Torts Textbook Summaries

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes Meggie Zhang

CHAPTER 1: General ObservationsCHAPTER 2: General Considerations Appertaining to Trespass

CHAPTER 3: Intentional Torts to the Person

BATTERY - any act of the defendant which directly and intentionally/negligently causes some physical contact with the plaintiff and without his/her consent

State of mind of the defendant o Most suits for battery are based on intentional acts o An act will be intentional if the defendant ‘meant to do it’o It is not needed to prove that the defendant had intended to cause

injury/harm, merely that the defendant had intended to do the action, with the knowledge that his action would substantially certainly result in the act complained of

o If A, throwing a stone with the intention to hit B, hits C instead, it would be battery, provided that given the particular circumstances, C is likely to be hit (James v Campbell; Ball et Uxor v Axten)

o Connection between liability in law of torts and transferred intent in criminal law

o The defendant’s act must be voluntary – e.g. if a third party forcibly carried the defendant onto the plaintiff’s land, then the third party is liable

o Rule as to involuntary acts – Commissioner Lozier Stokes v Carlson

No consent by the plaintiffo Trespass to a person presupposes that the act was committed without the

permission of the plaintiff – therefore lies the question of who bears the onus of proving consent or lack thereof

o In Australia (but not England or New Zealand), the onus is on the defendant to prove consent to the alleged trespass (Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case))

o Tort of battery aims to protect the physical integrity of an individual, who need to only prove a direct interference

Character of the act of the defendant o There can be no battery unless there is an act by the defendant and there

is contact with the plaintiffo Every person’s body is inviolate (Holt CJ Cole v Turner)o Idea of ‘implied consent’ in this modern society where people expose

themselves inevitably to the risk of bodily contact (e.g. in super market, busy street)

o Collins v Wilcock: test – whether the contact went beyond the ‘generally acceptable stands of conduct’ of everyday life acts of physical contact fall into 2 categories: 1) ordinary conduct of daily life (permitted) 2) outside this acceptable range (prima facie be cases of battery)

o Protects against all unpermitted and unwelcome contacts


o The act must directly cause the contact – an injury is direct if it follows so immediately after the act that it may be considered part of the act - it is consequential if by reason of some obvious and visible intervening cause

o If the contact is with an item of the plaintiff’s clothing, battery may be committed when it involves force (R v Day; Fagan v Metropolitan Police Commissioner)

Damageso Battery is actionable per se (without proof of damage) – once the tort has

been proved, consequential loss of goods and personal damage can be recovered (whether the injury is foreseeable or not)N.B. this is unlike an action founded in negligence

o Courts can award additional damages for insult/injury to feelings for a battery which has also caused physical harm

o Exemplary damages (damages meant to deter or reform the defendant) can be awarded where the defendant acts in contumelious (scornful and disregarding; insolent) disregard of the plaintiff’s rights (but not when the defendant has already been punished under criminal proceedings)

o Provocation (action or speech which is held likely to prompt physical retaliation) on the part of the defendant may lead to a reduction of exemplary damages

ASSAULT – any act of the defendant which directly and either intentionally/negligently causes the plaintiff immediately to apprehend a contact with his or her person

assault is both a crime and tort + fact that the search for a rational basis for compensation in the form of the plaintiff’s apprehension is recent old cases in assault is on the intention of the defendant, whereas new cases focus on the effect produced by the threat on the plaintiff

Character of the defendant’s conducto Law of assault is very similar to the law of battery (both are intentional

torts), BUT in law of assault, the apprehension of contact (rather than the contact itself) must be established

o Although battery and assault are commonly grouped together to mean the same thing, and in practice, when there is battery, there is also assault, battery and assault are distinct e.g. 1) battery: being hit from behind without any warning 2) assault: pointing a loaded gun at the plaintiff

o Assault doesn’t always have to be threatening – physical contact is what must be apprehended (therefore the unwanted photographing of a person is not an actionable assault)

o Nature of the act must put the plaintiff in apprehension of immediate physical violence – dependent on proximity

o No assault is committed where the intervention of the police/other protective ensure that the defendants cannot carry out threats of violence – e.g. when the working miners were escorted under police guard, the threats by the striking miners were not assaults as the working miners


knew that the threats could not be carried out and they were not apprehended by an immediate battery

o Is it assault to point an unloaded gun at someone? – one early case: no as defendant could not have intended the battery; another early criminal case: yes now: yes, Bray CJ ‘if the defendant intentionally puts in fear of immediate violence an exceptionally timid person known to him to be so then the unreasonableness of the fear may not prevent conviction’ – indicates shift in emphasis of the courts from concentrating on the subjective intention of the defendant to the objective effect of the threat on the mind of the plaintiff

o Mere words without physical action is not assault (inadequate authority)o Verbal threats must be of immediate force to be actionable against assaulto Words may constitute an assault: R v Wilson, Meade and Belts, Barton v

Armstrongo Tuberville v Savage: words accompanying an act may explain away what

might otherwise be an assault – not establishing a rule that a conditional threat may never amount to assault – ‘if it were not assize time, I would not take such language from you’ (unfulfilled condition nullified the assault)

o Defendant would be liable in assault if they made a condition (which they don’t have a right to) relating to the plaintiff’s future conduct e.g. they told the victims that they would be hit if they moved

o An assault is committed where the defendant demands (by an improper threat) something to which she/he has a legal right to

Plaintiff’s state of mindo The plaintiff’s state of mind must be such that he/she anticipates the

imminent contact taking place question of assault will not be whether victim is courageous or timid, unless the defendant knows the plaintiff is timid

o Time frame is an important element in assault – plaintiff must apprehend imminent physical violence – question to be asked is not ‘how immediate does the fear of physical violence have to be?’ but ‘how immediate must the threatened physical violence be after the utterance of the threat which creates the fear’?

INTENTIONAL PHYSICAL HARM OTHER THAN TRESPASS TO THE PERSON The wilful statement or act of the defendant, calculated to cause physical

harm to the plaintiff and in fact causing physical harm to him or her is a tort (established in Wilkinson v Downton, the practical joke case)o This was upheld in Janvier v Sweeny (private

detective/mistress/fiancée is a traitor case)o Both cases were upheld in Bunyan v Jordan (gun unloading case) but

majority found that no tort have been committed because plaintiff had only overheard that defendant was going to shoot someone

o Stevenson v Basham (burning husband/miscarriage case): tort was committed because the appellant knew that she was within earshot


and that he should have known that his behaviour was calculated to frighten people

o Defendant must be proved to have intended to violate the plaintiff’s interest in remaining free from physical harm; it is not enough that it is proved that the defendant had intended to do an act which consequentially resulted in the physical harm

o This tort is not limited to nervous shock cases; can also be a remedy for other situations e.g. putting poison in someone’s tea or passing on an infectious disease like AIDS (which only indirectly causes harm)

o Old cases where it was declared that to set spring guns/other mechanical devices with the intention of injuring trespassers fits into this category of torts, as it is inappropriate to define it as negligence as the harm was deliberately inflicted

o For a harm suffered to be actionable, the nervous shock should be more than merely a transient reaction, however initially severe – Khorasandijian v Bush (relationship breakdown – obvious risk that continued harassment would result in such an illness)

o This decision was overruled in Hunter v Canary Wharf Ltd and Wainwright v Home Office – question whether the law should extend to compensate for the mere suffering of distress which doesn’t amount to recognised psychiatric injury even when brought about intentionally

o Wilkinson and Janvier cases can be seen as really early nervous shock cases modern negligence cases Australian courts unlikely to recognise a discrete tort of intentional infliction of serious mental distress (like American courts) or an extension of the Wilkinson principle

o Tucker v News Media Ownership Ltd (newspaper threatened person with heart condition with the publication of the details of his criminal past – court accepted the tort) – can be seen as a preventative approach similar to Khorasandjian Wilkinson principle could be adapted to provide a remedy to a person whose privacy has been invaded by (threat of) public disclosure of private facts

