Torts Assessment- Final Copy

Bertrand v Clark

H: Can Angus be considered an employee of Clark?

Assuming Bertrand’s action in negligence will succeed, for vicarious

liability to be imposed, the defendant and the wrongdoer must be in

a relationship, the most common one being that of employer and

employee. Secondly, there needs to be a connection between the

act of the wrongdoer and the relationship with the defendant – for

example, the act must have been performed within the course of

employment. Lastly, the act or omission must be wrongful.

To clarify whether A was under a contract of service, or contract for

services, we would historically consider the test of employer’s

‘control’ over the employee’s behaviour. Recognising that in a

modern society with specialisation, it is less likely an employer will

be able to control how a job is done1.

This can be analogised to the facts, assuming C would have been

unable to build the extension, hence the agreement that A would

complete the work. Moreover, C assigned A to comply with his wish

for the work to be completed to a high standard – insinuating A was

a reputable builder, and was more capable than C, hence the

delegation.

The common law has been sufficiently flexible in adapting to

changing social conditions. Emphasis has been shifted from the

control test to other methods2, forming a general guide to

distinguish an employee from an independent contractor.

1 Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury (Sydney Law

Book Company, 2nd ed, 1979) pp 72-3.

2 Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 160 CLR 29.

They were employed in Stevens v Brodribb Sawmilling Co Pty Ltd3.

The right to have the individual to complete the work, the right to

suspend or dismiss the individual, the right to exclusive services of

the individual and the right to dictate place of work, hours, and the

like, would all point to an employer/employee relationship4.

Conversely, there are considerations that would find in favour a

contract for services, such as provision of own equipment, and

creation by the contractor of goodwill or saleable assets in the

course of his work. The facts at hand may not support such a

finding, as C supplied the necessary equipment. Yet A was allowed

to work his own hours – contravening the right to dictate hours.

Control remains present within the facts, further supporting an

employer/employee relationship. The work had to be completed

within the specific time frame of six months and had to be

completed by A, unless C explicitly stated a substitute could replace

A. A was under a contract of service for C, who has assumed

responsibility through direction to A on a time frame and the need

to complete the work unaccompanied.

Hollis v Vabu Pty Ltd may be called upon5.

Vabu Pty Ltd was a courier, conducting business as Crisis Couriers.

When one of their 30-odd cohort of bikers hit a pedestrian, a court

was required to find whether Vabu were vicariously liable, through

demonstrating an employer and employee relationship.

To analogise the facts with Hollis, the aspect of money is

comparable.



5 Hollis v Vabu Pty Ltd [2001] HCA 44.

A was to be paid a once-only lump sum of $50 000, as opposed to a

wage or salary. In Hollis, couriers were similarly only paid for each

successful delivery. Like the couriers, A could not refuse work, and

had little control over the manner of performance of work, given the

six month time frame. It could be argued that A and C had an

employer and employee relationship.

The Salmond test may aid in determining whether the act took place

within the course of employment6. This asks a court to determine

whether the act was either authorised, or unauthorised, but so

connected with those authorised acts that it might be regarded as a

mode of doing what had been authorised7.

The case of Bugge v Brown8 may elaborate. The act of cooking lunch

had been authorised for the grazier, although cooking at the old

dam was prohibited. He disobeyed and lit his fire at a chimney near

the dam. The fire spread and caused extensive damage. “The very

prohibition to cook at the old dam connotes that the act authorised

is…cooking, and that the place is not an essential part of the act9.”

A is in the middle of working on the extension when the ladder falls

from his car, injuring B. The incident occurred while performing the

precise and delegated task of working on the extension, thus falling

within the course of employment. Even if A acted in contravention of

instruction from C, which he did not, the act might still remain within

the course of employment.

The defence could put forth, A was on a ‘frolic of his own,’ and the

injury caused emanated from a deviation from his job. As seen in

Deatons Pty Ltd v Flew10 where the plaintiff was injured by a

barmaid who hit him in the eye with a glass, such was the finding.

