NOVEL DUTIES OF CARE – PSYCHIATRIC INJURY Web viewMoss v Christchurch Council) If no damage yet suffered, damages in equity may be available if threatened nuisance. Author: T Eustace

TABLE OF CONTENTS

NOVEL DUTIES OF CARE – PSYCHIATRIC INJURY................................................................................2NOVEL DUTIES OF CARE – PUBLIC AUTHORITIES................................................................................4NEGLIGENT MISREPRESENTATION..........................................................................................................7FRAUDULENT MISREPRESENTATION / DECEIT.....................................................................................9PURE ECONOMIC LOSS RESULTING FROM DAMAGE TO ANOTHER’S PROPERTY.....................11PURE ECONOMIC LOSS RESULTING FROM PROFESSIONAL’S FAILURE TO PERFORM A SERVICE.........................................................................................................................................................13PURE ECONOMIC LOSS RESULTING FROM DEFECTIVE BUILDING................................................14PURE ECONOMIC LOSS – TRULY NOVEL CASES.................................................................................16NON-DELEGABLE DUTIES OF CARE – ONLY FOR NEGLIGENCE.....................................................18VICARIOUS LIABILITY – FOR ALL TORTS.............................................................................................20BREACH OF STATUTORY DUTY...............................................................................................................22CONSEQUENCES OF DEATH OF PLAINTIFF..........................................................................................25ASSESSMENT OF DAMAGES.....................................................................................................................26PRIVATE NUISANCE....................................................................................................................................29

Things to always consider

- Could someone else be liable – non-delegable duty / vicarious liability

Statutes:

- Civil Liability Act 2003 (Qld) (“CLA”)

- Limitation of Actions Act 1974 (Qld) (“LAA”)

- Supreme Court Act 1995 (Qld) (“SCA”)

- Succession Act 1981 (Qld) (“SA”)

- Trade Practices Act 1974 (Cth) (“TPA”)

- Fair Trading Act 1989 (Qld) (“FTA”)

-

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NOVEL DUTIES OF CARE – PSYCHIATRIC INJURY

Identify ALL parties & damage they have suffered:

Psychiatric injury = recognised harm Consequential psychiatric injury – recognised harm, [def] will owe a duty of care to [plaintiff]. Grief is not legally recognised harm so [plaintiff’s] claim will not be actionable (Coates v GIO).

Time Limits: A plaintiff has:

Three years to bring an action for personal injury (Limitation of Actions Act 1974 Qld (LAA) s 11). Six years to bring an action for property damage (LAA s 10(1)(a)).

Jurisdiction: Presuming the facts happened in Queensland, Queensland law will apply.

Onus: The onus is on the plaintiff throughout, and the defendant to raise any relevant defences.

Work through each person’s claim! [… v …] – Novel Duties – Pure Psychiatric Injury

Elements: Pure Psychiatric Injury:

1. Is there a duty of care? (Note: may have to note ‘scope’ (Gifford v Strang Patrick Stevedoring)

Multi-factorial test ( Perre v Apand; Sullivan v Moody ) Pick out relevant ones!!

Reasonable Foreseeability

o Direct perception – did plaintiff witness event or its immediate aftermath, or had been told about it unexpectedly? (Jaensch v Coffey)

o Sudden shock (Frost v Chief Constable) NOTE: Annetts – not a pre-requisite (boy working on farm, parents found out about death later)

o Normal fortitude – would a person of normal fortitude (reasonable and ordinary) in position of plaintiff have suffered psychiatric injury (Annets; Tame v NSW)?

Note: just because a plaintiff is not of normal fortitude will not prevent them establishing a duty of care (Tame v NSW).

Provided some shock is foreseeable, not necessary that the presise injury or extent of injury be foreseeable (Mt Isa Mines v Pusey)

If friend, might be different from a normal rescue (Mt Isa Mines v Pusey)

Vulnerability (of victim) and control (of def)

Relationship between plaintiff and victim (eg. friends – Gifford; Annetts), and plaintiff and defendant (employee / employer – Mt Isa Mines v Pusey)

o Argument if their just friends and not family, not close enough – floodgates (indeterminacy)

Characteristics of activity: was it dangerous / good for society?

Policy considerations:

o Terms of employment (if relevant) – can’t claim for something you are employed to do (Koehler v Cerebros)

o Coherency of law: look for statutes and if conflict can cite Sullivan v Moody

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o Indeterminacy

Argument if their just friends and not family, not close enough – floodgates (Sullivan v Moody)

o Ethical or moral considerations? Eg. Human rights

2. Breach : Here, the risk of … was foreseeable and not insignificant and a reasonable person would have taken precautions by … (CLA s 9). The [def] has breached the standard expected of a reasonable ____ (Glasgow Corp v Muir).

3. Damage :

But for [Def’s] actions [pl] would not have suffered damage of … (Civil Liability Act 2003 (Qld) s 11(1)(a); Flinch v Rogers). The damage would not be considered too remote (CLA s 11(1)(b); Wagon Mound No 2).

OR

[Def] materially contributed to [pl’s damage] (Civil Liability Act 2003 (Qld) s 11(1)(a); McGhee v National Coal Board). The damage would not be considered too remote (CLA s 11(1)(b); Wagon Mound No 2).

4. Defences

5. Remedies

Compensatory damages

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NOVEL DUTIES OF CARE – PUBLIC AUTHORITIES


Physical injury / property damage = recognised harm Psychiatric injury = recognised harm Consequential psychiatric injury = recognised harm Grief is not legally recognised harm so [plaintiff’s] claim will not be actionable (Coates v GIO).





Work through each person’s claim! [… v …] – Novel Duties: Public Authorities

Elements: Public Authorities: Note: may be road authority AND occupier (in control of public place)

Duty of Care and Breach:

1. Is ____ a public authority? Yes, they are a council / gov department / Crown / gov … (CLA s 34)

Note: must be liable AS a public authority, not as an employer!