FALSE IMPRISONMENT – an act of the defendant which, without lawful excuse or justification, directly and intentionally/negligently causes the confinement of the plaintiff within an area delimited by the defendant

protects the interest in freedom of movement

State of mindo Tort must be intentional; fault or malice is irrelevant o Negligence ought to be enough to satisfy the mental requirement o Debate as to whether negligence is a factor: some maintain that trespass

doesn’t lie for negligent conduct (i.e. only cause of action available for the carelessly imprisoned defendant will be negligence and unless the plaintiff can prove damage, no action will life), others have said that action for false imprisonment will lie even for a negligent act (perhaps greater acceptance here in Australian than in England as it is accepted


that trespass to the person may be committed either intentionally or negligently

Character of the acto Actionable per seo Imprisonment must amount to a total restraint of the liberty of the

person, regardless of the amount of time o The area of confinement must have a boundary and the boundary must be

fixed by the defendant o If a person can only escape confinement at the risk of personal injury or if

it is otherwise unreasonable to attempt escape, it constitutes the tort of false imprisonment – if the means of escape must be apparent and reasonable, then no false imprisonment

o The barriers don’t have to be physical – it can be a metaphorical boundary effected by an assertion of authority

o Restraint on movement in the street even without laying on of hands can be false imprisonment (e.g. being wrongfully arrested by police)

o Symes v Mahon: where there has been no application of physical force to the person alleging false imprisonment, there must be evidence of complete submission by that person to the control of the other party

o False imprisonment normally results from some positive acto Herd v Weardale Steel, Coal and Coke Co: miner (plaintiff) employed by

defendants, descended their mine to pursuance of his contract of employment; after a dispute, his request to carry him to the surface in their cage was refused because they could only do so at the end of his shift, as per his contract action in false imprisonment failed – authority for the proposition that failure to provide a means of egress from premises is not a tort where there is no duty to provide it

o Robinson v Balmain New Ferry Co Ltd (ferry turnstile case) – defendants were not obliged to let the plaintiff leave any other way because plaintiff had contracted to leave the wharf by ferry only

o Robinson decision has been criticised as at common law a person cannot restrain the liberty of another to enforce a mandatory condition as to exist, and that any such restraint amounts to false imprisonment – even when contractual conditions are ‘reasonable’, there still could be liability for false imprisonment because no person can force that another abide – if compliance is required by the contract, then the contract can be abandoned and assume liability for the breach

o Cowell v Corrective Services Commission of New South Wales: an imprisonment which begins lawfully may later become a false imprisonment even though there is no further act on the part of the defendant

Knowledge of the plaintiffo Unsettled: whether the plaintiff must know that the defendant is

committing an act which restricts his/her freedom o On principle, plaintiff should have the knowledge because the interest

protected is of a mental one (like in assault)


o Two early cases offer differing perspectives – Herring v Boyle: teacher not liable for holding the child who couldn’t afford fees because child didn’t know that he was being detained; Meering v Grahame-White Aviation Co: knowledge was irrelevant (ratio of Lord Atkin) (you could be asleep/drunk and still be falsely imprisoned)

o May be possible to reconcile the two cases by confining the need for knowledge to cases where no actual physical restraint is employed, but only words and conduct

o Murray v Ministry of Defence: it is not essential that the victim is aware of the fact of the restraint in the tort of false imprisonment because the victim’s liberty has been violated nonetheless

o Myer Stores Ltd v Soo: knowledge of the restraint was relevant to the issue of damages

o McFadzean v Construction, Forestry, Mining and Energy Union: injury to feelings and damage to reputation (classically associated with false imprisonment) can still be issues even when the victim is unaware of his/her imprisonment

o Obiter nature of the above statements the question is still unsettled o If action in false imprisonment is seen solely as a means of adjusting

losses between individuals Herring’s case may be preferable (i.e. it is not false imprisonment if the victim does not know) as the plaintiff has not suffered any injuries as he/she is unaware of the imprisonment

o If the tort has a deterrent function to prevent wrongful behaviour and enforce civil liberties, Meering may be more appropriate (i.e. it is still false imprisonment if the victim is unaware)

Who is liable, the police officer or the aggrieved defendant who calls in the police officer?

o In an action of false imprisonment, the physical restraint must have been directly caused not false imprisonment if you make false statements to the authorities to cause a person to be detained in an asylum or if you dig a trench in which the plaintiff falls

o In this case, the person might be liable in malicious prosecution (an action on the case) but the burden of proof and requirements for actionability of conduct is very strict provides protection for citizens who were acting honestly

o When deciding who should be sued, ask: Who was ‘active in promoting and causing’ the confinement?

o The issue is whether the officer effecting the arrest is acting independently or as the agent of the defendant

o Very fine line between who directly and indirectly causes the false imprisonment of another: Dickenson v Waters Ltd (stealing case) – manager of the store was held liable because he had been the one to tell the police officer to arrest the plaintiff

o Bahner v Marwest Hotel Co Ltd (refusing to pay for wine): both the citizen who called in the police and the police officer were held liable for false imprisonment – security guard and police officer


o If defendant wrongfully gives the plaintiff into custody and then the magistrate remands the plaintiff, the defendant is answerable in false imprisonment for damages only up to the time of the judicial remand – once the remand interposes, liability for false imprisonment ceases

o Must distinguish between false imprisonment and malicious prosecution (tort concerned with the abuse of judicial process – calls for proof of malice and of absence of reasonable cause) if A wrongly prefers a complaint against B before a magistrate who then issues a warrant/tries B/remands B, then A has not committed the tort of false imprisonment

Damageso Damages are awarded in the first instance not as compensation for loss

but as a non-compensatory means of signifying the infringement of a righto Court may also compensate injury to feelings and loss damages for loss of

reputationo When assessing these general damages, account may be taken of the

defendant’s conduct at the time of the verdict may be relevant to the assessment of the injury to feelings - may be aggravated damages

o No aggravated damages will be award where the plaintiff has been found guilty of provocative and insulting conduct (but provocation will not reduce the real damages)

o Exemplary damages may be awarded against a police officer/official who falsely imprisons the plaintiff

CHAPTER 5: LandTrespass

o Intentionally/negligently entering or remaining on or directly causing any physical matter to come into contact with, land in the possession of another without permission or otherwise without lawful authority is a trespass (quare clausum fregit)

o Protects the interest of plaintiffs of maintaining their land free from physical intrusion – more focussed on physical interference with possession not a function of the tort to protect ownership

o May provide useful remedy for the violation of a person’s privacy where that violation takes the form of unlawful intrusion on that person’s land or premises

o Plenty v Dillon: law of trespass to protect possession of property and privacy and security of owner – BUT action in trespass to land cannot be used as a general remedy for violations of privacy due to the limitations in the nature of the tort

Types of Actso Act must be immediate (cannot be consequential)o Difficulties in drawing the line between direct and consequentialo Gregory v Piper: it was held to be trespass when rubbish was pushed onto

the plaintiff’s land by natural forces


o Southport Corporation v Esso Petroleum Co Ltd: oil discharge from the ship carried by the tide was not trespass because the damage was consequential 1. Entering another’s land without permission 2. Causing some foreign matter to entre or to come into physical contact

with the land of the plaintiff (the intrusion onto the plaintiff’s land must result from an act/omission by the defendant)

3. Remaining on land after a trespassory entry thereon (AKA ‘continuing trespass’)

o Continuing trespass: only when that which continues after the first action is itself a trespass (e.g. if A places goods on B’s land, and A is successfully sued for B, A is liable for failing to remove the goods)

