LawBrief: Torts

HEAD OFFICE
Thomson Reuters (Professional) Australia Limited
19 Harris Street Pyrmont NSW 2009
Tel: (02) 8587 7000 Fax: (02) 8587 7100
[email protected]
www.thomsonreuters.com.au
For all customer inquiries please ring 1300 304 195
(for calls within Australia only)

INTERNATIONAL AGENTS & DISTRIBUTORS

NORTH AMERICA ASIA PACIFIC

Thomson Reuters Thomson Reuters
Eagan Sydney
United States of America Australia

LATIN AMERICA EUROPE

Thomson Reuters Thomson Reuters
São Paulo London
Brazil United Kingdom
 LawBrief:
Torts

MANDY SHIRCORE
BSc, LLB (Mon), LLM (QUT)
Senior Lecturer
College of Business, Law and Governance
James Cook University
Admitted as a Barrister and Solicitor of the
Supreme Court of Victoria
Admitted as a Solicitor of the Supreme Court of
Queensland

LAWBOOK CO. 2015

Published in Sydney by
Thomson Reuters (Professional) Australia Limited
ABN 64 058 914 668
19 Harris Street, Pyrmont, NSW

National Library of Australia

Cataloguing-in-Publication entry
Shircore, Amanda Lee, author.
Torts / Mandy Shircore.
9780455234267 (paperback).
Series: Lawbrief.
Includes index.
Torts – Australia.
346.9403.

© 2015 Thomson Reuters (Professional) Australia Limited

This publication is copyright. Other than for the purposes of and

subject to the conditions prescribed under the Copyright Act 1968,
no part of it may in any form or by any means (electronic,
mechanical, microcopying, photocopying, recording or otherwise)
be reproduced, stored in a retrieval system or transmitted without
prior written permission. Inquiries should be addressed to the
publishers.

Editor: Sandra Bassam

Product Developer: Lucas Frederick
Publisher: Robert Wilson

Printed by Ligare Pty Ltd, Riverwood, NSW

This book has been printed on paper certified by the Programme

for the Endorsement of Forest Certification (PEFC). PEFC is
committed to sustainable forest management through third party
forest certification of responsibly managed forests.
 Preface
Unlike many other core areas of law that students are required to study in their
degree, the law of torts consists of a number of distinct civil wrongs. It is for this
reason that defining exactly what amounts to a tort has proved difficult. Many
commentators prefer to define torts in the negative, by comparing and
distinguishing torts from other actions with similar features, such as contract law
and criminal law. Others prefer to define torts by considering the types of interests
the law of torts seeks to protect. In general terms, torts law provides a right to
compensation where one person wrongfully breaches a duty or obligation that has
been imposed by the law (rather than the parties themselves) for the protection of
another.

Until recently, the development of the law of torts has been left largely to the
common law. The earliest tort of trespass was developed to protect a person’s
bodily integrity, land and goods from direct interference by another. In 1932, the
modern tort of negligence was born and with the advent of industrialisation the tort
continued to expand to cover an ever-increasing range of unintentional conduct.
Towards the end of the century there were concerns expressed that the law of
negligence had gone too far. In response to the “insurance crisis” in 2002, Australian
governments introduced sweeping civil liability legislation to reduce the number of
possible negligence claims and limit the damages available. Even so, many of the
principles established under the common law remain, and study of the law of
negligence requires detailed examination of both case law and the various
legislative provisions.

As it is not possible to cover all tortious actions in this book, the most significant
torts have been selected. After an introductory chapter, which defines torts and
traces their historical development, the book is divided into three main parts. The
first section covers what are generally referred to as the intentional torts, trespass to
the person, goods and land, and considers how tort law may provide protection
from an invasion of privacy. The second, and largest, part of the book deals with the
tort of negligence. Duty of care, breach of duty, causation, defences to negligence
and damages are all considered. In the final section, a number of miscellaneous
torts are dealt with including nuisance, breach of statutory duty and defamation.

As interactions within society become more complex, the law of torts will
continue to develop and adapt. Amidst calls to pare back legislative reforms,
further changes to civil liability legislation and negligence laws are to be expected.
This makes the law of torts a dynamic and challenging area of the law to study.
Good luck with your studies in Torts Law.

Mandy Shircore
May 2015
 Table of Contents
Preface ................................................................................................................................................... v
How to Use Mind Maps ........................................................................................................................ ix
Table of Cases ...................................................................................................................................... xi
Table of Statutes ............................................................................................................................... xxix

1. Introduction to torts liability ............................................................................................................... 1

2. Interference with the person ........................................................................................................... 11
3. Trespass to land and invasion of privacy ...................................................................................... 23
4. Interference with goods ................................................................................................................... 33
5. Defences to intentional torts ........................................................................................................... 45
6. Duty of care generally .................................................................................................................... 57
7. Particular duty of care situations .................................................................................................... 67
8. Duty of care – Omissions and statutory authorities ...................................................................... 77
9. Duty of care – Pure psychiatric injury and pure economic loss ................................................... 89
10. Breach of duty ............................................................................................................................. 101
11. Standard of care .......................................................................................................................... 113
12. Factual causation ........................................................................................................................ 123
13. Scope of liability/ remoteness of damage .................................................................................. 133
14. Defences to negligence .............................................................................................................. 145
15. Personal injuries damages – Part 1 ........................................................................................... 157
16. Personal injuries damages – Part 2: Wrongful death and survival actions ............................. 167
17. Vicarious liability, non-delegable duties and multiple tortfeasors .............................................. 177
18. Nuisance – Part 1 ....................................................................................................................... 187
19. Nuisance – Part 2: Breach of statutory duty ............................................................................. 199
20. Defamation ................................................................................................................................... 211

Glossary ............................................................................................................................................. 223

Index ................................................................................................................................................... 229
 How to Use Mind Maps
Mind maps are located at the end of each chapter to provide a visual explanation of
the topics discussed in that chapter. Referring to the mind maps as you read
through each chapter will enable you to better understand how each piece of
information fits into the overall topic. The maps are also highly useful revision
tools, setting out the content in a format which allows you to see important details
for each topic at a glance.

The mind maps are structured in a similar way to flowcharts. The main concepts
branch out into a number of topics, which each branch out into subtopics for up to
five levels of explanatory detail. To show progression from one point to the next,
each level is connected to the one following by a solid line with an arrow. See the
sample below.

Level 1 Access to Information

Level 2 Discovery

Level 3 Access to documents

of opposing litigants

v
Level 4 Governed by Rules of Court

v
Previously, discovery
Level 5 could be "oppressive"e
eg Mok Gek Bouy

In addition to the five levels, other features may be included in the mind maps,
including:
• Key Points – these are key points for the overall topic of the map which should
be given consideration when referring to any part of the map.
• Explanatory notes – these notes may relate to just one point or may be an
overarching explanatory note for the entire map. Where they relate to just one
point they are connected to that point by a double-headed arrow. Where they
x LAWBRIEF: TORTS

relate to the entire map, they appear above it in umbrella form. Explanatory
notes offer some additional context to, or further explanation of, the content they
relate to.
• “But” or “Exception” boxes – these sit alongside a sublevel and contain an
exception or “but” statement relating to that sublevel. They are indicated by a
dotted line and appear in blue text. “But” or “exception” boxes are used to
qualify statements made in their associated sublevels.

The spiral binding of this book makes it easy to tear out the mind maps so you can
refer to them as you read through each chapter, or use them as visual prompts
while preparing for (or sitting) exams. We trust that you will find them useful.
 Table of Cases
A

A, Re (1993) 16 Fam LR 715; [1993] FLC 92-402 ...................................................... 5.100

Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 ................................ 11.50
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 .................. 10.90, 12.100, 12.110
Airedale NHS Trust v Bland [1993] AC 789 ................................................................ 5.100
Aitken Agencies Ltd v Richardson [1967] NSWLR 65 ................................................ 4.190
Allen v Gulf Refinery Ltd [1981] AC 1001 ................................................................... 19.90
Allianz Australia Insurance v Kerr (2012) 83 NSWLR 302 ..................................... 15.200
Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW (2010) 57 MVR
80 ................................................................................................................................. 8.180
Amaca Pty Ltd v Booth (2011) 246 CLR 36 ............................................................... 12.140
Amaca Pty Ltd v Ellis (2010) 240 CLR 111 ............................................................... 12.140
Amaca Pty Ltd v New South Wales [2004] Aust Torts Reports 81-749 ................... 8.150
Ames v Hanlon (1873) 4 AJR 90 ..................................................................................... 5.50
Amstad v Brisbane City Council and Ward (No 1) [1968] Qd R 334 ........................ 3.110
Andreae v Selfridge and Co Ltd [1937] 3 All ER 255 .................................. 18.130, 18.160
Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 .................................... 18.170, 19.20
Anns v Merton London Borough of Merton [1978] AC 728 ......................................... 6.60
Apache Energy Ltd v Alcoa of Australia Ltd (No 2) (2013) 45 WAR 379 ................. 9.120
Arnold v Police [2004] SASC 74 ................................................................................... 3.200
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Reports
81-636 ......................................................................................................................... 7.160
Astley v Austrust Ltd (1999) 197 CLR 1 ..................................................................... 9.120
Atlas Tiles v Briers (1978) 144 CLR 202 .................................................................... 15.190
Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 ............................................. 18.50
Attorney-General (Qld) (ex Rel Kerr) v T (1983) 46 ALR 275 ..................................... 7.20
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199;
185 ALR 1 ........................................................................................................ 1.80, 3.240
Australian Capital Territory v Crowley (2012) 7 ACTLR 142 ......................... 8.130, 8.170
Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria
[1989] VR 617 ............................................................................................................ 5.260
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 .......................... 7.110

B (adult: refusal of medical treatment), Re [2002] 2 All ER 449 ................................. 5.100

Bahner Marwest Hotel Co Ltd (1969) 6 DLR (3d) 222 ............................................... 2.260
Baker v Willoughby [1970] AC 467 ............................................................................. 12.200
Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 ........................................... 9.150, 18.40
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 ........................................ 2.260
xii LAWBRIEF: TORTS

Bamford v Turnley (1860) 3 B and S 66 ..................................................................... 18.140

Bank of New Zealand v Greenwood [1984] 1 NZLR 525 .......................................... 18.130
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 ........... 19.100,
19.105
Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608 ........................................... 9.120
Barker v The Queen (1983) 153 CLR 338 ..................................................................... 3.150
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB
428 ............................................................................................................................... 12.50
Barton v Armstrong [1969] 2 NSWR 451 .................................................................... 2.180
Batchelor v Tasmania (2005) 13 Tas R 403; [2005] TASSC 11 ................................... 7.190
Bathurst City Council v Saban (1985) 2 NSWLR 704 ................................................ 3.160
Batt v Wilkinson [1983] 2 Qd R 619 .......................................................................... 15.190
Bazley v Curry (1999) 174 DLR (4th) 45 ................................................................... 17.120
Beals v Hayward [1960] NZLR 131 ................................................................................ 4.70
Beckwith v Shordike (1767) 4 Burr 2092; 98 ER 91 .................................................... 3.160
Bennett v Minister for Community Welfare (1992) 176 CLR 408 ............... 12.210, 13.190
Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479 ...................... 3.30
Betts v Whittingsloe (1946) 71 CLR 637 .................................................................... 19.240
Bird v Jones (1845) 7 QB 742; 15 ER 668 .................................................................... 2.230
Bjelke Peterson v Warburton [1987] 2 Qd R 465 ............................................. 20.40, 20.70
Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 ............................................. 17.110
Bliss v Hall (1838) 4 Bing (NC) 183 .......................................................................... 19.130
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 ............................................... 10.20
Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 ..................................... 3.40
Bolam v Frien Barnet Hospital Management Committee [1957] 2 All ER 118 ........ 11.100
Bolton v Stone [1951] AC 850 ..................................................................................... 10.150
Bonnington Castings Ltd v Wardlaw [1956] AC 613 ................................... 12.130, 12.190
Bourhill v Young [1943] AC 92 ....................................................................................... 9.20
Bowditch v McEwan [2003] 2 Qd R 615 ........................................................................ 7.30
Bradburn v Great Western Railway Co (1874) LR 10 Exch 1 .................................. 16.130
Brady v Schatzel [1991] St R Qd 206 ........................................................................... 2.180
Brambles Australia Ltd t/as CHEP Australia v Tatale Pty Ltd [2004] NSWCA
232 ............................................................................................................................... 4.290
Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436 ......................... 18.240
Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84; [2009] WASC 229 .... 5.100
Brilley v Presidential Security Services (2008) 73 NSWLR 241 ................................. 5.180
Brilley v Presidential Security Services of Australia [2009] NSWDC 14 ................... 5.180
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ............... 14.210
British Electric Railway Co v Gentile [1914] AC 1034 .............................................. 16.140
Broderick Motors Pty Ltd v Rothe [1986] Aust Torts Reports 80-059 .................... 18.170
Brodie v Singleton Shire Council (2001) 206 CLR 512 ................................................ 6.110
Brookfield Multi-Plex Ltd v Owners Corporation Strata Plan 61288 [2014] Aust Torts
Reports 82-182 .......................................................................................................... 9.170
Bryan v Maloney (1995) 182 CLR 609 ......................................................................... 9.170
Bugge v Brown (1919) 26 CLR 110 .............................................................................. 17.80
Bunnings Group v CHEP [2011] NSWCA 342 ................................................ 4.120, 4.190
 TABLE OF CASES / xiii

Burford v Allen [1993] Aust Torts Reports 81-226 .................................................. 15.150

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 ........ 17.140, 17.190
Burns v Edman [1970] 2 QB 541 .................................................................................. 12.20
Burton v Davies [1953] St R Qd 26 .............................................................................. 2.240
Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 ........................... 4.240
Byrne v Boadle (1863) 159 ER 299 .............................................................................. 11.200

CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 ....... 6.110,
7.140, 8.20
CHEP Australia Ltd v Bunnings Group [2010] NSWSC 301 .................................... 4.120
CSR Ltd v Eddy (2005) 226 CLR 1 .................................................. 15.100, 15.110, 15.170
Calabro v Western Australia [2012] WASC 418 .......................................................... 3.240
Caledonian Collieries Ltd v Spiers (1957) 97 CLR 202 ................... 10.160, 10.200, 11.190
Caltex Oil (Australia Pty Ltd) v The Dredge “Willemstad” (1976) 136 CLR 529 .... 9.140
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 .............................. 6.110
Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264 ................... 18.100
Campbell v Hay [2014] Aust Torts Reps 82-169 ....................................................... 14.140
Campbell v MGN Ltd [2004] 2 AC 457 ........................................................................ 3.240
Campbell v Samuels (1980) 23 SASR 389 .................................................................... 2.100
Canterbury Bankstown Rugby League Football Club Ltd v Rogers; Bugden v Rogers
[1993] Aust Torts Reports 81-246 ........................................................................ 17.110
Caparo Industries Plc v Dickman [1990] 2 AC 605 ....................................................... 6.80
Carmarthenshire County Council v Lewis [1955] AC 549 ............................................. 8.60
Carrier v Bonham [2001] QCA 234 ............................................................................... 2.300
Carrier v Bonham [2002] 1 Qd R 474 ............................................................... 5.270, 11.50
Carter v Walker (2010) 32 VR 1 .................................................................................... 2.100
Cartledge v E Jopling Sons Ltd [1963] AC 758 .......................................................... 14.230
Casley-Smith v FS Evans and Sons Pty Ltd [1989] Aust Torts Reports 80-227 ...... 19.40
Casley-Smith v FS Evans and Sons Pty Ltd (No 5) (1988) 67 LGRA 108 ................ 19.20
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 .......................................... 20.60
Cassidy v Ministry of Health [1951] 2 KB 343 ............................................................ 17.30
Caterson v Commissioner for Railways (NSW) (1973) 128 CLR 99 ............. 13.160, 14.50
Cattanach v Melchior (2003) 215 CLR 1 ........................................................................ 7.60
Chairman, National Crime Authority v Flack (1998) 86 FCR 16 ................................. 4.60
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 ...................... 20.30, 20.40
Challen v McLeod Country Golf Club [2004] Aust Torts Reports 81-760 ................ 19.40
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 ............................. 20.140
Chaplin v Dunstan Ltd [1938] SASR 245 ................................................................... 17.110
Chapman v Hearse (1961) 106 CLR 112 .............................................. 6.150, 13.70, 13.190
Chappel v Hart (1998) 195 CLR 232 .................................................. 12.90, 12.180, 12.210
Chatterton v Gerson [1981] QB 432 ................................................................................ 5.50
Chester v Waverley Corporation (1939) 62 CLR 1 ......................................................... 9.20
Chordas v Bryant (Wellington) Pty Ltd (1998) 20 FCR 91 ......................................... 7.170
Christie v Davey [1893] 1 Ch 316 ............................................................................... 18.260
xiv LAWBRIEF: TORTS

Christopher v MV “Fiji Gas” [1983] Aust Torts Reports 81-202 ............................. 9.150
Church of Scientology Inc v Transmedia Productions Ltd [1987] Aust Torts Reports
80-101 ......................................................................................................................... 3.230
Clarey v The Principal and Council of the Women’s College (1953) 90 CLR
170 ............................................................................................................................. 18.180
Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 ........................................... 10.280
Clayton v LeRoy [1911] 2 KB 1031 ............................................................................... 4.300
Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 ................................................... 7.170
Coco v The Queen (1994) 179 CLR 427; 120 ALR 415 ................................... 3.200, 5.270
Cohen v City of Perth [2000] WASC 306 ................................................................... 19.100
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207
ALR 52 ........................................................................ 6.110, 6.180, 7.140, 7.190, 10.130
Collins v Wilcock [1984] 1 WLR 1172 ............................................................................ 2.90
Commonwealth v Connell (1986) 5 NSWLR 218 ......................................................... 17.60
Commonwealth v Introvigne (1982) 150 CLR 258 ..................................................... 17.170
Commonwealth v McLean (1996) 41 NSWLR 389 ......................................... 13.90, 13.120
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 ........................ 20.20, 20.70
Cook v Cook (1986) 162 CLR 376 ...................................................................... 11.70, 11.80
Corliss v Gibbings-Johns [2010] QCA 233 .................................................................. 14.200
Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1 .................................................. 20.60
Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR
714 ............................................................................................................................... 2.270
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 ....................... 3.150, 3.210, 5.50
Cran v New South Wales (2004) 62 NSWLR 95 .............................................. 6.110, 7.190
Cressy v Johnson (No 3) [2009] VSC 52 ............................................................. 4.90, 4.100
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ....... 6.80, 6.110,
8.110, 8.120, 8.130
Crook v Thyssen Mining Construction of Australia Pty Ltd [1992] 9 SR (WA)
10 ............................................................................................................................... 11.210
Cullen v Trappell (1980) 146 CLR 1 ........................................................................... 15.190
Curmi v McLennan [1954] 1 VR 513 ............................................................................. 8.70
Cush v Dillon (2011) 243 CLR 298 ............................................................................. 20.190
Czatyrko v Edith Cowan University (2005) 214 ALR 349 .......................................... 14.50

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 ................................ 7.190, 7.200
Darling Island Stevedoring Co Ltd v Long (1957) 97 CLR 36 .................... 19.190, 19.210
Davies v Bennison (1927) 22 Tas LR 52 ......................................................................... 3.40
Davis v Bunn (1936) 56 CLR 246 ............................................................................... 11.200
Day v Bank of New South Wales (1978) 18 SASR 163 ............................................... 5.250
De Jager v Paynehaus and Magill Lodges Hall Inc (1984) 36 SASR 498 ................... 19.40
De Sales v Ingrilli (2002) 212 CLR 338 ..................................................................... 16.220
Dean v Phung [2012] Aust Torts Reports 82-111; [2012] NSWCA 223 .................... 5.90
Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466 ............................. 18.280
Deatons Pty Ltd v Flew (1949) 79 CLR 370 ................................................. 17.100, 17.130
 TABLE OF CASES / xv

Deepcliffe Pty Ltd v The Council of the City of Gold Coast [2001] QCA 342 ........... 18.40
Derrick v Cheung [2001] HCA 48 ............................................................................... 10.150
Derry v Peek (1889) 14 App Cas 337 ............................................................................ 9.90
Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52 ................................. 3.40
Dickenson v Waters (1931) 31 SR (NSW) 593 ............................................................. 2.210
Dobler v Halverson (2007) 70 NSWLR 151 ............................................................... 11.130
Dobson v Dobson [1999] 2 SCR 753 ............................................................................... 7.30
Dollar Sweets Pty Ltd v Federated Confectioners Assn [1986] VR 383 ...... 18.130, 18.170
Donoghue v Stevenson [1932] AC 562 ........................... 6.20, 6.30, 6.50, 7.180, 8.10, 9.20
Doodeward v Spence (1908) 6 CLR 406 .......................................................................... 4.20
Doubleday v Kelly [2005] NSWCA 151 ............................................................ 10.80, 14.50
Douglas v Hello! Ltd [2007] UKHL 21 ........................................................................ 3.240
Downham v Bellette [1986] Aust Torts Reports 80-038 ............................................. 5.230
Downs v Williams (1971) 126 CLR 61 ....................................................................... 19.190
Drouet v Garbett (2011) 75 SR (WA) 231 .................................................................. 14.140
Duncan v Bell [1967] Qd R 425 .................................................................................. 14.160
Dunjey v Ross (2002) 36 MVR 70 ................................................................................ 5.140

E v Australian Red Cross Society (1991) 27 FCR 310 ............................................... 10.220

Edwards: Re Estate of Edwards [2011] NSWSC 478 ..................................................... 4.20
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 ....................................... 17.170
Elston v Dore (1982) 149 CLR 480; 57 ALJR 83 .................................... 1.80, 18.80, 19.80
Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 ............ 3.240
Erwin v Iveco Trucks Australia Ltd (2010) 267 ALR 752 ......................................... 10.260
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR
241 ............................................................................................................................... 9.110
Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182 ............................... 1.50
Ettinghausen v Australian Consolidated Press (1991) 23 NSWLR 443 .......... 20.30, 20.40
Evatt v Mutual Life and Citizens Assurance Co Ltd (1967) 69 SR (NSW) 50 .......... 9.110
Everitt v Martin [1953] NZLR 298 ................................................................................ 4.90

F, In Re v West Berkshire HA [1990] 2 AC 1 ..................................................... 2.90, 5.120

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 ..................................... 2.100
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 .................................... 12.130
Fairfax Media Productions Pty Ltd v Kermode (2011) 81 NSWLR 157 ................... 20.120
Fallas v Mourlas (2006) 65 NSWLR 418 ................................................................... 14.140
Falvo v Australian Oztag Sports Association [2006] Aust Torts Reps 81-831 ....... 14.140
Fatur v IC Formwork Services Pty Ltd (2000) 155 FLR 70 ...................................... 10.240
Faulkner v Keffalinos (1971) 45 ALJR 80 .................................................................... 12.200
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 .......................................... 16.80
Fennel v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 ..................................... 19.20
Ffrench v Sestili (2007) 98 SASR 28 ........................................................................... 17.120
xvi LAWBRIEF: TORTS

Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26
WAR 368 .................................................................................................................... 3.220
Fitzpatrick v Cooper (1935) 54 CLR 200 ..................................................................... 11.200
Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd [1993] Aust Torts Reports
81-244 .............................................................................................................. 4.210, 4.290
Fontin v Katapodis (1962) 108 CLR 177 ........................................................... 5.180, 5.220
Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153 ............................... 4.80, 4.180
Fox v Hack [1984] 1 Qd R 391 ................................................................................... 10.240
French v QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214 ............................ 13.10
Froom v Butcher [1976] 1 QB 286 ................................................................................ 14.20

Gala v Preston (1991) 172 CLR 243 ................................................................ 7.190, 14.170

Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 ................................................... 19.240
Galea v Bagtrans Pty Ltd [2011] Aust Torts Reports 82-078 .................................. 17.160
Gardiner v John Fairfax and Sons Ltd (1942) 42 SR (NSW) 171 ............................. 20.130
Gazzard v Hutchesson [1995] Aust Torts Reports 81-337 ....................................... 19.150
General Constructions v Peterson (1962) 108 CLR 251 ............................................ 19.190
Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 ............................. 3.70
Gerard v Hope [1965] Tas SR 15 ................................................................................... 5.270
Geyer v Downs (1977) 138 CLR 91 ..................................................................... 6.180, 8.60
Giannarelli v Wraith (1988) 165 CLR 543 ................................................................... 7.200
Gifford v Dent [1926] WN 336 ........................................................................................ 3.70
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR
100 .......................................................................................................... 6.160, 9.40, 12.20
Giller v Procopets (2008) 24 VR 1 ..................................................................... 2.300, 3.240
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 .............. 5.100
Gittani Stone Pty Ltd v Pavkovic [2007] Aust Torts Reports 81-924 ....................... 13.70
Giumelli v Johnston [1991] Aust Torts Reports 81-085 ............................................... 5.70
Glasgow Corporation v Muir [1943] AC 448 ............................................................... 11.10
Glass v Hollander (1935) 35 SR (NSW) 304 ................................................................ 4.230
Glavonic v Foster [1979] VR 536 .................................................................................. 16.80
Glendale Chemical Products Pty Ltd v Australian Competition and Consumer
Commission (1998) 90 FCR 40 ................................................................................. 7.180
Gold v Essex County Council [1942] 2 KB 293 ........................................................... 17.60
Gordon v Tamworth Jockey Club Inc [2003] Aust Torts Reports 81-698 .................. 7.160
Goss v Nicholas [1960] Tas SR 133 ............................................................................... 5.200
Government Insurance Office of NSW v Mackie [1990] Aust Torts Reports
81-053 ....................................................................................................................... 15.150
Graham v Baker (1961) 106 CLR 340 ......................................................................... 16.130
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 ............ 6.110, 8.140, 8.150
Grant v Australian Knitting Mills [1936] AC 85 ........................................................ 7.180
Gray v Motor Accident Commission (1998) 196 CLR 1 .............................................. 15.40
Greig v Greig [1966] VR 376 ......................................................................................... 3.220
Griffiths v Kerkemeyer (1977) 139 CLR 161 .................................................. 15.160, 16.210
 TABLE OF CASES / xvii

Griffiths v Wood [1994] Aust Torts Reports 81-274 ................................................... 11.30

Grosse v Purvis [2003] QDC 151 .................................................................................. 3.240
Gugiatti v Servite College Council Inc [2004] Aust Torts Reports 81-724 ................. 8.60