2. Is ____ a road authority? Yes, they are the entity responsible for carrying out road work (CLA s 37(3))

Is the claim for failure to repair or inspect a road?

o If yes, “Here the claim is for failure to repair or inspect a road and there will be no liability, as [authority] did not have actual knowledge of the _____ (CLA s 37(1)-(2))”

o If yes, but IS knowledge, “Here the claim is for failure to repair or inspect a road and [authority] had actual knowledge of the _____, so section 37(1) will not apply (CLA s 37(2)). The principles in section 35 and 36 will apply. [see below]

Doesn’t have to be the top person who has knowledge but likely that it also can’t be bottom person (Roman).

3. Is ____ an occupier? Yes, there are in control of this public area.

CLA s 35:o Functions required to be exercised by the authority are limited by its resources and are to be

decided by reference to its broad range of activities (s 35(a), (c)).o Authority may rely on evidence of compliance with its general procedures (s 35(d)).

If evidence that many faults have not been rectified, court may find against public authority

o The allocation of resources is not challengeable (s 35(b)). Here, as it is a policy decision the courts won’t intrude (Graham Barclay; Heyman). (vs. operational) Policy: how funds are allocated, constrained by budget

CLA s 36: what would a reasonable public authority have done?

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Apply multi factorial test / analogy to other cases (below) (Perre v Apand; Sullivan v Moody)o Reasonably foreseeable that [what happened] if [PA’s act]o Nature of damage – duty of care more likely when personal injury or physical damage rather

than PELo Control of def, vulnerability of plaintiffo Relationship between plaintiff and defo Coherency of law

Eg. Stuart v Kirkland-Veenstra: statute gave police officers discretion so to find otherwise would be a conflict

o Indeterminacy

OCCUPIER CASES: Question not just was duty owed, but scope of duty?

o Nagle: pl injured when diving into basin, found that PA was negligent because they encouraged public to use the basin, campaign (decided in proximity era)

o Vairy: pl injured when diving off rock platform, court looked at:

Obviousness of danger; expectation that people take care of own safety

Council responsible for 27km of coastline – neither reasonable nor necessary to construct warning sign

Considered council’s liability in context of other risks

Recreational activity not encouraged by council

o Mulligan: pl injured when diving into creek, council held not liable – there had been no other accidents, dove from standing

o Romeo: council encouraged people to go to cliffs, parking area etc. erecting fence not practicable and sign no use in this case as girl was intoxicated

4. Other novel situations :

CLA s 35:o Functions required to be exercised by the authority are limited by its resources and are to be

decided by reference to its broad range of activities (s 35(a), (c)).o Authority may rely on evidence of compliance with its general procedures (s 35(d)).

If evidence that many faults have not been rectified, court may find against public authority

o The allocation of resources is not challengeable (s 35(b)). Here, as it is a policy decision the courts won’t intrude (Heyman). (vs. operational) Policy: how funds are allocated, constrained by budget

CLA s 36: what would a reasonable public authority have done?

Apply multi factorial test / analogy to other cases (below) (Perre v Apand; Sullivan v Moody)o Reasonably foreseeable that [what happened] if [PA’s act]o Nature of damage – duty of care more likely when personal injury or physical damage rather

than PELo Control of def, vulnerability of plaintiffo Relationship between plaintiff and defo Coherency of law

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Eg. Stuart v Kirkland-Veenstra: statute gave police officers discretion so to find otherwise would be a conflict

o Indeterminacy o The distinction between misfeasance and nonfeasance in relation to the conduct of public

authorities o The extent and nature of the power conferred upon the public authority by the relevant

statute (Pyreness SC)

Cases:

o Graham Barclay Oysters v Ryan: Plaintiff ate contaminated oysters, sued council and state for allowing oyster industry to be self-regulating. HELD: That neither council nor state owed duty to plaintiff. The Council’s control and legislative powers were not sufficient to support a private duty of care being owed to the plaintiffs. Critical was the lack of a reliable test for contamination. The existence of a statutory power does not mean that by failing they will automatically be in breach.

o Pyrenees SC v Day: Council employee had detected a fire defect and sent a notice to the previous tenant ordering its repair. HELD: Council owed a duty to owner, tenant and neighbour of premises. Council breached the operational duty of care owed to plaintiffs to ensure previous tenant repaired defect.

o Stuart v Kirkland-Veenstra


6. Damage :


OR


Defences

Remedies

Compensatory damages

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NEGLIGENT MISREPRESENTATION: look for ‘actions in tort’, ‘action under TPA’


Pure economic loss (PEL) = recognised harm


Three years to bring an action for personal injury (Limitation of Actions Act 1974 Qld (LAA) s 11). Six years to bring an action for economic loss (LAA s 10(1)(a)).



Work through each person’s claim! [… v …] – Negligent Misrepresentation

Elements: Negligent Misrepresentation:

1. Representation : identify ALL POSSIBLE (even if social setting) – can be oral, written, advice vs information, opinion, silence, duty to correct (where statement is true but later becomes false)

2. Duty of Care :

Relationship between pl and def – friends, fiduciary (r/ship of trust), unequal (one relying on other one)

MLC v Evatt Elements: (and can refer to relevant elements from other cases (see below))o Serious / business nature? If yes, implies reasonable reliance

Def needs to know it’s for a serious purpose (Tepko)o Circumstances such that speaker (def) ought to realise they are being trusted and that

recipient (plaintiff) intended to rely on the informationo Reasonable for plaintiff to rely?

eg. not reasonable for pl to rely on legal advice from def doctor Special skill not required but if evident shows reasonable reliance (Shaddock) Not reasonable to rely on audited accounts without further inquiry (Esanda v PMH) Payment for information suggests reasonable reliance (Hedley Byrne)

Other Factors:o Is there a disclaimer? (MLC v Evatt; Hedley Byrne) Disclaimers will be contrasted strictly –

must disclaim for what pl is arguing (Burke v Forbes)o Policy: indeterminacyo Liability is not confined to situations where information was requested, but if it has been

requested, suggests reasonable reliance (San Sebastian)

3. Breach : Here, the risk of … was foreseeable and not insignificant and a reasonable person would have taken precautions by … (CLA s 9). The [def] has breached the standard expected of a reasonable ____ not to mislead in giving advice or expressing an opinion (Hedley; MLC; Shaddock).