4. Persons (other than tenants) who originally enter land with the permission or by licence of the possessor are trespassers if they remain there for an unreasonable time after the termination of the permission of withdrawal of the licence (e.g. Cowell v Rosehill Racecourse Co Ltd)

o licence to enter property need not to be express can be implied (e.g. by a household who leaves a front garden gate unlocked so anyone could enter the gate to request admittance and to conduct any lawful business) – but the implied licence is not a licence to wander about at will

o If a person with a licence enters the land with the sole purpose of exceeding the terms of that licence, trespass lies

o Plenty v Dillon: held that police officer who enters private premises without the permission of the person in possession for the purpose of serving a summons commits trespass (but this can be authorised/excused by law)

Subject mattero Aside from the land itself, anything that is attached to the soil, and capable

of being separately possessed (e.g. damage to grass, turnips, rabbits) can be the subject matter for trespass

o Possession of land may be separated (e.g. A may have ownership over the pasturage, B the surface and subsoil, and C the minerals below) – each of them can sue if the subject matter of one’s possession is invaded

o England: surface of the streets are vested in the highway authorities by statute

o Australia and New Zealand: public roads were originally vested in the crown and generally handed over the municipal councils

o Members of the public have a right to enjoy the highway, but if the highway is used for a purpose that is not ‘reasonably incident to its user’, it is trespass (e.g. using the highway to obtain information about the speed/performance of racehorses)


o Trespass to tunnel beneath the soil, to mine, to use a cave beneath it or to drive building foundations through the soil because the owner of the land has a right over the land to some depth

o Stoneman v Lyons: trespass held when works who were building a supermarket, had excavated a trench under the footings of the adjoining landowner’s garage wall without support leading to collapse

o Star Energy Weald Basin Ltd v Bocardo SA: trespass held due to intrusion by pipelines 250-850m below the plaintiff’s land even though the surface of the land was not damaged

o Trespass to invade that portion of airspace which is needed for the ordinary use of land and structures upon it - notion of ‘ordinary user’ liberally interpreted in cases where the invasion has taken the form of oversailing cranes, advertising signs and other structures erected on neighbouring premises

o Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd: court was not prepared to concede that no trespass had occurred because the invading booms were high above the property and their activity did not interfere with the plaintiff’s ordinary business

o LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd: held – relevant test is ‘whether the incursion actually interferes with the occupier’s actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with the ordinary uses of the land which the occupier may see fit to undertake.’

o ‘Ordinary user’ theory: applicable to transient incursions of airspace e.g. projectiles

o Legislation in Australia (except for Queensland) and New Zealand: aircraft are given the privilege of innocent passage for the ordinary incidence of flight – no action shall lie in trespass or nuisance by reason only of the flight of an aircraft of any property at a height above the ground which, having regard to wind, weather and other circumstances of the case, is reasonable statutes exclude actions being brought in trespass for the mere transient invasion of airspace strict liability on the owners of the aircraft for all material loss of damage to persons or property caused by that aircraft without proof of negligence or intention or other cause of action

State if mind of the defendanto Issue: whether the defendant intended to enter the land (not whether the

d. intended to invade any interest of the plaintiff) mistake is not a defence

o No liability if there is not voluntary act on the part of the defendant o Negligent unintentional act is enough (e.g. if A intentionally throws a

stone onto C’s land, and as A should have foreseen, it ricochets onto B’s land, this is trespass to B’s ;and and C’s) unintentional non-negligent act is not trespass

o A personal will only be liable in trespass if they are present at and has taken part in the trespass or has authorised/instigated others to commit the trespass


o League Against Cruel Sports Ltd v Scott: hounds from local hunt intruded on a deer sanctuary owned by the plaintiff – defendant could not be liable unless it was proved that d. had encourage the dogs to enter the sanctuary or deliberately failed to prevent the intrusion

The interest of the plaintiff in the lando Plaintiff with legal estate and exclusive possession may sue in trespasso Only tenant (not the landlord) can sue if a third party trespasses on the

land demised o Tenant can also sue the landlordo In England, owner of an equitable interest can sue (not in NZ)o Owner with statutory possession can also sueo Held: ‘person may have such a right of exclusive possession of property as

will entitle him to bring an action for trespass against the owner of that property but which confers no interest whatever in the land’ (e.g. statutory tenant under the English Rent Acts)

o McIntosh v Lobel: held – where the tenant is a one-person company, that company being the alter-ego of its managing director, the latter has sufficient possession to sustain a suit in trespass

o National Provincial Bank Ltd v Ainsworth: held that a deserted wife has no proprietary interest in the matrimonial home (only a personal right) – she still had exclusive occupation and could therefore bring proceedings against trespassers

o Hill v Tupper: A leased certain land, which adjoined their canal, from X Co. A was also given ‘the sole and exclusive right’ to let out on hire pleasure boats for use on the canal. B set up a rival concern B was sued in trespass by A action dismissed – X Co lacked the power to make an exclusive grant

o Question of fact: whether plaintiff has exclusive possession of land AND whether plaintiff has licence to use land (not merely right) enable plaintiff to sue in trespass

o No defence to wrongdoer that the possession of the plaintiff in relation to a third party is unlawful – fact of possession is enough to establish the plaintiff’s title

o Delaney v TP Smith Ltd: plaintiff entered property held under a lease which was unenforceable because it did not comply with the requirements of the successor to s 5 of the Statute of Frauds – held that he was unable to sue his landlord in trespass for ejecting him – plaintiff did not have a legal estate and thus did not had a right to possession

o In an action in trespass between two persons who each assert a right to the property – the one who doesn’t have legal title will be regarded as the trespassor

o During the period of adverse possession, dispossessed plaintiff retains legal title and may sue the adverse possessor who is the trespasser adverse possessor can then bring an action in trespass against subsequent trespassers after the requisite time period, adverse possessor’s title is then law and they can sue for trespass against the dispossessed trespasser


o Plaintiff with right to immediate possession of the land, upon entering, can sue for trespass between the date of accrual of the right and the entry (trespass by relation)

RemediesDamages

o Basic rule: plaintiff is entitled to full restitution for any losso Depreciation in selling value and costs of reinstating and restoring

property are adequate measures for destruction/damage to land and buildings – cost of restoration will not be awarded where it is unreasonable or entirely disproportionate to the diminished value of the land

o Jones v Shire of Perth: plaintiffs sued for damages for trespass and the unlawful removal of natural support to their land – cost of restoring the land by building a retaining wall as $10,000 whereas the injury done was worth $2,000 disproportionate

o Special damages (e.g. business profits) can also be awarded o Consequential damages may be awarded where the loss suffered is

the natural and probable result of the trespasso Svingos v Deacon Avenue Cartage & Storage Pty Ltd: agents of the

respondent, trespassed on a farm belonging to the appellant to get a van, left open a gate cattle entered and damaged olive trees on the property held to be foreseeable consequential damage damages recoverable

o Hogan v AG Wright Pty Ltd: consequential loss awarded for death of a filly which escaped from the plaintiff’s property after d. trespassed with a bulldozer and broke down a fence – court did not answer the question of whether reasonable foreseeability is an essential test of consequential loss in actions for trespass to land

o TCN Channel Nine Pty Ltd v Anning: held that reasonable foreseeability is not relevant

o Measure of damages for wrongful occupancy of land: reasonable rental value of the land during the time of the d.’s occupancy (e.g. if d. uses part of the land for tipping, p. is not limited to the diminution in the sale value of the land but can recover the reasonable value of that particular use of the land made by the defendant together with the diminution in the value of the rest of the land)

o Where goods (e.g. coal, minerals, gravel, trees are severed from the land), measure of damages depends on whether the act was wilful or innocent – if innocent, d. can deduct the cost of severance from the value of the goods; if wilful, then d. cannot deduct the cost of severance from the value of the goods uncertain: whether d. can also deduct additional sum for the profit for work done or p. is entitled to the value of the severed goods less the d.’s actual expenses

o Exemplary (punitive in nature – expresses court’s disapproval where the trespass is wanton and intentional or accompanied by


violent, abusive or insulting conduct) or aggravated damages (form of general damages – compensation for injury to the plaintiff – focus on the effect of the trespass on the plaintiff – ‘malicious, insolent, high-handed, contumelious conduct of the defendant’) may also be awarded for actions of trespass to land

o Pollack v Volpato: held – award of damages are discretionary on the part of the tribunal appellate court should not interfere (unless exemplary element of the award is excessive)

o Actionable per se: a person who had suffered no pecuniary loss is still entitled to recover damages – an award if in vindication of the right to exclude others from the property (could be more than nominal damages)

o In some cases, damages may be based on ‘hypothetical negotiation’