H v Royal Alexandra Hospital for Children [1990] Aust Torts Reports 81-100 ..... 11.180
Haber v Walker [1963] VR 339 ...................................................................... 13.160, 16.180
Haddrick v Lloyd [1945] SASR 40 .................................................................................. 3.70
Hahn v Conley (1971) 126 CLR 276 ............................................................................... 8.70
Hall v Foncea [1983] WAR 309 ..................................................................................... 2.200
Halliday v Nevill (1984) 155 CLR 1 .................................................................... 3.110, 5.50
Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 ................................. 18.100, 18.220
Hargrave v Goldman (1963) 110 CLR 40 ..................................................................... 18.60
Harnett v Bond [1925] AC 669 ..................................................................................... 2.250
Harriton v Stephens (2006) 226 CLR 52 .................................................. 6.110, 7.90, 12.20
Harvey v PD (2004) 59 NSWLR 639 ......................................................................... 13.220
Haskens and Davey Pty Ltd [1993] 1 VR 27 ................................................................ 9.110
Hawke v Tamworth Newspapers Co Ltd [1983] 1 NSWLR 699 .................... 20.30, 20.130
Hawkins v Clayton Utz (1988) 164 CLR 539 ..................................................... 6.10, 11.90
Haylon v Purcell (1949) 49 SR (NSW) 1 ................................................................... 19.190
Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465 ........................ 9.100,
Hemmings v Stokes Poges Golf Club [1920] 1 KB 720 ................................................ 3.210
Henry v TVW Enterprises [1990] Aust Torts Reports 81-031 .................................. 20.70
Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1 ............................... 20.110, 20.190
Herd v Weardale Steel Coke and Coal Ltd [1915] AC 67 ............................................ 2.260
Hill v Chief Constable of West Yorkshire [1989] AC 53 ............................................... 7.190
Hill v Van Erp (1997) 188 CLR 159 .................................................................... 6.80, 9.120
Hilton v Wallace [1989] Aust Torts Reports 80-231 .................................................... 5.70
Hinz v Berry [1970] 2 QB 40 .......................................................................................... 9.20
Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 ................................. 4.20
Hofffman v Boland [2013] Aust Torts Reports 82-134; [2013] NSWCA 158 ............ 8.80
Hogan v Gill [1992] Aust Torts Reports 81-182 ................................................. 2.60, 2.90
Hollins v Fowler (1875) LR 7 HL 757 .......................................................................... 4.160
Hollis v Vabu (2001) 207 CLR 21 .................................................................... 17.60, 17.120
Holloway v McFeeters (1956) 94 CLR 470 ................................................................. 11.160
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 .................................... 18.260
Home Office v Dorset Yacht Co [1970] AC 1004 ............................................................ 8.90
Hopewell Baranyay [1962] VR 311 .............................................................................. 19.190
Horkin v North Melbourne Football Social Club [1983] VR 153 ................................ 5.250
Horne v Queensland [1995] Aust Torts Reports 81-343 .............................................. 8.60
Horrocks v Lowe [1975] AC 30 .................................................................................... 20.190
Hotson v East Berkshire Area Health Authority [1987] AC 750 ............................... 12.150
Howarth v Adey [1996] VR 535 ...................................................................................... 7.20
Hughes v Lord Advocate [1963] AC 837 ...................................................................... 13.70
Hunter v Canary Wharf Ltd [1996] 2 WLR 348 ................................... 1.80, 18.80, 18.280
xviii LAWBRIEF: TORTS

Hunter & New England Health Authority v McKenna [2014] Aust Torts Reports
82-188; [2014] HCA 44 ................................................................................. 6.110, 8.170
Hunter Area Health Service v Presland (2005) 63 NSWLR 22 ................................ 13.220
Husher v Husher (1999) 197 CLR 138 ....................................................................... 15.190
Hutchins v Maughan [1947] VLR 131; [1947] ALR 201 ........................... 1.50, 2.40, 4.70

Imbree v McNeilly (2008) 236 CLR 510 ................................................... 6.10, 11.80, 14.80
Imperial Chemical Industries v Shatwell [1965] AC 656 ........................................... 14.100
Innes v Wylie (1844) 1 Car & K 257 .............................................................................. 2.90
Insurance Commissioner v Joyce (1948) 77 CLR 39 .................................................. 14.160
Interchase Corp Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd
R 26 ............................................................................................................................. 9.110
Inverell Municipal Council v Pennington [1993] Aust Torts Reports 81-234 ........ 10.100

Jaber v Rockdale City Council [2008] Aust Torts Reps 81-952 ................................ 14.140
Jackson v Harrison (1978) 138 CLR 438 ..................................................................... 14.170
Jaensch v Coffey (1984) 155 CLR 549 .................................................................... 6.70, 9.20
Jane Doe v Australian Broadcasting Corporation [2007] VCC 281 ............................ 3.240
Jobling v Associated Dairies Ltd [1982] AC 794 ........................................................ 12.200
John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR
157 ............................................................................................................................... 4.270
John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 .......................... 20.120
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 ................................. 20.80
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 ............................ 20.120
Jolley v Sutton London Borough Council [2000] 3 All ER 409 ................................... 13.70
Jones v Bartlett (2000) 205 CLR 166 ............................................................... 6.180, 17.200
Jones v Dapto Leagues Club Ltd [2008] NSWCA 32 ................................................... 14.60
Jones v Fairfax (1986) 4 NSWLR 466 ......................................................................... 20.170
Jones v Shire of Perth [1971] WAR 56 .......................................................................... 3.220
Joslyn v Berryman (2003) 214 CLR 552 ....................................................................... 14.30

Kalaba v Commonwealth [2004] FCA 763 .................................................................... 3.240

Kars v Kars (1996) 187 CLR 354 ................................................................................ 15.160
Kato v Benz [1999] WASCA 165 .................................................................................. 7.180
Kavanagh v Akhtar (1998) 45 NSWLR 588 ............................................................... 13.130
Kelly v Bega County Council (unreported, Court of Appeal of NSW, 13 September
1982) ........................................................................................................................... 14.50
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 ..... 3.40
Kempsey Shire Council v Lawrence [1996] Aust Torts Reports 81-375 .................. 19.100
Kent v Scattini [1961] WAR 74 ................................................................................... 14.120
Khorasandjian v Bush [1993] QB 227 ......................................................................... 18.280
 TABLE OF CASES / xix

Kiddle v City Business Properties Ltd [1942] 1 KB 269 ............................................ 19.120

Kirk v Gregory (1876) 1 Ex D 55 .................................................................................... 4.90
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 .................................................. 9.40
Kondis v State Transport Authority (1984) 154 CLR 672 ......................................... 17.160
Konskier v B Goodman Ltd [1928] 1 KB 421 ............................................................... 3.180
Kraemers v Attorney-General (Tas) [1966] Tas SR 113 .................................. 18.290, 19.20
Kuru v New South Wales (2008) 236 CLR 1; 246 ALR 260 ................. 3.150, 3.200, 5.50

L Shaddock and Associates Pty Ltd v Parramatta City Council (1981) 150 CLR
255 ............................................................................................................................... 9.110
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR
490 ................................................................................................................................. 3.40
Lamb v Cotogno (1987) 164 CLR 1 ............................................................................... 5.220
Lancashire Railway Co v MacNicoll (1919) 88 LJKB 601 ........................................... 4.150
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ......................... 20.190
Laoulach v Ibrahim [2011] NSWCA 402 ....................................................... 10.290, 14.140
League Against Cruel Sports Ltd v Scott [1986] QB 240 .............................................. 3.90
Leahy v Beaumont (1981) 27 SASR 290 .............................................................. 5.30, 11.60
Leakey v National Trust for Places of Historic Interest [1980] QB 485 ...................... 19.80
Leame v Bray (1803) 3 East 593 ...................................................................................... 2.40
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 ........................... 17.140
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 ............................................. 17.160
Lester-Travis v City of Frankston [1970] VR 2 ............................................. 18.100, 19.100
Letang v Cooper [1965] 1 QB 232 ........................................................................ 2.130, 5.30
Leyden v Caboolture Shire Council [2007] QCA 134 ................................................. 14.120
Lim v Camden and Islington Area Health Authority [1980] AC 174 ......................... 15.80
Limbo v Little (1989) 65 NTR 19 .................................................................................. 5.140
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 ................. 3.130, 3.230
Lisle v Brice [2002] 2 Qd R 168 .................................................................................. 16.190
Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 ................................. 17.210
Lithgow City Council v Jackson (2011) 244 CLR 352 ................................................ 12.110
Lloyd v Borg [2013] Aust Torts Reports 82-140 ......................................................... 17.60
Lloyd v Grace and Smith and Co [1912] AC 716 ....................................................... 17.120
Lloyd v Osborne (1899) 20 LR (NSW) 190 ....................................................... 4.290, 4.300
London Borough of Southwark v Williams [1971] Ch 734 .......................................... 5.140
Lormine Pty Ltd v Xuereb [2006] NSWCA 200 ........................................................ 14.140
Lyle v Soc (2009) 38 WAR 418 ................................................................................... 16.190
Lynch v Lynch (1991) 25 NSWLR 411 .............................................................. 7.30, 15.160

MacPherson and Kelley v Kevin J Prunity and Associates [1983] 1 VR 573 ............... 1.10
Mackenzie v The Nominal Defendant (2005) 43 MVR 315; [2005] NSWCA 180 .... 14.60
Maes v Alcoa of Australia (1993) 9 SR (WA) 370 ..................................................... 15.190
xx LAWBRIEF: TORTS

Mahony v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 ............................ 13.180
Main Roads, Commissioner of v Jones (2005) 215 ALR 418 ..................................... 12.180
Malec v JC Hutton (1990) 169 CLR 638 ...................................................................... 16.70
Mann v The Medicine Group (1992) 38 FCR 400 ....................................................... 20.70
March v E and M Stramare Pty Ltd (1991) 171 CLR 506 ................. 12.80, 12.90, 13.190
Marion’s Case (1992) 175 CLR 218 .............................................................................. 5.100
Matheson v Northcote College [1975] 2 NZLR 106 ..................................................... 19.50
Matthews v SPI Electricity Pty Ltd [2001] VSC 168 ................................................ 19.260
Mattis v Pollock [2003] 1 WLR 2158 .......................................................................... 17.130
McClure v Commonwealth [1999] NSWCA 392 ........................................................ 17.110
McCracken v Melbourne Storm Rugby League Football Club [2005] NSWSC
107 ..................................................................................................................... 5.70, 15.10
McDonald v Ludwig [2007] QSC 028 ............................................................................. 5.90
McFadzean v CFMEU (2007) 20 VR 250 ..................................................................... 2.240
McFarlane v Tayside Health Board [2000] 2 AC 59 ....................................................... 7.50
McGhee v National Coal Board [1973] 1 WLR 1 ....................................................... 12.130
McHale v Watson (1964) 111 CLR 384 ............................................ 2.70, 2.120, 5.20, 8.70
McHale v Watson (1965) 115 CLR 199 ........................................................................ 11.30
McLean v Tedman (1984) 155 CLR 306 ....................................................................... 14.50
McMahon v Catanzaro [1961] QWN 22 ..................................................................... 18.270
McNamara v Duncan (1971) 45 FLR 152; 26 ALR 584 ...................................... 5.50, 5.60
McPherson v Whitfield [1996] 1 Qld R 474 ................................................................. 11.10
McPherson Ltd v Eaton (2005) 65 NSWLR 187 .......................................................... 7.180
McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160 ....... 19.240
Medlin v State Government Insurance Commission (1995) 182 CLR 1 ........ 13.160, 16.80
Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580 ..... 10.260
Metrolink Victoria Pty Ltd v Inglis [2009] Aust Torts Reps 82-032 .............. 13.70, 13.90
Metropolitan Asylum District v Hill (1881) 6 App Cas 193 ...................................... 19.90
Miller v Jackson [1977] 3 QB 966 ............................................................................... 19.130
Miller v Miller (2011) 275 CLR 611 .............................................................. 14.180, 14.190
Miller and Croak Pty Ltd v Auburn Municipal Council [1960] SR (NSW) 398 ..... 19.260
Mills v Baitis [1968] VR 583 ......................................................................................... 12.20
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 ...................................... 20.60
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 ............... 6.110,
6.180, 7.160, 8.30
Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 ................................. 19.80
Morgan v Odhams Press Ltd [1971] 2 All ER 1156 .................................................... 20.70
Morris v Marsden [1952] 1 All ER 925 ........................................................................ 5.270
Mount Isa Mines v Pusey (1970) 125 CLR 383 ............................... 1.70, 9.10, 9.20, 13.70
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; [2005] HCA 63 ..... 10.200,
10.280
Mummery v Irvings Pty Ltd (1956) 96 CLR 99 ........................................... 11.200, 11.210
Munnings v Barrett (1987) 5 MVR 403 ....................................................................... 3.110
Munroe v Southern Dairies [1955] VLR 332 ............................................................. 18.120
Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 ................................. 15.80
Murray v McMurchy [1949] 2 DLR 442 ........................................................................ 5.90
 TABLE OF CASES / xxi

Murray v Ministry of Defence [1988] 1 WLR 692 ...................................................... 2.260

Myer Stores Ltd v Jovanovic [2004] VSC 478 .............................................................. 4.130
Myer Stores Ltd v Soo [1991] 2 VR 597 ....................................................................... 2.250

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 ....... 13.130
Nagle v Rottnest Island Authority (1993) 177 CLR 423 ........................................... 10.280
Napalumba v Baker (1982) 29 SASR 192 ..................................................................... 16.50
National Coal Board v JE Evans and Co (Cardiff) Ltd [1951] 2 KB 861 ............ 2.60, 4.70,
5.30
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 ....................................... 2.300
Naxakis v Western General Hospital (1999) 197 CLR 269 .......................... 11.120, 12.160
Neindorf v Junkovic (2005) 222 ALR 631 .......................................... 7.110, 10.130, 10.280
Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201 ............................................ 10.200
Nelson v Nelson [1923] St R Qd 37 .............................................................................. 4.300
Nestercuk v Mortimore (1965) 115 CLR 140 .............................................................. 11.160
New South Wales v Bujdoso (2005) 227 CLR 1; 222 ALR 663 .................................... 8.90
New South Wales v Eade [2006] NSWSC 84 ............................................................. 17.210
New South Wales v Godfrey [2004] Aust Torts Reports 81-741 ............................... 8.100
New South Wales v Griffin [2004] NSWCA 17 ........................................................... 14.50
New South Wales v Ibbett (2005) 65 NSWLR 168 ...................................................... 15.10
New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 ...................... 3.200, 3.220
New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR
511 .................................................................................................. 17.130, 17.140, 17.170
Newington v Windeyer (1985) 3 NSWLR 555 ..................................................... 3.60, 3.70
Nguyen v Nguyen (1990) 169 CLR 245 ..................................................................... 16.210
Nominal Defendant v Andrews (1969) 121 CLR 562 .................................................. 4.130
Nor-Video Services v Ontario Hydro (1978) 84 DLR (3d) 221 ................................... 18.80
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 ................................. 17.200
Norton v Hoare (No 1) (1913) 17 CLR 310 .................................................................. 5.210

O’Connor v SP Bray Ltd (1937) 56 CLR 464 ............................................................ 19.190

O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 ............................... 20.130
O’Shea v Permanent Trustee Co of NSW Ltd [1971] Qd R 1 ................................... 14.160
Odisho v Bonazzi [2014] Aust Torts Reports 82-155 ............................................... 12.180
Oldham v Lawson (No 1) [1976] VR 654 ................................................................... 18.280
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (“Wagon Mound” (No 2))
[1967] 1 AC 617 ........................................................................................... 13.50, 19.170
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (“Wagon Mound”
(No 1)) [1961] 1 AC 388 ........................................................................................... 13.30
xxii LAWBRIEF: TORTS

PQ v Australian Red Cross Society [1992] 1 VR 19 .................................................. 10.220

Paff v Speed (1961) 105 CLR 549 ................................................................................ 15.110
Painter v Reed [1930] SASR 295 ................................................................................. 18.270
Palmer Bruyn and Parker Pty Ltd v Parsons (2001) 208 CLR 388 ............................ 3.220
Palsgraf v Long Island Railway Co (1928) 162 NE 99 ................................................ 6.130
Pantalone v Alaouie (1989) 18 NSWLR 119 ................................................................ 19.20
Paris v Stepney Borough Council [1951] AC 367 ...................................................... 10.170
Parker v British Airways Board [1982] 1 QB 1004 ........................................................ 4.60
Partridge v Chick (1951) 84 CLR 611 ......................................................................... 16.140
Paul, Re [2008] NSWSC 960 ......................................................................................... 5.100
Peden Pty Ltd v Bortolazzo [2006] QCA 350 ............................................................... 19.50
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 ........ 4.50, 4.80, 4.120, 4.190, 4.240
Pennington v Norris (1956) 96 CLR 10 ....................................................................... 14.70
Performance Car v Abraham [1961] 3 All ER 413 ..................................................... 12.200
Perpetual Trustees and National Executors of Tasmania Ltd v Perkins [1989] Aust Torts
Reports 80-295 ............................................................................................... 4.130, 4.220
Perre v Appand Pty Ltd (1999) 198 CLR 180 .................................................... 6.80, 9.160
Phillips v Britannia Hygenic Laundry Co Ltd [1923] 1 KB 539 ............................... 19.190
Phipps v Pears [1965] 1 QB 76 ...................................................................................... 18.70
Phoenix Society Incorporated v Cavanagh and Walla (1996) 25 MVR 143 .............. 17.110
Piro v Foster (1943) 68 CLR 313 ................................................................................ 19.250
Plenty v Dillon (1991) 171 CLR 635 ............................................................................ 3.110
Plenty v Dillon [1997] SASC 6372 ............................................................................... 3.220
Plumb v Breen (unreported, Young J, Supreme Court of New South Wales, 13
December 1990) ........................................................................................................ 5.230
Polly Peck plc v Trelford [1986] QB 1000 ................................................................... 20.110
Progress and Properties Ltd v Craft (1976) 135 CLR 651 ............................ 19.210, 19.250
Proudman v Allen [1954] SASR 336 ............................................................................. 5.160
Public Transport Commission of NSW v Perry (1977) 137 CLR 107 ........................... 3.90
Pullen v Gutteridge [1993] 1 VR 27 .............................................................................. 9.110
Pyreness Shire Council v Day (1988) 192 CLR 330 .................................................... 8.110

Queensland v Kelly [2014] QCA 027 .......................................................................... 10.290

Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 ................................. 18.100

R v Ireland [1997] QB 114 ............................................................................................. 2.180

R v Loughnan [1981] VR 433 ........................................................................................ 5.140
R v Mobilio [1991] 1 VR 339 .......................................................................................... 5.50
R v Williams [1923] 1 KB 340 ......................................................................................... 5.50
Raciti v Hughes (1995) 7 BPR 14,837 ............................................................. 18.80, 18.130
 TABLE OF CASES / xxiii

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606 ........ 20.30,
20.60
Railways, Commissioner of v Ruprecht (1979) 142 CLR 563 ...................................... 14.20
Ralph v Strutton [1969] Qd R 348 ................................................................................. 8.90
Read v Croydon Corporation [1938] 4 All ER 631 ..................................................... 19.230
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 .................................. 20.40
Rees v Darlington Memorial Hospital NHS [2004] 1 AC 3 .......................................... 7.50
Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR
762 ............................................................................................................................. 17.220
Rendell v Associated Finance Pty Ltd [1957] VR 604 ................................................. 4.220
Reynolds v Clarke (1726) 1 Str 634; 93 ER 747 ............................................................. 2.30
Rhodes v Lake Macquarie City Council [2010] Aust Torts Reports 82-073 ............ 10.220
Richardson v Rix (1989) 12 MVR 522 .......................................................................... 5.210
Rickards v Lothian [1913] AC 263 .............................................................................. 13.200
Rinsdale Pty Ltd v Australian Broadcasting Corporation [1993] Aust Torts Reports
81-231 .............................................................................................................. 3.130, 3.230
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 ........................................................ 2.100
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 ........ 10.130, 10.150,
12.180
Roberts v Bass (2002) 212 CLR 1 ................................................................................ 20.190
Roberts v Ramsbottom [1980] 1 All ER 7 ..................................................................... 11.60
Robertson v Swincer (1989) 52 SASR 356 ...................................................................... 8.70
Robinson v Kilvert (1889) 41 Ch D 88 ....................................................................... 18.240
Robson v Hallett [1967] 2 QB 939 ................................................................................. 3.110
Roe v Minister of Health [1954] 2 QB 66 ........................................... 11.180, 17.60, 17.170
Rogers v Whittaker (1992) 175 CLR 479 ........... 5.80, 6.10, 11.90, 11.110, 11.130, 12.170,
14.150
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR
431 .................................................................................................. 10.190, 10.200, 10.280
Rootes v Shelton (1967) 116 CLR 383 ......................................................................... 14.120
Rose v Plenty [1976] 1 WLR 141 ................................................................................ 17.110
Rosebanner Pty Ltd v Energy Australia [2011] NSWCA 28 ...................................... 3.200
Rosecrance v Rosecrance (1995) 105 NTR 1 ............................................................... 15.150
Rosenberg v Percival (2001) 205 CLR 434 .................................................... 12.160, 12.170
Rozsa v Samuels [1969] SASR 205 ............................................................................... 2.190
Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 ................................ 14.60
Russell v London and South Western Railway (1908) 24 TLR 548 .......................... 11.210
Russell v Rail Infrastructure Corporation [2007] NSWSC 402 ................................... 14.50
Ryan v Ann St Holdings Pty Ltd [2006] 2 Qd R 486 ................................................. 17.80

Sadcas v Business & Professional Finance Pty Ltd [2011] NSWCA 267 ........ 4.130, 4.190
St George’s Healthcare NHS Trust v S [1998] 3 WLR 936 ......................................... 5.120
St Helen’s Smelting Co Ltd v Tipping (1865) 11 HLC 642 ...................................... 18.100
St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 ................. 8.60, 8.70
xxiv LAWBRIEF: TORTS

San Sebastian Pty Ltd v Minister Administering the Environmental Planning and
Assessment Act 1979 (1986) 162 CLR 340 ............................................................. 9.110
Scanlon v American Cigarette Co (Overseas Pty Ltd (No 3) [1987] VR 289 ............. 14.80
Schellenberg v Tunnel Holdings [2000] Aust Torts Reports 81-553 ........... 11.200, 11.210
Schemmell v Pomeroy (1989) 50 SASR 450 .................................................................. 4.190
Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 ........ 19.190
Scott v Davis (2000) 204 CLR 333; 175 ALR 217 ...................................................... 17.60
Scott v Shepherd (1773) 2 Wm B1 892; 96 ER 525 ............................................. 1.50, 2.40
Secretary, Department of Health and Community Services (NT) v JWB and SMB (1992)
175 CLR 218 ................................................................................................................ 2.90
Sedleigh-Denfield v O’Callaghan [1940] AC 880 ............................................ 18.210, 19.70
Sharman v Evans (1977) 138 CLR 563 ........ 15.100, 15.140, 15.210, 15.220, 16.40, 16.50
Shaw v Thomas [2010] Aust Torts Reports 82-065 ..................................... 10.100, 10.150
Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 ...................... 7.210
Sibley v Kais (1967) 118 CLR 424 .............................................................................. 10.240
Sibley v Milutinovic [1990] Aust Torts Reports 81-013 .............................................. 5.70
Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore
[2011] 2 All ER 857 ................................................................................................ 12.130
Skelton v Collins (1966) 115 CLR 94 ................................................................. 16.30, 16.50
Slaveski v Victoria [2010] VSC 441 ............................................................................... 2.180
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 ........................................... 19.190
Smith v Charles Baker and Sons [1891] AC 325 ........................................................ 14.100
Smith v Jenkins (1970) 119 CLR 397 .......................................................................... 14.170
Smith v Leech Brain [1962] 2 QB 405 ......................................................................... 13.110
Smith v Leurs (1945) 70 CLR 256 .................................................................................. 8.70
Smith v Ministry of Defence [2011] EWHC 1676 ....................................................... 7.210
Smith v Perese [2006] NSWCA 288 ........................................................................... 14.140
Smith v Stone (1647) Style 65 ....................................................................................... 3.160
South Australia v Simionato (2005) 143 LGERA 128 ................................................. 19.30
Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 ..................... 2.40, 3.80
Spautz v Butterworth (1996) 41 NSWLR 1 ................................................................. 5.270
Spence v Percy [1991] Aust Torts Reports 81-116 ....................................................... 9.20
Stanley v Powell (1773) 2 Wm B1 892; 96 ER 525 ....................................................... 2.60
Stanley v Powell [1891] 1 QB 86 ......................................................................... 1.100, 5.20
State Rail Authority of NSW v Chu [2008] Aust Torts Reports 81-940 ................ 13.200
State Railway Authority of NSW v Wiegold (1991) 25 NSWLR 500 ............ 7.190, 12.20,
13.220
Stephens v Myers (1830) 4 Car & P 349; 172 ER 735 ................................................ 2.170
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 .......................... 20.190
Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 ............................................... 13.120
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 ................................. 17.40
Stevenson, Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101 .... 17.30
Stockwell v Victoria [2001] VSC 497 ............................................................... 18.280, 19.80
Storey v Ashton (1869) LR 4 QB 476 ......................................................................... 17.110
Stovin v Wise [1996] AC 923 .......................................................................................... 8.10
Streller v Albury City Council [2013] Aust Torts Reports 82-146 ......................... 14.140
 TABLE OF CASES / xxv

Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182 ....................................... 12.110
Stuart v Kirkland-Veenstra (2009) 237 CLR 215 ......................... 6.110, 7.190, 8.20, 8.150
Sturges v Bridgman (1879) 11 Ch D 852 ...................................................... 18.130, 18.220
Sullivan v Moody (2001) 207 CLR 562 .................... 6.80, 6.100, 6.110, 7.10, 8.110, 8.160
Sutherland Shire Council v Heyman (1985) 157 CLR 424 .......................................... 8.110
Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 ........... 10.190,
11.140
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 ......................................... 17.60
Sydney South West Area Health Services v MD (2009) 260 ALR 702 .................... 11.130
Sydney Water Corporation v Turano (2009) 239 CLR 51 ............................................ 6.130
Symes v Mahon [1922] SASR 447 ....................................................................... 2.250, 5.40

T (Adult Refusal of Treatment), Re [1993] Fam 95 ...................................................... 5.100

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 ...................... 3.130, 3.220
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 ..................... 3.150
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 .......................................... 11.160
Tabet v Gett (2010) 240 CLR 537 .................................................................... 12.20, 12.160
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR
317 ................................................................................................... 6.160, 9.40, 9.50, 9.70
Tepko Pty Ltd v Water Board (2001) 206 CLR 1 .......................................................... 9.110
Tetley v Chitty [1986] 1 All ER 663 ............................................................................. 19.50
Theaker v Richardson [1962] 1 WLR 151 ..................................................................... 20.80
Thomas v Iselin [1972] QWN 15 ................................................................................. 15.190
Thompson v Australian Capital Television (1996) 186 CLR 574 .............................. 17.220
Thompson-Schwab v Costaki [1956] 1 All ER 652 ..................................................... 18.130
Thompsons v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 ................................... 7.110
Thorpes v Grant Pastoral Co Pty Ltd (1954) 92 CLR 317 ........................................ 18.100
Todorovic v Waller (1981) 150 CLR 402 ................................... 15.20, 15.70, 15.90, 15.220
Torette House Pty Ltd v Berkman (1940) 62 CLR 637 ................................................ 19.80
Towart v Adler (1989) 52 SASR 373 ............................................................................... 8.70
Tuberville v Savage (1669) 1 Mod Rep 3; 84 ER 34 ................................................... 2.180
Tucker v McCann [1948] VLR 222 ................................................... 10.240, 19.180, 19.190
Tuohey v Freemasons Hospital (2012) 37 VR 180 ...................................................... 15.200
Tweed Shire Council v Howarth [2009] Aust Torts Reports 82-101; [2009] NSWCA
103 ................................................................................................................................. 8.70

Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 ....... 4.130,
4.140

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 .......... 10.80, 10.110,
10.130, 10.280
xxvi LAWBRIEF: TORTS

Van Gervan v Fenton (1992) 175 CLR 327 ................................................................ 15.160

Veivers v Connolly [1995] 2 Qd R 326 ........................................................................... 7.40
Venning v Chin (1974) 10 SASR 299 ....................................................... 2.110, 2.140, 5.30
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR
479 .......................................................................................................... 1.80, 3.240, 18.80
Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 ........................ 9.20
Vreman v Albury City Council [2011] NSWSC 39 .................................................... 14.140

Wagon Mound (No 2), The [1967] 1 AC 617 ............................................................. 18.100

Wallace v Kam (2013) 250 CLR 375 ................................................................ 12.185, 13.10
Walsh v Ervin [1952] VLR 361 ..................................................................................... 18.40
Walter v Selfe (1851) 4 De G and Sm 315 ................................................................ 18.110
Warren v Queensland Electric Steel Ltd [1974] Qd R 139 ........................................ 19.250
Warren Shire Council v Kuehne [2012] NSWCA 81 ................................................... 8.180
Watkins v Victoria (2010) 27 VR 543 ........................................................................... 5.180
Watt v Hertfordshire County Council [1954] 1 WLR 835 ......................................... 10.220
Watt v Rama [1972] VR 353 ........................................................................................... 7.20
Waugh v James K Allan Ltd [1964] SC (HL) 102 ........................................................ 11.60
Wenn v Evans (1985) 2 SR (WA) 263 .......................................................................... 5.230
West v Government Insurance Office of NSW (1981) 148 CLR 62 ........................... 11.160
Wheeler v New Merton Board Mills [1933] 2 KB 669 ............................................... 19.250
Wherry v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107 .................... 18.200
White v Connolly [1927] St R Qd 75 ............................................................................ 5.230
White v South Australia (2010) 106 SASR 521 ........................................................... 2.270
Wicks v State Railway Authority of NSW (2010) 241 CLR 60 .................................... 9.60
Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 .......................................... 13.120
Wilkinson v Downton [1897] 2 QB 57 ................................................................ 1.60, 2.290
Williams v Milotin (1957) 97 CLR 465 ........................................................................ 2.140
Wilsher v Essex Area Health Authority [1987] QB 730 ............................................ 12.130
Wilson v Lombank [1963] 1 All ER 740 ......................................................................... 4.50
Wilson v Marshall [1982] Tas R 287 ............................................................................... 4.90
Wilson v New South Wales (2010) 207 A Crim R 499; [2010] NSWCA 333 .......... 3.150
Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 655 .............. 5.250
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 ........ 10.130, 10.190, 10.270
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 ............. 6.110,
9.170
Woolworths Ltd v Crotty (1942) 66 CLR 603 ............................................................ 16.160
Woolworths Ltd v Lawlor [2004] NSWCA 209 .......................................................... 15.170
Wormald v Robertson [1992] Aust Torts Reports 81-180 .......................................... 7.170
Wynbergen v Hoyts Corporation (1998) 149 ALR 25 .................................................. 14.70
Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 .................. 15.240
Wyong Shire Council v Shirt (1980) 146 CLR 40 ............................... 10.40, 10.80, 10.100
 TABLE OF CASES / xxvii

X v Bedfordshire County Council [1995] 2 AC 633 ................................................... 19.260

X v Pal (1991) 23 NSWLR 26 ........................................................................................ 7.20
X v South Australia (No 3) (2007) 97 SASR 180 ........................................................ 8.100
XI Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR
448 ............................................................................................................................... 15.40

Zanker v Vartzokas (1988) 34 A Crim R 11 ..................................................... 2.200, 2.240

Zanner v Zanner (2010) 79 NSWLR 702 .......................................................... 11.30, 13.10
 Table of Statutes
Commonwealth s 110: 10.200
ss 110 to 114: 8.180
Competition and Consumer Act 2010: s 111: 8.180, 19.260
9.110 Ch 9: 20.10, 20.90
Sch 2: Australian Consumer Law: 1.100, Guardianship and Management of
7.180, 9.110 Property Act 1991: 5.100
s 18: 9.110 Limitation Act 1985: 14.210
s 236: 19.190 Medical Treatment (Health Directions)
Insurance Contracts Act 1984 Act 2006: 5.100
s 66: 17.210 Workers Compensation Act 1954
Social Security Act 1991 s 184(2): 16.110
s 17: 16.120
s 1178: 16.120
New South Wales
s 1179: 16.120
Trade Practices Act 1974 Casino Control Act 1992: 2.100
s 52: 9.110 Civil Liability Act 2002: 1.110
Pt VA: 7.180 s 5: 12.20
s 5B: 10.50
Australian Capital Territory s 5B(2): 10.120
s 5C: 10.200
Civil Law (Wrongs) Act 2002: 1.110 s 5C(b): 10.200
s 24: 16.160 s 5C(c): 11.190
s 34: 9.50 s 5D: 12.10, 12.100, 12.120
s 35: 12.20 s 5D(1)(b): 13.10
s 36(5): 14.160 s 5D(3): 12.170
s 40: 12.20 s 5D(4): 13.10
s 42: 11.10, 11.180 s 5E: 12.210
s 43: 10.50 ss 5F to 5G: 14.130
s 43(2): 10.120 s 5G: 10.290
s 44: 10.200 s 5H: 10.290
s 44(b): 10.200 s 5I: 14.150
s 44(c): 11.190 s 5K: 14.140
s 45: 12.10, 12.100, 12.120, 15.90 ss 5K to 5L: 14.140
s 45(1)(b): 13.10 s 5O: 11.130, 11.180
s 45(3): 13.10 s 5P: 11.130
s 46: 12.210 s 5R: 14.50
s 47: 14.70 s 5S: 14.70
ss 95 to 96: 14.60 s 12: 15.200
s 98: 15.200 s 14: 15.220
s 100: 15.170 s 15: 15.160, 15.170
s 102: 14.40 s 15C: 15.200
s 107D(2): 17.220 s 16(2): 16.50
s 107F: 17.220 s 21: 15.40
xxx LAWBRIEF: TORTS

s 24: 15.90 Personal Injuries (Liability and Damages)

s 30: 9.50, 9.60 Act: 1.110
s 32: 9.50 s 10: 14.200
s 33: 12.20 ss 14 to 15: 14.60
s 35(1): 17.220 s 19: 15.40
s 35(3): 17.220 s 20: 15.200
s 35(4): 17.220 s 22: 15.220
s 42: 10.200 s 23: 15.160, 15.170
ss 42 to 45: 8.180 s 27(1)(a): 16.50
s 43A: 8.180, 19.260 s 32: 15.90
s 50: 14.60
s 52: 5.200 Queensland
s 54: 14.200
s 71: 7.70 Civil Liability Act 2003: 1.110
Pt 2: 15.120 s 9(1): 10.50
Compensation to Relatives Act 1897 s 9(2): 10.120
s 3(1): 16.160 s 10: 10.200
Defamation Act 2005: 20.10 s 10(c): 10.200, 11.190
Employees Liability Act 1991 s 11: 12.10, 12.100, 12.120
s 3: 17.210 s 11(1)(b): 13.10
s 11(3): 12.170
Guardianship Act 1987: 5.100
s 11(4): 13.10
Law Reform (Miscellaneous Provisions)
s 12: 12.210
Act 1965
s 13: 10.290
s 9(1): 14.40 ss 13 to 14: 14.130
Limitation Act 1969: 14.210 s 15: 10.290
Mental Health Act 1990: 8.170 s 16: 14.150
s 4(2)(b): 8.170 ss 17 to 19: 14.140
s 20: 8.170 s 21(1): 11.130
Motor Accidents Act 1988: 14.30 s 22: 11.130
Motor Accidents Compensation Act 1999 s 22(1): 11.180
s 138: 14.60 s 22(5): 11.130
s 140: 14.160 s 23: 14.50
Workers Compensation Act 1987 s 24: 14.70
s 151A: 16.110 s 35: 8.180, 10.200
ss 35 to 37: 8.180
s 36: 8.180, 19.260
Northern Territory s 45: 14.200
ss 47 to 49: 14.60
Adult Guardianship Act 1988: 5.100
s 48(5): 14.160
Advanced Personal Planning Act 2013:
s 49A: 7.70
5.100 s 49B: 7.70
Compensation (Fatal Injuries) Act 1974 s 52: 15.40
s 7(1): 16.160 s 53: 16.80
Defamation Act 2006: 20.10 s 54: 15.200
Law Reform (Miscellaneous Provisions) s 56: 15.200
Act 1956 s 57: 15.220
s 16(1): 14.40 s 59: 15.160
s 22A: 17.210 s 59A: 15.170
Limitation Act: 14.210 s 63: 16.50
 TABLE OF STATUTES / xxxi

s 65: 15.90 s 52: 16.50

Ch 2, Pt 2: 17.220 s 54: 15.200
Pt 3: 15.120 s 55: 15.220
Sch 2: 12.20 s 58: 15.160, 15.170
Civil Proceedings Act 2011 s 59: 17.210
s 64: 16.160 s 67: 7.70
Criminal Code 1899 Consent to Medical Treatment and
s 269: 5.220 Palliative Care Act 1995: 5.100
Defamation Act 2005: 20.10 s 6: 5.100
Guardianship and Administration Act s 12: 5.100
2000: 5.100 Defamation Act 2005: 20.10
Invasion of Privacy Act 1971: 5.270 Guardianship and Administration Act
s 43(1): 3.200 1993: 5.100
Law Reform Act 1995 Law Reform (Contributory Negligence
s 10(1)(b): 14.40 and Apportionment of Liability) Act
Limitation of Actions Act 1974: 14.210 2001
Powers of Attorney Act 1998: 5.100 s 7: 14.40
Supreme Court Act 1995 Limitation of Actions Act 1936: 14.210
s 16: 15.220 Supreme Court Act 1935
Workers Compensation and Rehabilitation s 30BA: 15.90
Act 2003
s 237: 16.110 Tasmania

South Australia Civil Liability Act 2002: 1.110

s 5: 14.60
Civil Liability Act 1936: 1.110 s 5N: 10.290
s 3: 12.20 s 6: 14.200
s 3A: 15.220 s 9: 12.20
s 23: 16.160 s 11: 10.50
s 31: 11.180 s 11(2): 10.120
s 31(1): 11.10 s 11(3): 10.200
s 32: 10.50 s 12: 10.200
s 32(2): 10.120 s 12(a): 10.200
s 33: 9.50 s 12(b): 11.190
s 34: 12.10, 12.100 s 13: 12.10, 12.100, 12.120
s 34(1)(b): 13.10 s 13(1)(b): 13.10
s 34(2): 12.120 s 13(3): 12.170
s 34(3): 13.10 s 13(4): 13.10
s 35: 12.210 s 14: 12.210
ss 36 to 37: 14.130 ss 15 to 16: 14.130
s 37: 10.290 s 17: 10.290
s 38: 10.290 ss 18 to 20: 14.140
s 39: 14.150 s 21: 11.130
s 41: 11.180 s 22: 11.130, 11.180
s 41(1): 11.130 s 22(5): 11.130
s 43: 14.200 s 23: 14.50
s 44: 14.50 s 25: 15.200
ss 46 to 50: 14.60 s 26: 15.200
s 47(6): 14.160 s 28A: 15.220
xxxii LAWBRIEF: TORTS

s 28B: 15.160, 15.170 s 60: 11.130

s 34: 9.50 s 62: 14.50
s 35: 12.20 s 63: 14.70
s 38: 10.200 s 72: 9.50
ss 38 to 40: 8.180 s 74: 12.20
s 40: 8.180, 19.260 s 81: 8.180
Pt 9A: 17.220 s 83: 10.200
Defamation Act 2005: 20.10 ss 83 to 85: 8.180
Fatal Accidents Act 1934 s 84: 19.260
s 4: 16.160 s 218A: 15.160, 15.170
Guardianship and Administration Act Pt VB: 15.120
1995: 5.100
Limitation Act 1974: 14.210 Western Australia
Wrongs Act 1954
s 4(1): 14.40
Civil Liability Act 2002: 1.110
s 3: 12.20
s 5AA: 8.180
Victoria s 5AK: 17.220
s 5B: 10.50
Defamation Act 2005: 20.10
s 5B(2): 10.120
Guardianship and Administration Board s 5C: 12.10, 12.100, 12.120
Act 1986: 5.100 s 5C(1)(b): 13.10
Limitation of Actions Act 1958: 14.210 s 5C(3): 12.170
Medical Treatment Act 1988: 5.100 s 5C(4): 13.10
Mental Health Act 1986: 8.20, 8.150 s 5D: 12.210
Workers Compensation Act 1958 ss 5E to 5I: 14.140
s 65(1): 16.110 s 5F: 10.290
Wrongs Act 1958: 1.110, 13.160 ss 5F to 5N: 14.130
s 14G: 14.60, 14.200 s 5K: 14.50
s 16: 16.150 s 5L: 14.60
s 24AI: 17.220 s 5O: 10.290
s 26(1): 14.40 s 5P: 14.150
s 28F: 15.200 s 5PB: 11.130, 11.180
s 28G: 16.50 s 5S: 9.50
s 28I: 15.220 s 5T: 12.20
s 28N: 15.90 s 5W: 10.200
s 43: 12.20 ss 5W to 5Z: 8.180
s 48: 10.50 s 5X: 8.180, 19.260
s 48(2): 10.120 s 10: 16.50
s 49: 10.200 s 11: 15.200
s 49(b): 10.200 s 12: 15.160, 15.170
s 49(c): 11.190 s 15: 15.90
s 51: 12.10, 12.100, 12.120 Pt 2: 15.120
s 51(1)(b): 13.10 Criminal Code
s 51(4): 13.10 s 246: 5.220
s 52: 12.210 Defamation Act 2005: 20.10
ss 53 to 54: 14.130 Fatal Accidents Act 1959
s 54: 10.290 s 4: 16.160
s 55: 14.150 Guardianship and Administration Act
s 59: 11.130, 11.180 1990: 5.100, 5.120
 TABLE OF STATUTES / xxxiii

Law Reform (Contributory Negligence Workers’ Compensation and Injury

and Tortfeasors Contribution) Act Management Act 1981
1947 s 92: 16.110
s 4(1): 14.40
Law Reform (Miscellaneous Provisions) United Kingdom
Act 1941
s 5: 15.220 Fatal Accidents Act 1846: 16.140
Limitation Act 2005: 14.210 Lord Campbell’s Act: 16.140, 16.160
 Chapter 1

Introduction to torts liability

Introduction to torts liability
[1.10] WHAT IS A TORT?.................................................................... 2
[1.20] Torts distinguished from crimes ......................................... 2
[1.30] Torts distinguished from breaches of contract........................ 3
[1.40] THE HISTORICAL DEVELOPMENT OF TORTS ................................ 3
[1.40] The distinction between trespass and actions on the case........ 3
[1.60] Modern torts developed from actions on the case .................. 4
[1.70] THE NATURE OF TORTS LIABILITY ............................................. 5
[1.70] Limits to torts liability ..................................................... 5
[1.100] Foundation of liability and loss distribution ........................... 6
[1.110] REFORM TO THE LAW OF NEGLIGENCE...................................... 7
[1.120] OTHER FORMS OF COMPENSATION ........................................... 9
[1.130] TORTS COVERED IN THIS TEXT................................................. 9

What is a tort?
[1.10] The word “tort” originates from the Latin word tortus and means
“wrong” or “injury”. The law of torts is made up of a number of separate
wrongs, which aim to protect particular interests. It does this by providing
compensation where a person’s protected interests are invaded by another.
In other words, where a tort has been committed, a person is entitled to sue
the wrongdoer (or tortfeasor) and receive compensation.
A tort has been defined as a breach of a duty or obligation “owed
generally to one’s fellow subjects, the duty being imposed by law and not
as a consequence of duties fixed by the parties themselves” (MacPherson
and Kelley v Kevin J Prunity and Associates [1983] 1 VR 573 at 587 per
Murphy J). The most common torts are the torts of negligence, trespass,
nuisance and defamation. To gain a clearer understanding of what amounts
to a tort, it is necessary to distinguish torts from other forms of wrongs.

Torts distinguished from crimes

[1.20] While both torts and crimes involve an invasion of a person’s
protected interests, a tort is a civil wrong, as opposed to a criminal wrong.
Where a crime is committed, the state prosecutes the wrongdoer, with the
primary purpose being punishment. The state takes this role, as crimes are
seen not only as an offence against an individual, but an offence against the
state as a representative of the public. The criminal offender is punished
through the imposition of sanctions such as fines and imprisonment.
 CHAPTER 1 INTRODUCTION TO TORTS LIABILITY / 3

Torts, however, are generally private actions, initiated by individuals.

The purpose is not to punish but to provide compensation to the victim by
compelling the wrongdoer to pay for the damage. It is important to note
that criminal offences require proof beyond all reasonable doubt, whereas
civil actions, such as torts, require proof on the balance of probabilities.
Certain conduct can amount to both a crime and a tort. An example is an
assault.

Torts distinguished from breaches of contract

[1.30] Torts and breaches of contract are both civil wrongs but they differ
in significant ways. Most importantly, contracts are made up of promises
and obligations, which, in part, are determined by the parties themselves.
Where a party departs from the agreed obligations, the other party may sue
for a breach of contract. The obligations under the contract are only owed
to the specified parties to the contract.
Obligations in tort law, on the other hand, are determined by the law,
either through the common law (judge-made law) or under statute. In this
way, it is not the parties themselves who determine the obligations arising
from their relationship, but the law. Furthermore, the obligations are many
and varied and are owed between many members of the community who,
in some instances, have no knowledge of each other prior to the tort
occurring.
Some breaches of contract will also amount to a tort. So where a contract
is entered into for the provision of services, and a term of the contract
(either express or implied) is to exercise due care, a breach of that duty may
amount to both a breach of the contract and an action in the tort of
negligence. For example, negligent provision of legal advice would be both
a breach of the contract between the solicitor and the client, and a breach of
the duty of care owed by the solicitor to the client in the tort of negligence.

The historical development of torts

The distinction between trespass and actions on the case
[1.40] The first categories of torts recognised by the courts were actions in
trespass. Trespass was introduced to stop people taking the law into their
own hands and retaliating when their home or their person was invaded.
The writ of trespass developed as a remedy for all direct and forcible
interferences with the person, goods or property of the plaintiff.
Not all interferences with a person or their property are direct, and it
soon became apparent that there was a need to provide a remedy for
4 LAWBRIEF: TORTS

indirect interferences that caused the plaintiff harm. A new form of action
developed to cover situations where the plaintiff’s injury was consequential
upon the defendant’s act. This was known as an action on the case.
By the late 18th century, the two forms of action were distinguished by
whether the injury to the plaintiff was caused directly through contact or
interference by the defendant (trespass), or as a consequence of the
defendant’s conduct or interference (action on the case).
The principle is illustrated in the case at [1.50].

Hutchins v Maughan
[1.50] Hutchins v Maughan [1947] VLR 131

FACTS • The plaintiff was driving a flock of sheep when the defendant warned him that he
had laid baits on nearby land. Despite the warning, the plaintiff took his sheep and dogs
onto the property. When the dogs died as a result of taking the baits, the plaintiff sued the
defendant for trespass to his goods (the dogs).

HELD • The defendant was not liable in trespass. The plaintiff did not suffer an injury as a
direct or immediate result of the defendant’s actions. In order for the damage to occur, the
plaintiff had to bring his dogs onto the land, so that the injury was merely consequential
on the defendant’s act. The situation would have been different if the defendant had
directly fed the dogs the baits.
[SEE ALSO • Scott v Shepherd (1773) 96 ER 525; Esso Petroleum Co Ltd v Southport
Corporation [1954] 2 QB 182.]

Modern torts developed from actions on the case

[1.60] With the abolition of the requirement to bring actions under
specific forms of action (through the issuing of writs), a new development
took place. From actions on the case, a number of modern torts arose. The
most significant of these were the tort of negligence and the tort of
nuisance. Where the defendant’s negligent conduct caused the plaintiff’s
injury either directly or indirectly, the action became known as negligence.
As a derivative of an action on the case, to maintain an action in
negligence, the plaintiff needs to establish that he/she suffered actual harm
or loss (damage).
Trespass is still the applicable tort for situations where the defendant’s
intentional conduct causes the plaintiff’s injury directly. Trespass is
actionable per se.
 CHAPTER 1 INTRODUCTION TO TORTS LIABILITY / 5

Although trespass and negligence actions generally cover all wrongful

conduct that causes the plaintiff injury, there are some situations where the
defendant, through intentional conduct, causes harm to the plaintiff and
neither trespass or negligence are the appropriate cause of action. In such
circumstances the plaintiff may claim damages under the innominate tort
of intentional infliction of harm, particularly where the harm complained of
is psychiatric harm (Wilkinson v Downton [1897] 2 QB 57). As an action on
the case, proof of loss or harm to the plaintiff is required.
While, technically, in Australia an action can be brought in trespass
where the defendant’s conduct is negligent, the common practice is to
bring an action in negligence in situations where there is an overlap
between the two torts. Trespass actions are therefore often referred to as
intentional torts. Both trespass and negligence actions are considered in
detail in a number of the following chapters of this book.

The nature of torts liability

Limits to torts liability
[1.70] Tort law aims to shift the loss that occurs to one person (the
plaintiff) to another person (the defendant), who in general terms is to
blame for the loss. It must be noted, however, that torts law does not
compensate all losses or protect all interests. For example, pure mental
distress, not amounting to a recognised psychiatric injury, is not generally
recognised as compensable in negligence actions (Mount Isa Mines v Pusey
(1970) 125 CLR 383).
The law of torts has also traditionally failed to protect a person on their
own property from being viewed by another.

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor

[1.80] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

FACTS • From a tower on an adjoining property, the defendant called and broadcast
horse races taking place at the plaintiff’s racecourse. The plaintiff sued the defendant,
claiming that the broadcast interfered with the plaintiff’s use of the land.

HELD • The defendant was not liable. The law of torts did not recognise freedom from
view or inspection as a legally protected interest.
[SEE ALSO • Hunter v Canary Wharf Ltd [1997] 2 WLR 348 (no right to uninterrupted TV
signals); Elston v Dore (1983) 57 ALJR 83 (no right to prevent natural flow of surface water
6 LAWBRIEF: TORTS

from neighbouring property). It should be noted that Victoria Park Racing v Taylor has
been held not to stand in the way of the development of a tort of invasion of privacy
(Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199).]

[1.90] The law of torts does protect the following interests:

• Bodily integrity – through battery and negligence.
• Mental integrity – through action on the case for intentional infliction of
harm, negligence, defamation.
• Right to unrestricted movement – through false imprisonment.
• Right to a clean environment – through trespass to land and nuisance.
• Freedom of belief and opinion – limited protection through false
imprisonment, malicious prosecution and defamation.
• Right to freedom from interference caused by intentional misuse of
power by public officers – through misfeasance in public office.
• Right to freedom from interference in goods – through trespass to goods,
conversion, detinue and passing off.
• Right to control entrants onto land – through trespass to land.
• Right to reputation – through defamation.
• Right to privacy – limited protection through trespass to land.
As the common law continues to evolve it is possible that new rights may
be recognised by the courts and/or the legislature. For example there has
been limited recognition by two State courts that privacy is a right that
should be afforded protection through the law of torts, although another
State court has subsequently failed to acknowledge the existence of such a
tort in Australia. In September 2014, the Australian Law Reform
Commission proposed a federal statutory tort of serious invasion of
privacy.

Foundation of liability and loss distribution

[1.100] In order for liability to be imposed, most torts require fault to be
established. Fault includes intentional, reckless or negligent conduct
(Stanley v Powell [1891] 1 QB 86). Very few common law torts impose strict
liability, which is liability without any fault. An instance of strict liability
arises where the defendant is held vicariously liable for the tortious act of
another person (see Chapter 17). There are also a number of statutory
actions, such as liability for defective products, which impose strict liability
upon the manufacturer and distributor of defective products (Australian
Consumer Law (Cth)).
 CHAPTER 1 INTRODUCTION TO TORTS LIABILITY / 7

Where fault is established, and the law determines that the loss is
worthy of compensation, the law of torts requires the wrongdoer to make
the necessary reparation. In practice, it is rare that the individual
wrongdoer actually pays the compensation directly. Through the
widespread use of insurance, the law guarantees that the loss is distributed
among a wide cross-section of society. For example, compulsory third-party
insurance, paid as part of motor vehicle registration fees, ensures that when
a person is injured in a motor vehicle accident, funds are available to
adequately compensate the injured. In some jurisdictions fault must still be
established in order to succeed, whereas in other jurisdictions, no fault
compensation schemes provide for the victim of a motor vehicle accident,
irrespective of fault.
By imposing vicarious liability on employers, the law of torts also
ensures that the enterprise that profits from the loss-producing activity
pays for the damage that occurs (enterprise liability). The loss is then
further distributed through the costs of the goods and services. As
employers try to keep costs down (including the costs of insurance
premiums) the law of torts plays a vital role in encouraging industry
practices that minimise loss.

Reform to the law of negligence

[1.110] The most significant change to the law of torts in the 21st century
has been the introduction of legislative reforms to the law of negligence.
The greatest proportion of personal injuries results from negligent conduct,
most notably on the roads and in the workplace. The cost of injuries to the
Australian economy is significant and in the late 1990s problems emerged
as the cost of insurance premiums soared, and many providers of services
(in particular, doctors and recreational service providers) claimed that
insurance costs had become prohibitive.
The debate regarding the cause of the “insurance crisis” is complex.
Many members of the insurance lobby blamed the courts for the increase in
litigation and large damages awards, and also the lawyers for encouraging
litigation. They also blamed the public, who they stated had developed a
culture devoid of a sense of personal responsibility. On the other hand,
many lawyers’ groups argued that the rise in insurance premiums had little
to do with the rise in the number of actions or damages awards, but more
to do with the September 11 terrorist attacks in America in 2001, and the
collapse of large insurance companies.
In July 2002, in response to the “crises”, the Federal government, with
support of the State governments, appointed a panel of “eminent persons”
8 LAWBRIEF: TORTS

(referred to as the Ipp Panel, after the chairperson of the panel, Justice Ipp)
to review the law of negligence. The terms of reference for the review
stated:
[t]he award of damages for personal injury has become unaffordable and
unsustainable as the principle source of compensation for those injured through
the fault of another. It is desirable to examine a method for the reform of the
common law with the objective of limiting liability and quantum of damages
arising from personal injury and death.
Review of the Law of Negligence First Report, August 2002, Commonwealth of
Australia, p vii.