4. Damage :

Page 7


OR


5. Defences : contributory negligence; if def can prove that pl would have acted that way regardless of rep

6. Remedies : difference in pl’s financial position prior to relying on misrepresentation and after consequential (eg. conveyancing fees now incurred – Shaddock) loss of opportunity – if can be proved (eg. would have entered into different contract had

misstatement not been made) (Gates v City Mutual)

** Could it be fraudulent misrepresentation too???**

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FRAUDULENT MISREPRESENTATION / DECEIT: look for ‘actions in tort’, ‘action under TPA’

(If already written for negligent misrep, go straight to elements!)

Identify ALL parties & damage they have suffered: Pure economic loss (PEL)

Time Limits: A plaintiff has: Three years to bring an action for personal injury (Limitation of Actions Act 1974 Qld (LAA) s 11). Six years to bring an action for economic loss (LAA s 10(1)(a)).


Work through each person’s claim! [… v …] – Fraudulent Misrepresentation

Elements: Fraudulent Misrepresentation: Note: typically for commercial transactions, not domestic (Magill)

1. Is there a representation of fact : identify ALL POSSIBLE (even if social setting) – can be oral, written, opinion

NOT mere puff or silence (Peek v Gurney) (unless a half truth, failure to correct or legal or equitable duty to disclose) – Krakowski: example of half truth / silence

Whether something is a misrepresentation of fact is an objective test (Krakowski), but anything ambiguous is given the meaning the defendant intended.

2. Did [Def] know the representation was false or was recklessly indifferent (Derry v Peek)

3. Did [Def] intend for [pl] to rely on the misrepresentation : def only liable to those to whom statement was intended to be directed, but statement does not have to be made directly to pl (Langridge v Levy)

4. Did [Pl] rely on the representation ? (Horsfall v Thomas) Representation need only be a contributing factor

5. Did [Pl] suffer damage? (CBC v Brown)

[Plaintiff] suffered damage in the form of ______, which is recognised at law.

6. Defences: contributory negligence is no defence

Cannot disclaim liability for deceit because it is an intentional tort (CBC v Brown) Not a defence that plaintiff could have checked accuracy (Pearson v Dublin Corporation)

7. Remedies:

Compensatory damages (Smyth v Reardon) / Consequential loss (Doyle v Olby) / Aggravated damages / Exemplary damages / Loss of profits, if flow directly from misrep

NOTE: if not just asking for actions under tort, or if asking for actions under TPA / FTA:

Trade Practices Act 1974 (Cth) s 52 elements: Corporation (s 4(1)) Involved in trade or commerce (s 4(1)) Engaged in conduct (s 4(2)) which is misleading or deceptive (s 51A)

o Assessed objectively

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Fair Trading Act 1989 (Qld) s 38 elements Person in trade or commerce Shall not engage in conduct that is misleading or deceptive or is likely to mislead or deceive Right to recover limited to consumers (defined in s 6)

Page 10

PURE ECONOMIC LOSS RESULTING FROM DAMAGE TO ANOTHER’S PROPERTY


Pure economic loss - relational loss


Six years to bring an action for economic loss (LAA s 10(1)(a)).



Work through each person’s claim! [… v …] – PEL – Relational Loss

Elements: Pure Economic Loss – Relational Loss:

1. Duty of Care:

Was the economic loss reasonably foreseeable? (Necessary but NOT sufficient on its own)

Policy argument – indeterminacy:

o Was plaintiff reasonably foreseeable as specific individual rather than a general class (Caltex Oil v The Dredge) – if not really, cite Perre v Apand; Fortuna Seafoods)

o Did def have knowledge of pl as ascertained class? (Fortuna Seafoods)

Fortuna Seafoods – pl does not need to be “known” by def prior to breach, don’t have to be known in person sense, just that they would be considered)

Is the class small enough that the def might have known about them?

o Is there a physical or commercial closeness between pl and owner of damaged property (Perre v Apand; Fortuna Seafoods; Ball v Consolidated Rutile)

Policy argument – vulnerability of plaintiff

o Was pl a vulnerable person unable to protect themselves? (Fortuna Seafoods; Perre v Apand)

Ability to purchase insurance is not relevant (Fortuna Seafoods)

o Did def have knowledge of pl’s vulnerability?

o Was def in overall control of situation

Would duty be inconsistent with legitimate pursuit of def’s personal / commercial advantage?

o If they’ve been negligent, don’t have a right to do …

Would liability impose an undue burden on def (disproportionate to his blameworthiness)?

Reach conclusion


3. Damage :

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OR


Cannot claim lost profits! (Caltex Oil – could only claim extra transportation costs)

4. Defences

5. Remedies : compensatory damages

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PURE ECONOMIC LOSS RESULTING FROM PROFESSIONAL’S FAILURE TO PERFORM A SERVICE


Pure economic loss - professional’s failure to perform service





Work through each person’s claim! [… v …] – PEL: Professional’s failure to perform a service

Elements: Pure Economic Loss – Professional’s failure to perform a service: (eg. solicitor’s liability to 3rd

parties)

1. Duty of Care:

Hawkins v Clayton: Recognised duty of care to the executor of the will who could claim damages for breach Duty of care not owed to beneficiary Significant factor: establishment of a necessarily close / proximate relationship

Hill v Van Erp: duty of care owed to beneficiary of the will? Need something more than reasonable foreseeability Policy considerations :

o Indeterminate liability?o Not inconsistent with pursuit of personal / commercial advantageo Assumption of responsibility and relianceo Mustn’t be conflict between interests of beneficiary and interests of cliento No remedies in other areas of lawo Error only apparent after testator’s deatho Contractual obligation between Hill and testator for Van Erp’s benefit – gave rise to a duty

to Van Erp to effect these obligations


3. Damage :


OR


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4. Defences / Remedies

PURE ECONOMIC LOSS RESULTING FROM DEFECTIVE BUILDING


Pure economic loss – defective building





Work through each person’s claim! [… v …] – PEL: Defective Building

Elements: Pure Economic Loss – Defective Building:

