Torts : cases and commentary

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