The final report of the panel (known as the “Ipp Report”) recommended
a number of reforms be adopted through the enactment of a single statute
in each jurisdiction. While it was hoped that this would result in uniform
legislation across the various jurisdictions, this did not occur. Although
each jurisdiction enacted civil liability legislation that in many instances
adopts Ipp Panel recommendations, there are a number of differences
amongst the various jurisdictions. It should also be noted that a number of
the provisions enacted have gone much further than was recommended by
the Ipp Panel.
The civil liability legislation impacts most notably in the areas of
personal injuries damages, provision of dangerous recreational services
and where the plaintiff is injured through the materialisation of an obvious
risk. It should be noted however, that in some jurisdictions dust related and
tobacco related injuries are excluded from the civil liability legislative
schemes. Furthermore injuries compensable under workers compensation
schemes and in some jurisdictions motor vehicle accident schemes are also
excluded from the civil liability acts. In those circumstances the relevant
legislative schemes provide the mechanisms for claiming compensation.
Where civil liability applies, the sections from each jurisdiction are
referred to in this book under abbreviations for the legislation in the
following way:
• Civil Law (Wrongs) Act 2002 (ACT) – CLWA (ACT)
• Civil Liability Act 2002 (NSW) – CLA (NSW)
• Personal Injuries (Liability and Damages) Act (NT) – PILDA (NT)
• Civil Liability Act 2003 (Qld) – CLA (Qld)
• Civil Liability Act 1936 (SA) – CLA (SA)
• Civil Liability Act 2002 (Tas) – CLA (Tas)
• Wrongs Act 1958 (Vic) – WrA (Vic)
• Civil Liability Act 2002 (WA) – CLA (WA).
 CHAPTER 1 INTRODUCTION TO TORTS LIABILITY / 9

Other forms of compensation

[1.120] It must be remembered that torts law is not the only avenue for
compensation for personal injuries. As noted at [1.110] statutory workers
compensation schemes and motor vehicle accident schemes also provide
compensation for injured persons in certain circumstances and are
particularly relevant where fault for the injury cannot be attributed to
another person. Social security benefits provide another form of support for
injured persons and the introduction of the National Disability Insurance
Scheme (NDIS) will provide financial and other support for eligible people.
The full roll out of the NDIS is expected to commence progressively from
2016.

Torts covered in this text

[1.130] It is not possible to cover all the existing torts in this text. For this
reason, the most common torts are considered. What are generally referred
to as the intentional torts – interference with the person, trespass to land
and interference with goods – are considered in the next four chapters
(Chapters 2–5). As has been noted, while trespass actions generally involve
intentional conduct by the defendant, negligent conduct by the defendant
is also covered by the tort of trespass. The final four chapters deal with the
separate topics of vicarious liability and non-delegable duties (Chapter 17);
nuisance and breach of statutory duties (Chapters 18 and 19); and finally a
brief overview of the law of defamation (Chapter 20).
The most litigated tort is the tort of negligence. For this reason, it
occupies the greatest proportion of this text (Chapters 6–16). When reading
these chapters it must be remembered that negligence, while once almost
exclusively the purview of the common law, is now a creature of both the
common law and statute, with the civil liability legislation now pivotal to
this area of the law. An understanding of the background to the legislative
reforms enriches the study of this area of torts law, and should be kept in
mind as the position under the common law is compared to the legislative
schemes.
MindMap01

What is a tort? Reform to the law of

Negligence
Civil wrong consisting of a
number of separate wrongs CL legislation in every
which aim to protect particular Australian State and Territory
interests. Provides
compensation where a person’s Civil Law (Wrongs) Act 2002 (ACT)
protected interests are invaded
by another Civil Liability Act 2002 (NSW)
Introduction
Distinguish from breach of Personal Injuries (Liability and
contract Damages) Act (NT)

Contract made up of promises Civil Liability Act 2002 (Qld)

and obligations, determined by
parties to the contract. Sue for Civil Liability Act 1936 (SA)
breach of contract
Civil Liability Act 2002 (Tas)
Distinguish from crime Historical Development Nature of Torts Liability
Wrongs Act 1958 (Vic)
State prosecutes the Trespass Aims to shift loss from the
wrongdoer for invasion of Direct and forcible interference defendant (wrongdoer) to the Civil Liability Act 2002 (WA)
person’s protected interest,
Hutchins v Maughan plaintiff – through
with the primary purpose
being punishment
compensation
Trespass to person
Based on proof of fault
Trespass to goods
Stanley v Powell
Trespass to land

Protected Interest
Action on the case
Consequential
Victoria Park v Taylor
(indirect interference)
Hutchins v Maughan

Negligence, nuisance etc.

Action on the case for

intentional infliction of harm
 Chapter 2

Interference with the person

Interference with the person
[2.10] INTERFERENCES WITH THE PERSON ......................................... 12
[2.20] GENERAL PRINCIPLES OF TRESPASS TO THE PERSON ................. 12
[2.30] Requirement for direct interference .................................... 13
[2.50] Requirement of fault ...................................................... 13
[2.80] BATTERY ............................................................................... 14
[2.90] Offensive contact .......................................................... 14
[2.110] Negligent trespass (battery) and highway cases .................... 15
[2.150] ASSAULT ............................................................................... 16
[2.160] The nature of the threat.................................................. 16
[2.200] Reasonable apprehension of imminent contact ...................... 18
[2.210] FALSE IMPRISONMENT ............................................................. 18
[2.220] Total restraint ............................................................... 18
[2.270] Lawful justification ......................................................... 20
[2.280] THE INNOMINATE TORT OF ACTION ON THE CASE FOR
INTENTIONAL HARM................................................................. 20
[2.310] INVASION OF PRIVACY ............................................................. 21

Interferences with the person

[2.10] This Chapter considers torts that provide protection for intentional
interferences with the person: trespass to the person and action on the case
for intentional harm.

General principles of trespass to the person

[2.20] There are three distinct torts involving trespass to the person. They
include battery, assault and false imprisonment. Common elements of all
trespass actions are:
• A requirement that there be direct interference with the plaintiff’s person
(trespass to the person), goods (trespass to goods) or land (trespass to
land).
• A requirement that the defendant’s conduct must be intentional or
negligent (an element of fault).
• Trespass is actionable per se; there is no need for proof of damage.
 CHAPTER 2 INTERFERENCE WITH THE PERSON / 13

Requirement for direct interference

[2.30] The contact or impact with the plaintiff must be the direct result of
the defendant’s act. This distinguishes trespass from an action on the case.
The distinction between direct interference and indirect interference is well
illustrated by Fortescue CJ in Reynolds v Clarke (1726) 1 Str 634; 93 ER 747 at
636 (Str):
[I]f a man throws a log into the highway, and in that act it hits me, I may
maintain trespass, because it is an immediate wrong; but if as it lies there I
tumble over it, and receive an injury I must bring an action upon the case.

Directness may include the setting in motion of a chain of events.

Scott v Shepherd
[2.40] Scott v Shepherd (1773) 2 Wm B1 892; 96 ER 525

FACTS • The defendant threw a lighted squib (a form of fireworks) into a market place.
The squib landed on the stall of Yates. In order to protect himself and his property, Yates
threw the squib onto the stall of Willis who again threw it on. Ultimately, it struck the
plaintiff in the face where it exploded, seriously injuring his eye. The plaintiff sued the
defendant. A question before the court was whether the contact with the plaintiff was the
direct result of the defendant’s initial act.

HELD • The defendant’s act had initiated an unbroken series of events in which each
stallholder was acting out of necessity for their own safety in throwing the lighted squib.
The contact with the plaintiff was therefore the direct result of the defendant’s conduct
and an action in trespass arose.
[SEE ALSO • Hutchins v Maughan [1947] VLR 131; [1947] ALR 201; Leame v Bray (1803) 3
East 593; Southport Corporation v Esso Petroleum [1954] 2 QB 182 (CA).]

Requirement of fault
[2.50] The defendant’s conduct must be either intentional (which
includes recklessness) or negligent (unintentional conduct). In other words
there must be an element of fault in the defendant’s conduct. The fault
relates to the act of interference and not to any resultant consequence of the
interference. An inevitable accident where the defendant is entirely without
fault will not suffice.
14 LAWBRIEF: TORTS

Stanley v Powell
[2.60] Stanley v Powell (1773) 2 Wm B1 892; 96 ER 525

FACTS • The defendant was part of a shooting party. When shooting at a pheasant, a
bullet ricocheted off a tree and wounded the plaintiff. The plaintiff brought an action
against the defendant, alleging trespass to the person.

HELD • As the jury found that the defendant had not been negligent and had not
intentionally shot the plaintiff, an action in trespass did not arise.
[SEE ALSO • National Coal Board v JE Evans and Co (Cardiff) Ltd [1951] 2 KB 861; Hogan v
Gill [1992] Aust Torts Reports 81-182.]

[2.70] Generally, once the plaintiff establishes the direct interference, the
onus is on the defendant to establish lack of fault (McHale v Watson (1964)
111 CLR 384). The only exception to this is in relation to highway cases,
discussed at [2.140].

Battery
[2.80] Battery involves direct and intentional or negligent conduct that
causes contact with the body of another without consent. While in criminal
law this conduct is known as assault, in civil actions a distinction is made
between battery that involves actual bodily contact and assault that
involves a threat of contact without consent.

Offensive contact
[2.90] Any degree of touching of another without consent can constitute
battery (Collins v Wilcock [1984] 1 WLR 1172 at 1176-1178 (Goff LJ)).
However, the act that causes the contact must be a positive act; inaction or
a failure to act will not suffice (Innes v Wylie (1844) 1 Car & K 257). The
defendant’s act must also be voluntary (Hogan v Gill [1992] Aust Torts
Reports 81-182).
It is not necessary for the defendant to act with hostility or anger in
order to establish offensive conduct (Re F (Mental Patient: sterilisation) [1990]
2 AC 1 at 71). Therefore, a surgeon who performs an operation without
consent can be liable in battery (Secretary, Department of Health and
Community Services (NT) v JWB and SMB (1992) 175 CLR 218). Knowledge
of the contact by either party is not necessary.
 CHAPTER 2 INTERFERENCE WITH THE PERSON / 15

Intentional or unintentional contact, which occurs as a result of everyday

living in modern society (such as brushing past another in a crowded
public place), will be permitted and will not constitute battery. Such contact
is seen to fall within “a general exception [to battery] embracing all
physical contact which is generally acceptable in the ordinary conduct of
daily life” (Collins v Wilcock [1984] 1 WLR 1172 at 1177-1178 Goff LJ).

Rixon v Star City Pty Ltd

[2.100] Rixon v Star City Pty Ltd (2001) 53 NSWLR 98

FACTS • Despite being excluded from the defendant’s casino, the plaintiff entered and
began playing roulette. An employee of the defendant approached the plaintiff, placed his
hand on the plaintiff’s shoulder and in accordance with the Casino Control Act 1992
(NSW) detained him in an interview room until the police arrived. The question before the
Court of Appeal was whether the contact with the plaintiff constituted battery.

HELD • The defendant’s act in touching the plaintiff in this way was to gain his attention.
This amounted to “physical contact which was generally acceptable in the ordinary
conduct of daily life” and accordingly no battery arose.
[SEE ALSO • Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; Campbell v
Samuels (1980) 23 SASR 389; Carter v Walker (2010) 32 VR 1.]

Negligent trespass (battery) and highway cases

Generally
[2.110] Where there is direct, negligent (as opposed to intentional) contact,
the plaintiff may sue in either trespass to the person or negligence (Venning
v Chin (1974) 10 SASR 299). In trespass actions the plaintiff will generally
only be required to establish that there was direct contact. The defendant
will bear the onus of establishing there was no fault. On the other hand, in
a negligence action, the plaintiff bears the onus of establishing the fault of
the defendant.

McHale v Watson
[2.120] McHale v Watson (1964) 111 CLR 384

FACTS • The defendant child threw a sharpened piece of metal at a wooden post. The
dart skimmed the post and hit the plaintiff child in the eye. The plaintiff sued in both
16 LAWBRIEF: TORTS

trespass (battery) and negligence. One of the issues before the court was whether the
plaintiff or defendant bore the onus of proving or disproving the fault element in each
action.

HELD • In relation to the trespass action, the defendant bore the onus of establishing
there was no fault in his conduct. On this occasion he was able to show that his act in
throwing the dart and hitting the plaintiff was neither intentional nor negligent. In relation
to the negligence action, the plaintiff bore the onus of proving the defendant was
negligent by establishing his conduct fell below that of a reasonable person of his age.
She was unable to discharge the onus and her action failed.

[2.130] The position is different in England, where the plaintiff bears the
onus of proving fault where the allegation of fault is negligence; in effect
abolishing the action of negligent trespass (Letang v Cooper [1965] QB 232).

Highway cases
[2.140] An exception has arisen in relation to highway cases (vehicle
accidents) in Australia. In such cases, the plaintiff bears the onus of proving
fault, irrespective of whether the action is one of trespass or negligence
(Venning v Chin (1974) 10 SASR 299; Williams v Milotin (1957) 97 CLR 465).

Assault
[2.150] An assault involves a direct positive act (threat) by the defendant
that causes the plaintiff to reasonably apprehend imminent harmful or
offensive contact with his/her person. Unlike battery there is no need for
any physical contact however the plaintiff must have knowledge of the
threat.

The nature of the threat

[2.160] To amount to an assault the threat must be sufficient to give rise to
the apprehension and possibility of imminent physical contact.

Stephens v Myers
[2.170] Stephens v Myers (1830) 4 Car & P 349; 172 ER 735

FACTS • The plaintiff was chairing a meeting in which it was resolved that the defendant
should be ejected from the meeting hall. In rising from his chair and advancing towards
the plaintiff, the defendant clenched his fists and stated he would rather turn the plaintiff
 CHAPTER 2 INTERFERENCE WITH THE PERSON / 17

from his chair, than leave the hall. Before he could reach the plaintiff, he was restrained by
the church warden. The question was whether the defendant’s conduct was sufficient to
amount to a threat that would cause a reasonable person to apprehend imminent
physical contact.

HELD • If the defendant was advancing in a threatening manner with intent and the
means to carry out the threat, an assault would arise. The fact that he was stopped from
reaching the plaintiff did not matter, as there was the possibility of imminent physical
contact with the plaintiff.

[2.180] While most assaults result from verbal threats accompanied by

acts or gestures (such as a clenched fist), acts alone are sufficient if they
cause the plaintiff to reasonably apprehend unwanted physical contact
(Brady v Schatzel [1991] St R Qd 206).
Despite the fact that it has been said that words alone are insufficient to
constitute assault (Tuberville v Savage (1669) 1 Mod Rep 3; 84 ER 34) it has
been held that threats made over the telephone were sufficient to amount to
threatening acts in themselves, sufficient to constitute assault (Barton v
Armstrong [1969] 2 NSWR 451; R v Ireland [1997] QB 114). In Slaveski v
Victoria [2010] VSC 441, Kyrou J noted that a threat of imminent physical
contact by mere words could, dependent on the circumstances, amount to
an assault. Words can also be used to render harmless a threat, where the
defendant makes it clear the plaintiff is in no imminent danger (Tuberville v
Savage). However, a conditional threat, whereby the defendant threatens
the application of force unless the plaintiff complies with a demand, will
amount to a threat sufficient to constitute an assault.

Rozsa v Samuels
[2.190] Rozsa v Samuels [1969] SASR 205

FACTS • The appellant drove his taxi to the front of a line of waiting taxis. Drummond, a
taxi driver, who had been the first in the queue, went to the appellant’s window and began
arguing with him. When the appellant refused to move his taxi, Drummond threatened to
punch him. The appellant then reached under the dashboard, produced a knife and
threatened to cut Drummond “to bits” if he tried. As the appellant started to get out of the
taxi with the knife, Drummond slammed the door and the appellant “backed off”. The
appellant was convicted of assault and appealed. One of the questions before the court
was could the conditional threat, which threatened contact only if Drummond committed
an unlawful act, constitute an assault?
18 LAWBRIEF: TORTS

HELD • If the force threatened by the appellant was justified on the basis of self-defence
then assault would not arise. However, in this case, the appellant’s threat went “beyond
the ordinary bounds of self-defence”. The conditional words that accompanied the threat
of retrieving the knife and advancing towards Drummond did not render the threat
harmless. The threat was sufficient to cause a person to believe on reasonable grounds
that the appellant had the present ability to carry out the threatened action.

Reasonable apprehension of imminent contact

[2.200] The focus of the threat is the reasonable belief of the plaintiff. It
does not matter whether the defendant intended to carry out the threat. All
that is required is that the defendant intended to create reasonable
apprehension in the victim of imminent contact. (Hall v Foncea [1983] WAR
309; Zanker v Vartzokas (1988) 34 A Crim R 11). The plaintiff need not be in
fear of the contact but merely apprehend the unwanted contact.
What is meant by a threat of “imminent” contact will depend on the
circumstances. In Zanker v Vartzokas the defendant’s threat to the plaintiff
(while she was a passenger in his moving car) that he would take her to his
friend’s house who would “really fix [her] up” was held to be an assault.
This was because there was a present and continuing fear of relatively
imminent violence as long as the plaintiff was held in the car by the
defendant.

False imprisonment
[2.210] False imprisonment occurs where the defendant, by a direct act,
totally deprives the plaintiff of freedom of movement, without lawful
justification or excuse. Like other trespass actions, the defendant’s act must
directly cause the total restraint. Directness includes where the defendant
actively promotes the imprisonment by others (Dickenson v Waters (1931) 31
SR (NSW) 593). The plaintiff need only establish the total restraint. The
onus then shifts to the defendant to prove a lawful justification in order to
escape liability.

Total restraint
[2.220] There must be a total restraint on the freedom of movement of the
plaintiff. A partial obstruction is not sufficient.
 CHAPTER 2 INTERFERENCE WITH THE PERSON / 19

Bird v Jones
[2.230] Bird v Jones (1845) 7 QB 742; 15 ER 668

FACTS • The plaintiff attempted to cross a bridge. Part of the public footway of the bridge
had been closed with seating arranged for people to view a regatta that was taking place
on the river below. The defendant, clerk of the bridge company, told the plaintiff he could
not move through the seated area but could use another part of the bridge to proceed to
the other side. The plaintiff refused and he forced his way through. The plaintiff was
apprehended by the police and charged with breach of the peace. The plaintiff claimed he
had been falsely imprisoned by the defendant.

HELD • False imprisonment did not arise as the plaintiff’s passage was obstructed in one
direction only, and he was free to cross the bridge on the other side or to turn around and
leave. This amounted to a partial obstruction of the plaintiff’s will and not a total restraint
of the plaintiff’s liberty.

[2.240] There will only be total restraint if there is no reasonable means of

escape (Burton v Davies [1953] St R Qd 26; Zanker v Vartzokas (1988) 34 A
Crim R 11; McFadzean v CFMEU (2007) 20 VR 250). A person can be totally
restrained through physical means or through psychological coercion.
Psychological coercion occurs where the plaintiff submits to the power or
assertion of legal authority by the defendant in the reasonable belief that
there is no alternative.

Symes v Mahon
[2.250] Symes v Mahon [1922] SASR 447

FACTS • The defendant police officer, believing that a warrant had been issued for the
arrest of the plaintiff, requested that the plaintiff accompany him to Adelaide the
following day. The plaintiff complied with the instruction and travelled with the defendant
by train. Once at the police station it was discovered that the plaintiff was not the person
referred to in the warrant. The plaintiff claimed he had been falsely imprisoned from the
time he met the defendant at the train station.

HELD • The plaintiff had completely submitted to the control of the defendant, believing
he had no alternative but to attend the police station with the police officer. In doing so
this amounted to a total restraint of the plaintiff’s liberty and as there was no valid warrant
and therefore no lawful justification, the plaintiff had been falsely imprisoned.
20 LAWBRIEF: TORTS

[SEE ALSO • Myer Stores Ltd v Soo [1991] 2 VR 597; Harnett v Bond [1925] AC 669.]

[2.260] The plaintiff need not be aware of the total restraint in order to be
falsely imprisoned (Murray v Ministry of Defence [1988] 1 WLR 692).
Where a plaintiff agrees to enter a place for a certain period of time, or
under certain conditions, and the defendant refuses to allow the plaintiff to
depart before the time expires, or the condition is met, the plaintiff may not
be able to claim they were falsely imprisoned (Balmain New Ferry Co Ltd v
Robertson (1906) 4 CLR 379; Herd v Weardale Steel Coke and Coal Ltd [1915]
AC 67). These cases have been subject to considerable criticism (cf Bahner
Marwest Hotel Co Ltd (1969) 6 DLR (3d) 222)).

Lawful justification
[2.270] The defendant bears the onus of proving that there was legal
justification for the imprisonment. So, for example, a prison authority has
legal authority to detain a person in accordance with prison sentences
imposed, but not where there are miscalculations and the person is held for
longer than lawfully required (Cowell v Corrective Services Commission of
New South Wales (1988) 13 NSWLR 714). Other circumstances of legal
justification include acting under both common law and statutory powers
of arrest and a statutory authority to detain (White v South Australia (2010)
106 SASR 521).

The innominate tort of action on the case for intentional harm

[2.280] Action on the case for intentional harm covers those situations
where the defendant commits an intentional act with the intention of
inflicting harm to the plaintiff. The harm to the plaintiff must be
consequential upon the intentional act.
This form of action extends to statements made with the intention or, as
defined in the next case at [2.290], calculated to cause injury to the plaintiff.

Wilkinson v Downton
[2.290] Wilkinson v Downton [1897] 2 QB 57

FACTS • As a practical joke, the defendant told the plaintiff that her husband had been
seriously injured in an accident and that she needed to collect him. The statement was
false and the plaintiff suffered a terrible shock, which resulted in vomiting, weeks of
physical suffering, incapacity and expense in sending medical attention to her husband.
 CHAPTER 2 INTERFERENCE WITH THE PERSON / 21

She sued the defendant.

HELD • The defendant was liable. He had committed an intentional act (making a false
statement) calculated to cause the plaintiff physical injury.

[2.300] The case has been accepted in Australia and, although not
frequently pleaded, is still available (Carrier v Bonham [2001] QCA 234;
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; Giller v Procopets
(2008) 24 VR 1). Calculated to cause physical injury has been interpreted to
mean “likely to have that effect” not intended to have that effect (Carrier v
Bonham at [12]). The plaintiff must suffer either physical or psychiatric
harm, emotional distress alone is insufficient (Giller v Procopets (2008) 24 VR
1).

Invasion of privacy
[2.310] Trespass actions have the potential to provide a measure of
protection from an invasion of a person’s privacy. Actions of trespass to the
person protect a person’s privacy by prohibiting non-consensual invasions
on their right to bodily integrity. However, the common law has
traditionally failed to recognise a right to protection from a breach of
privacy through a distinct tort of invasion of privacy. There have been calls
in Australia for the creation of a distinct tort of invasion of privacy. This
issue is considered in Chapter 3.
MindMap02

Trespass to Person
Action on case for
Battery, Assault, False
intentional harm
Imprisonment
Interferences with the Person Defendant commits an
Common elements
intentional act with the
intention of inflicting harm to
Direct interference
the plaintiff.
Scott v Shepherd
Extends to statements made
Fault with the intention or, calculated
Assault False Imprisonment to cause injury to the plaintiff
Stanley v Powell
Wilkinson v Downton
Threat that causes the Plt Directly cause total restraint Nationwide News
Battery apprehension of imminent Pty Ltd v Naidu
harmful /offensive contact Direct includes actively Carrier v Bonham
promote
Direct and intentional or The plaintiff must suffer either
Stephens v Myers
negligent conduct that causes Dickenson v Waters physical or psychiatric harm;
contact with the body of Threat generally consists of emotional distress alone is
another without consent words with gesture. Can also be Must be total restraint not insufficient
gesture alone, or words alone in partial obstruction
Offensive contact – any degree certain circumstances Giller v Procopets
of touching without consent Bird v Jones
Barton v Armstrong; Slaveski v
Collins v Wilcock Victoria Restraint can be caused
through psychological means
Act that causes the contact Conditional threat is sufficient
must be a positive and to amount to assault Symes v Mahon
voluntary act
Rosza v Samuels There must be no reasonable
Innes v Wylie; Hogan v Gill means of escape
What is meant by “imminent”
Exception for all physical contact will depend on McFadzean v CFMEU
contact which is generally circumstances
acceptable in the ordinary No false imprisonment where
conduct of daily life Zanker v Vartzokas there is lawful justification for
the restraint
Rixon v Star City
Collins v Wilcock Cowell v Corrective Services

Defendant to prove lack of fault

McHale v Watson

Except Highway Cases –

plaintiff to prove fault
Venning v Chin
 Chapter 3

Trespass to land and invasion

of privacy
Trespass to land and invasion of
privacy
[3.10] TRESPASS TO LAND – DEFINITION ............................................. 24
[3.20] THE MEANING OF LAND ........................................................... 24
[3.50] TITLE TO SUE......................................................................... 25
[3.80] DIRECT AND INTENTIONAL OR NEGLIGENT INTERFERENCE ........... 26
[3.80] The requirement for direct interference................................ 26
[3.90] The requirement for fault................................................. 27
[3.100] ACTS CONSTITUTING TRESPASS TO LAND .................................. 27
[3.100] Entry on the plaintiff’s land without express or implied consent .. 27
[3.140] Remaining upon land after consent has been withdrawn.......... 28
[3.160] Throwing or placing material on land .................................. 29
[3.170] Leaving objects on land without consent (continuing trespass)... 29
[3.190] Exceeding lawful authority to enter land without consent.......... 29
[3.210] REMEDIES ............................................................................. 30
[3.210] Self-help ..................................................................... 30
[3.220] Damages .................................................................... 30
[3.230] Injunction .................................................................... 31
[3.240] INVASION OF PRIVACY ............................................................. 32

Trespass to land – Definition

[3.10] Trespass to land involves direct and intentional or negligent
interference with land in the exclusive possession of another without
consent or other lawful authorisation. Similar to other trespass actions,
trespass to land is actionable per se (there is no requirement for damage).

The meaning of land

[3.20] Land includes all the bordered land, plants and trees growing on it,
buildings, all soils and minerals under the ground and airspace above the
ground.
Possession of airspace above the ground extends only as far as is
considered reasonable for the ordinary use and enjoyment of the land.
 CHAPTER 3 TRESPASS TO LAND AND INVASION OF PRIVACY / 25

Bernstein of Leigh (Baron) v Skyviews and General Ltd

[3.30] Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479

FACTS • The defendants conducted a business whereby they would fly over properties,
take aerial photographs and then offer them for sale to the owner. When Lord Bernstein
received an offer to buy the aerial photograph of his own property, he requested the
photograph and all negatives be destroyed. When no reply was forthcoming, Lord
Bernstein claimed the defendant had committed a trespass to land, which he argued
included the airspace above the ground.

