1. NEGLIGENCE TEMPLATE A cause of action in negligence = when a person/property is injured by the failure of another to take reasonable care to prevent foreseeable harm.

Elements in Negligence:(1) Tortious cause of action (tort committed)(2) Causation(3) Remoteness(4) No breach of duty to mitigate

[P] has a possible cause of action in negligence against [D]. To be successful, [P] must prove on the balance of probabilities (Barnett v Chelsea & Kensington Hospital Management Committee) that:

1) [He/she] was owed a duty of care by [D];2) The duty of care was breached by [D];3) P suffered a loss4) D’s breach of duty actually caused the loss P suffered (Causation)5) Type of loss was reasonably foreseeable- was not too remote, a consequence of D’s

conduct (Remoteness)6) No part of the loss was caused by any failure of P to mitigate losses suffered

[D] must then raise defences such as volenti, contributory negligence or joint illegal activity.

As the accident occurred on [DATE] [P] is within the 3 year statutory time limit for [his/her] claim: LAA ss10-11.

DUTY OF CARE

[P] must show that it is reasonably foreseeable that the possibility of careless conduct of any kind on the part of [D] may result in damage of any kind to [P’s] [person/property]: Donoghue v Stevenson. [NOTE: if statutory go directly to Statutory Authorities].

[Test 1]: Established CategoryThe relationship between [P] and [D] falls within the established category of [CATEGORY: CASE].Categories:

Road users: Broadhill v Young.Driver/passenger: Cook v Cook.Doctor/patient: Rodgers v Whitaker.Employer/employee: Smith v Charles Baker & Co.Occupier/invitee: Heaven v Pender.Manufacturer/consumer: Donoghue v Stevenson

As a duty of care is established between [P] and [D] it is necessary to examine whether [D] breached that duty.[Test 2]: Novel or Special Duty Category

As the relationship between [P] and [D] is not an established category, it is necessary to establish that [D] owed [P] a duty of care in relation to the circumstances in which [P] was injured. [He/she] must show that the facts giving rise to the injury fall within a special duty category.

Category: Nervous Shock

Primary Victims: As [P] has also suffered a physical injury, consequential nervous shock is also recoverable: Donoghue v Stevenson.

As [P] is a primary victim [he/she] does not have to establish that the psychiatric injury suffered was foreseeable in a person of normal fortitude.

Secondary Victims: As a [P] is a secondary victim, [D] does not owe [him/her] a duty to take care not to cause pure mental harm unless [D] ought to have foreseen that a person of normal fortitude might have suffered a recognised psychiatric injury if reasonable care was not taken.

To show that a duty of care existed, [P] must show that:

[Element 1]: As a result of the actions of [D], [P] has suffered a recognised psychiatric injury in the form of [APPLY].

[Element 2]: [P’s] recognised psychiatric injury was the result of the sudden shock of [seeing/hearing] that [APPLY], rather than mere grief or emotional exhaustion: Jaensch v Coffey.

[Element 3]: [P’s] psychiatric injury must have been reasonably foreseeable to [D] at the time: McLoughlin v O’Brian. [P] does not have to have normal fortitude as long as the impact would be the same for a person of normal fortitude: Tame v New South Wales

To establish reasonable foreseeability the following factors affecting [P] must be taken into consideration:

1) Close relationship of [P] with original victim: extends to anyone who is bound by

a relationship of love and affection. Certain classes (parents/spouses) are presumed to have this relationship: Alcock v Chief of South Yorkshire Police; or Annett v Australian Stations; mom called work.

2) Direct Sensory Perception/Aftermath: (i) Hearing is sufficient: Hancock v Wallace: was not at accident, not at

hospital, told over the phone.(ii) Seeing: Alcock: it is insufficient to see it on TV if individuals cannot be

identified, it is limited to those actually present.(iii) Aftermath: Jaensch v Coffey: only saw victim go into operating room;

Spence v Percy: aftermath limited by time; death of victim after 3yr coma is too far removed in time; Alcock v CCSYP: identification at morgue is not close enough.

3) Antecedent Relationship: between [P] and [D]. Annett v Australian Stations: phone call established relationship. Duty owed due to the ordinary principles of negligence, closeness of relationship between D and P combined with D’s control and risk to son.

4) Sudden Shock: cannot be accumulated over time: Annetts.5) Gruesome Factor: nature of the injuries: Hancock v Wallace.6) Control: degree of control exercised by [D] over safety of victim: Gifford v Patrick

stevedores

[Element 4]: Policy Issues

Despite showing that [D] may owe [P] a duty of care, control mechanisms may limit this duty. These issues include: Sullivan v Moody

i) Indeterminacy: recovery will risk creating an indeterminate liability to an indeterminate number of people.

ii) Disproportion: may impose an unreasonable or disproportionate burden of [D].iii) Disincentive: litigation may operate as a disincentive to rehabilitation.iv) Coherency of the Law: (Hancock v Wallace- police must inform)

Tentative Conclusion

Based on [APPLY], it would be [likely/unlikely] that [D] owed [P] a duty of care. As such, it [is/isn’t] necessary to determine whether [D] has breached [his/her] duty.

Pure Nervous Shock: Hancock v Wallace – father was a secondary hearsay victim, not at accident, not at aftermath, but told over phone that person decapitated may have been his son; Pl recovered because of extremely close relationship with victim.

Category: IllegalityThe mere fact that P was acting illegally at the time is not a total defence (Henwood v Municipal Tramways Trust – Boy on tram decapitated)Joint Illegal Enterprise: Must look at the nature of the circumstances. Was there proximity except for the illegal relationship (Gala v Preston – Playing Pool/ran out of money/stolen car/accident); merely being involved in illegality does not automatically negate the existence of D.o.C. – have to examine the relationship (Proximity) btw parties.- ‘A duty of care arises out of the relationship of particular persons, one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed.’ (Italiano v Barbaro – Scam)

Category: Nonfeasance –failure to actTwo types: 1. Failure to do something in the course of a positive act (e.g. failure to apply brakes while driving. 2. Mere failure to take a positive action (e.g. to not jump into a fast moving river to rescue someone)

The general rule is that [D] does not have a duty to take positive action for the safety of [P]: Stovin v Wise unless there is a:1) Pre-existing protective relationship between [P] and [D] imposes a positive duty

to act: i) Teacher/student: Richards v Victoria: must take reasonable steps to

protect students; Geyer v Downs: once school grounds opened, duty of care arises; St Mark’s Orthodox Coptic College v Abraham: student fell from balcony; school open = duty

ii) Prisoner/prison authority: L v Commonwealth: must separate violent offenders from those on remand.

iii) Occupier/visitor: Romeo v NT Conservation Commissioniv) Employer/employee: Paris v Stepney Borough

2) Duty to prevent 3rd party causing harm to [P]: i) Child/parent: Smith v Leurs: a duty to prevent child from causing

injury to others; Curmi v McLennan: parent liable because gun was readily available to child;

ii) Guests/hotel: Chordas v Bryant: a duty of care owed to protect patrons; Wormald v Robertson: hotel liable because offender had been complained about, but hotel did nothing until he assaulted another guest.

3) Statute may impose a duty to act: Where an Act creates an obligation and provides enforcement in a specified manner, as a general rule, performance can’t be enforced in any other way: Bishop of Rochester v Bridges.

Tentative ConclusionAs the relationship between [P] and [D] is that of a [APPLY], it would be [likely that [D] owed [P] a duty of care. As such, it is necessary to determine whether [D] has breached their duty.

Category: Statutory Authorities

For [P] to succeed in a claim against [D], the court must decide that [D] is under a common law duty to exercise statutory power and when exercising power they are under a duty to take reasonable care: Anns v London Borough of Merton.

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[Key Principles: Anns v London Borough of Merton1) If SA exceeds power and thereby causes damage, it will be liable2) If it has a duty to act and its failure to act causes damage, it will be liable3) If SA has no statutory obligation to act, it is not liable for any failure to act

except when by its conduct it places itself in such a position.4) Where it exercises powers in respect of operational functions, it will be liable]

[Element 1]: Legislative Intent [P] must show that the Act establishing the [statutory authority] intended for it to be liable for [APPLY]. If given power – discretionary, if given duty – mandatory.

[Element 2]: Did the authority have a CL duty to exercise statutory power?

As [P] claims that the [Statutory Authority] owed [him/her] a duty of care the courts will examine the following salient factors: Crimmins v Stevedoring [NOTE: a ‘no’ answer to any factor will result in no duty arising] or Graham Barclay Oysters

1) Reasonable Foreseeability: that their act or omission might result in injury to [P]2) Class of People: did the authority have the power to protect the interest of a

specified class of people including the [P] rather than the public at large.3) Vulnerability: [P] was especially vulnerable and could not reasonably be expected

to adequately safeguard himself or interests 4) Knowledge: knew or ought to have known of an existing risk of harm to a specific

class of people5) Impose Liability: would the imposition of a duty of care impose liability with

respect to the [D’s] exercise of “core policy making” or “quasi-legislative” functions? If yes, no duty.

6) Other Issues: (a) Control: was the authority in a position of control: Graham Barclay

Oysters v Ryan 2002: Held that the council did not have enough control over the manufacturing of oysters to establish a private duty of care to the plaintiffs who contaminated HAV by eating oyster manufactured in a lake which was under council supervision. It was a policy decision in determining the nature of regulation of the oyster industry and therefore not reviewable.

(a) Resources: the ability of the SA to afford to undertake measures.

(b) Supervening Policy Reasons: e.g. indeterminacy(a) Pyrenees Council v Day 1998: Council failed to follow up an order directing

tenant to repair fireplace; fire broke out and damaged neighbouring property; held council owed a duty to neighbours because:i) Council had specific knowledgeii) Council had power to prevent itiii) P was vulnerable, so power to prevent amounted to a duty

CASE DETAILS:Sutherland S.C v Heyman: Facts: Council inspected P’s buildings (but not footings) & approved. Cracks later appeared & P sued Held: Council was found negligent, but not liable as there was no general duty was owed to exercise its powers. However if Councils actions gave rise to reliance then a duty arises. Mason J spoke of general reliance. Mason J also spoke of when it is policy the courts cannot intervene (ie: budgetary allocation, social/political factors/restraints, but can when it is operational/discretionary. Parramatta C.C v Lutz: Held: Adopted the ‘general reliance’ approach. The Council owed a DOC because it had adopted a general practice of demolishing known derelict buildings thus P entitled to assume council would promptly demolish building.Pyrenee Shires Council v Day: Council failed to follow up an order directing tenant to repair fireplace; fire broke out and damaged neighbouring property; held Council owed duty to neighbours because: (i) Council had specific knowledge; (ii) power to prevent it; (iii) P was vulnerable; so power to prevent amounted to a duty. Kirby applied Caparo test: (i) Reasonable Foreseeability; (ii) Proximity; (iii) Fair, Just and Reasonable. Brennan applied Legislative Intent test: was right to private recovery intended.Perre v Apand P/L: P may recover if: (i) particular class of people at risk; (ii) the class is vulnerable because unable to protect itself; (iii) it was only a minor variation on the rule that physical damage was necessary to found an action.Ryan v Great Lakes Council: No absolute duty owed by SA; Council ought to have known the possible damage that would result from omission but failed to take reasonable steps to prevent the damage. This case showed the importance of foreseeability.

