Torts: Cases, Legislation and Commentary

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