Injunctionso Injunctive relief (equitable remedy) are an alternative to damages

– at the discretion of the courtso Onus rests of the plaintiff to that it is the appropriate form of reliefo To win injunction, need to prove: award of damages is not enough,

or irreparable harm would be suffered if the injunction was not rewarded

o Continuing trespass and trespass where it is serious, or threatened to be repeated courts will intervene with injunction

o If the trespass causes little/no harm to the property, courts are more likely to grant injunction – if the courts were to insist upon damages, it could be seen to be sanctioning the defendant’s wrongful action and that people would be then able to infringe with impunity the property rights of others with the belief that they are entitled to do so because no tangible harm has been done and the victim can then be compensated anyway

o How the defendant conducts him/herself + his/her attitude towards the plaintiff is also a factor when the court decides whether or not to grant injunction

o Graham v KD Morris & Songs Pty Ltd: the defendant had failed to admit that its acts constituted a trespass and failed to apologise to the plaintiff for the oversailing of its crane + failure to offer the plaintiff monetary compensation influenced court to grant injunction

o Injunctive relief can not only avert the trespass, but also supress its after-affects (e.g. prevent the subsequent publication of a video/photograph/etc. obtained by the trespasser)

o Lincoln Hunt Australia Pty Ltd v Willesee: 3 preconditions for the granting of an injunction – 1. circumstances must be such as to make publication unconscionable 2. irreparable harm will be suffered by the plaintiff if the injunction is refused 3. balance of convenience (or justice) favours the grant


o Encorp Pty Ltd v ABC: damages would not be adequate because if the telecast were to go ahead, then the plaintiff could suffer a devastating blow to his business

o Donnelly v Amalgamated Television Services Pty Ltd: injunction granted against a telecaster to prevent it from showing a video of police abusing their power because there was not other satisfactory remedy

o ABC v Lenah Game Meats Pty Ltd: equitable jurisdiction exists not only to restrain the publication of a videotape or photograph made by a trespasser, but also to a third party who threatens to publish it

o Plaintiffs who prove that only their reputations/interests will suffer if the publication was to proceed would not prove adequate unconscionability - must also show that conduct of the defendant was that the publication of the videotape could not reasonably be sanctioned (i.e. where conduct was motivated by ill-will or callous disregard of the rights of others, irresponsible and biased, or where the incident portrayed was portrayed in a way that would unfairly and severely prejudice the plaintiff)

Actions by Reversionerso People who are not in possession of the interests of land being violated

can’t sue for trespass, but can still seek remedieso Landlords have contractual rights against tenants who damage their

interest (e.g. by allowing premises to fall into disrepair waste branch of law property will afford a remedy of tortious nature to landlords who establish that tenants have damaged the reversionary interest)

o Non-possessory interest in land is violated by a third party action derived from the old action on the case may lie

o Rodrigues v Ufton: action in trespass can only be maintained by a person who has possession, but a reversioner can maintain an action for an injury to the reversion done by a trespasser

o Lockwood Buildings Ltd v Trust Bank Canterbury Ltd: ‘today a claim by a reversioner can fit comfortable unimportant for there remains general agreement as to the need for reversioners to be afforded an effective remedy for harm done to their reversionary interest’

o Can also seek injunction (over damages if needed) – plaintiff must prove that permanent injury as would be necessarily prejudicial to the reversioner – ‘permanent injury’ means an injury which will continue indefinitely unless something is done to remove it (Jones v Llanrwst Urban District Council)

CHAPTER 6: Defences to Intentional Torts to the Person and Property

Mistake and Inevitable AccidentMistake as such is no defence

o Mistake is no defence to intentional torts, but it can decide if another defence is open to the defendant (e.g. police officer, who had reasonably


mistaken the plaintiff to have committed a offence, could have a defence against false imprisonment)

Inevitable accidento Inevitable accident is separate to mistakeo Public Transport Commission of New South Wales v Perry: women,

epileptic fit at train station not a trespasser the fall was involuntaryo no intention nor negligence McHale v Watson (steel dart) authority:

once p. proves injury or damage through a direct act of d., d. will be liable in trespass UNLESS he/she proves that the conduct was neither intentional nor negligent

ConsentDistinguished from assumption of risk

o volenti non fit injuria: you can’t sue if you freely assented to the conduct which resulted in damage

o two forms of consent: p. consents to invasion of interests which would otherwise be a tort (consent) or willingness on part of the p. to run the risk of injury from a particular source of danger (assumption of risk)

o although consent and assumption of risk are distinct, the courts have not always acknowledged this

o Bain v Altoft: defence of assumption of risk applied where p. consented to fight with the d.

o Fox J in McNamara v Duncan: cases of intentional trespass – volenti non fit injuria is applied differently than in cases of negligence negligence refers to risk of injury, trespass refers to consent to the trespass consent important to torts already dealt with, assumption of risk important in negligence

What constitutes consent?In generalo Consent may be treated as defence – in trespass to person (but not land),

burden of proving lack of consent may be on plaintiff o Consent has two meanings – broad: describe any basis of non-liability

traverse, confession and avoidance or an objection to a point of law; narrow: basis for repelling a prima facie case consent must take the form of a confession and avoidance in pleadings (e.g. voluntary assumption of risk)

o Consent can be either express by words or inferred by conducto Consent must be to the act complained ofSporting injurieso Consent is v. effective defence to sporting injurieso Fox J in MacNamara v Duncun: because sports differ from one another in

their objectives, each situation must be looked at individually Effect of fraud or duresso Consent may be vitiated by the application of fraud or duress o Conduct obtained by fraud going to the quality of the conduct and being

not merely collateral no consent


o Consent obtained by duress or a show of authority no consentConsent to medical procedureso physical contact with an adult patient of sound mind who does not

consent to that contact prima facie battery even if patient refuses medical treatment which is in their best interests, the choice must be obeyed

o Rogers v Whitaker, ‘the consent necessary to negative the tort of battery is satisfied by the patient being advised in braod terms of the nature of the procedure to be performed.’