NOTE: Bryan v Maloney has been extended beyond just builders to engineers and architects

1. Duty of Care : owed by builder to whomever is the owner when the latent defect first becomes manifest? (Bryan v Maloney)

Policy Concerns :

o Indeterminate liability? No because builder’s liability is limited to whoever is the owner at the time the defect first becomes manifest

o Legitimate commercial advantage? If [builder / architect] would owe a duty to the original owner, it would not interfere with their pursuit of financial gain to hold them liable to a subsequent purchaser

Superior knowledge, skills and experience ? Yes builder / architect would have superior knowledge, skills and experience to any owners of the building

Significant investment ? Yes, residence [/ to rent = investment]

Was a duty owed to the original owner ?

o Depends on the contract between [original owner] and [builder] and whether liability was excluded in that contract.

o Woolcock v CDG: original owner dictated things, no duty of care to original owner, no reliance by that owner, no assumption of reliability by engineer

Foreseeable that economic loss would result from negligent construction ? Yes, it is foreseeable that if [def] was negligent, economic loss would ensure to [fix negligence / defects…]

Vulnerability ? (Woolcock v CDG)

o If domestic: yes, current owner was unable to protect themselves against this loss.

o If commercial: capacity to protect themselves, could have gotten inspection done, warranty, expert assistant is readily on hand for commercial purposes etc (Woolcock v CDG)

NOTE: Bryan v Maloney applies to DOMESTIC dwellings… Woolcock = unsuccessful attempt to apply to commercial property

7. Breach : Here, the risk of … was foreseeable and not insignificant and a reasonable person would have taken precautions by … (CLA s 9). The [def] has breached the standard expected of a reasonable builder / engineer / architect (Glasgow Corp v Muir).

Page 14

8. Damage :


OR


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PURE ECONOMIC LOSS – TRULY NOVEL CASES


Pure economic loss – truly novel case





Work through each person’s claim! [… v …] – PEL: Truly Novel Cases

Elements: Pure Economic Loss – Truly Novel Cases:

1. Duty of Care : no one test, number of factors (Perre v Apand):

Foreseeability : should def have had pl’s interests in contemplations

Vulnerability : is pl vulnerable on def, or can they protect selves somehow?

Was def in overall control?

Def’s knowledge of pl as an ascertained class / of pl’s vulnerability

Physical / commercial closeness ?

Would liability impose undue burden on def ?

Policy Considerations :

o Indeterminate liability? Not issue with Perre v Apand (potato one),

o Concern not to render ordinary business practice tortious

Note: Perre v Apand: def (Apand) should have known:

o Special requirements of WA leg which prohibited importation of pots in affected area

o Famers like Perre operated in that 20km radius

o Pl’s had no way of protecting selves – how could they prevent outbreak on someone else’s property?

o Apand had control – controlled seed distribution (Apand knew seeds were infected)

2. Breach : Here, the risk of … was foreseeable and not insignificant and a reasonable person would have taken precautions by … (CLA s 9). The [def] has breached the standard expected of a reasonable … (Glasgow Corp v Muir).

3. Damage :


OR

Page 16



NOTE: PROPORTIONATE LIABILITY

Applies to all claims for economic loss/ property damage (CLA s28(1), (3))

Applies re several concurrent tortfeasors (s 30(1)) to breaches on/after 1 March 2005 (s 4(3))

Def’s liability for a plaintiff’s loss restricted to that for which the defendant is ‘responsible’ (s 31)

e.g. If A liable ($250,000) and B ($500,000) but B can’t pay A not liable for B’s shortfall (s 32A)

Exceptions: Proportionate liability will not apply to claims:

o By consumers: s28(3)(b) OR Against a concurrent wrongdoer who contravenes s 38 FTA (s 32F)

Page 17

NON-DELEGABLE DUTIES OF CARE – ONLY FOR NEGLIGENCE

NOTE: May have action against negligent person AND against (eg.) employer for non-delegable duty!


Psychiatric injury / Pure Economic loss / Consequential economic loss / physical injury Consequential psychiatric injury – recognised harm, [def] will owe a duty of care to [plaintiff].





Work through each person’s claim! [… v …] – Non-Delegable Duty of Care

Elements: Non-Delegable Duty of Care:

1. Was there a negligent act by a third party? If yes… (If no and not negligence – vicarious liability?)

2. Is there a non-delegable duty? There are a number of recognised categories (Leichhardt): Employers to employees (Kondis v STA)

o Applies to employees and to independent contractorso NOTE: may be BOTH vicariously liable AND owe non-delegable duty of care

Hospitals to patients (Ellis v Wallsend District Hospital) – provided patient has not specifically sought doctor, and that’s just where doctor was working from (Ellis v Wallsend Hospital)o Vulnerability and control o Special relationship, patients need care

Schools to students (Cth v Introvigne) – didn’t matter than NSW ran school – NDD of Cth!o Liability is not automatic, needs to be fault, not liable for intentional criminal conduct

(Leopre, Samin and Rich) Occupier to contractual entrant when extra-hazardous activity (Burnie Port Authority) Landlords to tenants (Northern Sandblasting – def owed duty to ensure stove repaired properly)

o After decision in Lepore: this type of situation, likely to be a duty to take reasonable care which may be discharged by appointing competent independent contractor

o Note: tenants not particular vulnerable, landlord not in occupation / control of premises Note: road authorities to road users = NOT a non-delegable duty (Leichhardt) because of

indeterminacy, lack of control of def… Note: if NOT recognised category: argue by analogy to recognised categories and discuss

characteristics of special relationship. Is there a special relationship?o Vulnerability and control – pls are very vulnerable in hospitals, schools etco Indeterminate liability?o Has def assumed responsibility for pl?o Dangerous activity (Bernie Port Authority)