Crimmins v Stevedoring: Facts: were Stevedores under D of C to warn workers of asbestos. Held: no legislative intention that they were liable. Messy case need (i) Rf that failure to exercise stat. Power would cause P’s injuries (ii) did it cause them to have to warn a specific class (iii) was P vulnerable (iv) was there knowledge of possible harm to P. AND DO NOT NEED (i) would such a duty impose liability in rewlation to core policy making (ii) would it open flood gates

Critiacal factor – P’s vulnerability when compared with the D’s knowledge of the risk & its powers to control or minimise that risk. Brodie v Singleton Shire Council: "on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care

Tentative ConclusionThe relevant salient factors, and in particular [APPLY], indicate that [D] [would/would not] owe [P] a duty of care. As such, it [would/would not] be necessary to determine whether [D] was under a common law duty to take reasonable care when exercising its power.

[Element 3]: When exercising power did authority have a CL duty to exercise reasonable care?

As it would appear that the Statutory Authority [was/was not] undertaking operational acts they will give rise to liability to exercise reasonable care: Sutherland Council v Heyman (no duty exists when making policy decisions, but duty exists in administrative and operational matters. The level at where the decision is made determines if it is policy/operational. Policy involves finance, social and political decisions. Is the decision maker executive or subordinate?)

Tentative ConclusionAs [P] [was/was not] undertaking operational acts in relation to [APPLY] it would be [likely/unlikely] that it was under a duty to take reasonable care.

[Element 4]: Duty of Land Managers

Duty arises when:(1) Foreseeable Damage: (Nagle) is hidden rocks in lake; dove in(2) Use Encouraged: (Nagle, Wilmot)(3) Danger Not Obvious (Romeo) (Soper v GCCC – fall on wet grass)

Depending on obvious to who, P’s personal characteristics (see Ghantous: P tripped on un-level footpath. HCA held not liable as ordinary people in broad daylight should know (obvious).

(4) Administrative, not policy, decision: (Sutherland)

CASE DETAILS:

Nagle v Rottnest Island Authority: Pl injured when diving into rock pool. Because D advertised, provided facilities and encouraged people to swim in rock pools, D brought itself into a relationship of proximity with visitors and thus had a duty of care to protect visitors from foreseeable risks – D should have erected warning signs.Wilmot v South Australia: Pl injured when bike riding in nature reserve; distinguishable from Nagle because D did not invite visitors to use the land and decision to leave land open was made at a high level.Romeo v NT Conservation Commission: Pl fell down cliff, sued for not having erected warning signs or fence. Majority = duty owed, but not breached; reasonable care should be assessed with reference to nature of land, extent of use and character of people (plaintiff was drunk) who enter. Duty should only change when the authorities own conduct creates a risk of injury or some special relationship arises.Vairy v Wyong Shire Council 2005: P dived into shallow water, rare tidal occurance, hit head, quadrepegic. Council found not to be liable. Shirt calculas: magnitide of risk against the likelihood of happening, saw council not being under duty to erect sign.

Tentative ConclusionAs it would appear that [D] [APPLY] it [would/would not] owe [P] a duty of care. As such, it [is/is not] necessary to determine whether they have breached that duty.

Category: Other Novel CategoryBased on the facts provided, it would appear that the possible negligence by [D] does not fall within an established or special duty category. As such, for [P] to have a claim against [D] in a novel situation [he/she] must show: Sullivan v Moody

1) [He/she] was a member of a class of persons likely to be injured by [D’s] conduct; and,

2) The law should allow for the incremental increase in duty of care situations to the circumstances experienced by [P];(a) Identify type of harm;(b) Characteristics of the conduct;(c) Nature of the relationship;(d) Compare to previous decisions.(e) Policy decisions.

In this case, [P] was [APPLY].

CASE DETAILS:Pure Economic Loss: The Dredge Willemstad – Pipeline belonging to primary victim ruptured, Pl normally used the pipeline and recovered costs for alternate means of delivery even though Pl had not suffered physical property damage; Pl recovered because D had peculiar knowledge that Pl in particular would suffer economic loss, not merely a class of persons.Pure Nervous Shock: Hancock v Wallace – father was a secondary hearsay victim, not at accident, not at aftermath, but told over phone that person decapitated may have been his son; Pl recovered because of extremely close relationship with victim.

Tentative ConclusionAs it would appear that [APPLY] it would be [likely/unlikely] that [D] would owe [P] a duty of care.

BREACH OF DUTY

[D] would be considered to have breached [his/her] duty to [P] if [his/her] conduct fell below that expected of a reasonable [APPLY] in the same position: Blyth v Birmingham Water Co.

[Element 1]: Standard of care owed and subjective elements which may modify the standard: REASONABLE PERSON TEST considers the following:

(1) Mental State: insanity is not a civil defence. D was insane, but judged on the bases of an ordinary sane person (D’s insurer paid so he was effectively not penalised for insanity; feared co-workers): Adamson v Motor Insurance Trust.

(2) Age: where there is a minor, his conduct should be judged based on his ability to foresee (What is the standard of a reasonable 12yr old?): McHale v Watson. But a minor who engages in dangerous adult activities must conform to the standard of a reasonably prudent adult, eg driving car.

(3) Skill – (a) Philips v William Whitely: [D] must exercise the level of skill they claim to

have. (First year lawyer or reasonable lawyer) (b) Stokes v Guest, Keen & Nettlefolds: [D] will be judged according to a

higher degree of skill when he actually possesses that skill level. (c) Rogers v Whitaker: A doctor must give warnings of risk if a patient

attaches significance to it (1/14000 chance of damage to eye). (d) Bolam v Frierm Barnet Hospital: doctor is not negligent if he acts in

accordance with a practice accepted at that time as proper by a reasonable body of medical opinion, even though other doctors adopt a different practice. PERSUASIVE ONLY

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(4) [P’s] peculiar knowledge and consensual relationship with [D]: the standard of care changes with the relationship between [P] and [D].

Relationship is modified by P’s knowledge: Cook v Cook: normally, personal skill is irrelevant, but P knew that D was learning to drive, so D’s standard was that of a reasonable learner. Also applies to drink drivers, depends on what they know you drank – see ‘volenti’.

[Element 2]: Breach of Standard of Care

[D] will have breached the standard of care if a reasonable person in [his/her] position would have reasonably foreseen that their conduct involved risk of injury to [P] or a class of persons including [P] and whether [D’s] response to the risk was reasonable: Wyong Shire Council v Shirt.

A foreseeable risk is one which is not farfetched or fanciful: Wagon Mound (No. 2).

In this case, it would be reasonable to suggest that [P] would be at risk of harm as a result of [D] [APPLY]

While a reasonable response in this case would be [APPLY] whether this was reasonable in the circumstances will depend upon balancing the magnitude of risk against the burden of taking precautions: Wyong Shire Council v Shirt.

CALCULUS OF NEGLECT[Test 1]: Magnitude of Risk:(1) Probability of Harm: [D] need only guard against reasonable probabilities, not

fantastic probabilities: Bolton v Stone.The risk of injury must have been foreseeable, not far-fetched or fanciful: Wagon Mound (No 2). (now over-turned by statutory provision, section ??? PUT IN EDWINA)Standard of care expected of a reasonable man requires him to take into account the possibility of inadvertent and negligent conduct by others: McLean v Tedman. [APPLY]

(2) Seriousness of Harm: the more serious the potential consequences, the more precautions must be taken: Paris v Stepney Borough Council: an employer must take more precautions for an employee with one eye than others with two eyes, if there is a risk to the eyes.Burnie Port Authority v General Jones: in some cases the risk will be so high because of vulnerability, that the standard of care will amount to a virtual guarantee of safety, giving rise to a non-delegable duty to take reasonable care (often an issue with sub-contractors). Risk is to be assessed at the time of incident.[APPLY]

[Test 2]: Burden of Taking Precautions:The onus is on [P] to show there were reasonable measures available to [D] to limit the risk to [him/her]. If shown, onus shifts to [D] to show that they were unreasonable/impractical in the circumstances: Romeo v NTCC.

(1) Cost of Precaution: as a % of the whole operation, is relevant: Wyong Shire Council v Shirt – waterskiing signs, yes. Bolton v Stone – cricket fence, no.

(2) Ease of Precaution: if [D] has later provided for this risk (i.e. after injury occurred) then shows the ease of taking precautions Calledonian Collieries v Spiers (train track)

[Test 3]: Social Utility: If present it overrides failure to take precautions. Court must balance the risk against the end to be achieved. Watt v Herfordshire SC: standard of care modified by utility of task undertaken (saving lives justifies considerable risk). Patterson v McGinlay: utility does not extinguish the standard of care, just modifies it.

[Test 4]: Customary or Statutory Standards

The fact that [P] was not adhering to the standards of careful conduct doesn’t mean [he/she] is acting unreasonably, e.g. traffic rules.

Doesn’t matter what common practice in trade/industry is (except doctors - Bolam): Mercer v Comm’r Road Transport. Once risk known of, must implement precautions: Thompson v Smiths Shiprepairs.Statutory standards (not action for breach of stat duty) are evidence of negligence just highly persuasive: Tucker v McCann.

Tentative Conclusion: It would appear that [D] [has/has not] breached the duty of care by [APPLY]. If this is correct, it is necessary to determine whether [P] has suffered damage that was caused by [D] and that damage was not too remote.

DAMAGEWhile [P] has suffered damage in the form of [APPLY], it is necessary to determine whether on the balance of probabilities [D] has in fact caused [his/her] damage: Barnett v Chelsea & Kensington Hospital Management Committee.

CAUSATION[P] must show that [his/her] injuries would not have been suffered but for [D’s] negligence: Barnett v Chelsea & Kensington Hospital Management Committee. [P] should be aware that the court will examine the issue of causation in a practical, common sense way, imbued with policy considerations: March v Stramare.

In this case, [P] will argue that but for [APPLY FACTS: CASE] he would not have suffered [his/her] injuries.

CASE DETAILS:1) Merely causing [P] to be to be at the scene of the accident is insufficient to establish a causal connection, unless it materially increases the risk of injury:March v Stramare: where [D] negligently parked a truck in the middle of the road, which [P] crashed into.McKiernan v Manhire: where [P] tripped in the hospital while recovering from her primary injury suffered as a result of [D’s] negligent act, held that tripping could’ve occurred anywhere, it was not caused by being at the hospital. Was the subsequent even a completely new act not related to the initial injury. Gets damage from initial injury but not subsequent. Pyne v Wilkenfield: where [P] was wearing a neck brace from her primary injury suffered as a result of [D’s] negligent act, which caused her to trip and suffer further injury. Held that [D’s] negligent act was the reason for wearing the neck brace, therefore able to recover for the subsequent event as well. So where the initial injury contributed to the second injury – use this case. Queensland v Keeys: where an officer suffered psychiatric injury after being struck by a bullet, held that by failing to warn him of the threat made against the unit, the commissioner had materially increased the risk of serious injury, because had the officer known, he would have taken precautionary measures.