Minorso Consent must be given with someone with necessary legal capacity

child must be of sufficient intelligence parental consent for young children

Persons unable to consento If person is incapable due to intellectual handicap to make a rational

decision law is unclearo Generally, no express/implied consent liable to battery and assault

EVEN though the operation is the for the patient’s benefit UNLESS act can be justified (necessity/statutory authority)

Consent and criminal actso Bain v Altoft: Gibbs J ‘consent is a defence to an action of trespass to

the person, notwithstanding that the act consented to was illegal’ Revocation of licences

o currentWithdrawal of consent

Contributory Negligence

Self-defence

Defence of the Person of Another

Defence of One’s Property

Defence of the Property of Another

Necessity

Distinguished from defence of property

Nature of scope of the defence

Recaption of Chattels

Re-entry on Land

Abatement of Nuisance

Distress


Distress for rent

Distress damage feasant

Replevin

Discipline

ChildrenBy parents

By schoolteachers and others responsible for their training and education

Passengers in public transporto

CHAPTER 14: Nuisance

Nuisance as a Separate TortMeanings of the word ‘nuisance’o Essence: interference with the enjoyment of lando Law of private nuisance derived from action upon the case for

nuisance (required the plaintiff an interest in land)o covers inferences with use and enjoyment of land by water, fire,

smoke, smell, fumes, gas, noise, heat, electricity or any other similar thing which may cause such an inconvenience

o Has different meanings: 1) factual description of conduct/conditions on land that result in annoyance 2) denote damage resulting from activity or condition 3) connotes legal liability (i.e. courts can say that someone is liable in a nuisance)

Nuisance and negligenceo Nuisance does not always involve fault – overlap in liability in

nuisance with that of negligence e.g. where occupier of land has failed to take reasonable steps as allowed by financial/other resources to remedy a nuisance which the occupier knew/should have known

o Substantial interference with enjoyment of land proof of culpable conduct on the part of the defendant

o Nuisance complained of is the removal of the plaintiff’s right to the support of his/her land by the neighbouring land of the defendant strict liability and proof of the fault on the part of the defendant is not needed

o Nuisance complained of is substantial physical injury to land plaintiff only needs to prove the injury, onus is on the defendant to show the reasonableness of any precautions taken

o Nuisance caused by roots/branches of trees occupier is liable even if he/she was not the one who planted the trees


Private and public nuisanceo Public nuisance is a crime not a tort (interference with the rights of

the public) – not actionable by individual unless they prove that they have suffered damage that is beyond that of the public

o Private nuisance: p. must prove interference with enjoyment of land

Nuisance and trespasso Nuisance and trespass do not overlap if injury caused by d. is

indirect, then trespass does not apply

Conclusion o Usually in nuisance, remedy is injunction, not damages

Is Damage Necessary? o Nuisance is not actionable per se damage must be provedo Exceptions:

Interference is with an easement, profit a prendre (right to take something from someone’s land), or right of access on the basis that p. has absolute legal right to the enjoyment of easement, profit or right of access therefore infringement of right implies damage

Injunction may be granted in a quia timet action where no actual harm has yet occurred even if that harm is to be reasonably feared statutory power to substitute injunction with damages in quia timet actions even though damages can not be awarded at common law (this does not apply in Tasmania or NSW)

The Nature of the Invasion of the Interest in Land

o Act may be indirectly causing a physical injury to land/substantial interference with enjoyment/rights over land

Physical injury to lando Actionable private nuisice – sufficient invasion of the interest of the p. on

proof that the property has suffered material injury, resulting in diminution of property value

o St Helen’s Smelting Co v Tipping: not relevant to look into whether the locality in which the d. carried out the activity was suitable (e.g. in this case, not relevant that the court consider whether or not the copper smelting plant was located in a suitable industrial locality)

o Locality is factor when deciding whether acts which cannot be brought under private nuisance are sufficient interferences with land need to define ‘sensible material injury to property’ ‘sensible’ means damages visible by ordinary persons without recourse to scientific evidence

o Meaning of property St Helen’s Smelting Co v Tipping: ‘material injury to property’ = damage goods on the premises but not depreciation in the


value of land and buildings (interference ‘producing sensible personal discomfort’)

o Distinction between physical injury to land and substantial interference with enjoyment: physical injury – d. does not have to plead that all reasonable precautions had been taken to prevent the injury being suffered true rule: Kraemers v A-G (Tas) – p.’s cause of action is complete on proof of the substantial injury to property, d. must show reasonableness of any precautions that have to had been taken

Substantial interference with enjoymento substantial interference must be shown (Walter v Selfe (1851) 4 De G &

Sm 315 at 322o Examples of substantial interference with enjoyment: loss of sleep,

impinge on sense, use adjoining premises for prostitution or sex shop, to install floodlights in domestic premises (either to illuminate tennis court or back garden), to erect glass veranda which reflects sunlight into neighbouring buildings, equipment interferes with neighbour’s tv signals

Plaintiff putting land to a sensitive useo if d.’s activity damages p. because p. is carrying on some extremely

delicate trade on the land which demands exceptional freedom from interference not actionable nuisance

o Bridlington Relay Ltd v Yorkshire Electricity Board: d’s powerline interfered with p.’s business of providing tv relay service to subscribers held that p. did not have a claim because their antennae were more sensitive and needed more protection from interference than domestic antennae

o Important: need to distinguish requirement of substantial interference from that harm actually suffered in respect of which damages are recoverable Privy council decision – once nuisance is established, remedies for interference will extend to a sensitive and delicate operation (e.g. growing of orchids) – damage of orchids was non-remote consequence of what had already been proved to be a nuisance therefore, the sensitivity of the orchids became irrelevant

Interferences which are not protected o If d.’s action is lawful, even if it deliberately blocks a neighbour’s view,

then no liabilityo Victoria Park Raving and Recreation Grounds Co Ltd v Taylor: p. lost

profits due to d. broadcasting reports of the races p. were unable to recover damages in an action in nuisance because interference of the d. had effect only on the p.’s business activities not on their use/enjoyment of the land

Duration of interferenceo Can be temporary in duration (because it can still be substantial)

Locality


o locality must be considered to determine how substantial the interference is

o Pittar v Alvarez: action for nuisance dismissed – p. had no suffered more inconvenience due to smoke and soot from neighbouring domestic fireplaces than people living in densely populated districts

o Court must consider changes wrought in a localiy Dunstand v King: sawmill was held to be a nuisance because at that time there were few industrial undertakigns in the area

o No need to consider locality when the nuisance is constituted by overhangings boughts of trees

‘State of affairs’o Castle v St Augustine’s Links Ltd: p. was blinded by golf ball – recovered

damages from owners of the golf course for public nuisance if ball had hit an interest of the occupier, private nuisance would apply – is the substantial interference the actual injury sustained? if so , then all householders whose windows have been broken by a golf ball can sue in nuisance

o Alternative view: test of ‘substantial interference’ whether d. was responsible for a condition of affairs on the land which threatened damage golf course owners would only be liable if they had constructed the golf course in such a way that it would be foreseeable that occupiers of neighbouring land be hit – Bolton v Stone: pedestrian hit by cricket ball

o Damage does not have to be substantial if it is proven that the state of affairs was such as to expose the premises to risk of substantial harm

Interference with property rightso can be a nuisance for d. to infringe a property right which the p. has in

respect of his/her land – e.g. removal of support which causes p.’s land to subside

o other property right is that to light and air through a defined channel

Unreasonablenesso conflict of interests between neighbouring landowners not enough that

p. shows that another is responsible for substantial interference The conduct of the defendantThe purpose of the activity

o need to take into account the purpose of the activity to see whether or not it constitutes nuisance

Social utilityo even if d.’s conduct is essential to the community and is of high social

utility, it must still be kept in mind that p. has a right to enjoy his property Munro v Southern Diaries Ltd: p. complained of the noise/smell/flies from the stabling of horses

Malice o if the d.’s actions are motivated by malice and infringe the p.’s right to

enjoy their property, then d. has committed nuisance


o Hollywood Silver Fox Farm Ltd v Emmett: d. let off guns on his own property to disturb p.’s foxes even though foxes can be seen as putting the land to sensitive use, d.’s malice held to be nuisance

o Fraser v Booth: p. let off direcrackers to divert pigeons which flew from d.’s property over her own held that p. was not liable because she did not disturb the d. in the use and enjoyment of his land even though she had a malicious intention

o Bradford Corporation v Pickles: d. abstracted water from undefined channels under his land which would have otherwise flowed into p.’s reservoir even though d. intentionally did this to make the p. pay an inflated price for the land, p. did not have rights over the water not nuisance

Suitability of localityo If disturbance complained of consists of emission (noise, smell, dust, etc)

of some form of trade or business need to reference suitability of locality as one of the critera of reasonableness

o Ball v Ray: stabling of horses in residential area more likely to cause nuisance

o Comprehensive planning legislation (e.g. nowaways there are places which are zoned for particular uses) suitability of locality no longer that important