Page 18

3. What is the duty ? To ensure reasonable care taken, which cannot be delegated

4. Breach : consider BOTH – negligence of third party AND negligence of person owing NDD

Here, the risk of … was foreseeable and not insignificant and a reasonable person would have taken precautions by … (CLA s 9). The [def] has breached the standard expected of a reasonable …

oby not taking reasonable care to prevent reasonably foreseeable harm (Glasgow Corp v Muir). (if person owning NDD)

oby not … (if third party)

5. Damage :


OR



Page 19

VICARIOUS LIABILITY – FOR ALL TORTS

Note: could also own non-delegable duty (if negligence) OR owe duty as eg, an occupier (recognised duty)Note: could also have action against person who actually committed tort

Identify ALL parties & damage they have suffered: Psychiatric injury / Pure Economic loss / Consequential economic loss / physical injury Consequential psychiatric injury – recognised harm, [def] will owe a duty of care to [plaintiff].

Time Limits: A plaintiff has: Three years to bring an action for personal injury (Limitation of Actions Act 1974 Qld (LAA) s 11). Six years to bring an action for property damage (LAA s 10(1)(a)).



Work through each person’s claim! [… v …] - Vicarious Liability

Elements – Vicarious Liability:

1. Existence of a relationship of employer and employee between the def and the tortfeasor (Stevens v Brodribb). A term used to describe the parties’ relationship is not conclusive (Narich v Commissioner of Pay-Roll Tax)

NOTE: if stated, ‘… is employee’ than don’t have to go through test

o Current test is multi-facet test (Stevens v Bodribb; Hollis v Vabu) Existence of control Mere fact that tortfeasor provides own equipment is not necessarily contrary to an employer-

employee relationship (Hollis v Vabu), but usually employees don’t provide own equipment Mode of remuneration – regular pay packets? Obligation to work exclusively for that employer / guarantee of work? Holidays? Employees usually have holidays Hours of work Deduction of income tax (employee) Wear uniform of def?

o Special cases:

Doctors, radiologists, matrons and nurses are employees (Roe v Minister of Health), specialist merely using the hospitals premises is not an employee

Armed forces members are not servants of the Crown (Cth v Quince) unless engaged in ordinary civilian-type activities in peacetime (Groves v Cth)

Police jointly liable with the state vicariously (Police Service Administration Act 1990 (Qld))

Commonwealth vicariously liable for tortious acts of public servants (Oriental Foods v Cth)

If an employee is borrowed, the employer who retains control will be vicariously liable; the onus is on the employer lending the employee to show a transfer of control (McDonald v Cth)

Tortfeasor may be an employee even if the service is free or infrequent (Brooke v Bool)

2. Did [third party] commit a tortious act (DIS v Long)?

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3. The tortious conduct must be in the course of employment; it cannot be an independent wrongful act (Bugge v Brown). Question of fact which depends on the particular circumstances (Bugge v Brown)

o Still considered to be in course of the employment if it is a wrongful mode of committing an authorised act, or a wrongful act actually authorised (Bugge v Brown)

o Frolic Doctrine (Joel v Morrison): If an employee takes an opportunity during employment to use time or resources for personal purposes, the employer is not liable (Storey v Ashton)

The purpose and extent of the deviation must be considered (Chaplin v Dunstan)

Employer will be liable if “not altogether unconnected” with the employment, or a small deviation (Chaplin v Dunstan)

If tortfeasor is engaged on the employer’s business and on personal business at the same time, the employer may still be liable (Century Insurance v Northern Island Road Transport).

o Express prohibition by the employer will not necessarily be a defence if the employee’s act was still a mode of doing what they were employed to do (Canadian National SS Coy v Lockhart)

If prohibition regulated how the employment was carried out, will still be vicariously liable (Rose v Plenty – prohibited from using children to help deliver milk – regulation; Phoenix Society Inc v Cavenagh – prohibited from driving drunk – regulation)

o If employee commits an intentional tort:

Was it committed in furthering the employer’s interests and incidental to performance of work? Yes, vicariously liable (Lloyd v Grace)

Was it done in employee’s own personal interests? Not vicariously liable (Deatons Pty Ltd v Flew)

4. Breach : Here, the risk of … was foreseeable and not insignificant and a reasonable person would have taken precautions by … (CLA s 9). The [def] has breached the standard expected of a reasonable … (Glasgow Corp v Muir).

5. Damage :

o But for [Def’s] actions [pl] would not have suffered damage of … (Civil Liability Act 2003 (Qld) s 11(1)(a); Flinch v Rogers). The damage would not be considered too remote (CLA s 11(1)(b); Wagon Mound No 2).

OR

o [Def] materially contributed to [pl’s damage] (Civil Liability Act 2003 (Qld) s 11(1)(a); McGhee v National Coal Board). The damage would not be considered too remote (CLA s 11(1)(b); Wagon Mound No 2).

6. Breach : CONSIDER BOTH! & consider whether reasonably foreseeable that what happened could have happened… Def must take reasonable care to prevent reasonably foreseeable harm

o Negligence of third party o Negligence of person who owes the NDD


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BREACH OF STATUTORY DUTY

NOTE: piece of leg in exam could give rise to breach of statutory duty OR negligence liability of a public authority OR BOTH!! - & don’t forget normal negligence actions citing (Donoghue v Stevenson)Identify ALL parties & damage they have suffered:

Psychiatric injury / Pure Economic loss / Consequential economic loss / Physical injury Consequential psychiatric injury – recognised harm



Jurisdiction: Presuming the facts happened in Queensland, Queensland law will apply.Onus: The onus is on the plaintiff throughout, and the defendant to raise any defences. Work through each person’s claim! [… v …] – Breach of statutory dutyElements – Breach of Statutory Duty:

1. Is there a private cause of action (PCOA) available under the statute (Josephon v Walker)? Question of law (O’Connor v SP Bray)o Statute may expressly allow / prohibit it (see relevant statute)

o If not expressed in statute, court will look at, in relation to the statute,:

Pre-existing state of the law and legislative history Is current statute replacing a statute that allowed for a PCOA (Byrne v Australian

Airlines)?