2) Where there are alternative causes, for [P] to discharge the onus of proof, [he/she] must show one of the causes is more probably the cause:The court may find one explanation is more probable than any others: TNT Management v Brooks: where two trucks crashed and the wife of a killed driver sued, held that it was more probable that the other truck was on the wrong side of the road.If there are multiple explanations, but all involve negligence by [D], then [P] must succeed, whichever explanation is chose: GIO v Best: where three possible causes where identified, all supposing [D] was negligent while drivingIf there are multiple explanations, the court will not speculate as to the cause in the absence of evidence which shows one cause is more probable than the others: West v Government Insurance Office: where [P], who was injured by [D’s] negligent driving, suffered amnesia and the other passengers evidence was inconclusive as to the cause.

[NOTE]: Where [D] pleads novus actus interveniens:

[D] will argue that the [APPLY] is an intervening act that breaks the chain of causation (even if the BUT FOR test is satisfied)

However, [P] will argue that as the [subsequent injury] to [P] is a predictable consequence of [D’s] negligence [and was likely to occur even without the intervening act], the defence cannot be relied upon to protect [D] from the subsequent injury: Adelaide Chemical v Carlyle. [NOTE: unless medical treatment was inexcusably bad: Mahoneyv Kruschich]

[In this case, the chain of causation will be broken if [APPLY FACTS TO BELOW: CASE]1) Subsequent intentional act of a 3rd party:Curmi v McLennan: where the intentional act of firing a gun was not found to break the causal connection, because it was a predictable consequence of leaving the gun unattended and there was also a breach of duty not to expose other children to the risk.Yates v Jones: Addiction is caused by a NAI from the intentional actions of the drug pusher & the addict to consume heroin. The addiction wasn’t caused by the original accident caused by D’s neg. Havenaar v Havenaar: Voluntary consumption of alcohol broke the causal chain between D & alcoholism. However if alcohol was considered the only method to relieve the pain then it isn’t a NAI.

2) Subsequent negligent conduct of a 3rd party unless the third party’s negligence was reasonably foreseeable:Chapman v Hearse: where a doctor attending to a car accident victim was struck by a car driven negligently by a third party, held that is reasonably foreseeable that a volunteer will be injured by another’s negligence during a rescue.Mahoney v J Kruschich P/L: A worker received negligent medical treatment for a injury suffered at work due to the employer’s negligence, which resulted in further complications, held the employer was liable for the further complications because it is predictable that negligent medical treatment will be given. Negligent medical treatment is only an intervening act if it is inexcusably bad (gross). = gross negligenceBennet v Minister for Community of Welfare: where [D] failed his duty to seek legal advice for [P] who was injured in a state ward, and subsequent to his release [P] received incorrect and negligent legal advice about his right to compensation for his injury from a third party, held that the third party’s negligent advice was not an intervening cause, because the reason it had to be sought in the first place was because of [D’s] original negligence.

3) If there is free, informed and voluntary subsequent conduct by [P], which results in his further injury, the chain will be broken: Yates v Jones: where [P] who was recovering in hospital became addicted to drugs and sued for the addiction as a result of being in hospital, but addiction was not from medication, rather from illicit drugs bought from a dealer, held that [P’s] free choice broke the causal connection.Havenaar v Havenaar: where [P] became an alcoholic after an accident and sued for it, he claimed it was to relieve pain, held that voluntary consumption of alcohol breaks the causal connection, unless there is no other way to relieve pain.

[NOTE]: Requirement for positive evidence (the onus of proving causation rests very firmly on [P])

Quigley v C’th: If its improbable that the [P] would have used the safety feature that [D] was negligent in failing to provide, then there is no causation. [P] must prove he would have used the feature had [D] provided itMcLean v Tedman: If [P] proves there is causation then [D] must disprove it. [D] bares the evidentiary onus of showing that the suggested system of work wasn’t reasonable practicable because [P] would not have used it even if it was provided & he wouldn’t be able to enforce compliance.

Tentative ConclusionIt would be likely that [P] would establish that [his/her] injuries were caused by [D]. If this is correct, it is necessary to determine whether [P’s] injuries were not too remote.

REMOTENESSIn order to recover, [P] must show the damage suffered is not too remote in law.

The [damage] suffered by [P] must have been of such kind that the reasonable man should have foreseen: Wagon Mound No 1. In this case, [P’s] [damage] would be reasonably foreseeable as it is not far fetched or fanciful that [he/she] would suffer [damage] as a result of [D’s] actions: Wagon Mound No 2.

Provided that the type of harm is foreseeable, the extent of harm and the precise manner in which it occurred is irrelevant: Hughes v Lord Advocate.

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[Test 1] – Is the damage of such a kind that the reasonable man should have foreseen: Wagon Mound No 1. Must consider two issues:

1. Kind of damage suffered: defining it narrowly or widely impacts on the foreseeability of it, the more qualifications on kind of harm, the harder it is to foresee. Provided the type of harm is foreseeable, the extent of that harm and the precise manner in which it occurred is irrelevant: Hughes v Lord Advocate; and

2. If it was reasonably foreseeable: a risk is reasonably foreseeable if it would occur to the mind of a reasonable man in D’s position and he would not brush it aside as far-fetched or fanciful: Wagon Mound No 2.

Egg Shell Skull Rule: If [P] has shown that the damage is reasonably foreseeable, then [D] is liable for any consequential damage which results because of [P’s] peculiarities: Smith v Leech Brain. The tortfeasor takes his victim as he finds him. Does not apply to psychiatric illness in Aus (Rowe v McCartney)

CASE DETAILS:Tremain v Pike Facts: Employee got a rare disease from rat wee, sued for not controlling plague Held: Disease contracted from rat bite or food poisoning would be Reasonably Foreseeable; but disease contracted from rat wee isn’t Reasonably Foreseeable.Nader v UTA Facts: Boy fell off bus, minor injuries; developed a psychological disorder partly due to overprotective parents Held: Parents reacting that way is Reasonably Foreseeable & his condition is attributable to their reaction; thus its Reasonably ForeseeableRichards v State of Victoria: Teacher failed to stop schoolyard fight, boy knocked on head resulting in paralysis because of a pre-existing physical condition, D liable for paralysis.Stephenson v Waite Tileman Ltd: P developed ‘compensation neurosis’ as a result of injury because of a pre-existing psychiatric condition – vulnerable personality.Rowe v McCartney Pl was driver in crash where passenger was paralysed; Pl suffered guilt neurosis. Court held Pl couldn’t recover for mental illness as it resulted from her own actions (Policy considerations) Dissenting judgment reasoned that Pl would have recovered damages if she took action for Nervous Shock rather than guilt neurosis.

Tentative ConclusionAs [P’s] damage [would/would not] be reasonably foreseeable it would be [likely/unlikely] that the damage would be considered not too remote. If this is correct, it is necessary to determine whether [P] has any defences available.

DEFENCESHaving found that P’s injuries were the result of D’s negligence and that they were not too remote it is necessary to determine whether a reduction of damages would be allowed to reflect the % of blame apportioned to P or whether D can rely on the defense (Law Reform Act 1951 Qld).

Contributory Negligence: Where P’s own negligent conduct has contributed to the injury suffered D can argue that P didn’t take reasonable steps to protect himself from the injury (Davies v Swan Motor Company – Garbo on back/Hit by bus/explicit instructions). P’s negligence need only contribute to the harm not the accident (Froom v Butcher – Not using the Seat Belt/25%) no seat belt/Statutory automatic 15%. Negligence on P must have contributed to the injury (Jones v Livox Quarries – lunch truck/on back of pickup)

Last Opportunity Rule: If the D had the last chance to avoid the accident then the P would succeed (Davies v Mann – Road/Donkey hit) All or nothing concept. Will also will be relevant if P had the last chance to avoid the accident, then D may succeed (March v Stramare – fruit truck/drunk driver) Onus is on D to prove that P fell short of the standard (Davies v Swan Motor Company)

Agony of the Moment/Sudden Emergency: There is a balance btw the degree of inconvenience and the risk taken to escape it (Caterson v Comm’r for Railways – child on platform/father jumps); If you create the danger then you can’t criticize the response of someone else to the danger (Shelley v Szelley – Blown Tire/Goofy Face).

Employer/Employee cases: If the employer provides an unsafe system of work, the court will take this into account (McLean v Tedman – Garbage Men); Inattention due to familiarity, repetition, and preoccupation is not contributory negligence (Comm’r of Rlwys v Ruprecht – Manager/Lost legs; Did P believe that what he did was required of him?

Irrelevant whether he knew or ought to have known (Comm’r for Rlwys v Halley – trainee/shunting yard); Duty to take care of yourself and not rely on everyone obeying laws (Sibley v Kais – pulling out/hit)

IN SUM: 1. P was at fault/negligent 2. Causation/ causal link btw P nglt conduct & P’s Damage 3. P’s injury must be within the area of risk created by P’s negligence

Volenti (Voluntary Assumption of Risk) A volunteer cannot complain of injuryOnus is on D to Show that P: (Roggenkamp v Bennett – P& D on Drunk bing/Driving)1. Perceived the existence of danger 2. Fully appreciated that danger, & 3. Voluntarily accepted the risk of that danger.____________________________________________________________ When P is aware of risk and consents to risk a Volenti claim by the D will

succeed (Smith v Baker & Sons – crane rock/injury; ICI v Shatwell – 2 bros./quarry/blew themselves up)

Can accept the inherent risk of activity but not of negligently performed duties outside scope of activity (Roots v Skelton – waterskier/negligent driver; Raniery v Raniery – inexperienced driver)

Consent must be real, free and voluntary to legal risk as well as physical risk (Nettleship v Weston – learner/driver); Not sufficient that P ought to know of risk, must prove actual knowledge (Scanlon v American Cigarette Co – lung cancer).

Sports/Spectators: Must take reasonable care for safety of all specatators, but if P goes outside that reasonable care then Volenti can be used (Australian Racing Drivers Club v Metcalf )

Rescue Cases: It is RF that a person will come to the rescue; Volenti cannot be used against a rescuer bc they haven’t volunteered to accept the legal risk of injury. Moral obligation means they are not free to choose (Haynes v G Harwood & Son).

Exclusion/Disclaimer Clauses: Objective test of determining whether it is a contract case (objective) or a torts case involving a subjective question of what P actually knew and consented to (Macleay v Moor – Wobbley’s World/Rides; Birch v Thomas – Octopus Ride)

Damages/RemediesMight be affected by whether P mitigated their loss (Apportionment of Fault Law Reform Act).

a) Compensatory Damages for actual damage sufferedb) Exemplary Damages to punish D if shows a conscious disregard for P’s rightsc) Aggravated Damages for hurt feelings, indignity humiliation etc.

NOTE:If [D] is an employee, or contractor look also at vicarious liability and non-delegable duties.

TRESPASS TO THE PERSON

Trespass to the person is the wrongful, direct and intentional interference with [P’s] physical integrity: McHale v Watson.

