard causes him to drop package of fireworks – explosion caused ‘scales’ to knock over and hit [P] who sued [D] in negligence. Decision: D was not liable as P was not a foreseeable P. Principle: Cadozo said there is no duty where there is no apprehension of the [P] – a violation of [P]’s rights did not occur. The risk reasonably to be perceived defines the duty – there was not a risk reasonably to be perceived (to [P]) and therefore no duty owed. Woolcock Street Investments Pty Ltd v CDG Pty Ltd – STRUCTURAL DEFECT
Facts:D1 designed building and D2 sold building to P with structural defect. Did D1 and D2 owe a duty of care to P?
Decision: D1 and D2 owed no duty of care to P. Not liable in negligence.
Principle: Proximity test was rejected.
Bolton v Stone - CRICKET
Facts: P was injured by a cricket ball hit out on to adjacent road. Balls were very rarely hit over the 2m high fence and cricket had been played there for nearly a hundred years. Decision: Risk of accident was so small that it could not be said the cricket club had been negligent in not taking further precautions against it. Probability of the ball
escaping from the ground was small and any precautions other than ceasing cricket on the ground were impractical.
Principle: Probability of risk must be considered.
Goode v Nash – BURNT EYE
Facts: D was a doctor who placed tonometer on P’s eyes before it had properly cooled after being sterilized and caused permanent damage including burns to P’s eyes.
Decision: D had been negligent as the activity was dangerous enough and consequences of negligence were great enough to ensure negligence never happened. This was despite the probability of harm being low.
Principle: All factors need to be considered.
Paris v Stepney Borough Council – ONE EYED P
Facts: One eyed P worked as motor mechanic where he often had to lie under vehicles from which dust and other particles frequently fell. He lost other eye when chip from rust bolt lodged in it.
Decision: Usually failure to provide goggles for motor mechanics is not negligent but since D had knowledge that P only had one eye, this made magnitude of harm to P much greater, D was held to be negligent.
Principle: Magnitude of harm needs to be considered and classification of risk is important. The more generally a risk is defined the less likely D will be found negligent. This case was specific like Goode v Nash, but Bolton v Stone was general.
Caledonian Collieries Ltd v Speirs – RAIL CATCHPOINT
Facts: Railway trucks entered a level crossing and collided with [D]’s car -circumstances were such that they deprived [D] of all chance of avoiding the trucks – negligence alleged because there was no system in place (catch-points) to prevent such a scenario. Decision: D was liable as magnitude of harm to residents was greater than cost of avoiding harm. D argued that if catch points were installed in one crossing they’d have to be installed in every other one around the state but this was unconvincing.
Principal: Cost of avoiding harm must be considered.
Watt v Hertfordshire Council - FIREMAN
Facts: Fireman sued employer for injury he sustained on the job.
Decision: Employer was not liable as holding him liable would reduce effectiveness of firemen. Principle: Social utility must be considered.
Schellenberg v Tunnel Holdings Pty Ltd – LOOSE HOSE
Facts: P was hit in the face by hose carrying compressed air while working for employee as the hose was not correctly attached to coupling.
Decision: Not liable because there were other possible events that may have caused the hose to come off the coupling.
Principle: Res ipsa principles.
Scott v London & St Katherine Docks Co – SUGAR BAGS
Facts: [P] injured when sugar bags fell on him.
Decision: P was liable for negligence.
Principle: There will be a presumption of negligence if the thing (in this case the crane) was under the control of the defendant and the accident would not usually happen unless there was some negligence on the part of the defendant.
McHale v Watson - CHILD
Facts: Children were playing game – D child threw metal spear that ricocheted and half-blinded another child Decision: D was not liable Principle: Children owe a lower standard of care than adults as they do not have the foresight, experience and prudence
Imbree v McNeilly – INEXPERIENCED DRIVER
Facts: Inexperienced driver was driving 4WD – caused it to swerve and flip – injured supervising adult who then sued Decision: Driver was held liable however, contributory negligence of 30% was found against P.
Principle: Inexperienced driver owes same standard of care as experienced driver.
Carrier v Bonham - SCHIZOPHRENIA
Facts: The bus driver (P) suffered nervous shock injuries after running over a suicidal defendant with schizophrenia who stepped out in front of the bus
Decision: Suicidal defendant was liable.
Principle: if psychiatric industry sees it fit to release people of unsound mind into regular society they must be judged equally by the law – therefore no reduced standard of person of unsound mind (might also ride on whether or not they can contemplate wrong from right). Rogers v Whittaker – I’ll FIX YOUR EYE J
Facts: Surgeon gave patient assurance that right eye would be fixed, ended up completely blinding left eye.
Decision: Held liable because no situation of emergency or necessity
Principle: People who profess to have a special skill are judged by the competent standards of reason applicable to those who have that skill.