Is the [def/s] already subject to a common law duty of care? If yes, it is more likely that a PCOA under the statute will be inferred (O’Connor v SP

Bray)

The purpose and subject matter PCOA inferred where the purpose of the statute is the protection of health, safety and

welfare of members of the public or class of the public (eg. employees) (O’Connor v SP Bray)

Level of detail in regard to complying with statutory duty Court more inclined to infer PCOA where more detail (Waugh v Kippen) Phrases such as ‘ensure so far as reasonably practicable’; ‘must’ found to create a PCOA

(Slivak v Lurgi)

Whether the statue is intended to protect general public or more specific class of persons More specific the class, the more like a PCOA will be inferred (Schiliro v Peppercorn

Child Care Centres)

Whether there is a penalty for breach of statutory duty (O’Connor v SP Bray) In no penalty for breach, strong inference that PCOA is created If penalty, presumption that no PCOA is available (Doe De Murray v Bridges), but this

can be rebutted:

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o The nature of damage for which penalties are imposed here is personal injury, so a PCOA is more likely to be inferred (Dairy Famers Coop v Azaz) (cf property etc)

o The penalty of [penalty] is / is not very severe so a PCOA is not likely / is more likely to be inferred (Black v Fife Coal).

o The statute is presumed to provide a PCOA where penalty is imposed and leg concerned with workplace health/safety (O’Connor v SP Bray), as it is here.

Road safety presumed not to provide a PCOA (Tucker v McCann)

Delegated legislation – PCOA only available if enabling legislation could provide a PCOA (Byrne v Australian Airlines)

o Conclusion : Yes / no a private cause of action is / is not likely to be available.

2. Was the duty imposed on the defendant (DIS v Long)? (Eg. fine for ‘person in charge’)o Yes, the duty was imposed on the […], [def].

o Vicarious Liability??? : Depends on whether the statute specifies the persons upon who the duty is imposed or whether it leaves it open to a class of people who could be responsible (Progress & Properties v Craft)

3. Does the statute intend to prevent that kind of harm (Gorris v Scott)? o Yes, [def’s] [injury] is harm within the contemplation of the Act.

o Note : Sheep falling off ship because weren’t penned in accordance with Contagious Diseases Act BUT couldn’t sue under Act because Act not to prevent that type of damage (Gorris v Scott)

4. Is the plaintiff a person for whose protection the statute was created (Lochgelly v McMullan)?o Statute may be for a class of persons or public (Pask v Owen)

o Will depend on the wording of the statute

5. Has there been a breach of the duty ?o Yes, [def] has breached their duty to […] by […]

o Scope and nature of the duty must be established by the plaintiff

o Construction of the statute will determine whether duty is absolute or if negligence must be proved (Galashiels Gas Co v O’Donnell)

o NOTE: if public authority:

s 36 Civil Liability Act 2003 (Qld): act or omission of public authority does not constitute a wrongful exercise unless the act or omission was in circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its function.

Standard is that of a reasonable person

6. Was the damage suffered by the plaintiff caused by the defendant’s breach (Sherman v Nymboida Collieries)?

o If no time: Yes, [pl’s] [injury] was caused by [def’s] breach of […] (CLA s 9; Glasgow Corp v Muir).

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o Breach : Here, the risk of … was foreseeable and not insignificant and a reasonable person would have taken precautions by … (CLA s 9). The [def] has breached the standard expected of a reasonable … (Glasgow Corp v Muir).

o Damage :


OR


7. Defences : o NOT:

Volenti non fit injuria: can’t consent to a breach imposed by parliament (Wheeler v New Merton Board Mills)

Illegality / Joint illegal enterprise (Progress and Properties v Craft)o Contributory negligence (Piro v W Foster) (under apportionment legislation)

8. Remedies

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CONSEQUENCES OF DEATH OF PLAINTIFF

Where a person is the victim of a tort and consequently dies, two potential claims must be considered:1. Wrongful death2. Survival of action

1. Wrongful Death ( Supreme Court Act 1995 (Qld) (“SCA”) s 17):

Would the deceased have had an action against [def] (SCA s 17)? Yes, [def] was negligent.

Identify ALL possible dependentso Spouse, parent and child – must not just be a dependent, must have also BEEN dependent on the

deceasedo Beneficiaries can bring an action after six months, or immediately if they are the personal

representative (SCA s 21)

Is [pl] a dependent of the deceased (Supreme Court Act 1995 (Qld) (“SCA”) s 18)? o Yes, because she is [def’s] spouse / de facto partner / child under 18 / parent.

Was the death caused by the wrongful act (SCA s 17)?o If committed suicide, and there’s a definite link, will be sufficient (Habrall v Walker)o Lisle v Brice: suicide induced by pressure of mental illness that resulted from accident = sufficiento Test is not reasonable foreseeability, just must be a link.

Damages that can be claimed:o Pecuniary :

Portion of income that was used for children and wife – food, education, clothing, holidays Calculated until children reach 18, or extends beyond 18 if they are likely to go to university

Hanlin v Hanlin: to decide whether likely they’d go to uni, look at whether parents went, how they’re doing at school etc.

o Non-Pecuniary : If primary carer of kids, value assessed by market value (Gervan v Fenton) Loss of consortium Prospects of remarriage are not taken into account (De Sales v Ingrelli)

But if spouse has remarried, the court may take into account any financial benefits the spouse has received (SCA s 23A(4); De Sales v Ingrelli)

o Offsets? Life insurance is not set off (SCA s 23(a)) nor is superannuation (SCA s23(c)).