BATTERY TEMPLATE

[D] will be liable for battery if [P] can show direct, intentional, reckless or negligent touching of [his/her] person by [D] without consent or lawful justification: Innes v Wylie (doorway obstruction not positive/voluntary) Protected interest = P’s physical integrity

Battery is actionable per se, as such [P] does not need to show damage and need only show the fact of trespass. Onus: P must prove direct interference. Once [P] has discharged the proof of direct interference.The onus then shifts to [D] to raise a defence. If there is actual harm to [P] then remedies include compensatory, aggravated or exemplary damages. An injunction is also obtainable if the battery is feared as being on going.

[ELEMENTS]: Direct, Intentional, Reckless or Negligent:

[D], by [facts of act] has made contact with [P]: Innes v Wylie. While the contact was a direct result of [D’s] act, [D] does not have to come into actual contact with [P]: Scott v Shepherd (fireworks) Direct = impact followed so closely it is considered part of the act: Reynolds v Clarke (thrown log/hit head) [D’s] act, which led to the contact, came about through [intention/recklessness/negligence], and it is irrelevant that [D] did not mean to hurt [P]. McNamara v Duncan. Hostility is not a requirement, however, hostility can make an otherwise permitted contact a battery.

FaultNo liability unless D intended impact or cause negligently (Cole v Turner). Knowledge of P (asleep) or D (Law v Visser – drove over D thought was object) not a requirement. Irrelevant if D didn’t intend to hurt P (Duncan v Macnamera – AFL). Hostility is not a requirement, however it can make otherwise permitted contact a battery (Rixon v Star City). D’s motive to commit act, however beneficial, does not affect its trespassory character (Murray v McMurchy – extra surgical procedure).

Physical InterferenceMust be active, not passive (Innes v Wylie). Unwanted contact not necessarily battery. Must be offensive outside accepted usages & accidental contact of daily life (Collins v Wilcock). Contact need not be forceable (Forde v Skinner – Cutting hair, R v Cotesworth – spitting in face, Kaye v Robertson – Accepted possibility of flashlight).

Additional elements that may be required based on facts: Every surgical procedure is an assault, unless it is authorised (consented to by [P]),

justified or excused by law: Marion’s Case Consent may also be implied by conduct: All physical contact is battery unless it is

conduct impliedly expected in everyday life, e.g. jostling on buses, crowds etc. The conduct must be offensive outside the accepted usages and accidental contacts of daily life: Collins v Wilcock

The [D’s] motive to commit the act however beneficent does not affect its trespassory character’: Murray v McMurchy:

[D] can’t rely on [P] consenting to contact if contacts [P], causing injury, in a manner outside the rules of game: McNamara v Duncan (AFL)

Even if there is consent to some contact outside the rules of the game; consent doesn’t extend to contact that [D] knew or ought to have known would have caused injury to [P]: Giumelli v Johnston (AFL)

Accidental poke in eye in NRL not battery: Hilton v Wallace A touch to gain attention is acceptable, a physical restraint is not: Rawlings v Till

Onus of ProofFreeman v Home (UK): absence of consent is an element or tort, so [P] must prove he did not consent to the contact. Traditional view of Court Marions Case: McHugh J; Consent is a defence to battery; [D] has the BOP to prove [P’s] consent

ELEMENT: Defences: (Choose one option)

1. [D] [can/can not] show that [P] consented to the contact by [apply facts] Collins v Wilcock, and as such [D] [has a/ has no] defence: McNamara v Duncan.

2. In playing contact sport, a certain amount of contact is consented to, but something intentional and outside the rules, will constitute battery: Giumelli v Johnston. The question then becomes was [apply facts] consented to? From the facts of the case this [was/was not] consented to and as such [D] [does/does] not have a defence.

3. [D’s] contact [was/was not] in self-defence Fontin v Katapodis, and [was/was not] also proportional to the threat from [P]. As such [D] [does/does] not have a defence.

4. [D’s] contact [was/was not] provoked and as such he [does/does] not have a defence: Fontin v Katapodis. However, provocation is not available to reduce compensatory damages, but is available to reduce exemplary damages.

5. [D’s] contact with [P] was required by medical necessity, and while every surgical procedure is battery unless it is authorised, necessity excuses this: Marion’s Case.

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However, defence does not apply where the patient has given a certificate of refusal. As such [D] [does/does] not have a defence.

ELEMENT: Remedies (Choose elements required and join with facts)

OPTIONS:1. If there fear of ongoing battery, [P] can seek an injunction. 2. As there were no actual damages, [P] can expect to receive nominal

damages.3. For suffering actual damage = compensatory damages are available.4. As well as aggravated damages where there is loss of dignity or

humiliation Watts v Leitch. 5. In some cases exemplary are awarded for unconscionable conduct which

requires punishment. 6. It should be noted that provocation can reduce damages, Fontin v

Katapodis, also the presence of hostility may affect the amount of damages awarded.

CASES DETAILS: Innes v Wylie: Police in doorway no physical contact: no battery Marion’s case - Parent consent to sterilisation of retarded daughter. Court

asked who has right to consent to sterilisation? The Court answered it by finding the sterilisation was non-consensual as Pl did not consent to the contact herself. The onus is on D to prove Pl consented to contact. Test: Did the physical contact go beyond acceptable standards of conduct?

McNamara v Duncan: (1979) – footballer case

Some examples of battery: Punching another Shining a light in someone’s eyes Spraying water on another Using a weapon/implement to strike another e.g. stick, shooting a bullet, An unwelcome kiss Snatching a book off another Doctor giving treatment without consent Using a 3rd party’s body to touch another

ASSAULT TEMPLATE

[D] is liable for assault if [his/her] intentional or negligent act or threat directly places in [P] a reasonable apprehension of an imminent physical interference to [his/her] person, or the person of someone under [his/her] control, without lawful justification.

Onus: [P] need only prove direct threat to his/her person caused by [D’s] act, the burden then shifts to the [D] to show that the act was involuntary or they were not at fault (neither intentional, reckless or negligent)

[Element 1]: Direct threat: Select either verbal, conduct or combineVerbal:[D], by [apply facts] issued a threat to [P]. [D’s] means to carry the threat into actions merely have to be apparent in [P’s] eyes: Stephens v Myers.

Conduct: [D] behaved in a threatening manner by [apply facts]. [D’s] means to carry the threat into actions merely have to be apparent in the [P’s] eyes: Stephens v Myers.

SPECIAL CASES: (Apply if necessary)Conditional threat: If the threat is conditional, it is not assault if the accompanying condition renders

the threat harmless: Tuber Ville v Savage. If the condition requires a police officer to stop in performing a lawful duty, then it

is assault because [P the police officer] is lawfully entitled to do what the condition prohibits: Police v Greaves.

Future Time:

If the threat is a suggestion of assault at a future time, and there is no way for [P] to escape because [he/she] is at the mercy of [D] until the threat can be carried out, then the threat will amount to assault: Zanker v Vartzokas.

[Element 2]: IntentionThe necessary intention to establish an assault by [D] is an intention to cause apprehension in [P] that physical contact is about to occur: (Rixon v Star City- Casino worker did not display intent to harm) [P’s] reckless or negligent conduct may satisfy this.

[Element 3]: Ability and Apprehension of battery:[Ds] [apply facts] fulfils the requirement of an actual or apparent present ability to carry out the threat: Brady v Schatzel (P knew D owned a gun)

Words Alone Clause: (use if required) Even as [D’s] threat is purely verbal, it [does/does not] constitute assault as

the words [did/did not] cause fear of immediate violence in [P]: Barton v Armstrong. (threat from telephone)

[P] must be aware of the assault by [D] as this is the very gist of the action. [P] need not be afraid, but merely fear in knowledge and expectation that the action threatened will take place. As such we apply a subjective test as to what [P] feels. As [P] is apprehensive, evidenced by [apply facts], this is sufficient, a lack of intent by [D] to carry out the threat is irrelevant: Hall v Fonceca.

[ELEMENT 4]: Defences: (Choose one option)1. [D] [can/can not] show that [P] consented to the assault by [apply facts], and as

such [D] [has a/ has no] defence: McNamara v Duncan.2. [D’s] conduct [was/was not] in self-defence McClelland v Symonss, and [was/was

not] also proportional to the threat from [P]: Fontin v Katapodis. As such [D] [does/does] not have a defence.

3. [D’s] conduct [was/was not] in self-defence of others Howard v Wing, and [was/was not] also proportional to the threat from [P]. As such [D] [does/does] not have a defence.

4. Note: Mistake is not a defence.5. Other defences open to [D] are emergency and inevitable accident and need to be

applied as required.

[ELEMENT 5]: The Remedies (Choose elements required and join with facts) OPTIONS:1. If there fear of ongoing assault, [P] can seek an injunction. 2. As there were no actual damages, [P] can expect to receive nominal damages.3. For suffering actual damage, compensatory damages are available.4. As well as aggravated or exemplary damages for any outrage to [P’s] feelings. 5. It should be noted that provocation can reduce damages, Fontin v Katapodis.

FALSE IMPRISONMENT TEMPLATE

Wrongful total restraint of P’s freedom of mobility directly caused by D’s intentional, reckless or negligent act without D’s legal justification. False imprisonment is actionable per se and as such [P] does not need to show damage only trespass: (Williams v Milotin)

Onus: then shifts to [D] to prove it was neither intentional nor negligent. [P] can seek an injunction or damages if [D] is liable. Onus is on P to prove direct interference (deprivation of liberty).

ELEMENT 1: RESTRAINT

Test 1: Actual restraint: (Choose either physical or psychological)

Physical: In this instance, [P] is [apply facts]. [P’s] actual restraint is more than mere

obstruction of movement in a particular direction, as [P] is confined within boundaries set by D: Bird v Jones.

[P’s] knowledge of this restraint is not necessary: Meering v Graham-White Aviation. As personal freedom is so important it should be actionable per se even without knowledge: Murray v Minister of Defence

Psychological: In this instance, [P] is [apply facts]. [P] feels there is no alternative but to submit to

[D’s] restraint. Coercion (Symes v Mahon) along with fear of public humiliation (Myer Stores v

Soo), is sufficient for psychological restraint.

Test 2: Reasonable means of escape: (Use whole clause) [P] has no reasonable means of escape without risk of risk of injury (Burton v

Davies) or serious inconvenience (R v Macquarie), as [he/she] was [use facts].

ELEMENT 2: DEFENCES

Test 1: Did P give consent: (Choose one option)

1. The argument that [P] gave consent through the course of their employment is conditional on what was agreed to fall within the course of employment: Herd v Weardale. [P’s] [apply facts] [does/does not] fall within what was agreed, and as such she [has/has not] consented and [D] [is/is not] liable.

2. The argument that by entering into a contract [P] consented to [D] imposing reasonable conditions of restraint, regardless of [P] knowing, is unlikely to carry weight today because the sanctity of contract doesn’t prevail over principles of liberty & freedom: Balmain New Ferry v Robertson:

a. If you revoke consent, you need to do it in a reasonable way. Ie you can’t do it mid way of an airline flight.