HELD • A landowner does not have possession of airspace above the property to an
unlimited height. The rights of an owner to enjoy his/her land must be balanced against
the rights of the public to air travel. Accordingly, a person has possession of the airspace
above the property to a reasonable “height as is necessary for the ordinary use and
enjoyment of his [or her] land and the structures upon it”.

[3.40] Accordingly, scaffolding that protrudes into the airspace over

another’s land can constitute trespass (LJP Investments Pty Ltd v Howard
Chia Investments Pty Ltd (1989) 24 NSWLR 490), as can a protruding sign
(Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB
334). Even the firing of a bullet over another’s land has been held to
amount to a trespass to land (Davies v Bennison (1927) 22 Tas LR 52).
The person in exclusive possession of the surface of the land has been
held to have exclusive possession of the land beneath it, even where the
trespass does not or could not interfere with the ordinary reasonable use of
the land (Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52). For
example, a trespass has been held to occur where the defendant drilled
pipelines for oil diagonally under the plaintiff’s land, entering at depths of
240 metres and descending to 850 metres (Bocardo SA v Star Energy UK
Onshore Ltd [2011] 1 AC 380).

Title to sue
[3.50] In order to sue, the plaintiff need not be the owner of the land but
must have exclusive possession of the land at the time of the alleged
trespass. Exclusive possession is possession of land with the right to
exclude others.
26 LAWBRIEF: TORTS

Newington v Windeyer
[3.60] Newington v Windeyer (1985) 3 NSWLR 555

FACTS • The plaintiffs were all owners of houses that adjoined an open space of land
called The Grove. Although there was no registered owner of The Grove, the plaintiffs
maintained the space as a common garden and kept out uninvited visitors for a period of
nearly 50 years. When the defendant, who owned two houses that backed onto The Grove,
tried to access and use the space, the plaintiffs brought an action against the defendant,
claiming trespass to land.

HELD • The fact that the plaintiffs were not the registered owners of the land did not
prevent them bringing an action in trespass. Their acts of maintaining the garden and
treating it as private property were sufficient to establish exclusive possession of the land,
entitling them to bring an action in trespass to land.

[3.70] A tenant in possession of land, rather than the landlord, will have
sufficient title to sue and this may even extend to suing the landlord for
trespass (Gifford v Dent [1926] WN 336). The possession itself need not be
lawful; provided it is, as between the parties to the action, the better title
(Newington v Windeyer (1985) 3 NSWLR 555; Haddrick v Lloyd [1945] SASR
40). However, a mere licensee, who is a person with permission to be on
the land for a particular purpose, does not have exclusive possession and is
therefore unable to sue for trespass to land (Georgeski v Owners Corporation
SP49833 (2004) 62 NSWLR 534).

Direct and intentional or negligent interference

The requirement for direct interference
[3.80] Similar to all trespass actions, the interference with the land must
be the direct result of the defendant’s conduct. Where the interference with
the plaintiff’s property is not the direct result of the defendant’s act, the
plaintiff would not have an action in trespass but possibly (dependent on
the facts) may have an action in negligence or nuisance. In Southport
Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182, where oil was jettisoned
from a stranded oil tanker and drifted to shore on the tide, Denning LJ held
that the interference with the shore line was not direct but was
consequential so that an action in trespass could not be maintained.
 CHAPTER 3 TRESPASS TO LAND AND INVASION OF PRIVACY / 27

The requirement for fault

[3.90] As with trespass to the person, in order for the defendant to be
liable, the interference with the land must be voluntary (Public Transport
Commission of NSW v Perry (1977) 137 CLR 107) and intentional or negligent
(League Against Cruel Sports Ltd v Scott [1986] QB 240).

Acts constituting trespass to land

Entry on the plaintiff’s land without express or implied consent
[3.100] Entering onto another’s property without express or implied
consent from the person in exclusive possession of the land will constitute
a trespass to land. There is an implied licence (consent), which allows
people to enter another’s property to proceed to the door to conduct
legitimate business.

Halliday v Nevill
[3.110] Halliday v Nevill (1984) 155 CLR 1

FACTS • Halliday, a disqualified driver, was seen by two police officers reversing a car
from a driveway. Upon seeing the police, Halliday drove back into the driveway. The police
entered the property through the open driveway and arrested Halliday; however, he
managed to break free and run across the road to his own house. The police followed and
rearrested him. Halliday claimed the arrest was unlawful, as the police had trespassed on
the neighbour’s property when he was first arrested.

HELD • By majority, it was held that the police conduct in entering the neighbour’s
property did not amount to trespass to land. There is an implied licence to enter upon an
open driveway or pathway leading to a person’s house for the purpose of legitimate
enquiry. Where there are locked gates, signs prohibiting entry or other obstructions, there
would be no implied licence, and entry upon the land without express consent would
constitute trespass.
[SEE ALSO • Munnings v Barrett (1987) 5 MVR 403; Plenty v Dillon (1991) 171 CLR 635;
Amstad v Brisbane City Council and Ward (No 1) [1968] Qd R 334; Robson v Hallett [1967] 2
QB 939.]

[3.120] The implied licence is limited to bona fide entrants with legitimate
purpose and does not permit a person to wander around the property at
will.
28 LAWBRIEF: TORTS

Lincoln Hunt Australia Pty Ltd v Willesee

[3.130] Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457

FACTS • An investigative journalist entered the plaintiff’s investment business with

television crew and dissatisfied customers. The crew filmed the interior of the business
and harassed staff and personnel on the property. When asked not to screen the footage,
the defendants refused. The plaintiff applied for an injunction to prevent the screening on
the basis that the defendants had trespassed on their property to obtain the footage.

HELD • While the general public had an implied licence to enter the plaintiff’s business
for the purpose of seeking bona fide advice or information, there was no implied licence for
persons such as robbers or, in this instance, unwanted visitors filming inside the offices
and harassing people on the property. The plaintiff was only entitled to damages
(monetary compensation) for the trespass (see remedies at [3.210]).
[SEE ALSO • Rinsdale Pty Ltd v Australian Broadcasting Corporation [1993] Aust Torts
Reports 81-231; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333.]

Remaining upon land after consent has been withdrawn

[3.140] Where consent to enter is revoked or the purpose for the entry has
come to an end, failure to leave within a reasonable time will constitute
trespass to land.

Cowell v Rosehill Racecourse Co Ltd

[3.150] Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605

FACTS • The plaintiff bought a ticket and entered the defendant’s racecourse for the
purpose of watching the races. When the defendant’s employees requested the plaintiff
leave the racecourse and he refused to do so, they physically ejected him from the
grounds. The plaintiff sued the defendant, alleging that the employees had committed a
battery upon him. The defendant claimed the physical ejection was necessary, as the
plaintiff had become a trespasser on the land.

HELD • Once a licensee is given notice that the licence has been revoked, they are allowed
a reasonable time to remove themselves and their goods. However, if they remain on the
property beyond a reasonable time they become a trespasser and can be forcibly
removed. In this case, the plaintiff’s refusal to leave amounted to a trespass to land.
[SEE ALSO • Kuru v New South Wales (2008) 246 ALR 260; Wilson v New South Wales
(2010) 207 A Crim R 499; [2010] NSWCA 333. Where a person enters another’s land for a
 CHAPTER 3 TRESPASS TO LAND AND INVASION OF PRIVACY / 29

purpose that is different to the specific licence that was given, it may amount to trespass
(Barker v The Queen (1983) 153 CLR 338; TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008)
71 NSWLR 323).]

Throwing or placing material on land

[3.160] To place or throw objects, substances, persons or animals into
physical contact with another’s land without consent will constitute
trespass (Bathurst City Council v Saban (1985) 2 NSWLR 704; Smith v Stone
(1647) Style 65; Beckwith v Shordike (1767) 4 Burr 2092; 98 ER 91).

Leaving objects on land without consent (continuing trespass)

[3.170] A person has a duty to remove an object from another’s land, once
consent to place it there has come to an end or is withdrawn. Any failure to
do so within a reasonable time will amount to a trespass, which continues
until the object is removed.

Konskier v B Goodman Ltd

[3.180] Konskier v B Goodman Ltd [1928] 1 KB 421

FACTS • In renovating a row of houses, the defendant builders obtained permission to

rebuild part of a neighbour’s adjoining chimney. After completing the work, the builders
left a pile of building rubble on the neighbour’s roof. The plaintiff later became a tenant of
the neighbouring property and sued the defendants when the basement flooded, due to
the rubbish on the roof blocking a downpipe.

HELD • The defendants were liable for the continuing trespass. The defendant’s licence
to place rubbish on the roof was limited to the time period during which the renovation
work was undertaken. The failure to remove the rubbish after the builders had finished the
work was a continuing trespass. This continued when the new occupiers moved into the
property, who then obtained the right to sue in trespass.

Exceeding lawful authority to enter land without consent

[3.190] Authority to enter land without consent is conferred by a number
of statutes to assist officers in the execution of public duties. Authority may
also be conferred by the common law. So, for example, firefighters, police
officers and paramedics are given a right of entry in specified circumstances
to protect persons or property, or to investigate criminal activity. Similarly,
30 LAWBRIEF: TORTS

authority is provided to certain employees of electricity companies to enter

upon premises for the purpose of reading electricity meters. The authority
is not unlimited and if it is not exercised strictly in accordance with the
legislation, an action in trespass will lie.

Coco v The Queen

[3.200] Coco v The Queen (1994) 179 CLR 427; 120 ALR 415

FACTS • Police entered upon the plaintiff’s premises without consent and installed a
listening device. In a later trial the plaintiff claimed that the evidence obtained through
the device was inadmissible, on the basis that the police action constituted trespass. The
police argued that they had obtained the requisite approval of a Supreme Court judge
pursuant to the Invasion of Privacy Act 1971 (Qld) s 43(1).

HELD • Legislation that purports to interfere with the fundamental common law right to
exclude others from a person’s land must do so clearly and unambiguously. In this case,
the Act relied upon by the police did not clearly provide the court with the authority to
approve entry upon land to install listening devices. As such, the police action constituted
a trespass to land and the evidence obtained was inadmissible.
[SEE ALSO • Arnold v Police [2004] SASC 74; Kuru v New South Wales (2008) 236 CLR 1;
Rosebanner Pty Ltd v Energy Australia [2011] NSWCA 28; New South Wales v Ibbett (2006)
229 CLR 638; 231 ALR 485.]

Remedies
Self-help
[3.210] A person has the right to use reasonable force to remove a
trespasser. However, where the trespasser has entered peacefully, they
must first be asked to leave, and if they fail to do so within a reasonable
time, only then will reasonable force be allowed. Where the force is
reasonable, it will provide a defence to any claim by the trespasser in an
action for battery (Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605;
Hemmings v Stokes Poges Golf Club [1920] 1 KB 720).

Damages
[3.220] Trespass to land is actionable per se; therefore, where there is no
actual damage to person or property, or any financial loss caused by the
trespass, generally only nominal (minimal) damages are available (Finesky
 CHAPTER 3 TRESPASS TO LAND AND INVASION OF PRIVACY / 31

Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR
368). Where there are aggravating circumstances such as wilful or
deliberate behaviour, aggravated and exemplary damages may also be
available (Greig v Greig [1966] VR 376; New South Wales v Ibbett (2006) 229
CLR 638). Awards for aggravated and exemplary damages have often been
awarded for the humiliation, injured feelings and indignity that has
resulted from pushy journalists broadcasting footage of a trespass to land
(TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333).
Where the trespass caused actual damage to the land or structures on the
land, compensatory damages are awarded. The aim of compensatory
damages, as with all tortious actions, is to place the plaintiff in the same
position he/she would have been had the tort not been committed. As with
all intentional torts, damages are only awarded for harm that is the natural
and probable cause of the trespass (Plenty v Dillon [1997] SASC 6372; Palmer
Bruyn and Parker Pty Ltd v Parsons (2001) 208 CLR 388). In a few limited
circumstances, damages are available for personal injury, including mental
harm, which results from a trespass to land (TCN Channel Nine Pty Ltd v
Anning (2002) 54 NSWLR 333).
Where damage is caused to the land by the trespass, damages are
generally measured as the reduction in the value of the land. In some cases
damages may also be measured as the cost of restoring the property to its
original condition. In many cases, the plaintiff can choose between the two
measures of damages; however, where the cost of restoration is considered
unreasonable or disproportionately high in comparison to the reduction in
the land value, the plaintiff would not be entitled to the restoration costs
(Jones v Shire of Perth [1971] WAR 56).

Injunction
[3.230] Injunctions may be sought to prevent a threatened trespass, a
continuing trespass, to order the removal of objects from the land, or to
prevent the publication of images obtained whilst trespassing. Injunctions
will generally only be granted where damages will not suffice, for example,
where the injury caused by the trespass is irreparable. Injunctions to
prevent broadcasting of images taken during the trespass have generally
only been granted where the broadcasting would be unconscionable and
cause irreparable damage (Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4
NSWLR 457; Church of Scientology Inc v Transmedia Productions Ltd [1987]
Aust Torts Reports 80-101; Rinsdale Pty Ltd v Australian Broadcasting
Corporation [1993] Aust Torts Reports 81-231).
32 LAWBRIEF: TORTS

Invasion of privacy
[3.240] Trespass to land prohibits trespassers from intruding upon a
person’s property and viewing activities occurring thereon, and, in certain
circumstances, may prevent use of recordings or photographs obtained
during the trespass (Emcorp Pty Ltd v Australian Broadcasting Corporation
[1988] 2 Qd R 169).
However, the common law has traditionally failed to recognise a right to
protection from viewing or observing a person on their property from afar,
in other words, where there has been no trespass to land committed
(Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR
479). In 2001 there was a suggestion in the High Court that the door was
not closed to the development of a distinct tort of invasion of privacy to
provide a remedy in certain circumstances where a person’s right to
privacy has been unduly interfered with. In Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1, a
number of justices of the High Court, although denying an action for
invasion of privacy could apply to a corporation, held that Victoria Park
Racing and Recreational Grounds Co Ltd v Taylor did not stand in the way of
the development of a distinct and enforceable right to privacy by a private
individual.
Such a development would be in accordance with the common law in
the United States and New Zealand where a right to protection from an
invasion of privacy exists. The United Kingdom has continued to deny the
existence of a separate tort of invasion of privacy, preferring to rely on
other actions such as breach of confidence (Douglas v Hello! Ltd [2007]
UKHL 21; Campbell v MGN Ltd [2004] 2 AC 457).
In Australia however, only two judges (from District and County Courts)
have been prepared to recognise a distinct tort of invasion of privacy. The
first was in circumstances where the defendant’s conduct of invading the
plaintiff’s privacy was equivalent to the criminal offence of stalking (Grosse
v Purvis [2003] QDC 151). The second was where a radio station unlawfully
broadcast information which identified a victim of rape (Jane Doe v
Australian Broadcasting Corporation [2007] VCC 281). Other courts have
declined to consider a tort of invasion of privacy (not necessary in the
particular case) or expressly stated the tort does not exist in Australia
(Kalaba v Commonwealth [2004] FCA 763; Giller v Procopets (2008) 24 VR 1;
Calabro v Western Australia [2012] WASC 418).
In September 2014, the Australian Law Reform Commission proposed a
federal statutory tort of serious invasion of privacy.
MindMap03
What Constitutes Land? Trespass to Land Remedies

All the bordered land, plants and Injunction

trees growing on it, buildings,
all soils minerals under the Lincoln Hunt v Willesee
ground and airspace above the Rinsdale v ABC
ground.
General Elements Self-Help
Includes airspace to a
reasonable height necessary There must be direct Cowell v Rosehill Racecourse
for use and enjoyment interference with the land Hemmings v Stokes

Bernstein v Skyviews
LJP v Howard
Southport v Esso Damages

Includes land underneath – Interference must be NSW v Ibbett

even where does not or could intentional (or negligent) and Finesky v WA
not interfere with the ordinary voluntary Jones v Shire of Perth
reasonable use of the land
Public Transport v Perry
Di Napoli v New Beach Title to Sue
Bocardo v Star Energy
What Amounts to Exclusive possession
Trespassory Acts /
Interference? Newington v Windeyer

No express or implied consent

Halliday v Nevill
Plenty v Dillon
Lincoln Hunt v Willesee
Rinsdale v ABC

Remaining after consent

withdrawn

Cowell v Rosehill Racecourse

Kuru v NSW

Placing /leaving material on

land

Bathurst CC v Saban
Smith v Stone
Konskier v Goodman

Exceeding lawful authority

Coco v The Queen

Kuru v NSW
Rosebanner v Energy Australia
 Chapter 4

Interference with goods

Interference with goods
[4.10] INTRODUCTION....................................................................... 34
[4.20] THE MEANING OF CHATTELS (GOODS) ....................................... 34
[4.30] TRESPASS TO GOODS ............................................................. 35
[4.30] Definition .................................................................... 35
[4.40] Title to sue.................................................................. 35
[4.70] The requirement for direct and intentional (or negligent)
interference ................................................................. 36
[4.80] Acts that constitute trespass............................................. 37
[4.90] A need for damage? ...................................................... 37
[4.100] Remedies ................................................................... 37
[4.110] CONVERSION ......................................................................... 37
[4.110] Definition .................................................................... 37
[4.120] Title to sue.................................................................. 38
[4.140] The requirement for fault................................................. 39
[4.150] Acts of conversion......................................................... 39
[4.240] Remedies ................................................................... 41
[4.250] DETINUE................................................................................ 41
[4.260] Title to sue.................................................................. 42
[4.270] Requirement of fault ...................................................... 42
[4.280] Acts of detinue ............................................................. 42
[4.310] Remedies ................................................................... 43

Introduction
[4.10] There are three intentional torts that protect a person’s interest in
goods (or chattels): trespass to goods, conversion and detinue. While they
are separate and distinct torts covering different types of interferences with
goods, it is not uncommon for more than one action to be instituted in
relation to a particular interference. All three are considered in this chapter.

The meaning of chattels (goods)

[4.20] The words “goods”, “chattels” and “personal property” can be
used interchangeably. Chattels are moveable property and must be
distinguished from real property (land) and fixtures permanently attached
to the land. While a corpse has generally been held not to amount to
property (Doodeward v Spence (1908) 6 CLR 406), parts of a body (such as
 CHAPTER 4 INTERFERENCE WITH GOODS / 35

stored sperm) have been the subject of property rights (Edwards: Re Estate of
Edwards [2011] NSWSC 478). While cheques and other negotiable items are
considered chattels, intangible items or “rights”, such as IP addresses and
domain names have been held not to amount to a chattel capable of
protection through torts actions for interference with goods (Hoath v
Connect Internet Services Pty Ltd (2006) 229 ALR 566).

Trespass to goods
Definition
[4.30] Trespass to goods involves direct and intentional or negligent
interference with goods in the possession of another, without consent or
other lawful justification.

Title to sue
[4.40] Only a person in possession of goods at the time of the interference
has title to sue. Ownership of the goods is not required. Possession in this
sense includes actual possession, constructive possession and in limited
circumstances an immediate right to possession. An immediate right to
possession will only suffice where the person in actual possession holds the
goods as a servant or agent on behalf of another, or as a bailee under a
bailment at will. A bailment arises where one party, the bailor, delivers
goods to the bailee under a contract that allows the bailee to use the goods
for a specified period. Once the time period expires, the goods must be
returned to the bailor. Where the bailment is at will, the bailor can
terminate the bailment at any time and obtain immediate possession of the
goods.
Where a plaintiff only has an immediate right to possession, he/she
must prove that there has been a trespass to the goods, which are in the
actual possession of another person who is holding the goods as a servant,
agent or bailee of the plaintiff. In such circumstances the plaintiff is not
suing for an interference with his or her possession of the goods, but rather
with an interference to the possession of the person in actual possession
(the servant, agent or bailee holding under a bailment at will).

Penfolds Wines Pty Ltd v Elliott

[4.50] Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204

FACTS • The plaintiff (Penfolds Wines) produced wine that was sold in wine bottles
36 LAWBRIEF: TORTS

branded with the plaintiff’s name. The plaintiff argued that, under the arrangement for
sale of the wine, the bottles were not to be used for any purpose other than selling
Penfolds wine, and were to be returned to Penfolds for refilling once the contents of each
bottle was consumed. In alleged breach of this arrangement, the plaintiff claimed that a
hotelier, Elliott (the defendant), was using the bottles by filling them with other alcohol,
which he then sold to customers of the hotel. The only evidence before the court was in
relation to two bottles that had been brought to Elliott by his brother, which Elliott then
filled with alcohol and sold to another person. Penfolds sued Elliott, both for trespass to
goods and conversion. One of the questions before the court was whether Penfolds had
sufficient title to the bottles to sue in trespass to goods.

HELD • The plaintiff (Penfolds) claimed that the defendant (Elliott) had committed a
trespass to the goods (bottles) by filling them with other wine and reselling to customers
of his hotel. In order to prove the trespass, the plaintiff needed to establish that either (a)
they were in actual possession of the bottles at the time of the trespassory act or (b) the
bottles were in the possession of the plaintiff’s servant, agent or bailee at will and the
defendant had committed the trespass to the bottles against the actual possession of the
servant, agent or bailee. At the time of the alleged trespassory act, the plaintiff was clearly
not in actual possession of the bottles. The bottles had been given to the defendant by his
brother voluntarily, therefore it could not be said that the defendant interfered with the
possession of the bottles. The plaintiff could not establish title to sue and the defendant in
using the bottles had not infringed upon the possession of anyone.
The decision in relation to conversion is considered at [4.190].
[SEE ALSO • Wilson v Lombank [1963] 1 All ER 740.]

[4.60] A finder of goods in possession has sufficient title to sue for

trespass to goods, except against a person with a better title (Parker v British
Airways Board [1982] 1 QB 1004). Even a person who is unaware of the
goods found on their property may have sufficient title to sue another in
trespass, provided they have evidenced an intention to be in control of all
goods on their property (Chairman, National Crime Authority v Flack (1998)
86 FCR 16).

The requirement for direct and intentional (or negligent) interference

[4.70] Like all trespass actions, there is a requirement that the interference
be direct (Hutchins v Maughan [1947] VLR 131), voluntary (Beals v Hayward
[1960] NZLR 131 at 137) and intentional or negligent (National Coal Board v
JE Evans and Co (Cardiff) Ltd [1951] 2 KB 861).
 CHAPTER 4 INTERFERENCE WITH GOODS / 37

Acts that constitute trespass

[4.80] Any form of direct interference with another’s possession, without
consent or authorisation, will amount to a trespassory act. In Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204 at 214, Latham CJ referred to the
following acts as examples of trespass to goods: taking or moving a chattel;
handling of a chattel; and the unauthorised use of a chattel. See also:
Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153.

A need for damage?

[4.90] It is clear that trespass to the person and trespass to land are
actionable per se (no need to prove actual damage). Generally, the same can
be said of trespass to goods, so that the moving of goods without causing
actual damage will be actionable (Kirk v Gregory (1876) 1 Ex D 55). Where
there is no actual damage, nominal damages are awarded. However, there
is some debate whether the mere touching of goods, either intentionally
(Wilson v Marshall [1982] Tas R 287) or, more particularly, negligently
(Everitt v Martin [1953] NZLR 298) requires proof of damage to be
actionable in trespass. The preferred view is that consistent with other
trespass actions there is no need to prove damage (Cressy v Johnson (No 3)
[2009] VSC 52).

Remedies
[4.100] The plaintiff is entitled to damages (monetary compensation) for
any trespass to goods. Where the goods in question are damaged, the
amount of damages will be either the depreciation in value, or the cost of
repairs. Where there is no actual damage, only nominal damages will be
awarded (Cressy v Johnson (No 3) [2009] VSC 52). Consequential losses
arising from the trespass may also be awarded.

Conversion
Definition
[4.110] Conversion occurs when a person deals with goods in a manner
that is repugnant to another’s right to possession of the goods. Conversion
requires more than contact with goods. The conversionary act must deny
the plaintiff’s right to possession of the goods.
38 LAWBRIEF: TORTS

Title to sue
[4.120] In order to maintain an action in conversion, a plaintiff must
establish that he/she had either actual or constructive possession at the
time of the act of conversion or an immediate right to possession. An
immediate right to possession may arise in a number of ways.
As the person in actual possession of the goods, a bailee will have
sufficient title to sue a third party who interferes with their possession.
However, a bailor will only have sufficient title to sue a third party who has
interfered with the bailee’s possession, where the bailment is terminable at
will. In such circumstances, both the bailee and the bailor have the right to
sue the third party in conversion (CHEP Australia Ltd v Bunnings Group
[2010] NSWSC 301 at [24]. Note this case was reversed in part in Bunnings
Group v CHEP [2011] NSWCA 342). Where the bailee possesses the goods
under a fixed term bailment, interference with his/her possession by the
bailor may also give rise to an action in conversion.
Where the bailee deals with the goods in a manner adverse to the
bailment, for example, by selling the goods to a third party, the bailor
regains an immediate right to possession and is therefore entitled to sue
both the bailee and the third party in conversion (Penfolds Wines Pty Ltd v
Elliott (1946) 74 CLR 204).

Perpetual Trustees and National Executors of Tasmania Ltd v Perkins

[4.130] Perpetual Trustees and National Executors of Tasmania Ltd v Perkins [1989] Aust
Torts Reports 80-295

FACTS • Three sisters inherited portraits of their great-grandparents, which they hung in
the family home. When the family home became too difficult for them to maintain, they
sold it and moved to a smaller house. They gave the portraits on long loan to their brother
Bill. Some years later without the sisters’ knowledge, Bill gave the portraits to another
brother David. After David’s death, his son Tim, who claimed his father had bequeathed
the portraits to him, sold one of the portraits to the Art Gallery of South Australia. The
sisters demanded return of both portraits, and when that was refused they sued in
conversion. One of the questions before the courts was whether the sisters had sufficient
title to sue in conversion.

HELD • In “loaning” the portraits to their brother Bill, the sisters had not transferred title
but had created a gratuitous bailment, which could be revoked at any time at will. Bill did
not have title to transfer title in the portraits to David. The sisters’ title had never been
extinguished and, as such, they had an immediate right to possession of the portraits,
which was a superior title to that of either Tim or the Art Gallery.
 CHAPTER 4 INTERFERENCE WITH GOODS / 39

[SEE ALSO • Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385;
Sadcas v Business & Professional Finance Pty Ltd [2011] NSWCA 267; Myer Stores Ltd v
Jovanovic [2004] VSC 478; cf Nominal Defendant v Andrews (1969) 121 CLR 562.]