Ordinary use of lando whether d.’s activity is ‘natural’ or ‘ordinary’ is relevant in determining

reasonableness – Bamford v Turnley: “Those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action [in nuisance].”

o no need to complain if d.’s actions are so ordinary that the p. is also likely to do the same thing

Things naturally on the defendant’s lando d. may be liable in nuisance for the escape of things which are natural y on

the lando Sparke v Osborne: d. not liable for spread of weed from his property to

the p. because it would be an intolerable burden on the d. for his to check the spread of the weed Privy Council: ‘it is probably that [it] would not be decided without a balanced consideration of what could be expected of the particular occupier as compared with the consequences of inaction)

Impracticability of preventing or avoiding the interferenceo liability will depend on the resources available to the d. to prevent

interferenceo if p. complains of the activities carried out by d., it will always be material

whether the latter could still have achieved the same purpose but, by taking reasonably practical steps, have prevented an undue interference with the use by the p. of his/her land

There seriousness of the interference with the plaintiff’s user of landThe extent of the harm

o Extent of harm must be considered, in addition to duration of interference


The character of the harmo harm suffered by p. will be either physical injury to land or interference

with personal enjoyment of land o some authority supports the view that in physical injury to land, it is

irrelevant that d. has undertaken all reasonable precautions to prevent/minimise the damage

o Stern v Prentice Brother Ltd: not nuisance because d.’s actions were neither unusual nor excessive

The suitability to the locality of the use interfered with o if action lies due to industrial inference, courts have often taken into

account that the interference occurred in a residential areao Sturges v Bridgman: held that it was material to the success in nuisance of

a physician, who complained that his work was interfered with by a confectioner because the locality was where many doctors practised

Could the plaintiff easily have avoided the consequence of the harm?o If p. could have easily avoided the consequences of the d.’s actions, then

relevant issue would be something difference e.g. that cause of interference was the plaintiff’s own default, but p. is never expected to accommodate to the d.’s actions

Who Can Sue?Nature of the interest necessary

o plaintiff can sue in nuisance only if he/she has an interest in the land affected – e.g. owner, tenant, licensee

o This does not cover those who merely reside with the freeholder or tenant, or an unconditional purchaser of land

o landlord may sue on proof that reversionary interest in the land has been interfered with p. will succeed by proving harm of a permanent character

Types of damages recoverableo Damage to chattels – Howard Electric Ltd v A J Mooney Ltd: damage to

chattels was recoverable head of loss ‘once damage to the plaintiff’s [land] is established, he is entitled to damages for whatever loss results to him as a natural and foreseeable consequence of the wrongful act of the defendant’.

o Damages for personal injury: Pelmoth v Phillips: held – injury suffered, in the nature of nervous shock affecting the plaintiff’s health, being a reasonable and natural consequence of the activities of the defendant, was compensable

Who Can be Sued?o a person is liable in nuisance if he/she bears ‘some degree of personal

responsibility’ having played a part in the creation of nuisance or from a failure to remedy

Creation of the nuisance


o if actual wrongdoer is invested with the management and control of the premises where the nuisance arises, liability ensures irrespective of whether he/she is an occupier in the normal sense of the word

o One who authorises another to commit a nuisance is also liableo d. can be vicariously liable for nuisances created by an employee in the

course of employmento Occupier will not be liable if the acts of the independent contractor cause

injury which is neither necessary nor a natural consequence of the employment of the contractor

Failure to remedyo if occupier does not take reasonable steps, in the light of his/her

financial/other resources to remedy a dangerous state of affairs on the land, then he/she is liable

o no liability if d. did not know or not ought to have known of the state of affairs or could not be presumed to know that the state of affairs would be dangerous to the neighbours

o most circumstances: occupier is liable by allowing trees to encroach on and damage land (in NSW this has been abolished by stature, in Queensland, there are alternatives provided for by legislation)

Landlord and tenanto Landlord and tenant must be treated separately o If landlord knows of an issue at the date of letting, then the landlord is

liable during the tenancy (limited to those which he knows or ought to know)

o P. must prove that defect resulted from landlord’s failure to repair

Must the Interference Complained of Emanate from Land?o not necessary that disturbance to plaintiff’s right to enjoy land emanates

from land belonging to the defendanto Interference can be from the highwayo p. can’t sue in nuisance for the activities of the defendant which occur on

the p.’s own land

Defences

Prescriptiono right to commit nuisance: easement by prescription law of real

property o Australian/New Zealand is mostly registered under the Torrens systemo Legislation in Australia (except NSW) does not prevent the acquisition

of easements by prescription o Creating easement 20 years’ continual user without owner’s

permission or knowledge o ‘acts which are neither prevented nor actionable cannot be relied upon to

found an easement’The relevance of the conduct of the plaintiff


o not a defence if p. came to nuisance by occupying land adjoining it, not a defence if the nuisance only arose because p. has chosen to use a particular part of the land

o law protects a person in the reasonable use of land against the nuisances which d. has not a prescriptive right to but p. must take reasonable steps to mitigate loss

o Defences of consent and assumption of risk also available defences

Statutory authorityo most important defence bc most activities which interfere with

enjoyment of land are carried out by public or private enterprises in pursuance of an act of parliament

o defence of statutory authority fails if parliament authorised was no more than a permissive act which might be carried out without committing a nuisance matter of interpreting the statute

Other defenceso Other defences e.g. defence of property or necessity may be availableo not a defence that the act of the d. would not have been a nuisance byt for

the act of others, too, provided that the d. knew what the others were doing

Fireo Fires Prevention (Metropolis) Act 1774 s86 (not in NSW, n and NT) it

is a defence to prove that the fire began accidentally - but not application if the fire was caused by the negligence of the defendant or intentionally – even if fire was accidentally started, if the d. negligently allowed the fire to increase in size, then the defence would not apply burden of proof is on the p. to prove that the fire was not accidental (only effect) legislation is out of date

RemediesDamages

o Sought when nuisance suffered was material injury to property or interference with natural right of support for land measure of damages similar to trespass

o P. is entitled to full restitution for that loss as well as losses as are a reasonably foreseeable consequence of the commission of the nuisance (e.g. business that has suffered interference, loss of custom, if p, is forced to move elsewhere because of the nuisance)

o Can take into account of future and past damages

Injunction o If interference is likely to continue, p. will seek to prevent further damage

granting injunction against d.


o Once p. has proved that substantial interference has occurred and is likely to continue, then burden is on the d. to prove that injunction should not be granted

Abatemento Self-help remedy – removal of the source of the interference (not merely

taking protective measures to minimise its harmful effects)o If the removal of the source of interference involve entering the land, it

can be a defence to what may otherwise be a trespasso Permitted, but not favoured damages not available for injury or cost of

doing the worko Does not affect the plaintiff’s right to damages or injunction

Public NuisanceElements

o Any act/omission ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all her majesty’s substances’ may constitute the crime of public nuisance

o If this crime affects a number of people, they may bring an action in tort since it affects public, action is usually brought in the name of the Attorney-General individual may maintain action in tort in public nuisance by showing that they have suffered particular damage

o Doesn’t have to be actual pecuniary loss, but be of inconvenience or delayo Most important area: nuisance on the highway by obstruction or

rendering passage along it unsafe

The relation between public nuisance and private nuisance o Distincto In public nuisance, prescription is not defenceo Private nuisance don’t need to prove more lose than their fellows,

provided that they show substantial interferenceo One form of private nuisance: interference with access to a highway

same facts may also constitute public nuisance need to distinguish the two

o Rights of access (e.g. other property rights such as easements) under property law different emphasis from private nuisance

o Issue: has p. a right which the d. has violated? nor whether d.’s conduct is so unreasonable that an interference should be deemed tortious

o Interference with access (roads or waters) is actionable without proof of specific damage