Time Limits: A plaintiff has 3 years from date of which action arose to bring an action for wrongful death (LAA s 11).Jurisdiction: Presuming the facts happened in Queensland, Queensland law will apply.2. Survival of Action Any action a deceased would have been entitled to bring before their death may be brought by the people

managing their estate (Succession Act 1981 (Qld) (“SA”) s 66). Here the deceased would have been entitled to bring an action for…

If negligence has been admitted, action can be brought after 3 year limitation (LAA s 11) [Pl] on behalf of [dec]’s estate, can sue [def] for:

o Hospital account, physio, medication etco Funeral costs (SA s 66(2)(d)(i))o Cannot claim for pain and suffering (s 66(2)) UNLESS deceased had commenced action before

death or injury was dust-related (s 66(2A))

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ASSESSMENT OF DAMAGES

1. Identify parties

Principles of Assessment:

Egg shell skull Indemnity Once and for all Lump Sum Duty to mitigate (s 53 Civil Liability Act 2003 (Qld) – respondent can notify claimant how they can

mitigate)

SPECIAL DAMAGES: the pecuniary costs incurred from date of accident [date] to date of judgement [date]:

Hospital and medical expenses

(if any gratuitous PAST payments): Remodelling of home is like a gratuitous payment, but a past expense capable of being quantified so can be claimed (Griffiths v Kerkeymeyer; Van Gervan v Fenton)

Loss of earning capacity - net salary (Supreme Court Act 1995 (Qld) s 15)

Any other pecuniary losses reasonably necessary and incurred

[Pl] may be awarded interest at an appropriate rate (CLA s 60) for the expenses she has incurred but this is discretionary (Supreme Court Act 1995 (Qld) s 47).

Set-Offs :

1. Tax (as stated, she will receive net income (SCA s 15))

2. Paid sick leave – offset

3. Long service leave will NOT be deducted as she is entitled to that anyway

4.Gratuitous payment – depends on the intention of the employer whether it will be set off or not, if it was to help pl, will be set-off so not over compensating but if it was to reward them for being a good employer, won’t be set-off (Zing v Kai).

5. Disbility pension, payments from Centrelink – set-off

6. Insurance and superannuation are NOT to be taken into account (will not be set-off)

7.Medicare benefits will NOT be set-off because she will have to pay them back, as is the case with Workers Compensation payments

GENERAL DAMAGES (damages that cannot be precisely calculated):Pecuniary (future financial):

Future hospital and medical expenses that are reasonably necessary

1. Faith healer in Philippines – not reasonable necessary (Turnbull v Vickory)

2.Eg. surgical procedure – if 75% chance of requiring it, 0.75 x cost of procedure (Malec v Hutton)

3.If pre-existing condition worsened by act – must take victim as find them (eggshell skull) so will be liable for those costs (eg. aggravated psych costs…)

4.Home care vs institution – pl has duty to mitigate loss so should be going to institution if cheaper but NOT if detrimental to physical or mental health (Sharman v Evans) – but doesn’t count if they would just be happier at home

If likely to be entitled to home care over institution (Rosecrance v Rosecrance)

Gratuitous care (Griffiths v Kerkeymeyer)

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1.NOT salary, eg, that carer misses out on, claim market value of care given (Van Gervan v Fenton)

2. Must fulfil requirements in Civil Liability Act 2003 (Qld) (s 59):

Necessary ((1)(a))

Need for services arises solely out of the injury ((1)(b))

Services provided for more than 6 hours per week and for more than 6 months ((1)(c))

o Once reach that threshold cost of care can be awarded for periods where falls below threshold (Kriz v King)

Take into account what was done before ((2)) – if carer has always done housekeeping won’t get paid for it now (Ngyen v Ngyen)

Offset any benefit carer receives and time pl spent in hospital (Skelton v Collins)

Was pl providing grat care for someone else??? CLA: s 59A-59D, can now claim if:

1.Pl awarded more than $35,000 general damages (so will first have to assess general damages)

2. Recipient of service was unborn child or person who resides at pl’s residence

3. Care provided for more than 6 hours a week for at least 6 months

Future loss of earning capacity ( CSR v Eddy ) :

1. Calculation:

1. Period for which plaintiff might have been expected to earn if no injury (Skelton v Collins)

Pre-accident retirement age (note: if pre-existing condition meaning wouldn’t have worked past 50 – period of assessment is until 50)

Effect of injuries – never work again, partial work etc

- If incapacitated for rest of life: date of injury until age of expected retirement

- If full recovery: until date of recover

If now will die before would have retired – lost years component

2. Evidence of earnings at time of incident

3. Consider any specific future events (good and bad):

Promotions vs. pre-existing health problems

Specific future events assessed on ACTUAL probability (Malec v Hutton)

4. Calculations net of tax Supreme Court Act 1995 (Qld) s 15; & deduction for medicare levy.

5. Reduction made for vicissitudes of life (Wynn v NSW Ministerial Corp)

Note: Husher v Husher: could claim 100% of income (even though partnership 50/50) because husband did everything – HC considered what pl had actually lost…

Note: If, eg, pre-existing illness – 15% chance she would have worked past 60, so period between 60 and 65 reduced by 85% (65 = retiring age from employer) (Malec v Hutton)

2. Note: If earnings above 3 x average weekly earnings ($153 816):

Earnings above the amount 3 x weekly earnings will be disregarded (CLA s 54)

Eg. Chance of promotion to be taken into account – note: if goes over amount specified in s54 CLA, must ignore extra bit!

All future pecuniary losses will be discounted by 5% under indemnity principle ( Supreme Court Act 1995 (Qld) s 16; CLA s 57).

Non-Pecuniary (CLA 61, 62 and Civil Liability Regulation 2003 (Qld) Sch 6A) :Page 27

Assessing the ISV (required as per CLA s 61):

1. Note: if multiple injuries: As there are multiple injuries, the ISV will be allocated according to the dominant injury (CLR Sch 3, s 3) which here is the … (the one with higher ISV / higher ISV range).

2. Because breach occurred prior to / on 30 June 2010, CLR Sch 6A, s 1 applies (CLR s 6A(2)). The maximum amount can be $250,000.