Neindorf v Junkovic – UNEVEN CEMENT
Facts: Garage sale – woman [P] tripped on uneven cement of driveway
Decision: No breach of duty, and therefore, no negligence.
Principle: Occupier to entrant has no strict standard of care regarding risks which are common in households
Drinkwater v Howarth – FRIEND FELL ON HIS WATER
Facts: The plaintiff attended a hotel with a friend. The friend became unruly and was ejected from the hotel by two of the defendant’s security guards. The plaintiff followed the defendants out of the hotel as they escorted the friend. D pushed the friend in to P. Decision: D was liable in negligence.
Principle: The risk was ‘not insignificant’ in so much as it was clear that [P] was put at risk by [D]’s actions. The Court suggested that in cases where the negligence complained of is a positive act, rather than a failure to act, s 5B may not be applicable. The Ipp report stated, however, that the phrase “not insignificant” was intended to indicate “a risk that carries a higher degree of probability of harm” than the “far-fetched or fanciful” test. Additionally, it remains to be seen whether s 5B applies to acts of positive negligence, rather than just “failing to take precautions against a risk”.
Barnett v Chelsea and Kensington Hospital Management Committee – ARSENIC POSIONING
Facts: Night-watchman presented himself to a hospital casualty department complaining that he had been vomiting for three hours after drinking tea. He was told to go home to bed and call his own doctor. Five hours later he died of arsenic poisoning.
Decision: Held that negligent advice was not the cause of the death because even if the man had been admitted to hospital and treated for five hours, he still would have died.
Principle: But for test - would the plaintiff’s loss have occurred ‘but for’ P’s negligence? If not then D’s negligence was a necessary condition of P’s loss.
March v Stramare – ILLEGAL PARKING Facts: [D] vehicle parked negligently in such a way that obstructed part of the lane – [P] was drunk and through careless driving collided with [D] – sued [D]. Decision: D was liable but P was also liable for contributory negligence. Principle: ‘But for’ test leads to counter intuitive outcomes when:
§ Multiple sufficient causes § Novus actus interveniens
Therefore, apply common sense test to determine whether the damage to P was the very thing which was likely to occur as a consequence of D’s act. If yes then legal causation is established although factual causation may not be. Mason CJ: ‘at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage Strong v Woolworths – GREASY CHIP/OLD LADY Facts: P’s crutches slipped on chip left on Woolworths’s (D) floor. Decision: D was held liable in negligence as causation was satisfied on balance of probabilities. Principle: When to apply common sense test.
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Travel Compensation Fund v Tambree – INSURANCE FRAUD Facts: P was the statutory insurer for travel agents and D were the accountants and auditors for a licensed travel agent. D provided financial statement to P as required by statutory insurance scheme. Financial statements were found to be misleading and deceptive. P’s damage arose when travel agent was unlicensed and trading illegally. What was the cause of damage? Decision: D was still liable regardless of illegality on part of travel agent. Principle: Factors other than ‘but for’ and ‘common sense’ test might be used such as the purpose of a particular cause of action, or the nature and scope of the defendant’s obligations in particular circumstances. Nilon v Bezzina – SPINE Facts: P was injured in two car accidents 6 years apart. P’s spine injured in first accident. P’s spine and right hand both injured in second accident. Decision: Both D were liable. Injuries to spine were split 50/50. Principle:
- Where two or more tortfeasors on the balance of probabilities is concluded to have contributed to P’s injuries, P does not have to disentangle the exact amount of contribution but does have to divide responsibility only to extent it is possible in light of available proof.
- ‘But for’ test had counter intuitive outcome – apply ‘common sense’ test. - Nor was it a case of ‘abolishment/ obliteration’ which would mean that the second
injury overrode the first injury. Each episode of injury played a part – not possible to differentiate them.