6 Harold Luntz et al, Torts Cases and Commentary (LexisNexis, 6th ed, 2009) p 818.

7 Ibid.

8 Bugge v Brown (1919) 26 CLR 110.

9 Bugge v Brown [1919] 26 CLR 18.

10 Deatons Pty Ltd v Flew (1949) 79 CLR 370.

The act was deemed a retort and neither under the employer’s

authority, nor in consequence of anything the barmaid was asked to

do. A was unprovoked and appears to have let the ladder fall from

his car accidentally. The occasion for the injury would hence appear

to have existed within the course of employment, with A and C in

the pre-existing employer/employee relationship.

Judy v Cameron

H: Does Cameron’s failure to close the window render him liable for

Judy’s stolen jewellery?

Judy (J) and Cameron’s relationship does not fall within an

established duty category, however it could be argued that

Cameron’s omission has clearly and directly caused property

damage to J, suggesting a novel case. To explore existence of duty,

the Atkin test in Donoghue v Stevenson may be employed. “You

must take reasonable care to avoid…omissions which you can

reasonably foresee would be likely to injure your neighbour…

extend[ing] to such close…relations that the act complained of

directly affects a person whom the person alleged to be bound to

take care would know would be directly affected by his careless

act11.”

Cameron and J were flatmates. Such closeness would indicate

Cameron should have been aware of the possibility J would be

affected by his omission in question. Cameron was both aware of his

carelessness, and the fact he ought to keep the windows closed.

The foreseeability someone would come upon the house and enter

with the purpose of taking property, given the wealth present in the

suburb, is high.

11 Donoghue v Stevenson [1932] All ER Rep 1 House of Lords.

Drawing upon Modbury Triangle12, the argument to find a duty was

put forth with the assumption that, had the lights been left on in the

shopping centre carpark, the attack would not have happened.

However, this confused capacity and obligation13. As occupier of the

apartment – as the defendant occupied the carpark – Cameron had

the capacity to decide when the windows would be shut. This does

not mean by default that Cameron assumed a particular

responsibility to protect others from third party criminal activity. The

nature of the harm was such that Cameron had no control over the

actions or intentions of Gertrude. However, within the case, it is

mentioned, “the criminals were not enticed to the carpark by the

appellant14.” It could be argued that Cameron not deter criminal

activity, and may have in fact attracted it. It is also stated, “there

are circumstances where the relationship between two parties may

mean that one has a duty to take reasonable care to protect the

other from the criminal behaviour of third parties, random and

unpredictable as such behaviour may be15.”

Within this circumstance, the foreseeability, given the nature of the

suburb, that someone would enter the residence via the open

window to cause harm, would point to a duty of Cameron’s to

protect J – someone he had a pre-existing special relationship with

as a flatmate.

Breach must next be determined. As it would be inappropriate to

resolve this in the abstract, the negligence must be particularised

and determined by the CLWA16. There is a failure on Cameron’s part

to ensure windows were closed.

12 Modbury Triangle Shopping Centre Pty Ltd v Anzill (2000) 205 CLR 254.

13 Ibid.

14 Ibid.

15 Ibid.

16 Civil Law (Wrongs) Act 2002 (ACT).

The elements which must be satisfied are a person in the

defendant’s position, with the knowledge and information the

defendant had – or ought reasonably to have had – at the time of

the incident17. The risk must be reasonably foreseeable, not

insignificant, and, in those circumstances, a reasonable person in

Cameron’s position would have taken those precautions18.

Cameron did have the knowledge that the windows should remain

shut when the house was empty. For him to leave them open would

allow for the reasonably foreseeable, and not insignificant, risk of

property damage to either him or his flatmate, Judy. The third

particular would also appear to apply.

The next subsection considers the probability the harm would

happen if precautions were not taken, the likely seriousness of the

harm, the burden of taking precautions to avoid the risk of harm,

and the social utility of the activity creating the risk of harm. The

harm may well have occurred had precautions not been taken,

however the actions of Cameron most certainly elevated the risk..

The likely seriousness of harm is high, given the unpredictability of

third party criminal activity and the knowledge of criminals of the

suburb’s wealth. Possibility of extensive harm places greater burden

on Cameron to ensure no risk was created. The burden upon

Cameron to shut the windows is very low, as is the social utility of

leaving them open, and would likely not be considered, as would the

social utility of leaving them open. Burden upon Cameron is low,

and the gravity of possible harm is very high, in light of the wealth

of the suburb and the foreseeability someone with poor intentions

would see and enter through the open window.