3. The argument by [D] that there was legal justification is supported by statutory authorisation that says [apply facts], and as such [D] is not liable for false imprisonment. (Persons who are authorized to detain individuals include hospital staff, parents, schoolteachers etc)

4. [D’s] claim that there was actually reasonable means of escape [is/is] not supported by the [apply facts] and as such, [D] [is/is not] liable for false imprisonment.

5. [D’s] claim that it was unintentional or without negligence does not cover mistake as to the right to imprison P, Cowell v Corrective Services Commission and as such is not a defence.

ELEMENT 3: REMEDIES (Chose elements required and join together with facts)

OPTIONS:1. As the tort is ongoing, [P] can seek an injunction. 2. Where there is no damage = nominal damages.3. For suffering the loss of freedom = compensatory damages are available.4. As well as aggravated damages where there is loss of dignity or humiliation

Watts v Leitch. 5. In some cases exemplary are awarded for unconscionable conduct which requires

punishment (exemplary b/c court is making an example of the D)6. It should be noted that an apology reduces damages: Walter v Alltools

CASE DETAILS: Bird v Jones: (failed because barrier on bridge was a mere obstruction, not

total rest) Burton v Davies: dangerous to jump from a moving car, not reasonable

escape. Herd v Weardale: Coal miners: if [P] consented to it through the course of his

employment, he cannot claim FI; the question arises, what did the parties agree was within the course of employment.

Meering v Graham-White Aviation: [P] asked to wait in room for an interview, but real purpose was not said. A guard was outside the closed door and intended to stop him if he attempted to leave; held to be F.I

Myer Stores v Soo: Soo mistaken for a shoplifter and surrounded by security guards who ‘requested’ that Soo accompany them to the office for an

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interview; when Soo attempted to protest, guards insisted; held that it was total restraint because Soo couldn’t refuse for fear of public embarrassment.

R v Macquarie: – having to swim to escape is seriously inconvenient. Symes v Mahon: – although not physically restrained, the will of [P] was

subverted by [D’s] psychological pressure; [P’s] submission to go to Adelaide was not free and voluntary.

2. TRESPASS TO LAND TEMPLATE [IF INDIRECT GO TO NUISANCE]

[P] may have a cause of action against [D] for trespass to land if [D’s] intentional, reckless or negligent act directly interferes with [P’s] exclusive possession of land without consent or lawful justification.

As trespass actionable per se [P] does not need to prove damage, just direct interference. [D] must disprove fault. The remedies open to [P] are damages and or an injunction.

Onus: On P to show direct interference. Shifts to D to disprove fault. Protected interest = Right to exclusive possession.

ELEMENT 1: Voluntary

[D’s] act of [apply facts] was an [intentional/voluntary/negligent] act: Public Transport NSW v Perry. Voluntary – it is no trespass if you were pushed onto the land: Smith v Stone Involuntary – A person who had an epileptic fit and fell off a railway platform onto

the train lines was held not to have trespassed on the lines: Public Transport Commission of NSW v Perry

ELEMENT 2: Direct Interference: (If not direct go to nuisance)

[Test 1]: Direct Interference: (Add items below if needed for direct) Not limited to entry by a person – can be projecting things over or in land: Davis v

Bennison Includes failure or refusal to leave the land. Continues until rectified. D held liable for pushing dirt on the P’s land with a bulldozer: Watson v Cowen D held liable in trespass for releasing cattle onto the P’s land: Yakamia Dairy Pty

Ltd v Wood [D] may commit trespass by directly causing some object (parked car) to make

contact with the land unpermitted by [P]:Mayfair v Pears An advertising sign: Kelsen v Imperial Tobacco Co Ltd: Piping: Lawlor v Johnston: Tree branches: Gazzard v Hutchesson:

[Test 2]: Actual interference:

As long as it might interfere with what you might want to do, does not matter whether it actually does interfere with use/enjoyment: LJP Investments v Howard Chia

Mere apprehension of interference is sufficient: Graham v KD Morris

ELEMENT 3 Act done in respect of use and enjoyment of land:

[Test 2]: How far does land extend:i) Legal Maxim: ‘rights in the soil extend to heaven and to hell’ii) Rights in land only extend to what is reasonably necessary for the

enjoyment of the land. Therefore, a single flight over land ≠ trespass: Baron Bernstein v Skyviews.

iii) What happens if there are frequent flights over land: Damage by Aircraft Act 1952 (NSW): no action lies in trespass or nuisance, having regard to wind, weather and all the circumstances of the case, provided they don’t breach the rules of the aviation authority.

iv) Mining Acts: Latin maxim does not apply, because there is no private ownership over the minerals in the land. Rights in minerals are separate to the fee simple in the land. But note that unless consented to, or

authorized by legislation, extracting minerals, pouring water or other fluids under the P’s property constitutes trespass.(1) Bulli Coal Mining Co v Osborne: Tunnelling under P’s land for

the extraction of coal from under

ELEMENT 4: Without Consent: The burden of proof is on [D] to show consent:

Implied Licencei) An implied licence exists to enter land for the purpose of lawful

communication or arresting the occupier: Halliday v Nevill ii) This licence exists until it is revoked by the owner of the land – e.g.

by fences, gates, locks, signs: Halliday v Nevilliii) Person must be bona fide seeking: Bryne v Cinema; Lincoln Hunt iv) Does not extend to ‘robbers and nosey TV reporters”: Lincoln Hunt;

Rinsale v ABCLimited License

i) Right to enter limited in scope. Entry unrelated to the right is trespass of premises: Barker v R (furniture stealing)

ii) Where licence is conditional, & breach the conditions, it becomes trespass: Konskier v Goodman

Revocation of implied licencei) Where the license is revoked, and there is subsequent entry, it is

trespass: Plenty v Dillonii) License can be withdrawn, and once it is, allow a reasonable time to

leave, and then use reasonable force to eject: Cowell v Rosehill Racecouse

ELEMENT 5: Who Can Sue? Trespass protects [P’s] actual exclusive possession or occupation of land, not ownership.

Do not have to be actual owner of land – as long as you exercise proprietary rights over the land, as long as act like have possession – exclusive possession , excluded others: Newington v Windeyer

Defacto possession is enough. Tenants included: (Rodriguez v Ufton: action v landlord)

No need to prove legal or equitable title to the land (Kelsen v Imperial Tobacco) anyone who in fact has exclusive possession of property is treated as having right to possession of that property, even if they have wrongfully taken possession of it.

Interest short of proprietaryo Profit a prende – a right to take - sufficient: Mason v Clarke:

Right to exclusive possession: Concrete Constructions v BLF If there is a dispute between someone in possession as a matter of fact and someone

who has a legal right to exclusive possession, the latter wins: Delaney v TP Smith Ltd

ELEMENT 6: Defences

1) Lawful arrest/Warrant to enter the house.2) Abatement of nuisance by self-help: can trespass on land to stop a nuisance in the

case of an emergency: Jones v Williams3) Statutory authority to enter eg Hen Quotas Act (Qld).

a) However, the statutory authority to trespass must be through clear and unambiguous language – general language is insufficient: Coco v R

4) Necessity: requires public utility (Winfield v Jolowicz) or to save a life (Sharrin v Haggerty)

ELEMENT 7: Remedies

Damages:1) Nominal: don’t need to prove damage. Entitled to nominal damages. Actionable per

se. 2) Compensatory - Where the damage is the natural consequence of the trespass,

compensatory damages are available: Hogan v Wright3) Exemplary – punish and deter (Lincoln Hunt v Willesee)

4) Injunctions : for continuing and repeating offences, or if it was reasonable to believe that the offence would be repeated: Konskier v Goodman

5) Self-Help : If entitled to immediate possession, then you are able to use reasonable force to eject the trespasser. The same applies to a trespassing object or material – provided you don’t use more than reasonable force (Cowell v Rosehill Racecourse)

CASES Davis v Bennison: cat on neighbours garage, took shot neighbour in between

sued for trespass Delaney v TP Smith Ltd: P took possession of house under a lease that was

legally ineffective and which did not give him any right to exclusive possession. D forcibly evicted P. Held that D’s legal right to exclusive possession overrode the fact of the P’s possession.

Graham v KD Morris: injunction granted against a crane jib Halliday v Nevil: 2 police officers walked up driveway and arrested

disqualified driver held: arrest was lawful b/c of implied license to enter for lawful communication. Open and unobstructed, no gate or lock, no notice prohibiting entry.

LJP Investments v Howard Chia Investments: D carrying out commercial development and requested scaffolding to go up on neighbours land – injunction granted restraining them

Lincoln Hunt : invaded the place with dissatisfied customers with rolling camera held: trespass

Newington v Windeye: “the grove” def took down fence and put up low brick wall with gate giving access to the grove. [P] were not the registered owners of the grove, but could still maintain action in trespass b/c had engaged in many acts of ownership over a period of 50 yrs. Employed man to mow lawn & maintained tress garden & rockeries. On many occasions they told uninvited visitors that they were trespassing. Held: entitled to sue b/c trespass protects possession.

Plenty v Dillon: father expressly revoked consent of the police, summons could have been sent by post held: trespass, might be different if they were coming to arrest

Public Transport Commission of NSW v Perry: A person who had an epileptic fit and fell off a railway platform onto the train lines was held not to have trespassed on the lines.

Smith v Stone – the D did not commit trespass as he was thrown by 3 rd parties onto the land.

VICARIOUS LIABILITY & NON DELEGABLE DUTY

General Points for Vicarious liability: Vicarious liability is where one person is held liable for a tort committed by

another person. It is not an independent course of action. The person does not have the actions attributed to them; rather they take

responsibility for the actions. Parents are not held liable for the torts of their children unless they employ

them. Vicarious liability is always strict liability, but not absolute liability, and must

be distinguished from personal liability. The injured party must show a meaningful connection between the

employment and the tort.

Why have vicarious liability ? The desirability of providing a deep pocketed and solvent D. The capacity of the employer to absorb the cost of liability as part of the

enterprise – insurance. The employer gets the benefit of the employee to advance their own interests

so it is just that they should bear the losses incurred by those in the enterprise. It acts as a deterrent to encourage the employer to prevent accidents.

General Points For Vicarious Liability Non delegable duty is used to justify the imposition of liability on one person

for the negligence of another to whom the former has entrusted (or delegated) the performance of some task on their behalf.

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Under the law of negligence, duty cannot be delegated though performance of the duty can be: Elliot v Bickerstaff.

VICARIOUS LIABILITY NON-DELEGABLE DUTY Secondary/derivative claim: not an

independent cause of action. Primary claim – an

independent cause of action Applies to all torts Applies to just the tort of

negligence Strict liability Must prove fault – Lepore,

Rich v Samin Nothing that an employer can do to

prevent being subject to vicarious liability. Not a duty to take reasonable

care, but a duty “to see that care is taken.”

VICARIOUS LIABILITY TEMPLATE

Employers are vicariously liable for the torts of their employees which are committed in the course of their employment. Even though there may be no fault on the employer liability arises bc of the special relationship btw employee and employer. Parents are NOT vicariously liable for the actions of their children (McHale v Watson).