The requirement for fault

[4.140] The defendant must intend to do the act that interferes with the
plaintiff’s title. Negligence will not suffice. Intention does not require any
element of dishonesty or wrongful motive by the defendant, so that even
an innocent dealing with another’s goods may amount to conversion,
provided the defendant intended to exercise control over the goods (Union
Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385).

Acts of conversion
[4.150] In order to amount to a dealing that is repugnant to the plaintiff’s
immediate right to possession, the act of the defendant must deprive the
plaintiff of possession of the goods by denying the plaintiff’s right to
possession of the goods, or by exercising a right inconsistent with the
plaintiff’s right to possession (Lancashire Railway Co v MacNicoll (1919) 88
LJKB 601). There are a number of acts that constitute conversion.
Destruction of goods
[4.160] To destroy another’s goods will amount to conversion (Hollins v
Fowler (1875) LR 7 HL 757). So will altering the form of the goods, such as
the oft-quoted example of the unauthorised changing of grapes to wine
(Hollins v Fowler (1875) LR 7 HL 757 at 764, 768).
Wrongful taking of goods
[4.170] The unauthorised taking of another’s goods with the intention of
keeping them or exercising temporary or permanent control over them will
amount to a conversion. The mere moving of goods without such intention
will amount to a trespass, not a conversion.

Fouldes v Willoughby
[4.180] Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153

FACTS • The plaintiff paid his fare and boarded a ferry with his two horses. After the
plaintiff refused to leave the ferry due to alleged misbehaviour, the defendant ferryman
led the plaintiff’s two horses off the boat and set them free. His motive was to induce the
plaintiff to disembark. The plaintiff sued the defendant ferryman in conversion.
40 LAWBRIEF: TORTS

HELD • The defendant had merely moved the horses from the ferry to the shore. He had
not destroyed them or taken possession of them or made any use of them. Accordingly,
while an action in trespass may have arisen, the act was insufficient to amount to
conversion.

Wrongful use of goods

[4.190] Unauthorised use of goods with an intention to exercise dominion
over the goods amounts to conversion. In Penfolds Wines Pty Ltd v Elliott
(1946) 74 CLR 204, the majority of the High Court found that the
defendant’s acts in filling the plaintiff’s bottles with wine and selling it to a
third party amounted to an act of conversion, however they refused to
grant an injunction restraining Elliott from using the branded bottles in an
unauthorised manner.
See also Sadcas v Business & Professional Finance Pty Ltd [2011] NSWCA
267; Bunnings Group v CHEP [2011] NSWCA 342; Schemmell v Pomeroy
(1989) 50 SASR 450; cf Aitken Agencies Ltd v Richardson [1967] NSWLR 65.

Wrongful detention of goods

[4.200] Wrongful detention of goods over which the plaintiff has an
immediate right to possession will amount to conversion. Some positive act
of detention is required, so that the tort is generally established by a
demand for the goods and a refusal to return them. A defendant is,
however, entitled to retain goods for a reasonable period in which to
establish the bona fides of the plaintiff’s title.

Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd

[4.210] Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd [1993] Aust Torts Reports
81-244

FACTS • The plaintiff leased three machines to the defendant company. One of the terms
of the lease was that in the event that the defendant company went into liquidation, the
plaintiff would be entitled to terminate the lease and repossess the machines.
Subsequently, the defendant went into liquidation. The plaintiff formally terminated the
lease and demanded return of the machines. When the liquidator failed to return the
machines, the plaintiff sued both the defendant company and the liquidator in conversion.

HELD • The defendants were liable for conversion. Once the plaintiff had terminated the
lease and demanded return of the machines, the defendant was under an obligation to
return the goods. The act of the defendant in retaining the machines evidenced an
 CHAPTER 4 INTERFERENCE WITH GOODS / 41

intention by the defendant to treat the goods as they were its own. While generally the
defendant may be entitled to withhold the goods for a reasonable period to ascertain the
validity of the plaintiff’s claim, the defendant could not do so in this case because they
were well aware of the plaintiff’s title.

Wrongful disposition (sale and delivery)

[4.220] Unauthorised disposition of goods over which the plaintiff has an
immediate right to possession, by either transfer of title or sale and
delivery of the goods, will amount to conversion (Perpetual Trustees and
National Executors of Tasmania Ltd v Perkins [1989] Aust Torts Reports
80-295). It does not matter that the defendant in transferring or accepting
the title does so innocently, unaware of the plaintiff’s title, it is merely the
act of the transfer that amounts to conversion (Rendell v Associated Finance
Pty Ltd [1957] VR 604).

Wrongful delivery
[4.230] Unauthorised delivery of goods over which the plaintiff has an
immediate right to possession will amount to conversion. So that where a
carrier or a finder or a bailee of goods delivers possession of goods to a
person who does not have authority to receive the goods, a conversion
occurs (Glass v Hollander (1935) 35 SR (NSW) 304).

Remedies
[4.240] The plaintiff is entitled to damages, which generally includes the
full market value of the goods assessed as at the date of the conversion.
Where the goods have not been returned title in the goods is transferred to
the defendant. Where the full value would place the plaintiff in a better
position than he/she would have been had the tort not been committed,
the full amount may not be recoverable (Butler v Egg and Egg Pulp
Marketing Board (1966) 114 CLR 185). In circumstances where damages
would not suffice, an injunction to prevent continued conversion may be
granted (Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204).

Detinue
[4.250] Detinue occurs where a person wrongfully detains goods and
refuses on demand to return them to the person who has an immediate
right to possession of the goods.
42 LAWBRIEF: TORTS

Title to sue
[4.260] The plaintiff must have an immediate right to possession of the
goods at the time of the alleged act constituting detinue.

Requirement of fault
[4.270] While detinue will often overlap with the tort of conversion, it is
more expansive as it applies not only to intentional acts of the defendant,
but also to negligent acts that are not covered by conversion. So where the
defendant has negligently lost the goods or mistakenly delivers goods to
the wrong person and fails to return them upon demand, an action in
detinue will lie (John F Goulding Pty Ltd v Victorian Railways Commissioners
(1932) 48 CLR 157).

Acts of detinue
[4.280] In order to succeed, the plaintiff must establish that he/she
demanded return of the goods and that the defendant failed to return the
goods. There are certain requirements in relation to the demand and the
refusal.

The demand
[4.290] In order to be effective, the demand must specify a time and place
for return of the goods (Lloyd v Osborne (1899) 20 LR (NSW) 190) and must
spell out that any consent to possession of the goods is revoked (Brambles
Australia Ltd t/as CHEP Australia v Tatale Pty Ltd [2004] NSWCA 232). In
Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd [1993] Aust Torts Reports
81-244, where the plaintiff failed to specify where or how the machines
were to be returned, the court held that an action in detinue could not be
established; however, the conversion action succeeded.

The refusal
[4.300] The defendant must refuse to return the goods and such refusal
must be unreasonable. Time to determine the bona fides of the plaintiff’s
claim may be allowed before the refusal would be considered unreasonable
(Clayton v LeRoy [1911] 2 KB 1031). The weight of authority suggests that
the defendant’s refusal need not be express and that a mere failure to
respond to the demand may suffice (Lloyd v Osborne (1899) 20 LR (NSW)
190 at 194, but cf Nelson v Nelson [1923] St R Qd 37 at 40).
 CHAPTER 4 INTERFERENCE WITH GOODS / 43

Remedies
[4.310] Where the goods are unique and/or valuable, the court may order
that the goods be returned to the plaintiff. Otherwise the normal remedy of
damages applies, including damages for consequential loss.
MindMap04

Trespass to Goods Interference with Goods Conversion

Title to sue Title to sue

Actual possession, constructive Actual possession, constructive

possession Can include Immediate right to possession, Immediate right to
possession in limited circumstances: possession
Penfolds Wines v Elliott servant, agent or bailee
Penfolds Wines v Elliott
Perpetual Trustees v Perkins
Requirements
Detinue
Direct and intentional Requirements
interference with possession Title to sue
Intentional dealing, repugnant
Hutchins v Maughin to person’s possession of goods
Immediate right to possession
National Coal Board v Evans
Union Transport v British Car
Union Transport v British Car Auctions
Trespassory acts Auctions

Moving, handling, Acts of conversion

Requirements
unauthorized use
Wrongful taking / use
Intentional or negligent destruction / detention
Fouldes v Willoughby
detention of goods disposition / sale & delivery
Penfolds Wines v Elliott
Goulding v Victorian Railways Fouldes v Willoughby
Remedies Penfolds Wines v Elliott
Damages Acts of detinue Flowfill Packaging v Fytore
Perpetual Trustees v Perkins
Cressy v Johnson Rendell v Associated Finance
Wrongful detention, refusal to
return on demand
Remedies
Lloyd v Osborne Damages, title transfer to
Brambles v Tatale defendant
Injunction to prevent continued
Remedies conversion
Return of goods or damages
Butler v Egg Pulp Marketing
Penfolds Wines v Elliot
 Chapter 5

Defences to intentional torts

Defences to intentional torts
[5.10] INTRODUCTION....................................................................... 46
[5.20] INEVITABLE ACCIDENT ............................................................. 46
[5.50] CONSENT .............................................................................. 47
[5.50] General principles ......................................................... 47
[5.60] Consent to bodily contact in sport...................................... 47
[5.80] Consent to medical treatment ........................................... 48
[5.110] NECESSITY ............................................................................ 50
[5.170] SELF-DEFENCE AND DEFENCE OF OTHERS................................. 52
[5.210] DEFENCE OF PROPERTY.......................................................... 53
[5.220] PROVOCATION........................................................................ 53
[5.240] CONTRIBUTORY NEGLIGENCE ................................................... 54
[5.270] OTHER DEFENCES .................................................................. 54

Introduction
[5.10] There are a number of defences a defendant may raise to avoid
liability for intentional torts. The defences of inevitable accident, consent,
necessity, self-defence and provocation are considered in this chapter.

Inevitable accident
[5.20] Pleading inevitable accident is another way of stating that the
defendant was entirely faultless. Fault is a required element of a trespass
action (Stanley v Powell [1891] 1 QB 86) and in Australia the onus is on the
defendant to establish that there was no intention or negligence (McHale v
Watson (1964) 111 CLR 384).

National Coal Board v JE Evans and Co (Cardiff) Ltd

[5.30] National Coal Board v JE Evans and Co (Cardiff) Ltd [1951] 2 KB 861

FACTS • The defendant was contracted to dig a trench. The defendant was provided with
a map of the terrain, which did not show the presence of an underground cable. In digging
the trench the defendant damaged an underground electricity cable, which provided
electricity to the plaintiff’s coal plant. The plaintiff sued the defendant for trespass to
goods.
 CHAPTER 5 DEFENCES TO INTENTIONAL TORTS / 47

HELD • The defendant was not liable. The defendant was able to establish that it had not
intentionally or negligently cut the cable as it neither knew, nor ought to have known, of
the presence of the cable.
[SEE ALSO • Leahy v Beaumont (1981) 27 SASR 290. The situation is different in England,
where the onus is on the plaintiff to establish fault as an element of the trespass (Letang v
Cooper [1965] 1 QB 232) and also in Australia in relation to highway cases (Venning v Chin
(1974) 10 SASR 299).]

[5.40] Inevitable accident should be distinguished from mistake, which is

not a defence. In Symes v Mahon [1922] SASR 447, the fact that the police
officer mistakenly believed that the plaintiff was the person named in the
arrest warrant was no defence to the claim of false imprisonment.

Consent
General principles
[5.50] The plaintiff’s consent will provide a defence to the tortious
conduct (Ames v Hanlon (1873) 4 AJR 90; McNamara v Duncan (1971) 26 ALR
584). Consent may be express or implied but must be voluntary and
competent to be valid. An example of implied consent is the implied
licence to enter a person’s property through an open path or driveway to
the front door for legitimate purposes (Halliday v Nevill (1984) 155 CLR 1).
In order to be valid, the consent must be informed. In relation to medical
procedures this requires the plaintiff to be informed in broad terms of the
nature of the physical contact (Chatterton v Gerson [1981] QB 432 at 443).
Where the plaintiff’s consent is obtained by fraud or duress, the consent
will not be valid (R v Williams [1923] 1 KB 340 cf R v Mobilio [1991] 1 VR
339). A person is entitled to revoke consent to a trespass. In order to be
effective the revocation must be communicated and, in the case of trespass
to land, a reasonable time must be given to comply (Cowell v Rosehill
Racecourse Co Ltd (1937) 56 CLR 605; Kuru v New South Wales (2008) 246
ALR 260).

Consent to bodily contact in sport

[5.60] A number of sports involve bodily contact that would amount to
trespass were it not for implied consent to contact by the participants. The
most obvious example is boxing. It has been held that the implied consent
extends to the contact or force that occurs within the normal rules of the
game (McNamara v Duncan (1971) 45 FLR 152; 26 ALR 584). Consent may
48 LAWBRIEF: TORTS

also be implied to contact that, although not within the rules of the game,
comes within commonly encountered infringement of the rules. However,
if the implied consent is exceeded, the defendant will be unable to rely on
the defence.

Giumelli v Johnston
[5.70] Giumelli v Johnston [1991] Aust Torts Reports 81-085

FACTS • The defendant raised his elbow as he applied a “hip and shoulder” bump to the
plaintiff in a game of Australian Rules football. Although a “hip and shoulder” bump is
within the rules of the game, making contact to the face of an opponent by raising the
elbow is against the rules. The plaintiff sued the defendant in battery and the defendant
argued that by playing football the plaintiff had consented to such bodily contact.

HELD • The defendant was liable. By playing a sport that included such strong physical
contact as Australian Rules football, the plaintiff could be taken to have consented to
bodily force as permitted by the game and to some contact that, although not strictly
permitted, was a common occurrence of the sport. This did not mean, however, that a
person impliedly consented to all physical contact, including violence in contravention of
the rules and applied with the intent to cause harm, as had occurred in this case.
[SEE ALSO • Sibley v Milutinovic [1990] Aust Torts Reports 81-013; Hilton v Wallace [1989]
Aust Torts Reports 80-231; McCracken v Melbourne Storm Rugby League Football Club
[2005] NSWSC 107.]

Consent to medical treatment

[5.80] In order to validly consent to medical treatment, the patient must
be informed in broad terms of the nature of the physical contact, the site
and general purpose of the contact and any major risks associated with it.
More specific information is generally required to avoid an action in
negligence (Rogers v Whittaker (1992) 175 CLR 479).
Unless there is an emergency warranting medical intervention, any
contact that goes beyond that which is expressly consented to will amount
to a trespass. In an emergency situation, the defence of necessity would
normally be raised.
 CHAPTER 5 DEFENCES TO INTENTIONAL TORTS / 49

Murray v McMurchy
[5.90] Murray v McMurchy [1949] 2 DLR 442

FACTS • The defendant doctor, while performing a caesarean operation, found fibroid
tumours on the patient’s uterus. Concerned about the possible effect of another
pregnancy, the doctor tied the woman’s fallopian tubes without first obtaining her
consent. She sued the doctor in trespass to the person.

HELD • The doctor was liable. Although it may have been more convenient to perform the
operation at that time, it was not so necessary that it could not be postponed until a later
date, at which time consent could be obtained.
[SEE ALSO • McDonald v Ludwig [2007] QSC 028; Dean v Phung [2012] Aust Torts
Reports 82-111; [2012] NSWCA 223.]

[5.100] Where a person validly refuses medical treatment, any attempt to

provide the treatment will amount to trespass. This is so even where the
refusal is provided in advance and/or it involves lifesaving or life-
sustaining medical treatment (Re T (Adult Refusal of Treatment) [1993] Fam
95; Airedale NHS Trust v Bland [1993] AC 789; Re B (adult: refusal of medical
treatment) [2002] 2 All ER 449; Brightwater Care Group (Inc) v Rossiter (2009)
40 WAR 84; [2009] WASC 229). Legislation in most jurisdictions provides
for the making of advance medical treatment directions (Medical Treatment
Act 1988 (Vic); Consent to Medical Treatment and Palliative Care Act 1995 (SA);
Medical Treatment (Health Directions) Act 2006 (ACT); Powers of Attorney Act
1998 (Qld); Advanced Personal Planning Act 2013 (NT)). Advance health
directives are also binding at common law. Where an adult lacks capacity
to consent to medical treatment and has not provided some form of
advance treatment directions, legislative schemes enable designated people
to make decisions on the adult patient’s behalf (Guardianship and
Management of Property Act 1991 (ACT); Guardianship Act 1987 (NSW); Adult
Guardianship Act 1988 (NT); Guardianship and Administration Act 2000 (Qld);
Guardianship and Administration Act 1993 (SA); Guardianship and
Administration Act 1995 (Tas); Guardianship and Administration Board Act
1986 (Vic); Guardianship and Administration Act 1990 (WA)).
Generally, parents make decisions and provide consent about medical
treatment for young children. However, as a child matures, the common
law recognises that they may be able to provide informed and valid
consent (or refusal) to medical treatment. There is no fixed age at which
competency is said to arise; it will depend on the level of understanding
and maturity of the particular child (Gillick v West Norfolk and Wisbech Area
50 LAWBRIEF: TORTS

Health Authority [1986] AC 112). Note, however, the legislative provisions

that cover the age at which a child is deemed to be competent in South
Australia (Consent to Medical Treatment and Palliative Care Act 1995 (SA) ss 6
and 12). Where the treatment involves non-therapeutic procedures (such as
sterilisation or gender reassignment), parental consent is not sufficient and
an order must be obtained from the Family Court or guardianship board
(Marion’s Case (1992) 175 CLR 218; Re A (1993) 16 Fam LR 715; [1993] FLC
92-402). Courts exercising parens patriae jurisdiction have also overridden a
parent’s refusal to give consent to medical treatment of a child in
circumstances where the refusal is deemed not to be in the best interests of
the child (Re Paul [2008] NSWSC 960).

Necessity
[5.110] The defence of necessity allows a person to commit what would
otherwise amount to trespassory conduct where:
• the act was necessary in order to protect life, land and goods from
imminent and real harm
• the act was reasonable and proportionate to the risk of harm.

In Re F v West Berkshire HA
[5.120] In Re F v West Berkshire HA [1990] 2 AC 1

FACTS • F was a mentally disabled woman who resided in a mental health hospital. After
she formed a sexual relationship with another patient, her mother and doctors decided
that she required sterilisation to avoid a pregnancy, which she was not competent to cope
with. As F was unable to provide consent, the doctors argued that the procedure was
necessary and therefore justified.

HELD • The procedure was necessary as it was in the best interests of F. While most often
medical necessity will arise in emergency situations, it is equally applicable in situations
where the action is necessary to preserve a person’s health and life and where there is no
possibility of being able to obtain their consent due to a permanent or semi-permanent
condition, such as mental disability.
[SEE ALSO • St George’s Healthcare NHS Trust v S [1998] 3 WLR 936; In re F (Mental
Patient Sterilisation) [1990] 2 AC 1. There are also a number of statutory provisions
providing a defence of necessity for doctors to perform emergency medical treatment and
treatment for people who lack capacity due to mental illness or intellectual disability —
see, for example, Guardianship and Administration Act 1990 (WA).]
 CHAPTER 5 DEFENCES TO INTENTIONAL TORTS / 51

[5.130] The question of whether the defendant’s act was justified on the
grounds of necessity may involve issues of public policy, particularly
where the conduct involves disobedience of the law.

London Borough of Southwark v Williams

[5.140] London Borough of Southwark v Williams [1971] Ch 734

FACTS • The defendants were homeless people who squatted in an empty house owned
by the plaintiff. The plaintiff sued for trespass to land and sought an order for immediate
possession. The defendants claimed (among other things) necessity on the basis that if
not for the trespass they would have been homeless.

HELD • The defence of necessity failed. The circumstances were not such as to warrant
entry to another’s property. As Lord Denning MR stated (at 743):
[i]f homelessness were once admitted as a defence to trespass, no one’s house could be safe.
Necessity would open a door which no man could shut.

[SEE ALSO • Limbo v Little (1989) 65 NTR 19 (NT Sup Ct CA); R v Loughnan [1981] VR 433;
Dunjey v Ross (2002) 36 MVR 70 (SC WA).]

[5.150] Whether the conduct of the defendant was reasonable and

proportionate to the risk will depend on the particular facts of the case and
the alternatives available to the defendant at the time.

Proudman v Allen
[5.160] Proudman v Allen [1954] SASR 336

FACTS • Upon returning to his parked vehicle, the defendant was unable to drive away as
another car had come along and obstructed the path. A man and his friends approached
and apologised for the obstruction and offered to move the car. The defendant reasonably
believed the man to be the owner of the car. The defendant turned away and then heard
the men yell as the car (which they had been pushing) careered out of control down the
road. The defendant ran after the car and, unable to activate the handbrake, turned the
steering wheel of the car to avoid its collision with other parked vehicles. As a result, the
car veered across an embankment and into the sea. The true owner of the vehicle, the
plaintiff, sued the defendant for trespass to goods. The defendant claimed necessity.

HELD • The defendant was not liable. The defence exists to protect people who act
reasonably in situations of real danger to protect not only their own property but property
belonging to others. Although the defendant’s conduct caused damage to the plaintiff’s
52 LAWBRIEF: TORTS

car, it was a reasonable response to an imminent danger, given the defendant’s

circumstances at the time.

Self-defence and defence of others

[5.170] A defendant can raise the defence of self-defence where the acts
were reasonably necessary and proportionate to the threat of physical
aggression.

Fontin v Katapodis
[5.180] Fontin v Katapodis (1962) 108 CLR 177

FACTS • The defendant, who was employed to cut glass in a store, became involved in an
argument with the plaintiff, who was a customer at the store, over an account. The plaintiff
picked up a T-square (tool) and proceeded to hit the defendant on the shoulder. In
response, the defendant threw an off-cut of glass at the plaintiff’s face. The plaintiff put
his hand up to protect his face and received a severe cut to his thumb, which resulted in
permanent injury. The plaintiff sued the defendant in battery and the defendant claimed
self-defence.

HELD • The defendant was liable. Although he had a right to protect himself from the
plaintiff’s attack (which in itself amounted to a battery) his reaction was not reasonably
proportionate to the threat posed.
[SEE ALSO • Watkins v Victoria (2010) 27 VR 543; Brilley v Presidential Security Services of
Australia [2009] NSWDC 14 (rehearing following appeal in Brilley v Presidential Security
Services (2008) 73 NSWLR 241).]

[5.190] A defendant may also use reasonable force in defence of another.

Goss v Nicholas
[5.200] Goss v Nicholas [1960] Tas SR 133

FACTS • The plaintiff and a friend went to the house of Pemberton to discuss an issue
that had occurred between the daughters of the parties. The plaintiff and Pemberton
began arguing and the plaintiff wagged his finger at Pemberton in a threatening manner.
The defendant, who was at Pemberton’s house, ran out and punched the plaintiff on the
cheek. The plaintiff sued for trespass to the person and the defendant claimed defence of
 CHAPTER 5 DEFENCES TO INTENTIONAL TORTS / 53

another.

HELD • The defendant was liable. Although a person is entitled to use force to protect
another from attack, such must be reasonably proportionate to the risk posed. In this case,
the defendant’s act was considered excessive and therefore amounted to battery.
[SEE ALSO • CLA (NSW) s 52 which provides for no civil liability for acts in self-defence.]

Defence of property
[5.210] A person who commits a tort in attempting to protect their land or
goods may be able to plead the defence of property in any action brought
against them (Norton v Hoare (No 1) (1913) 17 CLR 310 at 322). Once again,
the measures employed by the defendant must be proportionate to the
threatened harm to their property (Richardson v Rix (1989) 12 MVR 522).

Provocation
[5.220] In Fontin v Katapodis (1962) 108 CLR 177, the High Court refused
the defendant’s claim that compensatory damages should be reduced to
take account of the provocation occasioned by the plaintiff hitting the
defendant with the T-square. Therefore, at common law, provocation is not
a defence to trespass to the person, although it may be relevant to the
question of exemplary damages (Lamb v Cotogno (1987) 164 CLR 1 at 13).
Only in Western Australia and Queensland has the statutory criminal law
defence of provocation been applied to civil actions of trespass to the
person (Criminal Code 1899 (Qld) s 269; Criminal Code (WA) s 246).

White v Connolly
[5.230] White v Connolly [1927] St R Qd 75

FACTS • After discovering his wife in bed with the plaintiff, the defendant hit the plaintiff.
The plaintiff sued the defendant in assault and battery and the defendant pleaded the
defence of provocation. The plaintiff applied to the court to have the defence struck out.

HELD • The defence of provocation applied equally to criminal law and civil law
proceedings for assault (and necessarily battery). Accordingly, the defence could be
pleaded and was not struck out.
[SEE ALSO • Wenn v Evans (1985) 2 SR (WA) 263. For the common law position see
Plumb v Breen (unreported, Young J, Supreme Court of New South Wales, 13 December
54 LAWBRIEF: TORTS

1990), Downham v Bellette [1986] Aust Torts Reports 80-038.]

Contributory negligence
[5.240] The defence of contributory negligence, while available for
negligence and nuisance actions, is not available for intentional torts.

Horkin v North Melbourne Football Social Club

[5.250] Horkin v North Melbourne Football Social Club [1983] VR 153

FACTS • The plaintiff became intoxicated at an AFL football game and, after the match
had finished, tried to enter the players’ dressing room. He refused to leave the premises
when asked, thereby becoming a trespassor. The defendant’s employees forcefully
removed him from the premises. It was held that the force used was excessive (the
plaintiff’s wrist was broken) and he succeeded in an action in battery against the
defendant club. The question before the court was whether the plaintiff’s damages should
be reduced on account of his own conduct, which it was argued amounted to contributory
negligence.

HELD • Although the plaintiff clearly contributed to being forcefully removed by becoming
intoxicated, being argumentative and refusing to leave, contributory negligence did not
apply to intentional torts. The plaintiff was therefore entitled to the full amount of
damages as assessed for the battery.
[SEE ALSO • Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 655; Day
v Bank of New South Wales (1978) 18 SASR 163.]

[5.260] Contributory negligence is also not available as a defence to a

claim of conversion (Australian Guarantee Corporation Ltd v Commissioners of
the State Bank of Victoria [1989] VR 617).