17 Civil Law (Wrongs) Act 2002 (ACT) s 42.

18 Civil Law (Wrongs) Act 2002 (ACT) s 43 (1).

Regarding causation, the negligence must be a necessary condition

of the caused harm, and the appropriateness that the scope of

liability for the defendant should be extended to the harm caused19.

It can be argued the open window was not necessary in bringing

about the loss. If the same scenario were to be imagined, without

the act of Cameron, Gertrude may have still broken in through

other means. Yet it is not clear that Gertrude had the previous idea

of breaking in, and she may have entered purely because of the

open window. However, it seems Cameron’s behaviour was not a

necessary condition as without his omission, Gertrude may have

caused the same damage.

The appropriateness of the scope of liability can be related to the

question of duty, and whether there were any subsequent

independent events between the omission and J’s injury which

would render it inappropriate to blame Cameron. The concept of

remoteness will also arise, as even if Cameron’s behaviour is

responsible for the harm, the kind of harm suffered may be too

unpredictable or unforeseeable to appropriately be attributed to his

action.

Gertrude’s action is a subsequent independent event and can be

seen to break the chain of causation. To analyse remoteness, the

kind of harm, manner of incurring the harm and extent of the harm

must be considered. It can be reasonably said the event which took

place is the very kind of thing Cameron was meant to guard against

for his housemate. In terms of scope of liability, it is necessary to

focus on the kind of damage, not the manner in which it was

incurred20.

Scope of liability requires value judgements and policy

considerations. Whilst Cameron is not entirely liable for Gertrude’s

entrance, there are two possible intervening events – his

carelessness and the damage incurred.


20 Chapman v Hearse (1961) 106 CLR 112.

Entry of Gertrude was free, deliberate, informed – but not an

intervening event, as it was the outcome of the very risk Cameron

held a duty to prevent against21. It can be said that Gertrude’s

entrance was not an intervening event as it was so incredibly likely

someone would come in.

It is likely Cameron will be found by a court to have acted

negligently.

Todd v Canberra Bus

The company has already admitted negligence in causing the bus

accident which killed eight and injured others. Todd’s depressive

condition, for the purposes of this discussion, is a recognised

psychiatric illness. The issue becomes whether Canberra Bus’

conduct gave rise to a risk of injury that could include mental harm.

A duty is owed if a reasonable person in the defendant’s position

could reasonably forsee (1) that a person of normal fortitude

(2)might suffer a recognised psychiatric illness were proper care not

taken by the defendant22.

For the application of the section to relate to mental harm, the court

must consider, whether or not the harm was resulting from sudden

shock (1), whether the plaintiff witnessed at the scene a person

being killed, injured or put in danger (2), the nature of the

relationship between the plaintiff and anyone killed, injured or put in

danger (3), and whether there was a pre-existing relationship

between the plaintiff and defendant (4)23.

21 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.



The considerations above are not necessarily determinative. There

may exist a duty for Canberra Bus so long as there exists

reasonable foreseeability a personal of normal fortitude in Todd’s

position could suffer a recognised psychiatric illness, in absence of

necessary care.

It does not appear farfetched or fanciful that an individual of normal

fortitude in Todd’s position, on hearing a screech of brakes and then

a loud crash, and subsequently learning of a grave bus accident

which left several dead, would develop some form of depressive

illness due to a sudden or disturbing impression on the mind24.

We must consider whether Todd’s illness was a result of sudden

shock25. In W v S, the court took an expansive approach to what

they considered sudden shock; there was less of a temporal limit to

the concept, as it related more to emotional response to a stimuli.

Such a broad reading would mean Todd’s shock experienced

continued even after he was ushered away by emergency

personnel.

Todd did not witness people being killed, injured or put in danger,

nor did he have a relationship with any passengers of the bus.

In considering the relationship between the plaintiff and defendant,

Annetts26 may be of use. The antecedent relationship between the

plaintiff and defendant supplied the basis for importing a duty of

care27.

24 Wicks v State Rail; Sheen v State Rail [2010] HCA 22 at 37.


26 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at 49.