Lamb v Camden LBC – PIPE, SQUATTERS Facts: The defendant council negligently fractured a water pipe outside the claimant's house. This caused extensive damage and the property had to be vacated. One year later the council had not undertaken the repairs. Squatters had also moved in and caused further damage. The claimant arranged for repairs to be done herself and submitted a bill to the council for the repairs and damage caused by the squatters. Decision: Council not liable for damage caused by squatters as they were a novus actus interviniens which broke the causal chain. Principle: The damage to P has to be the very thing likely to occur as a result of D’s conduct. 3rd party breaking chain of causation. McKew v Holland, Hannen & Cubbits – FELL DOWN STAIRS
Facts: P’s first leg injury was caused by D which made him weak. He fell down stairs due to first injury and caused second injury. D argued they were not liable for second injury. Decision: D was not liable for second injury as the man could have taken precautions and not descended the stairs as he knew the leg was weak. Principle: 1st party breaking chain of causation. If first injury is not natural cause of second injury then chain of causation is broken. Wagon Mound 1 – OIL SPILL Facts: [D] carelessly discharged furnace oil into the harbour – oil spread to another wharf which was owned by [P] – [P] was worried so he discussed with [D] and they determined there was no reasonable risk – ended up damaging wharf. Decision: D was not liable as kind of damage was not foreseeable as the flashpoint of the oil was170 degrees F which means there was no chance of ignition on water. Principle: Was the kind of damage foreseeable as a result of D’s breach? Hughes v Lord Advocate – PARAFFIN EXPLOSION Facts: [D] left tent with paraffin lamps to illuminate and cover a manhole which had been opened for work – [P] kid came along and knocked lamp into whole which exploded – [P] then fell into hole and sustained serious injuries. Decision: 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. Principle: Only the kind of damage must be foreseeable (Burn = kind of damage), not
1. precise extent = Bad burn 2. manner of occurrence = Burn from explosion
Tremain v Pike – RAT URINE Facts: [P] handled hay that was soaked in rat urine and contracted weil’s disease - sued employer for not providing safe system of work – at the time it was unheard of that someone could contract weil’s disease in this way. Decision: D wasn’t liable as weil’s disease wasn’t foreseeable consequence of rat urine. Initial infection of Weil’s disease wasn’t foreseeable while in Smith v Leech Brain initial burn was foreseeable.
Principle: There is a distinction between kind of damage and varying extents of the same kind of damage. As long as the initial degree was foreseeable, damage is not too remote. Smith v Leech Brain & Co – LIP CANCER Facts: [D] was galvanizer of metal – was lowering something into molten – shield between himself and molten – looked around shield – molten splashed onto his lip – he got burn. Burn triggered cancer. Decision: Cancer was not too remote and D held liable for all harm including cancer but damages were reduced with pre-existing condition in mind. Although causation would only say the cancer would not have occurred at that time but for D’s breach the damage is still not too remote as the burn was foreseeable. Principle: Any pre-existing vulnerability in P does not release D from liability for harm occurring as a result of that vulnerability using the principle from Duliev v White & Sons. Brice v Brown – HYSTERIC PERSONALITY Facts: P had hysteric personality disorder since childhood - had a minor taxi accident and then developed a major psychiatric illness. Decision: D was not in breach of duty of P and therefore not liable. However, if he was in breach then he is bound to take P as he found her. Principle: Think skull rule applies to psychiatric illness. Queensland v Stephenson – RETIRING POLICE Facts: Three police officers sued state for negligence causing personal injury. State pleaded 3 years from limitations act s11(1) had passed but three officers applied for extension under s31(2) of Limitations of Action Act. Decision: High Court granted extension saying s31(2) was satisfied. Principle: The material fact had to be decisive incharacter irrelevant of whether it was decisive due to P becoming aware of it or change in circumstances make it decisive is irrelevant. Joslyn v Berryman – RELIED ON INTOXICATED D Facts: P relied on D’s driving despite knowledge that D was intoxicated and did not have a license. P got injured from motor vehicle accident. Decision: Court of appeal had erred in only considering fact’s observed or observable by P when they should have used the objective test and judged by the standards of an ordinary reasonable person in P’s position.
Principle: McHughJ: “…in principle, any fact or circumstance which a reasonable person would know or ought to know and which tends to suggest a foreseeable risk of injury in accepting a lift from an intoxicated driver, is relevant in determining whether the passenger was guilty of contributory negligence in accepting the lift. ” McLean v Tedman – GARBAGE COLLECTOR Facts: Hazard was that P (garbage collector) was running back and forward with a time period as he needed to have all the rubbish done, it was dark, got hit by oncoming car. Sued employer for failing to provide safe place of work. Employer admitted liability in negligence, but said damages should be reduced because of the contributory negligence of P.Decision: P was not contributorily negligent as court held employer had not been careless in regards to his own safety; said it had been mere inadvertence, inattention or misjudgement; noted several factors:
1. prevailing poor light, 2. carrying humper (a giant storage bin), meaning his capacity to see traffic was
obscured by amount of garbage in it, 3. the speed at which he had to complete his job.
Principle: Mason, Wilson, Brennan, Dawson JJ “It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man.”
Caterson v Commissioner for Railways - JUMPED OFF TRAIN Facts: P and 14 year old son had driven 14 miles to drop friend off friend at railway station. P went on to train to help friend with luggage. The train started to moving without prior warning. The next station was 18 miles away and P did not want to leave 14 year old son stranded so far away from home. Train was moving really fast so P jumped on to platform and suffered injuries which he sued commissioner of railways for negligent conduct in not giving prior warning. D said even if that was case, P had been contributorily negligent. Decision: P was not contributorily negligent due to agony of moment from 2 factors. Principle: Where a P has suffered harm, by reason of negligence of D where the only way to remove himself from risk was to risk harm, working out whether risk is unreasonable is answered by weighing up two factors:
1. Degree of inconvenience to which that person is subjected 2. The risk that person takes in order to try to escape from that risk.