As vicarious liability is strict liability [P] will then be able to recover damages from [employer].

ELEMENT 1: Commission of a tort: [D] committed the tort of [APPLY] by [APPLY].

ELEMENT 2 : An employer/employee relationship

Contracts of service = employment relationship with an employee: liability created.Contracts for service = non-employment relationship with an independent contractor: Therefore not liable. (Look to non-delegable duties).

Though they are liable for the torts of their employees, employers are not liable for torts committed by independent contractors (Stevens v Brodribb Sawmilling). Important to distinguish btw Contract of Service (Employee) vs. Contract For Services (Independant Contractor).

Test 1: Control Test: Factors to Determine whether person was employee, was whether (a) person was employed to do work for the employer (Hewitt v Bonvin); (b) person engaged was subject to the control of the employer (Mersey Docks & Harbour Board v Coggins & Griffith). The Lawful Authority to command is the significant feature rather than the actual exercise of control through specific commands (Zuijis v Wirth Brothers)

Test 2: Modified Control Test: 3 conditions should exist before a Contract of Service can apply. 1. Employee must agree to work for employer in return for pay; 2. Employee agrees to be subject to the employer in matters of what should be done, where, how, means, and time. 3. Other provisions of the agreement must not be inconsistent with contract of service (Ready Mix Concrete v Minister for Pensions and National Insurance).

Test 3: Integration and Organization Test: If the employee is sufficiently integrated into the organisation of the company and that worker’s role is integral to the business rather than ancillary he would be an employee (Stevenson, Jordon & Harrison v MacDonald & Evans). Court will ask if the employee is part of the overall business organisation (Albrighton v Royal Prince Alfred Hospital – Surgeon)

Test 4: Multi-facet test: There is no single test which will always be applicable or relevant in each case; however Stevens v Brodribb Sawmilling Co Ltd (Logging/Fellas/Sniggas) re-established control as the main emphasis. The right to control is another major emphasis but a number of factors will be considered in each case (Hollis v Vabu – bicycle delivery) Factors: 1. Negotiation as to rates of remuneration (pay); 2. Deductions from courier’s pay is not negotiated; 3. whether work was allocated with bidding for jobs; 4. whether the employers assumed all responsibility; 5. whether the employees were providing skilled labour; 6. whether the employer provided items of equipment and tools of trade, that remained their property. 7. obligation to work

(obligation of service i.e. 9-5). 8. capacity to delegate (sub-contract). 9. wears a uniform. 10. 3 weeks leave. Well Recognised Categories: Hospital Staff (Roe v Minister of Health); Armed Forces (Cth v Quince); Public Servants (Oriental Foods v Cth); Borrowed Employees (MacDonald v Cth); Gratuitous Service (Brooke v Bool)

ELEMENT 3: Was the employee acting in his course of employment?

All acts done within the scope of employment or reasonably incidental to their employment (Limpus v London General Omnibus – DD Bus racing); Contrary to that Beard v London General Omnibus – ticketer/driving bus. Also not only will an employer be liable for actions done in scope and reasonably incidental but also that which is in the employers interests (Kay v ITW Ltd – forklift) Albrighton v RPA: If the employee forms part of the employers business

organisation then they are Vicariously Liable. It is irrelevant in the case of hospitals that just because they have no control over how the Dr operates. Determine if [P] saw Dr or hospital.

Hollis v Vabu: D a parcel and document carrier who employs vehicle and bike couriers. P pedestrian who was seriously injured by a bike courier who was illegally riding on the footpath. Held: relationship was employer / employee and endorsed ‘enterprise risk’. HC applied Brodribb factors: little control how tasks carried out; unskilled with no special qualifications; training discipline and attire directed by employer, employer supplied some equipment, no negotiation over pay rates; courier supplied own bike. (Crt said may be different for couriers who supply own vehicle)

Stevenson, Jordan, v Macdonald: Contract of service: Man is employed as part of business & his work is an integral part of business contract for services: His work, although done for the business, isn’t integrated into it but only accessory to it.

Stevens v Brodribb Sawmilling: D was sawmilling company who employed tree feelers to cut the trees and sniggers to drag the trees onto the trucks and drivers to drive the trucks. D coordinated the three groups but left them alone to operate their systems. P was a driver who was injured by the negligence of a snigger while loading the truck. Held: snigger not employee of D, not vicariously liable, as groups were totally outside D’s control.

Test 1: Unauthorised way of Doing Authorised Things: It is a question of fact whether conduct is within the course of employment and depends upon the particular circumstances (Bugge v Brown – Farm hand/old stove/Fire/Liable). Century Insurance and Northern Ireland Road Transport Board – cigarette break/explosion/Liable. Century Insurancev NIRT If employee’s actions (smoking whilst waiting for fuel

tank to fill) are reasonably incidental to the scope of their employment then employer is Vicariously Liable, even though he wasn’t employed to smoke cigarettes.

Bugge v Brown Even if employee performs an authorised act in an unauthorised or even prohibited manner then the employer is still Vicariously Liable.

CML v P&C Insurance If an Employee goes against the wished of his employer & acts with animosity towards a commercial opponent (knocked them) business then the employer is Vicariously Liable as the employee (salesman) is considered to be acting in the employer’s interests; trying to sell the employers product

Test 2: Expressed Prohibition: Employer may be liable for acts done in the scope of employment even if there is an express prohibition against it (CML Assurance v Producers and Citizens Insurance – Insurance Salesman/Defamation). What is essential is whether that prohibition limits the scope or merely regulates (Liable for Regulate) the way in which the employees work is to be carried out (Rose v Plenty – child/milkman; Phoenix Society v Cavanagh – Bus driver/Drunk)

Test 3: Frolic Doctrine: If an employee takes an opportunity during employment to use time or resources for personal purposes the employer is not liable (Storey v Ashton – 25Km Detour/Aunt). If it is argued that the employee was on a frolic both the purpose and extent of the deviation must be considered (Chaplin v Dunstan – break 4 drink/entitled).

Not liable if employee on ‘ frolic of their own ’ Chaplin v Dunstan If a driver detours to get a drink & on this way crashes then the

employer is Vicariously Liable as it is a reasonable detour; he is entitled to have a drink

Crook v Derbyshire Stone Driver stopped for lunch, involved in fight. Held: that it was driver own business; once out of the truck the employer not vicariously liable.

Storey v Ashton A driver backtracking off his route to visit some people is considered a frolic of his own; there was substantial diversion off route.

Hilton v Thomas Burton If employees knocked off work early & had drinks, then they are considered to be on a frolic of their own; employer not Vicariously Liable.

Harvey v O’Dell: Workers who took an unauthorised lunch break were held to be acting in the course of employment.

Test 4: Intentional Torts: Where an employee commits an intentional tort during the apparent course of employment, the employer may be found to be vicariously liable (Lloyd v Grace, Smith & Co). If the tort is committed in the furtherance of the employer’s interest and incidental to the work (four corners) there is no question that the employer WILL be liable (Canterbury Bankstown Rugby League Football Club v Rogers). But if done in the employees own personal interest the employer will not be vicariously liable (Deatons Pty Ltd v Flew – barmaid threw glass into face of customer). Petterson v Royal Oak Hotel: Barman threw glass – keeping order in the bar, in the

course of employment. Deatons v Flew: Barmaid threw glass – private act of retaliatory self defence, not in

the course of employment. Canterbury Bankstown Rugby League v Rogers: head high tackle, in the course of

employment. Morris v Martin & Sons: Mink coat stolen by servant after sent for cleaning. Held D

liable for as the theft was a wrongful mode of performance of the employee’s duty of cleaning it. D was liable on the basis of non delegable duty.

NON-DELEGABLE DUTY

If [Employee] not classed as employee is there a non-delegable duty?

For a non-delegable duty to arise there must exist a protective relationship of responsibility or control on the part of [D] and vulnerability or reliance on the part of [P].

Examples of protective relationships: Employer to employees: Kondis v STA Hospital to patients: Samios v Repatriation Commission / Ellis v Wallsend District

Hospitals Schools to students: Cth v Introvigne Occupier in control of premises onto which dangerous substances have been

introduced to a lawful visitor: Burnie Port Authority v General Jones Pty Ltd

Employer to Employees

Albrighton v RPA Regardless of the minimal control hospital’s have over Dr’s, they are Vicariously Liable (absolute liability) as they have a duty to the Dr’s take Reasonable Care.

Kondis Such duties arise because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. A non-delegable duty should be imposed on employers. It is reasonable they should bear liability for the negligence of his independent contractors in devising a safe system of work.

Schools to Students

Cth v Introvigne Sub contractor: negligence broke flagpole & hit kid. Cth as provider of education had a separate responsibility from merely being vicariously liable for the teachers or others it appointed to carry out and provide education.

NSW v Lapore: HC held that non-delegable duties do not impose strict liability. The P is still required to prove fault.

Hospitals to Patients

Cassidy v Minister for Health Denning J: Hospitals are Vicariously Liable for negligence of their staff. Regardless whether it involves a contracts of service or contract for services.

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Roe v Min for Health Denning J “The reason is because, even if they are not servants, they are the agents of the hospital to give the treatment. The only exception is the case of consultants or anaesthetists selected & employed by the patient himself.”

Ellis v Wallsend District Hospital: Here the hospital was not liable as the surgeon had been privately consulted by the patient and the hospital had only lent its facilities and support staff to the surgeon.

Land Occupiers Safeway v Zaluzna: Land occupiers owe a duty to everyone to take Reasonable Care

to prevent foreseeable injury to customers who come onto the land. What is reasonable will vary with their purpose for coming onto the land.

Phillis v Daley The DOC is what is foreseeable; Duty to trespassers etc is ↓ Calin v Greater Union Perhaps a special duty is owed to contractual entrants to

maintain the premises to a standard that is as safe as reasonably possible. Burnie Port Auth v General Jones Property owners owe a non-delegable duty to

ensure that persons invited onto their property are protected. Depending on the magnitude of danger, the standard of Reasonable Care may involve a degree of diligence so stringent as to amount practical to a guarantee of safety (Welding contractor started fire and destroyed part of cold storage)

Rylands v Fletcher A person who for his own purposes brings on his land & keeps there anything likely to do mischief if it escapes, must keep it at his peril, & if he does not do so is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to Pl’s default or perhaps that the escape was the consequence of vis major or the act of God. Had to be non-natural use of the land. This case has since been absorbed by the general law of negligence.

Strict LiabilityStrict Liability is that you don’t have to prove fault. Just causation, injury and consequence. The relationship is crucial. It will be characterized by a special dependence or vulnerability. Has moved away from Rylands v Fletcher. Now use Burnie Port Authority. “Depending on the magnitude of danger the standard of reasonable care may involve a degree of diligence so stringent as to amount practically to a guarantee of safety.”

Some Element of Fault Proved: Failure of supervision. The fact that it happens is evidence in itself

Justifications and Policy Considerations: INCLUDE WITH YOUR ANSWERIn the three protective relationships where a non-delegable duty is clearly established there are sound policy reasons for the imposition of the duty.