27 Ibid.

“Sorrow does not sound in damages…A plaintiff…cannot recover…

for a ‘shock,’ however grievous, which was no more than an

immediate emotional response to a distressing experience…It is,

however, today a known medical fact that severe emotional distress

can be the starting point of a lasting disorder of mind… if it be the

result of a tortious act, damages may be had28.” As Todd’s situation

appears analogous to this, the admittedly negligent act of Canberra

Bus may be found to have inflicted mental harm upon Todd.

Oscar v Stephen

Stephen’s actions would appear to constitute a problematic case.

Therefore, both foreseeability and relationship factors, involving

decided cases, must be considered.

To explore assumption of vulnerability, we consider NSW v

Godfrey29, where it was held that responsibility and duty of care for

the gaolers was confined to the prison itself, and to the course of

the escape. Assumption of responsibility involved factors which

point to the undertaking of a task leading another to rely on its

being performed. Stephen had assumed the obligation to aid Oscar,

despite no such obligation to rescue. The fact that Stephen took

responsibility and acted to Oscar’s detriment may suggest a duty of

care.

In terms of vulnerability, as Oscar was injured, it could be argued he

was partially reliant upon Stephen as he approached him to help.

Yet Oscar’s proximity to his home is also mentioned, raising

possibility if he yelled for help, his family could have come to aid

him thus removing reliance on this stranger.

The injury would have healed in several days, implying it was not

severe and Oscar may have walked himself home.

28 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 390.

29 State of New South Wales v Godfrey (2004) Aust Torts Reps 81-741 (NSW CA).

To a degree, Oscar was vulnerable as he did not choose the method

of rescue attempted by Stephen, who held this element of control in

the relationship.

The judgment of Brett MR in Le Lievre v Gould30 which Lord Atkin

cites makes it clear that, “the general principle expresses a duty to

take reasonable care to avoid doing what might cause injury to

another, not a duty to act to prevent injury being done…by

circumstances for which nobody is responsible31.” Stephen had done

nothing to put himself in a relationship with Oscar, who was in

distress. He may have felt a moral duty to assist, however this does

not a legal duty make.

Generally, the law does not impose legally enforcable duties upon

one citizen to help another32. Outside special relationships such as

that of husband and wife, a stranger is not obliged to rescue; to feed

the hungry or give water to the thirsty33. However, this would

concern omissions, and not positive acts. Stephen undertook a

positive act and could thus be considered causally responsible for

Oscar’s harm.

The question of breach must next be determined. Stephen did not

have the knowledge that his actions would cause harm. Firstly, he

believed Oscar was having a fit. Secondly, he employs an old-

fashioned method to relieve the fit – which a person in the

defendant’s position ought to have known was incorrect, seeing as

modern medicine has long disapproved of such methods. Moreover,

it is difficult to imagine that the physical response to a twisted ankle

could make Oscar appear as if he were having a fit.

The harm would certainly not have occurred had precautions not

been taken.

30 Le Lievre v Gould [1893] 1 QB 491

31 Le Lievre v Gould [1893] 1 QB 491 at 581.

32 Harold Luntz et al, Torts Cases and Commentary (LexisNexis, 6th ed, 2009) p 409.

33 Ibid.

The probability of harm is quite high given the method employed

and disapproval of it in modern medicine. Thirdly, the burden upon

Stephen to not come to Oscar’s aid was very low, as there exists no

legal obligation to do so. Lastly, the social utility of creating the risk

of harm may be argued to exist as Stephen believed he was aiding

the situation and acting in a positive way to help a member of

society.

Causation must be considered in turn. That the negligence must be

a necessary condition of the caused harm, and the appropriateness

that the scope of liability for the defendant should be extended to

the harm caused34. It can be strongly argued the positive act by

Stephen was the necessary condition for the harm. Had Stephen not

undertaken the method, Oscar would have likely been able to safely

walk home, and his ankle would have healed within a couple of

days.

It appears there are no independent events to break the chain of

causation and Stephen’s action clearly and directly resulted in the

harm incurred. It is also not remote to consider that this method

adopted would result in such severe injury. Stephen’s action was

definitely the necessary condition for the harm.