Froom v Butcher – NO SEATBELT
Facts: P was driving with wife and kid but was not wearing a seatbelt; D came out and crashed into them. D accepted liability but held that P was contributorily negligent for not wearing a seatbelt, which meant the harm suffered was increased.Decision: P was found to be contributorily negligent and as a result damages were reduced for D to pay.Principle: Plaintiff’s failure to take reasonable care of themselves must cause the actual harm, not the accident which led to the harm caused. Leydon v Caboolture Shire Council – BMX/15 year old Facts: 15 year old kid injured whilst attempting a BMX jump which had been unlawfully altered by another rider. He said that he had made the jump many times before and thought he could do it, and had even succeeded to jump it in its altered state.Decision: Though he was so young, he had sufficient knowledge of the sport and of the jump and had, on weighing up his past success etc, decided to take the jump. Therefore he was still liable of contributory negligencePrinciple: Courts can take into account plaintiff’s age. Harriton v Stephens – WHY WAS I BORN Facts: P suffered from severe disabilities as a result of her mother having the Rubella virus during pregnancy. P sued her mother’s doctor (D) for not telling her mother about the virus because if they had she would have aborted the pregnancy. Decision: Majority held D was not liable for negligence. Principle: Crennan J: Cannot compare existence to non-existence therefore damages aren’t quantifiable. P had to proof she was worse off for being born but since it’s impossible to know what it’s like to not be born it’s not possible to quantify her loss. Thompson v Australian Capitol TV – CHILD SEX Facts: Ch 9 produces Today show. In interview, woman said father committed incest. Turns out it was step father and 14 year old got pregnant. Two D’s were Ch 9 and Ch 7. Ch 9 broadcast in Sydney, Ch 7 had license in ACT. P had reached settlement with Ch 9 pre-trial for $50 000 but did that also extinguish CH 7? Decision: Channel 9 and 7 were joint tortfeasors but releasing Ch 9 does not release Ch 7. Principle: Application of LRA s6(a) – releasing one tortfeasor does not mean P cannot sue others in a case of joint tortfeasors. Overruled Brinsmead v Harrison.
Peden Pty Ltd v Bortolazzo – LANDLORD TENANT Facts: P, occupier of a motel, accused D, owner of house divided in two residential flats, for nuisance created by tenants from the flats. Decision: D was not liable for the nuisance caused by the tenants. Principle: A lessor is not liable for a nuisance created by a tenant unless the lessor expressly authorised the nuisance or the nuisance was certain to result from the purpose for which the land was leased. Malec v J. C. Hutton - DAMAGES Facts: The Plaintiff [Malec] was an employee of the Defendant's [Hutton]. He contracted a disease. That disease can also lead to depression and back problems, which he did end up developing. As a result, he could not work anymore; However, the court found that there was a 60% chance of the back problems/depression happening regardless of the occurrence of the disease. Decision: P was entitled to 40% future damages as 40% chance it happened due to D. Principle: Past losses, which have happened already, are a matter of fact and therefore the court decides them on a balance of probabilities: à this means if there's over 50% chance that it happened because of the injury, then the plaintiff can recover for it. However, future things are decided on this 'all or nothing' method. Rather, damages for future losses are awarded according to the probability - if there was a probability of 40% that the future loss will be sustained as a result of the injury, than the plaintiff will be able to recover 40% of the damage. "Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." Hutchins v Maugham – SHEEP DOGS Facts: D laid poisoned baits on a section of land. P was driving sheep across the land. One of P’s sheep dogs ate the poisoned bait and died. P sued D for trespass to goods. Decision: No action in trespass to goods as act was indirect. Principle: The act has to be direct, not indirect, to have a cause in trespass to goods. Challen v McLeod Country Golf Club Facts: P purchased land next to golf course. P built a home on land. Over the course of one year, over 525 golf balls flew on to their land. Some of those balls caused damage including broken tiles and window. On one occasion golf ball struck P. Decision: Nuisance was successful. Mullins JA noted that even two or three balls a week, with the risk of physical harm or property damage, amounted to material interference with enjoyment of property.
Principle: It was not argued before the court that the fact that P came to the nuisance is a defence. The failure to argue the point it suggests it is accepted as settled principle that coming to a nuisance is not a defence. Cowell v Rosehill Race Course Co Ltd Facts: P bought a ticket to watch the races at D’s racecourse. P was asked to leave and when he refused he was forcibly ejected from racecourse by D’s employees. Decision: Trespass to land was not a defence for D. Principle: Trespasser must be:
- Given notice that license is revoked - Then they have reasonable time to leave property - If they don’t leave in time, then forceful ejection is justified