Other defences
[5.270] Other defences include:
1 Statutory authority. A defendant may claim that a statute expressly
authorised the otherwise tortious conduct. The onus is on the
defendant to establish that the statute intended to derogate from the
plaintiff’s common law rights. See Chapter 3 and Coco v The Queen
(1994) 179 CLR 427, where the High Court held that the Invasion of
 CHAPTER 5 DEFENCES TO INTENTIONAL TORTS / 55

Privacy Act 1971 (Qld) did not expressly authorise the police to trespass
upon the plaintiff’s land for the purpose of installing a listening device.
2 Judical authority. Superior judges are not liable in tort for acts
committed when performing judicial functions within the jurisdiction
of the courts (Gerard v Hope [1965] Tas SR 15). However, a magistrate
acting without authority may be held personally liable for any tort
committed (Spautz v Butterworth (1996) 41 NSWLR 1).
3 Insanity. Although a defendant will not be liable for involuntary acts,
he/she will be liable for acts committed while mentally unfit. This is so
even where the defendant is unaware that the act is morally wrong,
provided they are aware of the nature and quality of the act (Carrier v
Bonham [2002] 1 Qd R 474; Morris v Marsden [1952] 1 All ER 925).
MindMap05

Consent – Generally Distinguish from mistake

Defences to Intentional Torts which is no defence
Symes v Mahon
Consent can be express
or implied

Halliday v Nevill Consent in Medical Necessity

Context
Consent can be revoked Inevitable Accident
The act must be
Must be informed, necessary to protect life,
Kuru v NSW
voluntary and competent land or goods from Defendant to prove
imminent and real harm absence of fault
Chatterton v Gerson
Consent in Sport In Re F National Coal Board
Fraud and / or duress will Murray v McMurchy v Evans

Implied consent extends vitiate consent

The act must be
to the contact or force
R v Williams reasonable and Self Defence
that occurs within the
proportionate to the risk
normal rules of the game;
A person can validly of harm
and also within Must be reasonable and
commonly encountered refuse treatment even if proportionate
to do so risks life Proudman v Allen
infringement of rules
Fontin v Katapodis
McNamara v Duncan Brightwater Care Group May involve issues of
CLA(NSW) s 52
Giumelli v Johnston v Rossiter public policy
Includes defence of
To determine if children London Borough of
Southwark v Williams
others and defence of
have capacity to consent property
– Gillick’s competency;
statute Goss v Nicholas;
Norton v Hoare
Gillick v Wesk Norfolk

May need court order for

Other Defences Provocation
non-therapeutic
treatment
Statutory Authority No defence
Marions Case, Re Paul Coco v The Queen Fontin v Katapodis
Judicial Authority
Gerard v Hope

Possible exception Qld

White v Connolly
 Chapter 6

Duty of care generally

Duty of care generally
[6.10] INTRODUCTION....................................................................... 58
[6.20] THE DEVELOPMENT OF THE DUTY OF CARE PRINCIPLE ............... 59
[6.20] Lord Aitkin’s neighbourhood test........................................ 59
[6.50] The search for a unified duty of care formula ....................... 60
[6.90] The current “multi-factorial” or “salient features” approach of the
High Court .................................................................. 61
[6.120] WHAT IS MEANT BY REASONABLE FORESEEABILITY? ................... 63
[6.170] THE SCOPE OF THE DUTY OF CARE .......................................... 65

Introduction
[6.10] In order to succeed in a negligence action the plaintiff must first
establish that the defendant owed him/her a duty of care. In the majority
of cases this will not be difficult, as the relationship between the parties and
the circumstance in which the damage occurred will fall within what is
referred to as an established category of duty of care. For example, it is well
established that a driver of a motor vehicle owes a duty of care not to injure
other passengers/ road users (Imbree v McNeilly (2008) 236 CLR 510); a
doctor owes a duty to take care in the treatment of his/her patients (Rogers
v Whittaker (1992) 175 CLR 479); and a solicitor owes a duty to exercise due
care in the provision of services to his/her clients (Hawkins v Clayton Utz
(1988) 164 CLR 539).
In the minority of cases where there is no established duty category, or
the scope (extent) of the duty between parties is unknown, the court will be
required to determine if a duty of care should be imposed on the
defendant. Despite a number of attempts by Australian courts to devise a
single unified test or formula to answer this question, no clear test
applicable to all novel cases has been developed. Rather, there are a
number of different factors or principles that may apply, dependent on the
particular facts of the case. In order to appreciate the current approach of
the High Court of Australia, it is necessary to consider the history and
development of the general principles applicable to the determination of a
duty of care.
 CHAPTER 6 DUTY OF CARE GENERALLY / 59

The development of the duty of care principle

Lord Aitkin’s neighbourhood test
[6.20] Prior to 1932 there was no generalised concept of a duty of care.
There were only a few specified relationships where the law imposed a
duty upon a defendant to take reasonable care not to harm the plaintiff.
The relationships developed from the defendant’s engagement in “common
callings”. For example, an innkeeper owed a duty to a patron, a surgeon to
a patient, and a butcher to a customer. If the case fell outside such a
category, the plaintiff’s action failed. In 1932, the modern tort of negligence
was born when the House of Lords embraced a generalised concept of a
duty of care as a necessary element of a negligence action. The duty of care
was said to arise whenever the relationship fell within the “reasonable
foreseeability” (or neighbourhood) test, as outlined in the landmark
decision of Donoghue v Stevenson [1932] AC 562.

Donoghue v Stevenson
[6.30] Donoghue v Stevenson [1932] AC 562

FACTS • The plaintiff, Ms Donoghue, went to a café with her friend. Her friend bought the
plaintiff a bottle of ginger beer as part of an ice-cream soda. She drank some of the soda
and when the rest of the ginger beer was poured into the glass, the remains of a
decomposed snail fell out of the bottle. The plaintiff suffered shock and severe gastro-
enteritis. She sued the manufacturer who was the bottler of the ginger beer, claiming
negligence in manufacturing the drink. The question before the House of Lords was
whether a manufacturer could owe a duty of care to the ultimate consumer of the product.

HELD • Lord Aitkin proposed the “reasonable foreseeability” or “neighbourhood” test as

a means of determining if a duty of care arose in a particular situation. He defined the test
in the following way (at 580):
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be –
persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which
are called in question.

In applying the test the court found that the manufacturer ought reasonably to have
foreseen that if there was a failure to take reasonable care in manufacturing the product a
person such as the plaintiff, a customer, could be injured. In other words, the plaintiff was
within the neighbourhood and therefore the contemplation of the defendant, as a person
60 LAWBRIEF: TORTS

likely to be injured if reasonable care was not taken.

[6.40] Where the defendant’s conduct involves the direct infliction of

physical injury to the plaintiff, determination of the existence of duty of
care will generally involve a straightforward consideration of whether the
risk of injury to the plaintiff was reasonably foreseeable, as outlined in
Lord Aitkin’s statement.
Where the damage to the plaintiff occurs through the defendant’s
omission to act or the court is faced with a novel situation, the question of
when and in what circumstances a duty of care arises involves more
complex considerations.

The search for a unified duty of care formula

[6.50] After Donoghue v Stevenson [1932] AC 562, actions in negligence
began to arise in new and developing situations. However, despite the
apparent simplicity of Lord Aitkin’s neighbourhood test, application of the
test to the expanding range of negligence cases proved troublesome. It was
clear that a test of reasonable foreseeability alone was too broad. It was
argued that almost anything that occurred could be described as
reasonably foreseeable, particularly when considered in hindsight.
Something more was required to ensure that reasonable limits to a
defendant’s liability were imposed. Over the next 60 years a number of
tests based on an analysis of Lord Aitkin’s neighbourhood test came in and
then went out of favour.
A brief summary of each test provides an overview of the search for a
duty of care formula.

The “two-stage” approach

[6.60] In the 1970s in England, Lord Wilberforce proposed a two-stage
test to determine the existence of a duty of care (Anns v Merton London
Borough of Merton [1978] AC 728). The test asked, first, was the harm to the
plaintiff reasonably foreseeable? If so, a duty of care would arise, unless
there were policy grounds for denying or limiting the duty of care.

The test of “proximity”

[6.70] In Australia, during the 1980s, Deane J was influential in the High
Court of Australia developing a test based on a notion of “proximity”.
Justice Deane interpreted Lord Aitkin’s neighbourhood test as requiring
not only that the risk of injury to the plaintiff be reasonably foreseeable, but
that there exist between the defendant and plaintiff a relationship of
 CHAPTER 6 DUTY OF CARE GENERALLY / 61

“proximity”. He defined “proximity” to include physical proximity

between the plaintiff and defendant, circumstantial proximity arising from
the type of relationship between the plaintiff and the defendant (such as
employer and employee) and causal proximity (the closeness of the
relationship between the defendant’s conduct and the plaintiff’s injury)
(Jaensch v Coffey (1984) 155 CLR 549).

The incremental approach and the three-stage approach

[6.80] While “proximity” as a limiting determinant for a duty of care
attracted a substantial degree of support during the 1980s and 1990s, there
were also a number of opponents to it. In particular, Brennan J preferred an
incremental approach, which proceeded by way of analogy with established
categories of negligence. This more conservative approach to determining
the existence of a duty of care began to find favour with the newly
constituted High Court in the late 1990s (Hill v Van Erp (1997) 188 CLR
159).
In England, the House of Lords had developed a three-stage approach
based on foreseeability of damage, proximity and whether imposition of a
duty was fair, just and reasonable in the circumstances (Caparo Industries Plc
v Dickman [1990] 2 AC 605). In Australia, Kirby J was unable to influence
other judges in his support of this approach (Perre v Appand Pty Ltd (1999)
198 CLR 180 at 286-291; Crimmins v Stevedoring Industry Finance Committee
(1999) 200 CLR 1 at 80-86) and, despite the fact that this test is still applied
in the United Kingdom, it has been rejected by the High Court of Australia
(see Sullivan v Moody (2001) 207 CLR 562 at [6.100]).

The current “multi-factorial” or “salient features” approach of the High Court

[6.90] In dismissing proximity as a limiting factor for determining duty
of care in novel cases, the High Court adopted an approach that, after a
determination of reasonable foreseeability, identifies the salient features of
each new case and then proceeds incrementally by way of analogy to
groups or categories of cases with similar salient features. This approach
was articulated in the following case.

Sullivan v Moody
[6.100] Sullivan v Moody (2001) 207 CLR 562

FACTS • The plaintiff was a father who had been accused by his wife of the sexual abuse
of their child. At the request of the Department of Community Welfare, the child was
examined by doctors at a State hospital sexual assault clinic. The doctors reported their
62 LAWBRIEF: TORTS

suspicions of abuse to the department. The plaintiff claimed that as a result of the
investigation by the department and the accusation of abuse, he suffered shock, distress
and psychiatric harm. He sued both the doctor and the department. The court was
required to determine whether a doctor owed a duty of care to the parent of a child they
had treated and whether a statutory authority, whose functions included child welfare,
owed a duty of care to the alleged perpetrator (in this case, a parent) of child abuse.

HELD • In a single joint judgment, the High Court justices categorically rejected both
proximity and the three-stage Caparo test as determinants for the existence of a duty of
care. Instead they stated that:
[d]ifferent classes of case give rise to different problems in determining the existence and nature
or scope, of a duty of care … The relevant problem will then become the focus of attention in a
judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a
matter of principle …

The court suggested that novel cases should be categorised according to the salient
factors (or features) relevant to the duty of care determination. By focusing on the relevant
factors and how they had been treated in previous cases, an evaluation of duty of care
could be undertaken. The salient factors relevant to this particular case included:
• Coherency of the law. The court considered that, in effect, what the plaintiff was
seeking to do was to prevent adverse personal information from being
disseminated. As this was a function of the law of defamation, which contains a
number of defences, the imposition of liability in negligence would potentially
conflict with the laws of defamation.
• Conflicting duties owed. To impose a duty on the doctor in relation to the father
would conflict with the doctor’s paramount duty of care to his child patient.
Similarly, as the public authority had an overriding duty to protect children,
imposition of a duty to take care of an alleged perpetrator of abuse would
compromise their duty to investigate and protect the child. It may also cause the
department to act in a defensive manner, again compromising their ability to
conduct a thorough investigation.
• Concerns of indeterminate liability. The court was concerned that if the
department’s duty of care extended to parents, it may also be expected to
extend to other family members, teachers, or anyone accused of sexual abuse.
Consideration of these salient factors led the court to find that both the department and
the doctor did not to owe a duty of care to the father.

[6.110] Salient features may include consideration of both legal principle

and policy. Examples where the “salient features” approach has been
applied and some of the salient factors the courts have considered include:
 CHAPTER 6 DUTY OF CARE GENERALLY / 63

• The control the defendant had over the conduct that caused the
plaintiff’s harm, and the relative vulnerability of the plaintiff to the harm
(Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254;
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1).
• The type of harm for which the plaintiff is claiming compensation and
any moral or ethical questions that may be raised (Harriton v Stephens
(2006) 226 CLR 52).
• The need to maintain consistency and coherence within legal principles
(Sullivan v Moody (2001) 207 CLR 562).
• The functions and duties the defendant may owe to other members of
the public and any potential conflict that may arise through imposition of
a duty owed to the plaintiff (Sullivan v Moody (2001) 207 CLR 562; Cran v
New South Wales (2004) 62 NSWLR 95).
• The appropriateness of the court imposing duties on statutory authorities
or government (Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR
540; Cran v New South Wales (2004) 62 NSWLR 95).
• The relevance of statutory powers/ provisions (Hunter and New England
Health District v McKenna [2014] HCA 44; Stuart v Kirkland-Veenstra (2009)
237 CLR 215; Brodie v Singleton Shire Council (2001) 206 CLR 512).
• Other policy considerations, including the need for people to take
personal responsibility for their own actions; personal autonomy (Cole v
South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; CAL
No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; Stuart
v Kirkland-Veenstra (2009) 237 CLR 215).
• Whether imposition of a duty may involve indeterminate liability
(Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Woolcock Street
Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515).
In the case of Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
(CA) Allsop P provides a useful summary of the salient features approach
at [100]–[106].

What is meant by reasonable foreseeability?

[6.120] Reasonable foreseeability remains the touchstone of the duty of
care determination. This test is objective. It does not depend on what the
defendant actually foresaw or could have foreseen, but what a reasonable
person in the position of the defendant ought to have foreseen. If a plaintiff
is not reasonably foreseeable as a member of a class of persons who could
be injured by the defendant’s negligent conduct, then no duty of care will
arise.
64 LAWBRIEF: TORTS

Sydney Water Corporation v Turano

[6.130] Sydney Water Corporation v Turano (2009) 239 CLR 51

FACTS • A water authority laid a water main in a trench on council owned land parallel to
a road in a rural area. The changes made by the trench affected the flow of water in the soil
causing intermittent water logging, which in turn caused a pathogen to develop in the
roots of a nearby tree. During a wind storm 20 years later the tree collapsed onto a car
that was travelling along the road. The driver (Mr Turano) was killed and his wife (the
plaintiff) and children were injured. The plaintiff sued the water authority claiming that
the water authority was negligent in laying the water main in such a way as to cause
damage to surrounding vegetation. The question before the court was whether the water
authority owed a duty of care to road users, such as the plaintiff and her family.

HELD • No duty of care was owed. At the time of the installation it was not reasonably
foreseeable that laying of the water main would result in a risk of injury to road users.
There was no evidence that it was foreseeable that by altering the sub-soil drainage, water
would collect and undermine tree systems. Furthermore as the water authority did not
control the risk so many years after installation there was not a sufficiently close and direct
relationship between the defendant water authority and the plaintiff.
[SEE ALSO • Palsgraf v Long Island Railway Co (1928) 162 NE 99.]

[6.140] It is not necessary that a particular plaintiff be foreseeable or that

the particular chain of events that occurred be foreseeable, only that a
plaintiff be reasonably foreseeable as a member of a class who could be
injured by the defendant’s failure to take reasonable care.

Chapman v Hearse
[6.150] Chapman v Hearse (1961) 106 CLR 112

FACTS • Chapman was thrown from his vehicle after negligently colliding with another
vehicle. A passing motorist, Dr Cherry, stopped and attended to Chapman, who was lying
on the road. Another car, driven negligently by Hearse, struck Dr Cherry, killing him. Dr
Cherry’s estate sued Hearse, who then joined Chapman as a third party, claiming Dr
Cherry’s death was caused at least in part by Chapman’s original negligent driving. In
order for Hearse to succeed against Chapman, it was necessary to establish that
Chapman owed his rescuer, Dr Cherry, a duty of care.

HELD • The court rejected Chapman’s argument that it was necessary for the precise
manner in which the injuries occurred to Dr Cherry to be foreseeable. Instead they stated
 CHAPTER 6 DUTY OF CARE GENERALLY / 65

(at 120-121): “it is sufficient if it appears that injury to a class of persons of which he was
one might reasonably have been foreseen as a consequence.” It was reasonably
foreseeable that as a result of Chapman’s negligent driving, a rescuer coming to his aid
might have been injured. Accordingly, a duty of care was owed to Chapman’s rescuers, a
class of persons to which Dr Cherry belonged.

[6.160] The importance of reasonable foreseeability in the determination

of duty of care is particularly evident in cases where the defendant’s
negligent conduct is alleged to have caused pure psychiatric injury to the
plaintiff (Tame v New South Wales (2002) 211 CLR 317; Gifford v Strang Patrick
Stevedoring Pty Ltd (2003) 214 CLR 269). These cases are considered further
in Chapter 9.

The scope of the duty of care

[6.170] The courts have often been concerned not only with defining
whether a duty of care exists in a novel situation but also the scope of the
duty. In other words, what does the duty involve or entail? If the duty does
not extend to the type of conduct complained of, the court has held that no
duty of care arises in the particular circumstances.

Jones v Bartlett
[6.180] Jones v Bartlett (2000) 205 CLR 166

FACTS • The 23-year-old plaintiff was residing temporarily with his parents in their rented
house when he walked through an internal glass door, which he believed was open. He
sued his parent’s landlord, claiming that current building regulations required thicker
glass for new buildings and for doors that required replacement. He argued that by failing
to remedy this latent defect, the landlord had been negligent. While it was accepted that
the landlord owed a duty of care in relation to known defects and faulty repairs that they
had authorised, the question was whether the scope of the duty extended to a duty to take
care that tenants and their families were not injured through latent (unknown) defects.

HELD • The landlord’s duty of care was limited to defects that they knew or ought to have
known. It did not extend to a requirement to periodically inspect the property and to
engage experts to inspect for latent defects of which the landlord would not have
knowledge. Compliance with the applicable building standards at the time of construction
and maintaining the premises in safe repair, as had been done by the defendant landlord,
was sufficient to discharge the duty of care.
66 LAWBRIEF: TORTS

[SEE ALSO • Geyer v Downs (1977) 138 CLR 91; Modbury Triangle Shopping Centre Pty Ltd v
Anzil (2000) 205 CLR 254; Cole v South Tweed Heads Rugby League Football Club Ltd
(2004) 217 CLR 469 at [1].]
MindMap06

The Neighbourhood Test Duty of Care Generally Salient Factors

Donoghue v Stevenson Defendant’s control of risk of

Lord Aitkin harm/plaintiff’s vulnerability
to risk of harm
Test asks whether it was Established Categories Multi-Factorial/Salient Crimmins v Stevedoring
reasonably foreseeable that Factor Approach Industry Finance
the plaintiff, as a member of Relationships and
a class of persons, could be circumstances where it Applied in circumstances
injured by the defendant’s Inconsistent duties
is established that the where the existence or Cran v NSW
negligent conduct
defendant owes the scope of duty of care is Sullivan v Moody
plaintiff a duty of care in issue.
Sydney Water Corp v
Turano Incoherency of law
Palsgraf v Long Island eg: driver/roaduser After a determination of
Imbree v McNeilly reasonable foreseeability, Sullivan v Moody
Railway
identify the salient features
eg: doctor/patient of each new case and then Statutory authorities/
It is not necessary that a
Rogers v Whittaker proceed incrementally by statutory powers
particular plaintiff be
way of analogy to groups or
foreseeable or that the Graham Barclay Oysters
eg: solicitor/client categories of cases with
particular chain of events v Ryan
Hawkins v Clayton Utz similar salient features.
that occurred be Hunter v New England
Sullivan v Moody
foreseeable Health
The question will
Stuart v Kirkland-Veenstra
Chapman v Hearse
sometimes include
whether the scope of an Policy considerations
existing duty extends to
the situation/
eg. personal autonomy
relationship?
Cole v South Tweed Heads
Jones v Bartlett
KEY POINT In many situations the duty of care will not be Cole v South Tweed
Rugby
in issue because the relationship between the parties Heads Rugby
eg. defensive practice:
and circumstances fall within a readily accepted Cran v NSW
category of established duty cases. If it does not the
eg. indeterminate liability
court will apply the multi-factorial approach.
Woolcock v CDG Pty Ltd

Type of harm
Harriton v Stephens
 Chapter 7

Particular duty of care

situations
Particular duty of care situations
[7.10] INTRODUCTION....................................................................... 68
[7.20] DUTY OF CARE AS IT RELATES TO THE UNBORN CHILD................ 69
[7.20] Injury to the unborn ....................................................... 69
[7.40] Scope of the doctor’s duty............................................... 69
[7.100] DUTY OF CARE AS IT RELATES TO OCCUPIERS ........................... 71
[7.100] Defining the duty generally .............................................. 71
[7.120] The scope of the duty .................................................... 72
[7.180] DUTY OF CARE AS IT RELATES TO DEFECTIVE PRODUCTS............ 74
[7.190] THE ROLE OF POLICY.............................................................. 75
[7.200] NO DUTY SITUATIONS.............................................................. 75
[7.200] Advocates immunity ....................................................... 75
[7.210] Military personnel .......................................................... 76
[7.220] Volunteers and Good Samaritans ...................................... 76

Introduction
[7.10] The last chapter looked at general duty of care principles and the
current “multi-factorial” approach of the High Court to determining the
existence of a duty of care in cases that fall outside the well-established
duty relationships or scope of duty and raise particular problems. As noted
in Sullivan v Moody (2001) 207 CLR 562, different classes of case give rise to
different problems that then become the focus of enquiry in the duty of care
determination.
In order to understand the approach to duty of care determinations, it is
necessary to consider some particular classes of case and the salient factors
that have influenced the decision to impose or deny a duty of care.
This chapter considers duty of care as it relates to the unborn child, duty
of care as it relates to occupiers of property, the law applicable to defective
property and some of the duty of care exemptions that exist at common
law and under statute. In Chapter 8 we consider duty of care as it relates to
harm caused by omissions, duty of care as it relates to public authorities
and the role of policy. In Chapter 9 we consider the extent of the duty of
care owed for pure psychiatric injury and pure economic loss.
 CHAPTER 7 PARTICULAR DUTY OF CARE SITUATIONS / 69

Duty of care as it relates to the unborn child

Injury to the unborn
[7.20] A duty of care may be owed by a third party to a child in relation
to injuries that occurred to the child while in the mother’s womb. For
example, a driver of a motor vehicle will owe a duty of care to other road
users and to any unborn child the other road user may be carrying (Watt v
Rama [1972] VR 353). Similarly, a doctor owes a duty of care to both the
mother and the child in relation to the birth process (Howarth v Adey [1996]
VR 535) and even to the child not yet conceived (X v Pal (1991) 23 NSWLR
26 (CA)). The right of action does not vest until the child is born alive and
“has a separate existence from its mother” (Attorney-General (Qld) (ex Rel
Kerr) v T (1983) 46 ALR 275 at 279).
The controversial issue of whether a mother can owe a duty of care to
her unborn child has been considered in Australia in relation to motor
vehicle accidents.

Lynch v Lynch
[7.30] Lynch v Lynch (1991) 25 NSWLR 411

FACTS • A pregnant woman lost control of the truck she was driving and crashed into a
bank. The child she was carrying was later born with severe injuries attributable to the
accident. The child sued the mother in negligence.

HELD • Although the court was not prepared to state that a mother owes a duty of care
generally in relation to her unborn child, they were prepared to find that in relation to
motor vehicle accidents where compulsory third-party insurance is available that
indemnifies the mother, a duty will arise.
[SEE ALSO • Bowditch v McEwan [2003] 2 Qd R 615, although finding the mother owed a
duty of care, the court noted that the availability of insurance was not relevant to the
determination. Compare the Canadian case of Dobson v Dobson [1999] 2 SCR 753, where
the Supreme Court of Canada held that under no circumstances could the unique and
emotional relationship of a mother and her unborn child give rise to a duty of care.]

Scope of the doctor’s duty

Wrongful birth claims
[7.40] Where a child is born with congenital disabilities that could have
been diagnosed prior to the birth, a claim in wrongful birth may arise. In
70 LAWBRIEF: TORTS

effect, in these actions, the parents claim that timely diagnosis would have
allowed the mother to terminate the pregnancy and the child would not
have been born at all. The claim against the negligent doctor relates to the
extra costs of raising the disabled child (Veivers v Connolly [1995] 2 Qd R
326).

Wrongful conception claims

[7.50] In wrongful conception cases, the parents claim that the doctor’s
failure to properly perform a sterilisation procedure or a termination, or the
doctor’s supply of defective contraception, has led to the birth of a child
they would not otherwise have had. Where the unplanned pregnancy has
resulted in the birth of a healthy child, controversy has arisen as to whether
damages should be awarded for the costs of raising a healthy child. In the
United Kingdom, such a suggestion has been categorically rejected
(McFarlane v Tayside Health Board [2000] 2 AC 59 (HL); Rees v Darlington
Memorial Hospital NHS [2004] 1 AC 3). In Australia, a majority of the High
Court considered that such damages were compensable.

Cattanach v Melchior
[7.60] Cattanach v Melchior (2003) 215 CLR 1

FACTS • Mrs Melchior consulted Dr Cattanach requesting a tubal ligation. She advised
Dr Cattanach that her right fallopian tube and ovary had been removed some years
earlier. On the basis of this advice and without checking, the doctor attached a clip only to
her left fallopian tube. As it turned out, Mrs Melchior was incorrect, her right tube had not
been removed and she fell pregnant. She gave birth to a healthy child. The Melchiors sued
the doctor, claiming as part of the damages the costs of raising their unplanned child.

HELD • The doctor was negligent in accepting Mrs Melchior’s advice without adequate
investigation. The majority held, further, that the cost of raising the child was a legally
recognisable form of harm or damage. The damage consisted of the economic cost of
raising a child that the parents would not have incurred had the tubal ligation not been
negligently performed. The minority held that the joys of parenthood and the benefits
associated with the birth of a healthy child could not be considered as a “loss” and was not
compensable.

[7.70] After lobbying and protest by the medical profession, the legislature
in New South Wales, Queensland and South Australia introduced
provisions in their civil liability legislation to prevent recovery for the costs
 CHAPTER 7 PARTICULAR DUTY OF CARE SITUATIONS / 71

of raising a healthy child in similar circumstances (CLA (NSW) s 71; CLA

(Qld) ss 49A and 49B; CLA (SA) s 67).

Wrongful life claims

[7.80] Causing the greatest controversy have been the cases brought by
the disabled children who have claimed that were it not for the doctor’s
negligent treatment or diagnosis of their mother, they would not have been
born at all. While some jurisdictions in the United States have upheld these
wrongful life claims, Australian and United Kingdom courts have
confirmed that the harm claimed is not compensable. In these cases, the
salient factors militating against a finding that a duty of care is owed
include the type of harm and the resultant moral, ethical and policy
considerations.