CHAPTER 7: Duty of CareIntroductionEmergence of negligence as a separate tort

o prior to 1825, negligence was subsumed under action on the caseConduct must be negligent and not merely careless

o carelessness do not necessarily constitute tort of negligence


o ‘negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing’

o Three elements of the tort: duty, breach of duty, and where the ensuing damage was within the risk created

The Duty Concept in General Duty as a complex concept

o actions in negligence must fail where duty is not established o important control mechanism against unwarranted expansion of liabilityo d. must be proved to owe a duty at least to somebody to act or refrain

from acting o In some circumstances, there is not such duty p. must further show

that d. owed a duty specifically to the plaintiff when acting in the manner complained of

o A must show not only that B owes A a duty but a duty in respect of that interest of A which B has violated

Rationalisation of the duty concept o law initially developed by decisions that in some particular circumstances

there was a duty and in others, there was noneo Heaven v Pender first to attempt to rationalise these caseso Lord Atkin in Donoghue v Stevenson: ‘The rule that are to love your

neighbour becomes in law, you must not injure your neighbour; and the lawyer’s questions, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour. Who, then in law if my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

Creation of new duties o ‘categories of negligence are never closed’ ‘that in accordance with

changing social needs and standards new classes of persons legally bound or entitled to the exercise of care may from time to time emerge’

o Donoghue v Stevenson concept of duty has been extended includes air traffic controllers’ duty to pilots and passengers

o Lord Wilberforce’s two-prong test in Anns v Merton London Borough Council limited: focused on policy considerations rather than whether it would be ‘just and reasonable establish duty of care – 1) need sufficient relationship of proximity based on foreseeability 2) any reason there should not be a duty of care

o Other limitations: test would not be necessary if ‘the facts fall into a category which has already been recognised by the authorities as attracting a duty of care, the scope of which is settled’ - test can’t be used to expand or restrict existing duty situations or when ‘in a factual


situation in which the existence of such a duty had been repeatedly held not to exist’

o Australia: test of proximity (Dean j in Jaensch v Coffey) – reasonable foreseeability

o Proximity factors: physical nearness, in the sense of space and timeo Brennan CJ, rejected Anns approach, preferred that law should ‘develop

incrementally and by analogy with established categories’ any new categories of negligence (most found favour with the house of Lords)

o No clear concise formula reasonable foresight is essential but a negative/positive answer will not always give a straight answer (e.g. was the injury suffered reasonably foreseeable? no – no duty, yes – need more inquires)

o Three-stage test: whether damage to p. was reasonably foreseeable, relationship between p. a d f. was sufficiently proximate, and if so, whether it was fair, just and reasonable to impose a duty of care (criticism: third stage might encourage courts in new situations to rely on ill-defined policy considerations rather than legal principles)

o Policy considerations still should be relevant to the inquiry, even if they are not conclusive

A duty must be owed directly to the plaintiffo incumbent on the plaintiff to establish that he or she personally was

owned the dutyo if p. is in breach of a duty of care to Z, but that Y also suffered damage in

result of same careless act early cases would see that Y can recover Palsgraf v Long Island Railroad Co: no duty of care to Y, also Bourhill v Young (deciding case)

Particular Examples of the Duty ConceptUnborn plaintiffs

o duty of care may exist not to cause injury to a plaintiff who is in his/her mother’s womb

o third party may be liable in damages to a child born with disabilities sustained before birth as a consequence of that party’s negligence (Watt v Roma)

o Same principles apply to a foetus (B v Islington Health Authority) – also to allow a child to sue its mother for injury in utero (Lynch v Lynch)

Omissions o distinction between failure to act and positive action o grounds of liability for an omission to act (exception and arises only

where there is a duty to act) is different from grounds of liability for action (liability is presumed unless it can be excused/justified) nonfeasance and misfeasance

Mere omissionso where the failure to act is causally linked with p.’s harm, then the

failure to at is a mere omission no liability


o if X witnesses a road accident, but does not call for medical assistance, X is not liable even though X can foresee that the victim might die if he didn’t seek medical assistance

Duty to acto Omissions which give rise to liability – needs to be a duty to act (as

opposed to a duty to take reasonable care when act)o For this duty to exist, there must be the foreseeability of injury or damage,

as well as relationship between tortfeasor and victim must contain some feature which makes it reasonable for the law to impose liability for a failure to act (e.g. ownership, occupation or use of land, earlier act of d.)

o e.g. if a person creates a danger and the omission is the immediate cause of harm liability

o Duty may stem from understanding of a task ‘which leads another to rely on its being performed, or the ownership, occupation or use of land or chattels’

Special relationshipso some relationships contain special features that give rise to a positive

duty to take reasonable care to prevent or reduce risk of harm including contractual relationships, non-contractual relationships, fiduciary relationships, employment relationships, and relationships between occupiers of adjoining land

Existing relationshipsTeachers and school authorities

o Teachers and school authorities have a duty of care over their pupils to ensure that reasonable steps are taken to prevent a reasonably foreseeably risk of injury

Doctor-patiento Doctors have a duty of care over their patients ‘covering all the ways in

which a doctor is called upon to exercise his skill and judgment’o Doctors are the repository or specialised information or knowledge

only source upon which the individual can draw and on whom the individual must rely on

o Not fiduciary relationship

Parent-childo Relationship of dependency o moral obligation of the parent, created by the blood relationship, does

not, of itself, automatically translate into a legal obligation (Hahn v Conley) – somehow ‘wrong’ for a child to sue its parents for an act/omission arising directly out of parental obligation

Jailer-prisoner o Relationship of dependency since jailer has taken away the prisoner’s

personal liberty and assumed control of his/her person


Rescuerso There is no obligation to rescue or attempt to rescue, unless there are

special circumstances that might give rise to a positive obligation to rescue BUT rescuer will be liable if it was the rescuer who created the danger in his failure to rescue, leading to victim’s death/injury

o Duty to rescue extends only to the need to take reasonable care to attempt to rescue but if the rescuer is negligent and causes injury or damage which would not have occurred, there may be liability

o A person who acts according to conscience and attempts to rescue will be protected since the law recognises their duty of care

Duty to control the acts of third parties o General rule: common law imposes no obligation on a person to control

the actions of another foreseeability of injury is not sufficient to create a duty (even where the person would not incur no personal risk in assuming control)

o Parents: not liable for the wrongful acts of their children – but parents who have immediate physical care and control of a child will be responsible for negligence

o Smith v Luers: 13 year old kid, playing with shanghai – parent not liable because child was old enough to understand the dangers of using a shanghai and he had disobeyed his father

o Carmarthenshire County Council v Lewis: actionable breach of duty to users of the highway – council was liable for failing to take reasonable care to prevent a four year old girl from straying onto a busy highway

o Hill v Chief Constable of West Yorkshire: presence of strong policy grounds for not holding the police responsible in tort for failure to control criminal behaviour

o Some relationships between two parties that gives rise to a duty on the part of one of them to take reasonable care to prevent harm ensuing to the other from the deliberate criminal acts of a third party include employer and employee, school authorities and pupils, bailor and bailee, jailer and prisoner and hoteliers and patrons (but not occupier and entrant)

Statutory powerso public authority may be subject to a duty of care in the exercise of its

statutory powerso Damages for negligence may be recovered if those who exercise statutory

powers could by reasonable precaution prevented an injury which was occasioned

o Sutherland Shire Council v Heymano Principles to be applied in determining whether a public authority has a

duty of care or has breached a duty of care:a) the functions required to be exercised by the authority are limited by

the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions


b) the general allocation of those resources by the authority is not open to challenge

c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate)

d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate

The planning/operational dichotomyo originated from the decision in Dalehite v United States – civil suit

immunity because original Cabinet deicision was concerned to protect ‘planning level’ decisions

o Planning decisions (not reviewable) is not the same as operational decisions (conduct whereby policy is put into operation and is reviewable)

o L v Commonwealth expressly adopt designations ‘planning’ and ‘operational’