[D] is a financially responsible person fully aware of its responsibilities towards the class of persons to which [P] belongs.

[D] is already vicariously liable for the fault of its own staff. [D] will usually have insurance against the vicarious liability.

Tentative Conclusion: - [APPLY AS REQUIRED]

NUISANCEThe unreasonable and substantial interference with the use or enjoyment of land. Damages require actual damage. Indirect. Right to privacy is not protected in nuisance, or a right to freedom of view (Victoria Park).

Nuisance & Negligence: Negligence – liability is based on the unreasonableness of the conduct causing the

damage; Fault depends on the breach of a duty. Breach judged on reasonableness of conduct by balancing risks of conduct. Calculus of neglect requires proof of damage which is caused by D and is reasonably foreseeable.

Nuisance – liability is based on the unreasonableness of the interference itself; Fault depends on whether D created the nuisance. Therefore conduct giving rise to nuisance may be perfectly reasonable, but the resultant interference may be totally unreasonable. Calculus of nuisance requires proof of damage which is caused by D and is reasonably foreseeable.

Claims in both negligence & nuisance require proof the damage was Reasonably Foreseeable.

Nuisance v Trespass:

Nuisance’s are indirect interferences, which can be intentional or unintentional, with use & enjoyment of land.

Trespass must be a direct interference with land. Nuisance requires proof of the unreasonable interference with use & enjoyment. Trespass is actionable per se, regardless of whether it impacts on the use &

enjoyment of land Nuisance protects against physical injury and interference with use and enjoyment

of land Nuisance is intangible invasions (noise, smell, vibrations) Trespass is physical intrusions by tangible objects (people, cattle, rubbish etc)

PRIVATE NUISANCE (PRIVATE LAND) TEMPLATE

[P] may have a cause of action against [D] due to the substantial and unreasonable interference to [P’s] enjoyment and use of [his/her] land as a result of [APPLY].

ELEMENT 1: Locus standii/right to sue:

As [P] [owns/rents/etc.] the land [he/she] has a proprietary (title, lease) or legal interest in the land and can sue: Oldham v Lawson (wife owned land, husband couldn’t sue neighbour).

If licensee (not a proprietary right) However whilst historically a licensee has not had title to sue, in the UK in

Khoransandjian v Bush a mere licensee was able to sue, but in Aust Hunter v Canary Wharf overturned this. Then a mere licensee was given locus standii in: Deasy Investments v Montest – QCA relied on Khorasandjian

On balance …may have title to sue despite being a mere licensee (Animal Liberation Inc v Gasser)

ELEMENT 2: Who can be sued:

[D] is capable of being sued as [he/she] is the [apply below].

a) Doesn’t have to be in possession of land: Fennel v Robson Excavation P/L – expired license.

b) Creator of the nuisance : Fennell v Robson – contractor dug foundations and caused subsidence.

c) Authoriser of the nuisance : De Jager – Hall owner who hired it out, neighbours complained.

d) Adopter of the nuisance : Sedleigh-denfield – Drain in land that blocked and flooded neighbour. The landowner is liable for nuisance only if he ‘continued or adopted’ the nuisance, which was created by another on his land.

e) Person who knows or ought to be aware of nuisance : However D can’t be liable if he (1) Didn’t know of the nuisance existence (2) Didn’t ought to know of it’s existence (3) Didn’t have any reasonable opportunity to repair or remedy the nuisance. Torette House v Berkman

f) Some element of fault needed on the defendant’s behalf: Torette House P/L v Berkman – did not know or ought to have known/acted, could not reasonably have found out, no liability.

ELEMENT 3: A recognised right:

[P’s] recognised right of [apply facts], which the law deems capable of being protected, is being interfered with by [D’s] actions.

a) the land itself in its natural stateb) property or chattels associated with the landc) the right to enjoy the land eg. pleasure, comfort, quietude, fresh air,

aesthetics Munro v Sulluviand) Right to clean air Cth v Registrar of Title for Vic

e) the right to free access to land: Dollar Sweets P/L v Federated Confectioners – forcibly prevent, Animal Lib v Gasser – put entrants in fear of safety.

Freedom from non-physical damage such as noise, offensive sights and smells.a) Events that are not on [P’s] property, but which can be seen from [P’s]

property Thompson-Schwab v Costaki. (brothel opened up in suburban area, people said aesthetics were being destroyed held: nuisance)

Privacy is not a legally recognised interest: Victoria Park Racing v Taylor but aggressive viewing may give rise to an action to protect privacy: Plenty v Dillon (obiter). Eg. Neighbour spying mirror system.

ELEMENT 4: The interference is substantial and unreasonable in all the circumstances:

The interference with this right by [D] [is/is not] substantial and unreasonable as [item A or B].

A. Damage: Property damage is prima facie evidence of the interference being substantial and unreasonable: St Helens Smelting v Tipping. i) Property damage most conclusive evidence if other interference

types as well: Halsey v Esso Petroleum. ii) Plaintiff doesn’t have to prove that the defendant’s use of their

land is unreasonable, defendant have to prove reasonable: Corbett v Pallas. iii) If property damage, doesn’t matter if nuisance is temporary or

necessary precautions taken: Harris v Carnegie’s Pty Ltd.iv) The damage MUST be reasonably foreseeable

B. Calculus of Nuisance:a) Court balances the right to enjoyment versus the defendant’s desire to undertake the

activity – the rule of give and take: Bamford v Turnley. Judged ‘not merely according to elegant or dainty modes of living but according to plain and simple notions among English people’: Walter v Selfe. Factors considered include:i) Nature of the locale – what may be reasonable in one place may

be unreasonable in another. Interference that would be reasonable in an industrial area may be unreasonable in a residential area: Munro v Southern Dairies Ltd: does not matter whether activities benefit the public. Nature of locale judged at time of interference, so approaching nuisance no defence: Sturges v Bridgman.

ii) Timing and Duration – Calculus of nuisance = severity of the nuisance v the time/duration/extent in which it occurs: Halsey v Esso Petroleum Duration – work that is of a temporary nature is generally not held to be

a nuisance: Andreae v Selfridge Co. However, even if it is temporary, if it at an unreasonable time, then it will be held a nuisance: Harrison v Southwark & Vauxall Water Co.

Time – activity within a CBD constitutes a nuisance during business hours: Wherry v KB Hutcherson. Activity in a residential area constitutes nuisance after business hours: Seidler v Luna Park Reserve Trust. But measure against a reasonable trade, not an unduly sensitive trade/business: Robinson v Kilvert.

iii) Sensitivity of Plaintiff – ‘Eggshell Skull’ rule does not apply, interference only unreasonable if it would affect a reasonable man: Walter v Selfe. Can’t be a nuisance if wouldn’t affect an ordinary business: Robinson v Kilvert. But if it would affect an ordinary person, then the special damage caused by sensitivity is recoverable: McKinnon Industries Ltd v Walker.

iv) Malice – An interference that would otherwise be reasonable is rendered unreasonable if it is malicious: Christie v Davey. Malice on the part of the defendant will outweigh the particular sensitivity of the plaintiff: Hollywood Silver fox Farm v Emmett

ELEMENT 4: Defences: (select one)

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a) [P] approaching the nuisance by [apply facts] is not a defence: Sturges v Bridgman. It is not a defence to argue [P] approached the nuisance - all you can say is that the nature of the locality means that the interference is not unreasonable.

b) The benefit to society, claimed to be [apply facts] of [D’s] nuisance is no defence: Munro v Southern Dairies.

c) The claim of reasonable care by [D] will not exonerate [him/her] from liability, because the measure is reasonable interference, not reasonable care: Harris v Carnegie’s.

d) Contributory negligence – unusual sensitivity can be reversed and reduce damages. (see above)

e) Statutory Authorisation – if there is statutory duty to conduct activity in that area, then [D] must show interference is an unavoidable consequence: Allen v Gulf Oil Refinery. Ie: it is a complete defence is they can prove that it could not be conducted in a way which caused the nuisance.

f) But if duty could have been performed in another way to avoid interference, the defence does not apply: York Bros v Commissioner for Main Roads.

ELEMENT 4: Remedies (select as needed)

a) Injunction – if there will be a continuance of nuisance (stop notion of ‘cheaper to pay damages than stop’)

b) Damages – usually for past losses, hard to determine for lack of enjoyment of land, can’t recover for reduction in property value for non-tangible nuisances.

c) Abatement – you can abate the nuisance by self-help (can’t recover cost) BUT, can’t interfere with, go onto their land. Must give back severed property. (Cutting off a tree branch) Can’t deliberately set-out to destroy object of nuisance: Lemmon v Webb. Must ask them to abate first, except in emergencies.

PUBLIC NUISANCE (PUBLIC LAND)

A public nuisance is any activity that materially affects the reasonable comfort and convenience of a class of the public by interfering with a public or common right.

It is actionable in tort by private individuals if they suffer special and particular damage over and above the rest of the public.

ELEMENT 1: A class of people is affected

The class that [P] belongs to is [apply facts] and is enough to show a representative cross-section. AG v PYA Quarries.

ELEMENT 2: Locus Standii (ignore A & B and look at C)

a) Attorney-General as protector of the common rights (usually doesn’t get involved due to practical or political reasons

b) Attorney-General’s fiat (A-G must give permission to a ‘relator action’, although permission is rarely given because of the above reasons, but if given the person must give an undertaking as to damages).

c) [P] through [apply facts] [can/can not] show that [he/she] is a private individual suffering particular or special (different) damage over and above that suffered by the rest of the community.i) Special Damage: must distinguish [P] from the rest of the

community. Strong argument if a peculiar kind is suffered (1, 4, 7), weaker argument if a peculiar degree is suffered (2, 3).(1) Boyd v Great Northern Rwy Company – doctor held up at crossing for 20

min. No-one else delayed. Suffered pecuniary loss (time/money) and peculiar damage.

(2) Ball v Consolidated Rutile – fisherman take action for pollution of Moreton Bay. Held fishing rights same as the general public’s, nothing unique in their loss (only extent of), insufficient to support action.

(3) Walsh v Ervin – Path of road blocked, inconvenience and delay for plaintiff. Even without pecuniary damage this loss is sufficient for peculiar damage, but only if inconvenience is appreciably greater than others.

(4) Benjamin v Storr – trucks constantly going past front was blocking access and light into coffee shop, owner occurred expense of having to light lanterns. Held public nuisance because peculiar pecuniary damage.

(5) Teamay v Severin – sale of alcohol caused nuisance in aboriginal community. Held damages too remote. Interference must be clear, a clear link between interference and damage.

(6) Animal Liberation v Gasser – peculiar damage because patrons put in fear and frightened away from entering circus because of protesters.

(7) Castle v St Augustine’s Links – guy hit by golf ball on public land. Personal injury is prima facie evidence of peculiar damage. Can plead nuisance or negligence. P must establish that there is a nuisance, and causation, then D must prove a justified excuse.