3. Because breach occurred after / on 1 July 2010, CLR Sch 6A, s 2 applies (CLR 6A(3)). The maximum amount can be $294,500.

4. If given ISV: The court would have taken the following into account when determining the ISV OR If not given ISV: The court will take the following into account when determining the ISV

Degree of insight – if know what’s going on it increases ISV

Age and life expectancy

o Young? / Life expectancy reduced because of injury (Sharman v Evans)?

o Eg. [pl] would have lived another 30, reduced by 20 according to doctor so loss of 20 years of life – 10 years left

Pain and suffering – can be mental anguish

o Subjective, actual physical pain (Teubner v Humble)

o Mental illness consequent upon physical injures

o Degree of pain

o If pl unconscious, no consideration of pain (Skelton v Collins)

Loss of amenities (eg. looking after grandchildren, gardening, hobbies etc)

o Objective and subjective (Skelton v Collins)

Aggravation of [pl’s] pre-existing [condition] will be taken into account (CLR Sch 3, s 7).

5. If not given ISV: ISV: [pl] is likely to be on higher / lower end of scale

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PRIVATE NUISANCE

Private Nuisance: The tort of private nuisance protects the plaintiff from unlawful interference with his or her use and enjoyment of the land (Hargrave v Goldman).Time Limits: A plaintiff has:

Six years to bring an action for private nuisance (LAA s 10(1)(a)).

Jurisdiction: Presuming the facts happened in Queensland, Queensland law will apply.Onus: Pl to establish title to sue and prima facie interference, Def to then establish reasonableness and / or any defences (Kraemers v AG (Tas))Work through each person’s claim! [… v …] – Private NuisanceElements

1. Title to sue – legally recognised interest in lando Owner or lease (Malone v Laskey)

o Mere occupier (even if family member) does not have title to sue (Hunter v Canary Wharf; Oldham v Lawson)

QCA recently held that licensees may have title to sue (Deasy Investments v Monrest)

2. Who can be sued o Person in occupation of land from which nuisance emanates can be sued for personal acts and

for acts by others authorised by the occupier (Laugher v Pointer)o Landlord only liable for acts of tenant if they authorised the nuisance (Tetley v Chitty)

o Occupier not liable for nuisance on land without his permission, unless knew of nuisance and failed to abate it (L’Estrange v Brisbane Gas Co)

3. Protection of a legally recognised right o A right of use or enjoyment of the land, including the right to use the land for profit and the right

to use the land free from excessive noise / fumes (Sedleigh-Denfield v O’Callaghan) Re loud trucks (Houso v Esso Petroleum)

o Right to structural support of land (Property Law Act 1975 (Qld) s 179)o Right to structural support of buildings (PLA s 179)o Right of air (Cth v Registrar of Titles Victoria)o Riparian rights – waterway… (Grant Pastoral v Thorpe’s)o Right of way (Hender v Gohl)o No right to view (Victoria Park Racing v Taylor); no right to uninterrupted TV reception

(Hunter v Canary Wharf)

4. Damage : state damage suffered – either material damage or interference with use and enjoymento If material damage (actual damage), must be so substantial as to cause harm (Munro v Southern

Diaries) Nonfeasance : (no action to remedy nuisance) def only liable if they failed to act

reasonably (Leakey v National Trust) Misfeasance : may not be strict liability (as was in St Helen’s Smelting v Tipping) because

of principle held in Burnie Port Authority v General Foods

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5. A substantial and unreasonable interference ( Munro v Southern Diaries ) :[If no material damage, interference must be both substantial and unreasonable]

o Munro: loss of one night’s sleep = substantial interference

o In determining unreasonableness:

Locality : eg. industrial activities in residential area may be unreasonable (Sturgess v Bridgman); Munro: interference caused by stabling was actionable even though def had been doing it since 1934

Time : loud noises at night or early in morning (Halsey v Esso) or outside business hours (Wherry v KB Hutchinson) may be unreasonable

Duration : how long each day, for how many days, over what period of time are all relevant (Sedleigh-Denfield v O’Callaghan)

Nature of the activities : Prostitution = injunction granted (Thomas-Schwab v Costaki); demonstrations = unreasonable (Dollar Sweets)

Availability of alternative means : if alternatives which are reasonably practical are available, this may render the means used unreasonable (McMahon v Catanzaro)

Motive : If def acts with malice, court will lean towards interference being unreasonable (Hollywood Silver Fox Farm v Emmett)

6. Conclusion : has there been private nuisance?7. Defences :

o Statutory Authority : does statute authorise activities which at common law would create nuisance? Onus is on the def (Metro Asylum District v Hill)

o Pl’s own default : If pl contributes / brings on nuisance = good defence (Lawrence v Obee)

o Pl’s abnormal sensitivity : (Robinson v Kilvert); won’t succeed when def has acted maliciously (Christie v Davey)

o Consent : only applies to occupiers in same building that impliedly consent to nuisances which arise from provision of common services and involve no negligence on part of def (Kiddle v City Business Properties)

o Not defences :

Social utility/benefit to public of the nuisance Def's premises are the most suitable for carrying on the activity Pl came to the nuisance (Bliss v Hall) Def's activity would not be a nuisance if other's weren't doing the same thing (Derby

Angling v British Celanese) Common usage in the locality (St Helens v Tipping)

8. Remedies :o Abatement : to be used cautiously (could = trespass) (self-help) (Lemmon v Webb)o Injunction : discretionary remedy – won’t be granted if damages are adequate remedy

Quia timet injunction – granted if pl proves that real possibility of substantial damage to pl’s land or comfort (threatened nuisance)

o Damages : compensatory for interference and for any damage to chattels / personal injury (Moss v Christchurch Council)

If no damage yet suffered, damages in equity may be available if threatened nuisance.

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Documents

NOVEL DUTIES OF CARE – PSYCHIATRIC INJURY Web viewMoss v Christchurch Council) If no damage yet suffered, damages in equity may be available if threatened nuisance. Author: T Eustace