English courts and the planning/operational dichotomyo most English cases before Anns: accepted that liability only lay where

there was misfeasanceo no criterion by which a court can assess where the balance lies between

the weight to be given to one interest and that to be given to another o no immunity if discretion is exercised so carelessly or unreasonably that

there has been no real exercise of the discretion

Australian courts, the planning/operational dichotomy and the ultra vires doctrine

o In Anns, it was held:1. that ultra vires was a precondition to any tortious liability on the part

of a statutory authority2. in respect of planning matters, a duty of care might arise by virtue of

the ‘proper consideration ‘ qualificationo policy/operational dichotomy remains relevant in considering whether a

statutory power gives rise to a duty of care

Omissionso nonfeasance: no liability (Anns, Sheppard v Glossop Corporation) rule

that where where a public authority has a power but no duty to act, it will only be liable, where it does decide to act, for any additional harm brought about by its intervention

o antecedent act which has created or increased risk of injury liabilityo Antecedent act of public authority may lead to a situation of dependence

or reliance on the authority of the public


Occupiers’ liability o duty owed by occupiers of land or premises towards any visitoro Two main factors: these ‘special’ duties reflected then prevailing attitudes

about the sanctity of ownership of property – framed to provide minimal intrusion on these rights, and injury suffered by visitor usually resulted from some defect in the static condition of the premises

o Australian Safeway Stores Pty Ltd v Zaluzna: in order to determine whether respondent was owed a duty, necessary degree of proximity of relationship (reasonable foreseeability of a real risk of injury to the visiter or to the class of person of which the visitor is a member)

Pure mental harm or ‘nervous shock’What is pure mental harm?

o not all injury to the psyche (if not consequential on physical injury) is compensable

o Threshold test: is the reaction what most normal people experience when someone they are fond of is injured/killed?

o Difference in common law approach (NT, Qld, WA) is that pure mental harm is compensable (but the injury must be recognised by the psychiatric profession or one which may come in time) and in ACT, NSW, TAs and Vic: legislation denies liability for pure mental harm resulting from negligence ‘unless the harm consists of a recognised psychiatric illness’ – frozen type of harm

Development of the lawo past reluctance to award damages for non-physical injuries difficulty of

putting monetary value on such a loss, risk of fictitious claims, difficulty of proving link between d.’s conduct and p.’s shock

o Primary and secondary victims – secondary victims (suffer pure mental harm) – must be in a close and loving relationship with primary victim,

o Tame v NSW – wrongly reported accident dismissedo Annetts v Australian Stations Pty Ltd – son who died whilst working as a

jackeroo for the d. held

The basis of liabilityo duty of care will only arise if d. ought to have foreseen that a reasonable

person might suffer a recognised psychiatric illness if reasonable care were not taken (legislation), even if d. was aware that p. was esp. vulnerable

Factors to be taken into account:Whether the psychiatric illness was the result of a sudden shock

- notion that illness must be shock-induced was rejected as a precondition of recovery, at least where p. was a ‘primary victim’ and illness had been caused by p.’s employer (Jaensch v Coffey NSW v Seedsman) because principles relating to standard of care and remoteness of damage were adequate ‘control devices’ in that situation


- Tame v NSW: in all cases of pure mental harm, question of whether illness was shock-induced is not a prerequisite to liability but it is something that might be a factor (al jurisdictions other than NT and QLD)

Direct perception of distressing events- before Tame v NSW: ‘control factor’ was that if p. was a secondary victim,

then the psychiatric illness must have resulted from a relatively close connection with a distressing event affecting the primary victim

- Jaensch v Coffey: liability required the direct perception (i.e. sight, hearing or touch) this view has weakened

- Benson v Lee: ‘direct perception’ includes sigh of the immediate aftermath of the accident, even if p. has not seen or heard the actual impact/explosion/other precipitating event e.g. through a telephone call, watching news

- Tame: direct perception of distressing events or their aftermath is no longer a prerequisite to liability, but a further factor that is to be taken into account similar approach in legislation in all jurisdictions except for NT, QLD and Tas courts take into account whether the p. witnessed at the scene, the person killed, injured or put into danger

- Legislation in NSW, SA, Tas, Vic limitation on recovery of damages for pure mental harm suffered by secondary victim cannot claim damages unless he/she witness at the scence, the primary victim being killed, injured or pu in peril, or was a close member of the famil of the primary victim

- Wicks v State Railway Authority of NSW; Shechan v State Rail Authority of NSW no recovery because the rescuers arrived after the deaths and did not witness the derailment

Relationship between primary and secondary victim- ‘sufficient’ relationship e.g. workmates, rescuers, but not bystanders- legislation in Aus other than Qld, Tas, and NT relationship between

primary and secondary victim is a further matter- In NSW, SA, Tas and Vic, secondary victim must be close member of family

to recover damages

Relationship between plaintiff and defendant o whether or not p. and d. knew each other before 1. employment

relationship 2. p.’s mental harm is caused by d.’s injury not of a third person but of the defendant personally

o Tame v NSW – McHugh J – company had a duty of care due to the pre-existing relationship between that company and the Annetts

o Claim for mental harm based upon the plaintiff’s witnessing the fact, or the apprehension, of physical injury which the defendant has inflicted upon himself/herself rather than on a third person Deane J in Jaensch v Coffey no recovery for p. but rejected in FAI General Insurance Co Ltd v Lucre recovery for d. even though primary victim was defendant

Extent of mental harm


o ‘egg-shell skull rule’ – once p. has proved that d.’s breach of duty caused some damage which was reasonably foreseeable, then d. is also liable for any further injury flowing therefrom

o Tame v NSW – this rule applies to cases of mental harm – principle of compensation

Contributory negligence of a primary victimo NSW only legislature to impose further restriction on damages

recoverable by a secondary victim who has suffered mental harm in connection with a primary victim suffering death or physical injury (CLA s 30 (3)) if primary victim has been contributorily negligent

Primary victim voluntarily accepted risk of harmo NSW AND VIC: no award of damages if recovery of damages from d. by

and through the victim would be prevented by any written or unwritten law

o E.g. if victim had voluntarily accepted risk, then family/close relationship person cannot claim damages

Damage to propertyo Can also apply to pets, houses (Attia v British Gas plc), funeral hearse

(Owens v Liverpool Corporation)

No Duty Situationso sometimes no duty of care exists:

1. Barristers - barrister/solicitor acting as advocate has immunity against in-court negligence – also applies to for any work conducted outside the court which is connected to the case and affects the way that cause is conducted during hearing - policy reasons Authur J S Hall & Co v Simons courts have sufficient powers under the doctrine of res judicata to protect finality in civil proceedings and that a collateral challenge to a criminal conviction was an abuse of process unnecessary to preserve the barrister’s immunity

2. ‘Wrongful conception’: ‘Wrongful life’- parents of an unplanned child can sue for the costs in raising the child

if it can be proved that the doctor/health professional was negligent- Cattanach v Melchior: doctor didn’t clip the right fallopian tube,

woman pregnant damages

3. Protection of volunteers- volunteers are not liable for any act/omission done in good faith (does

not cover criminal conduct or being under the influence of alcohol or drugs)

4. Liability for animals straying onto the highway- rule in Searle v Wallbank: owners of land abutting highways are under

no duty to users of highways to keep hedges/fences/dates to prevent


animals form straying State Government Insurance Commission v Trigwell legislation which abolishes the rule(Brown v Toohey – Meagher JA)

Torts Textbook Summaries

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Transcript of Torts Textbook Summaries