ELEMENT 3: The interference is unreasonable

[P] must show that the interference is unreasonable and substantial through application of an [established category or calculus of nuisance]. a) General considerations – Diamond v Pearce:

i) Must be unreasonable and substantialii) Calculus of nuisance – degree, duration, timing and public utility

of the activity all relevant. Must still recognise need for give and take. (see private nuisance for details)

iii) Standard is stricter than private nuisance as more people affected.

b) Established categories i) Interference with public amenity – substantial interference with

the use and enjoyment of a public park would constitute a public nuisance. Interference can’t be a matter of taste.

ii) Interference with travel and access if : The defendant in carrying out his business intentionally creates a crowd:

Wagstaff v Eddison Bell Co. The business operates in an unconventional manner: Fabbri v Morris –

serving window instead of shop entrance. Not nuisance if just annoying, but doesn’t block: Silservice v Supreme Bread.

ELEMENT 4: Defences (apply as required)

a) Statutory Authority :i) York Bros v Commissioner for Main Roads

The activity authorising the nuisance was created by statute There was no reasonable way of carrying out the activity, according

with the statute, without causing the nuisance.ii) If the nuisance was an inevitable consequence of the undertaking, and it was

not performed negligently, then it is not actionable: Hammersmith Rly v Bland.

iii) Planning permission from a subordinate planning body does not have the same effect as a statutory authority – it has no jurisdiction to legalise nuisance: Hunter v Canary Wharf.

b) Public Utility i) Taylor v City of Perth:

Calculus of nuisance – balance:(1) objective behind the construction(2) the damage the construction is causing to third parties.

ELEMENT 5: Remedies

a) Injunction – awarded when there is likely to be a repetition of the wrong: Clowes v Staffordshire Waterworks, or where there is a prospective nuisance: Animal Liberation v Gasser.

b) Damages – can only be awarded for a past nuisancec) Exemplary damages – awarded in circumstances where the conduct of the defendant

is such that it warrants such damages: Walsh v Ervin

Malice - showed a particular outrageous disregard for public rights: Guppys v Brooklyn.

Personal Injury Prima facie Personal Injury will be damage above & beyond that suffered by the rest of the community. Pl’s injury needn’t have prop rights in land if nuisance occurs

Castle v St Augustines Links Onus of proof (1) Pl must establish nuisance (2) Pl must establish causation by the D (3) onus shifts & D must demonstrate reasonable excuse

Nature of the Interference(1) Must be unreasonable & substantial (2) Degree, timing, duration, & public utility is relevant-a calculus of nuisance- recognising the need for give & take (3) Standard is stricter than for private nuisanceDymond v Pearce Subjective test of what is reasonable at the time the nuisance occurred

Examples of Interference with Public AmenityKent v Johnson “in my opinion, a substantial deleterious unlawful interference with the nature & quality of the reserve as a park for one to use & enjoy as such as a member of the public would constitute nuisance. Injury to the F&F seems to me to be in the same class of interference as would be the fouling of a public swimming pool”(1) Damage to skyline is not legally enforceable as it is subjective & Court can’t enforce good taste. (2) Argument of the F&F failed, as it wouldn’t substantially interference with public amenity. (3) Also obstructing footpath while constructing building is not a nuisance & is not an unreasonable interference with travel & access. (4) Also public safety on highway is not a nuisance. Must expect delay & inconvenience especially with construction work etc. (5) However if it ↓ use & enjoyment then it can be Public Nuisance Public utility principle.Wagstaff window display attracted crowds that obstructed roads & shop access. Held: Deliberate action to bring crowds t/f actionable. Thus Xmas lights are indeed public nuis as they deliberately bring crowdFabbri v Morris Walk thru ice-cream shop. Held: operating in an unconventional manner that attracted unreasonableSilservice v Supreme Bread customers lined up at shop for fresh hot bread H: Not unreas interference, as it is not the fault of the owner if their business thrives at a specific & particular time of the day.

CIVIL LIABILITY ACT 2003 [QLD]Limiting Liability in Negligence

Establish the criteria for standard of care and breach Change Causation Exclude Liability for ‘obvious risks’ and incorporate presumptions of awareness Eliminate proactive duties to warn of obvious risks Eliminate liability for the materialisation of ‘inherit risks’ Exclusions for criminals and the intoxicated

Civil Liability Act 2003 (Qld)Does not apply where negligence occurred prior to Dec 2002

Section 4: Act applies to ‘any civil claim for damages for harm’Section 5: Does not apply to injury under Workcover Queensland Act, dust disease or tobacco related condition

Section 9: Breach, General PrinciplesIdentifies breach of duty by reference to (a) foreseeability of risk harm and (b) the ‘negligence calculus’. Sub (1) seeks to ‘raise the bar’ from ‘far fetched or fanciful’ to ‘not insignificant’ Sub (2) essentially restates the common law consideration of reasonable person’s

response to risk of harm

Section 10: Breacha) The burden of taking precautions to avoid a risk of harm includes the burden of

taking precautions to avoid similar risks of harm for which the person may be responsible; and

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b) The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the was in which the thing was done; and

c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm give rise to or affect liability in relation to the risk and des not itself constitute an admission of liability in connection with the risk.

Section 11: CausationS11(3)(b): Statements by P as to what they would have done in the absence of breach are inadmissible unless they were statements against interest.S11(4): The requirement to consider “whether or not and why responsibility for the harm” should be imposed my introduce a policy consideration that does not currently exist.

Section 12: Onus of Proof“...the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”

Section 13: Obvious RiskObvious t a reasonable personIncludes risks that are patent or common knowledgeCan be obvious even though it has a ‘low probability of occurring’Can be obvious even if ‘not prominent, conspicuous or physically observable’Not obvious if created by a failure to maintain e.g. a vehicle or bungee cord

Section 14: Presumption of awarenessReverses the onus of proof in a volente defenceIf a volente defence is raised, there is a reputable presumption that P was aware of any obvious riskNeed only be aware of the type of risk

Section 15: Duty to warn = No duty to warn of obvious risksBut does apply if:

1) P requests information about risks2) D is required by ‘a written law’ to warn of risks3) D is a professional (other than a doctor – S21) and risk is PI from the

provision of a professional service by D

Section 16: Inherit RiskAn inherent risk is of something occurring that cannot be avoided by the exercise of reasonable care and skill e.g. the risk of sympathetic opthalmia in Richard v WhitakerNo liability in an inherent risk materialisesDoes not exclude liability for failure to warn (where applicable)

Section 22: Standard of care for professionals (modifies Bolam test)22 (1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.22 (2) Peer professional opinion cannot be relied on if the opinion is irrational or contrary to written law22 (3) the fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent and 1 or more (or all) of the opinions being relied on for the purposes of this section22(4) Peer professional does not have to be universally accepted to be considered widely accepted.

22(5) This section does not apply to liability arising in connection with the giving of (or failure to give)a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.

ONEROUS RISKS, DANGEROUS ACTIVITIESS. 19: No liability for personal injury suffered from obvious risks in dangerous recreational activities.

Irrelevant if P was aware (or unaware) of the risks

CONTRIBUTORY NEGLIGENCES. 24: Contributory negligence can defeat a claim – i.e. CN may reduce an award of damages by 100%Therefore, S 24 is an alternative to the defence of volenti non fit injura (voluntary assumption of risk)

PUBLIC AND OTHER AUTHORITIESS. 35: Clearly allows Public Authorities to make broad policy decisions about

priorities in spendingS. 36: Actions or omissions much be such no reasonable authority would make themS. 37: Restores exemption of road authorities for failure to repair or keep in repair

unless they have actual knowledge of the particular risk.

VOLUNTEERSS. 38: Definition – people doing voluntary work for community organisationS. 39: No liability for actions done in good faithS. 40: No exemption for criminal actsS. 41: Not protected if drunk and fails to exercise due care and skillS. 42: Not protected if acting outside scope or contrary instructions

EXCLUSIONS – CRIMES. 45 Criminals not be awarded damages Liability s excluded if the court is satisfied on the balance of probabilities that the

incident occurred while the plaintiff was engaged in an indictable offence Can get if ‘would operate harshly or unjustly’

EXCLUSIONS – INTOXICATIONS. 46: Not relevant to consider in the standard of care that persons may be exposed

to increased risk because of intoxicationI.e.: No duty of care arises just because someone is drunkDrunkenness does not change the standard of care owed

Contributory negligence is presumed if P was intoxicated at the time but rebuttable if plaintiff can show intoxication did not contribute or not self induced. – 25% minimum deduction

Section 24: Contributory negligence can reduce an award of damages by 100%

Section 35: Principles concerning resources, responsibilities, etc of public or other authorities

Section 35: Public authoritiesIn deciding whether a public or other authority has a duty or has breached a duty* 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 the functions;* The general allocation of financial or other resources by the authority is not open to challenge;* The functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);* The authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.

Section 45 – Criminals Liability is excluded if the court is satisfied on the balance of probabilities that the

incident occurred when the plaintiff was engaged in conduct that is an indictable offence

Irrelevant whether they were charged or convicted Will not apply if the outcome would be harsh or unjust, but minimum 25% off

Outcome of ReformsNo increase in affordability of insurance – premiums have gone upNo increase in clarity & certainty of the law - greater fragmentation of the law and confusion

Assumptions and premises underlying the reforms are being questioned

LAWYERS REACTIONS

LESSONS FROM THE U.S.A.TORT REFORM IS CYCLICAL Who’s behind tort reform? Politicisation of tort reform – Bush/Cheney v Kerry/Edwards Calls for Tort reform are not new. For over two decades pro-business groups in the USA have mounted a campaign to

cultivate a legal system that favours business interests And lawyers have not helped – especially in the U.S.A.WHO’S BEHIND TORT REFORM Insurance Companies Businesses facing higher insurance costs Statutory Authorities (self insured) Ideologues concerned about:

o Judicial adventurism o Personal responsibility

Anti-lawyer sentiments

Negligence of Land Managers Form1. Define Negligence2. D.O.C. of Land Managers

a. Stat Actionb. RF, Use Encouraged., Not Obvious, Admin

3. Breacha. Calc of Neglectb. Precautions

4. Suffered Loss5. Causation

a. But Forb. Novus Actus

6. Remoteness (Wagon 1; Wagon 2)7. Defences (Volenti, Contributory etc)8. Damages

TRESPASS PROTECTED INTERESTS & NATURE OF INTERFERENCE/REMEDIES Interests protected - physical/mental integrity and property interests (land and

chattels) Nature of interference – Direct Fault required – intentional negligent or reckless act Act must be voluntary and a positive and affirmative action (not omission) Proof of Damage - not necessary to prove actual damage – Actionable per se Remedie s – nominal, compensatory, aggravated and exemplary damages; self-help;

injunctionNEGLIGENCE PROTECTED INTERESTS & NATURE OF INTERFERENCEo Protected Interests -right to physical and emotional integrity, and property and

economic interestso Nature of interference - Indirect or consequential act or omissiono Fault - breach of duty of care causing damage which is not too remoteo Proof of damage- P must prove actual damage ‘damage is the gist of negligence’o Remedies- Compensatory, aggravated. Exemplary damages in very rare cases

where negligence. Personal Injuries Proceedings Act 2002 (Qld) limits availability of exemplary damages

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