Next, defences are to be considered. Here emerges a key aspect of

the case. This provision applies to protection of good samaritans

from liability. ‘A good samaritan, for the purposes of the legislation,

implies a person acting without expectation of payment, who does

not incur personal liability for an act done…honestly and without

recklessness, to a person who is apparently a) injured or at risk of,

or b) in need of emergency medical service35. It can also include a

medically qualified person, however from the facts it does not

appear Stephen satisfies this condition.



It can be determined that Stephen came to Oscar’s aid without

anticipation of payment, when he saw he was injured after falling

badly on his ankle. Stephen appeared to be concerned for Oscar’s

condition and rushed to help with a method he honestly believed

would aid to the situation. However it could be said Stephen should

ought to have known the inappropriateness of his actions and

henceforth acted recklessly in administering his help to Oscar.

However, Stephen is to be held at the standard of the person with

limited medical knowledge. As it is mentioned the method is

disapproved of by modern medicine, and not by ociety in general,

Stephen cannot be held to have known the method was incorrect.

Next, we will still move to compensatory damages. Oscar will be

entitled to recover for any diminuition in capacity to earn. In

assessing these damages, the limit is set as 3 times the average

weekly earnings a week36. Oscar may have income insurance

however, which would allow him access to greater funds than the

court would allow. From the average earnings, the court would

deduct costs incurred from travel and tax paid on the income, for

example. These damages would likely be rewarded on the

assumption Oscar would have retired at age 65.

In McCracken v Melbourne Storm Rugby League Football Club Ltd, a

footballer increased his property development activities after his

injury, allowing for greater economic gains than he lost as a

footballer. He received no damages for loss of earning capacity as

he failed to show he would have made similar gains if he had

continued as a footballer37.

Oscar is described as now, ‘quite wealthy’ due to his increased

investment in the stock market.


37 McCracken v Melbourne Storm Rugby League Football Club Ltd (2007) Aust Torts Reps 81-925

(NSW CA).

We would need further information from the facts as to whether he

is wealthier than he would otherwise be, were he still working. A

court may reduce his damages due to his investments.

Oscar will also recover for medical expenses, so long as these

remain reasonable, as in Sharman v Evans38 where it was deemed

only the cheaper, more reasonable alternative of hospital care

would be compensated for.

Oscar requires care on a weekly basis. The loss here is the need for

services, which does not diminish simply because they are free. It is

arguable that if Oscar would receive damages due to his need for

services, which Stephen would provide – Stephen would effectively

be paying twice. An argument was accepted in England in Hunt v

Severs39 that damages would not be awarded for services provided

by the defendant, as Stephen, in this instance, will ‘pay’ through

provision of the services.

Oscar has received $2000 from his friends at his local golf club, paid

on the basis that he was to take benefit of the payment irrespective

of whether he later received tort damages. The facts may be

analogised to Zheng v Cai40, where the original plaintiff was injured

and subsequently received funds from a religious organisation of

which she was a member and volunteer. The test in Espagne

deemed the payments were made to assist her, and not to benefit

the tortfeasor. Hence, the payments should not be deducted.

Oscar’s benefits would likely not be deducted.

38 Sharman v Evans (1977) 138 CLR 563.

39 Hunt v Severs [1994] 2 AC 350 at 361.

40 Zheng v Cai [2009] HCA 52.

Damages for non-pecuniary losses would also be received, assessed

globally and given as one sum. Within the CLWA these comprise

pain and suffering, loss of amenities of life, loss of expectation of life

and disfigurement41. Oscar suffers periods of unconsciousness as a

result of his injury. Referring to Skelton v Collins42, where a 17 year

old’s injuries rendered him unconscious, we could attempt to

analogise the facts. He was awarded no damages for pain and

suffering, as it was deemed his permanent state removed his ability

to recognise his pain, or the fact his life had been shortened.

However, from the facts we interpret that, but for the fits of

unconsciousness suffered, Oscar remains aware of his suffering and

the fact his life has been shortened. He remains sufficiently aware to

be able to successfully invest within the stock market and reap large

gains, so it is likely he is aware of his pain and reduced life

expectancy.

41 Civil Law (Wrongs) Act 2002 (ACT) s 99

42 Skelton v Collins (1966) 115 CLR 94.

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