Harriton v Stephens
[7.90] Harriton v Stephens (2006) 226 CLR 52

FACTS • The plaintiff was born with a severe congenital disability after the defendant
doctor failed to diagnose her mother’s rubella during pregnancy. The plaintiff claimed
that, had her mother been properly diagnosed, the mother would have lawfully terminated
the pregnancy and the plaintiff would not have been born at all. She sued her mother’s
treating doctor, not for causing the disabilities but for the damage incurred by being born
into a “life with disabilities”.

HELD • The type of harm claimed is inextricably linked to the question of whether the
scope of the duty of care should extend to the harm for which compensation is sought. In
this case, in order to assess the harm or damage claimed, the court would be required to
compare the plaintiff’s life now with the state of non-existence. In other words, the court
would be required to conclude, from the child’s perspective, that non-existence was a
preferable state. Since this was impossible to quantify, it could not amount to a
recognisable form of damage and, accordingly, the plaintiff had no cause of action.

Duty of care as it relates to occupiers

Defining the duty generally
[7.100] There is no doubt that an occupier owes a duty of care to visitors.
For example, an occupier will owe a duty of care to a person injured as a
result of the negligent failure of the occupier to keep the premises in a safe
72 LAWBRIEF: TORTS

state of repair. However, it was not until the later part of the 20th century
that the law in relation to occupiers was brought within the general duty of
care principles. Prior to that time, eligibility to bring a claim in negligence
and the rules that would then apply were dependent on the classification of
the plaintiff as a type of entrant. So, for example, the duty owed by an
occupier to an invitee differed from that owed to a contractual entrant, a
licensee or a trespasser. The requirements were rigid, and if a plaintiff did
not fall within an established classification of entrant, no claim in
negligence arose. This position was overcome both by the legislature in
some States and also by the High Court in the following case.

Australian Safeway Stores Pty Ltd v Zaluzna

[7.110] Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

FACTS • The plaintiff slipped on the floor at the entrance of the defendant supermarket,
which had become wet from outside rain. By applying only the limited duty owed by an
occupier to an invitee, the trial judge found for the defendant. The plaintiff appealed.

HELD • It was not necessary to define the duty of care owed to the plaintiff by classifying
the plaintiff according to his/her status as an entrant. The ordinary principles of
negligence applied, which involved a question of whether there was a reasonably
foreseeable risk that the plaintiff as a person or as a member of a class of persons (visitors)
could be injured as a result of the defendant’s negligence.
[SEE ALSO • Thompsons v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234. But note the
duty of care owed by a commercial occupier will generally be higher than that owed by a
private occupier even where the premises may on occasion be used for commercial
purposes. See, for example, Neindorf v Junkovic (2005) 222 ALR 631 where a private
occupier was held not liable for an injury that occurred to a woman who fell on an uneven
driveway while attending a garage sale.]

The scope of the duty

[7.120] Defining the scope of the duty of care owed by occupiers to
visitors has proved problematic.

Duty to protect the intoxicated

[7.130] The High Court has held that the scope of the duty of care owed
by occupiers of licenced premises to patrons does not extend to protecting
patrons from injury occurring after leaving the premises as a result of
self-intoxication.
 CHAPTER 7 PARTICULAR DUTY OF CARE SITUATIONS / 73

Cole v South Tweed Heads Rugby League Football Club Ltd

[7.140] Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469;
207 ALR 52

FACTS • The plaintiff was offered a free taxi and asked to leave the defendant club after
consuming alcohol from breakfast until mid-afternoon. The plaintiff refused and left the
club on foot, whereby she was hit by a car. She claimed the defendant owed her a duty to
prevent her leaving the club when she was known to be highly intoxicated.

HELD • Based upon notions of personal responsibility, both Gleeson CJ and Callinan J
held that an occupier’s duty of care did not extend to protecting a plaintiff from personal
injury brought about by self-intoxication. Gummow and Hayne JJ based their decision on a
failure to establish that the defendant had breached any duty that may have been owed.
Kirby and McHugh JJ in dissent held that the defendant’s duty extended to protection
from injury resulting from activities undertaken at the club including alcohol consumption.
[SEE ALSO • CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board
(2009) 239 CLR 390.]

Duty to protect against the criminal conduct of third parties

[7.150] A defendant’s duty of care to visitors will not generally extend to
a duty to protect the visitor from third-party criminal acts over which the
defendant exercises no control.

Modbury Triangle Shopping Centre v Anzil

[7.160] Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254

FACTS • The plaintiff worked in a video store that was leased from the defendant
shopping centre owner. Despite requests by the video store proprietor to the defendant to
keep the lights in the shopping centre car park on until after the store had closed for the
evening and staff had left, the lights were turned off before closing time. One evening
when returning to his car after work, the plaintiff was savagely assaulted by three
unknown assailants. The plaintiff sued the defendant.

HELD • While the occupier clearly owed a duty to the plaintiff in relation to the physical
state of the premises, the duty did not extend to protect a person from the criminal
conduct of third parties over which the defendant had no knowledge and exercised no
control. Gleeson CJ did note however, that the position may be different where the
criminal conduct was attended by such “a high degree of foreseeability, and predictability”
as to take it outside the general “no-duty” rule.
74 LAWBRIEF: TORTS

[SEE ALSO • Gordon v Tamworth Jockey Club Inc [2003] Aust Torts Reports 81-698;
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Reports 81-636.]

[7.170] Where the defendant does exercise control over the third party’s
presence on the property, a duty to protect the plaintiff may arise. For
example, a hotelier was held to owe a duty of care to a patron assaulted on
the premises by another patron who was known to be intoxicated and
violent and should have been ejected (Chordas v Bryant (Wellington) Pty Ltd
(1998) 20 FCR 91). See also: Wormald v Robertson [1992] Aust Torts Reports
81-180; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447.

Duty of care as it relates to defective products

[7.180] As in Donoghue v Stevenson [1932] AC 562, where a person suffers
physical injury as a result of a defective product (for Mrs Donoghue it was
severe gastro-enteritis), he/she will be able to sue the manufacturer in
negligence, provided that the risk of injury was reasonably foreseeable
(Grant v Australian Knitting Mills [1936] AC 85). The duty requires the
manufacturer to take reasonable care to prevent injury to a person who
uses the product. The duty extends to suppliers, retailers, installers and
other parties involved in the distribution of goods. If the risk of injury is
not foreseeable, no duty of care will arise (McPherson Ltd v Eaton (2005) 65
NSWLR 187).
It must be noted that actions for defective products may also arise in
contract law and under legislation. Most importantly in this area are
provisions under the Australian Consumer Law (previously the Trade
Practices Act 1974 (Cth) Part VA). The legislation provides remedies to
consumers who suffer personal or property damage (apart from damage to
the product itself) through the use of personal, domestic or household
defective products. Actions may be brought against defendants who, in
“trade or commerce”, manufacturer and supply (or import) defective
products. Manufacturers will include persons who by placing their name
or logo on the product or represent themselves as the manufacturer or
producer. There is no need for the plaintiff to establish negligence under
this Part; the fact that the product does not provide the safety a person
would generally expect is sufficient to establish liability (Glendale Chemical
Products Pty Ltd v Australian Competition and Consumer Commission (1998) 90
FCR 40; Kato v Benz [1999] WASCA 165). A number of defences exist under
the legislation.
 CHAPTER 7 PARTICULAR DUTY OF CARE SITUATIONS / 75

The role of policy

[7.190] Policy considerations may play a role in determining whether a
duty of care is owed in novel situations. The extent to which this is made
explicit varies across the cases, and is often dependent on an individual
judge’s view as to the appropriate role of the court in developing new law.
Examples of policy issues that have influenced duty of care decisions
include:
1 Concerns that imposing a duty of care on police officers in relation to
investigative work would unduly hamper their ability to effectively
investigate crime, and would cause them to act in a defensive manner
(Hill v Chief Constable of West Yorkshire [1989] AC 53; Cran v New South
Wales (2004) 62 NSWLR 95; cf Batchelor v Tasmania (2005) 13 Tas R 403;
[2005] TASSC 11).
2 Concerns that imposing a duty of care on barristers in relation to court
work would impinge on the finality of court decisions, and damage
community confidence in the court process (D’Orta-Ekenaike v Victoria
Legal Aid (2005) 223 CLR 1).
3 Concern that people should not be able to profit from illegal activity
criminal law (Gala v Preston (1991) 172 CLR 243; State Railway Authority
of NSW v Wiegold (1991) 25 NSWLR 500).
4 Concern that people should take greater responsibility for their
conduct, expressed as the principle of personal responsibility and the
notion of autonomy (Cole v South Tweed Heads Rugby League Football
Club Ltd (2004) 217 CLR 469; Stuart v Kirkland-Veenstra (2009) 237 CLR
215).

No duty situations
Advocates immunity
[7.200] In Australia, barristers (and solicitors acting as legal advocates)
do not owe a duty of care in relation to work done in court or “work
intimately connected with” work in court (Giannarelli v Wraith (1988) 165
CLR 543; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1). The
immunity is based on public policy considerations, which include the
paramount duty that an advocate owes to the court and the need for
finality in court determinations. The immunity extends to judges and
witnesses.
76 LAWBRIEF: TORTS

Military personnel
[7.210] The military does not owe a duty of care to private individuals
when engaged in activities against the enemy in times of war (Shaw Savill
and Albion Co Ltd v Commonwealth (1940) 66 CLR 344). This immunity has
been narrowly confined (Smith v Ministry of Defence [2011] EWHC 1676
(QB)).

Volunteers and Good Samaritans

[7.220] Despite the fact that there has been no reported case of emergency
personnel being sued for first aid rendered at the scene of an accident, civil
liability legislation in most jurisdictions now provides immunity from
liability to emergency service providers and “Good Samaritans”. Volunteers
in community service organisations acting in good faith have also been
provided with immunity from liability in negligence. Generally, the
organisation or responsible government body will be liable.
MindMap07

Unborn Child Particular Duty of Care Situation Defective Products

Third parties may owe a A duty of care is owed for

duty to the unborn child physical harm – must be
Watt v Rama reasonably foreseeable
Veivers v Connolly McPherson v Eaton
Occupiers
The duty crystallises on the See also: Australian
child being born alive Consumer Law
Occupier owes a general Glendale Chemical Products
A-G (Qld) v T
duty of care to visitors v ACCC
Australian Safeway
Mother to unborn child Stores v Zaluzna
A mother does not owe a Except in relation to motor
duty of care generally to vehicle accidents
her unborn child Lynch v Lynch Third party criminal
Lynch v Lynch conduct Role of Policy
No duty where the Def
does not have control
Doctor: wrongful birth/ Policy considerations
over conduct of 3rd party
conception may play a part in duty
Modbury Triangle v Anzil
Claim for extra costs determinations
involved in raising the
child Duty will exist where def
eg: Police – fear of
Veivers v Connolly has some control eg
defensive practice
licensed premises
Hill v Chief Constable
Club Italia v Ritchie
Where healthy child born – Cran v NSW
damages allowed at
common law, but not under No duty owed to eg: Barristers – damage
some CLAs intoxicated persons once confidence in court system
Cattanach v Melchior they leave the licensed D’Orta-Ekenaike v Victoria
CLA – NSW, Vic, SA premises Legal Aid
Cole v South Tweed
eg: No profit from criminal
Doctor: wrongful life Heads Rugby
activity
Claim not recognised in CAL v Motor Accidents Gala v Preston
Australia Insurance Board SRA (NSW) v Wiegold
Harriton v Stephens
Based on the notion of eg: Personal autonomy
personal responsibility Stuart v Kirkland-Veenstra
Cole v South Tweed Heads Cole v South Tweed Heads
Rugby Rugby
CAL v Motor Accidents
Insurance Board
 Chapter 8

Duty of care – Omissions and

statutory authorities
Duty of care – Omissions and statutory
authorities
[8.10] OMISSIONS ............................................................................ 78
[8.10] General principles ......................................................... 78
[8.40] Duty to control and supervise others .................................. 80
[8.110] STATUTORY AUTHORITIES ........................................................ 83
[8.110] The nature of statutory authorities ..................................... 83
[8.180] Statutory provisions affecting public authorities ...................... 86

Omissions
General principles
[8.10] It is important to distinguish between three forms of conduct by
the defendant that may cause harm to the plaintiff:
• A positive act performed negligently (misfeasance). For example,
negligently driving a car.
• A negligent omission to act during positive conduct, still considered an
act of misfeasance. For example, negligently failing to apply the brake
whilst driving.
• A pure omission or nonfeasance, which involves a failure to act at all.
The classic example is failing to rescue a drowning person.
It is the third category of conduct that is the focus of this section; situations
where the defendant’s failure to act is a cause of the plaintiff’s harm.
Despite Lord Aitkin’s reference to both acts and omissions as part of the
neighbourhood test in Donoghue v Stevenson [1932] AC 562, the courts have
shown a greater reluctance to impose a duty on a defendant in relation to
pure omissions
The courts have long held the view that there is no general duty to
rescue, as this would impose too great a burden on the general public
(Stovin v Wise [1996] AC 923). Similarly where a duty to act to protect the
plaintiff would interfere or conflict with the plaintiff’s autonomy, no duty
will arise.
 CHAPTER 8 DUTY OF CARE – OMISSIONS AND STATUTORY AUTHORITIES / 79

Stuart v Kirkland-Veenstra
[8.20] Stuart v Kirkland-Veenstra (2009) 237 CLR 215

FACTS • Two police officers came across a man sitting in his car with a hose running from
the exhaust pipe into the car. The engine was not running and during discussion with the
man he told the police that he had been thinking of suicide but had changed his mind. He
appeared calm and rational and declined the police offer of assistance. The police did not
consider it necessary to apprehend him for examination pursuant to the Mental Health
Act 1986 (Vic), as they did not consider that he exhibited signs that he was suffering from a
mental illness. The man drove home and committed suicide by the same means in his
garage. The man’s wife sued the police officers and the State of Victoria for the failure to
apprehend pursuant to powers under the Act.

HELD • No duty was owed by the police to the man to protect him from harming himself.
Gummow, Hayne and Heydon JJ noted that the plaintiff’s claim was based on the notion
that the police owed a duty to her husband to prevent him from harming himself. Such a
duty would interfere with a person’s autonomy, as it would have required the officers to
control the conduct of the man in relation to his own deliberate action towards himself. It
would also be akin to a general duty to rescue which the common law has not recognised.
The court also considered the nature of the statutory powers as a salient feature of the
duty determination (see statutory authorities at [8.110]).
[SEE ALSO • CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390.]

[8.30] As noted in Chapter 7 there is no general duty to protect a person

from harm inflicted by a third party, particularly in relation to random
criminal conduct (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000)
205 CLR 254). Nevertheless, there are situations where the relationship
between the parties and the circumstances surrounding the omission
warrant a finding that the defendant owed the plaintiff a duty of care.
Historically, the courts have sought to define the circumstances in which a
duty of care for pure omissions is owed in terms of the “special
relationship” between the plaintiff and the defendant. More recently,
particularly in relation to public authorities, the High Court has applied the
multi-factorial or salient factors approach to determine whether a duty of
care should arise in relation to pure omissions.
80 LAWBRIEF: TORTS

Duty to control and supervise others

[8.40] A defendant who has control and supervision of a particular
person may owe a duty of care to protect that person from harm.
Conversely, they may owe a duty of care to protect a third party from harm
caused by the person who is under their control.
Examples of this include the following.

School authority and students

[8.50] A school authority owes a duty of care to students in relation to
injuries occurring at school both during and in some situations outside
school hours. This arises both through the school’s duty to protect the
children and the duty to control children so as not to cause harm to others.

Geyer v Downs
[8.60] Geyer v Downs (1977) 138 CLR 91

FACTS • School rules provided that students arriving at school early were to sit quietly
and read until playground supervision began. One morning, when the plaintiff arrived
early, she was struck on the head by a softball thrown by children who were playing
unsupervised. She sustained serious brain damage and sued the school. The court had to
determine whether the school owed a duty of care prior to supervision being provided.

HELD • The school owed the plaintiff a duty of care. Once the gates of the school were
opened, the school exercised authority over the students, which was evidenced by the
instructions given to students as to the code of conduct. This gave rise to a duty to
supervise and to protect the plaintiff from harm caused by third parties including other
students.
[SEE ALSO • Gugiatti v Servite College Council Inc [2004] Aust Torts Reports 81-724; Horne
v Queensland [1995] Aust Torts Reports 81-343; Carmarthenshire County Council v Lewis
[1955] AC 549; St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185.]

Parent and child

[8.70] Parents are clearly in a relationship of care and control of their
children. Where the parent negligently fails to supervise their young
children, they may be liable for the personal injury or damage to property
that the child causes to a third party (Curmi v McLennan [1954] 1 VR 513; cf
Smith v Leurs (1945) 70 CLR 256; McHale v Watson (1964) 111 CLR 384).
 CHAPTER 8 DUTY OF CARE – OMISSIONS AND STATUTORY AUTHORITIES / 81

The situation is different where the parent’s failure to supervise the child
results in injury to the child. Although a parent may be liable to a child for
a positive act of negligence (for example, negligently driving a car in which
the child passenger is injured), the situation is more complex when the
parent has merely failed to protect the child from harm. As Barwick CJ
stated (Hahn v Conley (1971) 126 CLR 276 at 283, 284: “whilst in particular
situations and because of their nature or elements, there will be a duty on
the person into whose care the child has been placed and accepted to take
reasonable care to protect the child against foreseeable danger, there is no
general duty of care in that respect imposed by the law upon a parent
simply because of the blood relationship”. Something more than the
relationship itself will need to be present before a parental duty of care will
arise for a failure to supervise or act to protect the child.
A variety of factors have assumed relevance in the parental duty of care
cases including:
• Policy considerations – unwarranted interference in the domestic sphere
and the difficulty in establishing a parental standard of care (Robertson v
Swincer (1989) 52 SASR 356; Towart v Adler (1989) 52 SASR 373);
• Placing the child at a foreseeable risk of harm; parental control of the
source of the harm (St Mark’s Orthodox Coptic College v Abraham [2007]
NSWCA 185, Tweed Shire Council v Howarth [2009] Aust Torts Reports
82-101; [2009] NSWCA 103)
The difficulty in determining the existence and scope of the parental duty
of care is evidenced in the next case (although it should be noted that this
case did not strictly involve an omission) at [8.80].

Hoffman v Boland
[8.80] Hofffman v Boland [2013] Aust Torts Reports 82-134; [2013] NSWCA 158

FACTS • The infant plaintiff was being carried by the defendant (her grandmother) when
the defendant slipped down a dimly lit internal staircase. The plaintiff was severely
injured. The plaintiff claimed the defendant owed her a duty of care to protect her from a
foreseeable risk of harm, which she had failed to do.

HELD • The court considered the parental duty cases in determining whether the
grandmother owed a duty of care to the plaintiff. Sackville AJA held that a duty was owed,
not because of the relationship itself, but because of the salient factors including the
grandmother’s assumption of responsibility for the care of the child and the infant’s
vulnerability and reliance on the grandmother. Basten JA found no duty on the basis that a
duty of care does not exist in relation to the ordinary day-to-day care of a child. Barrett JA
82 LAWBRIEF: TORTS

did not determine the issue because he, like the other two judges, agreed that even if there
was a duty owed by the grandmother, she had not breached it.

Prison authorities and prisoners

[8.90] Prison authorities owe a duty of care to the prisoners under their
control to protect them from injury inflicted by third parties or other
prisoners (New South Wales v Bujdoso (2005) 227 CLR 1; 222 ALR 663). As an
employer, the prison authority also owes a duty to protect its employees
from harm caused by prisoners (Ralph v Strutton [1969] Qd R 348).
Where a prisoner escapes from prison and causes harm to third parties,
the scope of the duty of care owed by prison authorities to the third parties
will extend only to areas and situations over which the authority can still
exercise control. This would include people or property harmed during the
course of the escape or in the immediate vicinity of the escape (Home Office
v Dorset Yacht Co [1970] AC 1004), but not to people harmed long after the
escape.

New South Wales v Godfrey

[8.100] New South Wales v Godfrey [2004] Aust Torts Reports 81-741

FACTS • An escaped prisoner, in the process of robbing a newsagency, held a shotgun to

the head of the plaintiff employee. As a result, the plaintiff went into premature labour,
giving birth to a child with disabilities. The prisoner had escaped from the defendant’s
minimum-security prison, two-and-a-half months earlier. The question before the court
was whether the defendant owed a duty of care to the plaintiff and her son.

HELD • Due to the distance and time that had elapsed between the escape and the injury
to the plaintiff, the authority could not be said to owe the plaintiff a duty of care. It is only in
the first stage of the escape that the prison authority can be said to be exercising sufficient
control over the prisoner to owe a duty of care to third persons who are consequently
harmed by the prisoner. This does not extend to an unlimited duty owed to all who may
cross the escaped prisoner’s path while they remain at large.
[SEE ALSO • X v South Australia (No 3) (2007) 97 SASR 180 (parole board owed no duty of
care to a plaintiff harmed by the criminal conduct of a parolee).]
 CHAPTER 8 DUTY OF CARE – OMISSIONS AND STATUTORY AUTHORITIES / 83

Statutory authorities
The nature of statutory authorities
[8.110] Statutory or public authorities are established under an Act of
Parliament to perform public duties on behalf of the executive government.
They are invested with a wide range of discretions to exercise powers and
functions that are defined in the governing legislation. Examples of
statutory authorities include local councils, police authorities, prison
authorities (see [8.90]), regulatory bodies and government departments.
While there is generally little difficulty in determining the nature of the
duty of care owed by statutory authorities in relation to positive acts of
misfeasance, or within established categories such as employer and
employee, driver and passenger (Crimmins v Stevedoring Industry Finance
Committee (1999) 200 CLR 1 at [61]) the position becomes more complex
when the complaint relates to the authorities’ failure to act. The authorities’
limited powers, discretion and budgetary constraints will affect decisions
concerning how best to exercise their functions and such concerns may
similarly affect the decision regarding the duty of care owed. In many
cases, the fact that the defendant is a statutory authority will be a salient
factor that requires special consideration by the court in determining the
existence and scope of any duty of care owed.
In Sutherland Shire Council v Heyman (1985) 157 CLR 424, the High Court
accepted that a public authority could owe a duty of care for a failure to
act, although there was no overall consensus regarding the circumstances
in which it would arise. It was considered, however, that where the
authority led the plaintiff to specifically believe that it would exercise its
powers, and then failed to do so, a duty may arise (Sutherland referring to
the concept of “special reliance”). In a series of cases that followed there
was little agreement in the High Court regarding a definitive duty of care
test involving statutory authorities and the exercise of statutory powers
(Pyreness Shire Council v Day (1988) 192 CLR 330). With the advent of the
High Court’s multi-factorial approach to determining novel duties of care
(Sullivan v Moody (2001) 207 CLR 562) a number of salient features have
been identified as relevant to statutory authorities.
Control and vulnerability
[8.120] One salient factor concerns the degree of control exercised by the
defendant over the source of harm and the vulnerability of the plaintiff to
the harm “in the sense that the plaintiff could not reasonably be expected to
adequately safeguard himself or herself … from harm” (Crimmins v
Stevedoring Industry Finance Committee (1999) 200 CLR 1 McHugh J at [93]).
84 LAWBRIEF: TORTS

The greater the degree of control by the defendant and the more vulnerable
the plaintiff is to the harm, the more likely it is that a duty of care will arise.

Crimmins v Stevedoring Industry Finance Committee

[8.130] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1

FACTS • Crimmins worked as a waterside worker in Melbourne during the 1960s. He later
contracted mesothelioma from the asbestos dust inhaled during that time. Before his
death he sued a number of defendants including the Stevedoring Industry Finance
Committee, who were responsible for assigning him jobs with different stevedoring
companies. The question before the court was whether the Committee owed a duty of care
to Crimmins.

HELD • Seven separate judgments were delivered making it difficult to discern a clear test
for imposing a duty. However the majority of the court held a duty was owed as the
defendant authority had the ability to control and minimise the risk to the plaintiff who
they knew, or should have known, was vulnerable to the risk involved. They could minimise
this risk through the exercise of their statutory powers and owed a duty of care to do so.
Their failure to act breached that duty.
[SEE ALSO • Australian Capital Territory v Crowley (2012) 7 ACTLR 142 (where the ACT
Court of Appeal held that no duty of care was owed by police to a mentally ill man who
they were in the process of apprehending. During the attempted apprehension the police
shot the man, which left him suffering quadriplegia. One of the factors referred to was that
the police did not have control of the situation when they attempted the arrest).]

The nature of the statutory functions

[8.140] The importance of determining the nature of the statutory scheme
under which the authority derives its powers and the nature of those
powers was considered in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211
CLR 540. In this case, the court confirmed that no duty of care will arise in
relation to core policy-making or quasi-legislative decisions of the
authority.

Graham Barclay Oysters Pty Ltd v Ryan

[8.150] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

FACTS • A number of consumers brought a class action against the defendant oyster
grower, the municipal council (which controlled the area where the oyster beds were
located) and the State Government Ministry of Fisheries department (who allowed
 CHAPTER 8 DUTY OF CARE – OMISSIONS AND STATUTORY AUTHORITIES / 85

self-regulation of the oyster industry) after they contracted food poisoning from
consumption of contaminated oysters. The hepatitis A contamination was traced to E-coli
bacteria, which entered the water from septic tanks after heavy rains. Both the council and
the department denied they owed a duty of care to consumers.

HELD • The council and the department did not owe a duty of care. The council was held
to have insufficient control over the area where the oysters were harvested to impose a
duty of care. In relation to the state, it was held that it was not a function of the court to
dictate to government how and when to regulate particular industries. As such decisions
were core policy or quasi-legislative, and included consideration of budgetary constraints,
they were non-justiciable.
[SEE ALSO • Amaca Pty Ltd v New South Wales [2004] Aust Torts Reports 81-749, where
Ipp JA provides a summary of the leading cases and the factors that can be drawn from
them; Stuart v Kirkland-Veenstra (2009) 237 CLR 215 (at [8.20]) where the court held that
the police had no statutory power to apprehend the man under the Mental Health Act
1986 (Vic), unless he appeared to be mentally ill and was at risk of committing suicide. After
talking to the man the police had concluded that he was not mentally ill, therefore the
power to apprehend did not arise.]

Inconsistent obligations
[8.160] In considering the statutory scheme and powers of the statutory
authority, the court is concerned to ensure that the imposition of a duty of
care would not be inconsistent with the authorities’ statutory obligations
(Sullivan v Moody (2001) 207 CLR 562).

Hunter & New England Health Authority v McKenna

[8.170] Hunter & New England Health Authority v McKenna [2014] Aust Torts Reports
82-188; [2014] HCA 44

FACTS • A man (Mr Pettigrove) with a long history of chronic schizophrenia was brought
to hospital by his friend (Mr Rose) who was concerned about his behaviour. Pettigrove was
assessed as being “a mentally ill person”. After discussion with Pettigrove’s mother and
Rose, the psychiatrist agreed that Pettigrove should be detained at the hospital overnight
and released the following day to travel with Rose to Pettigrove’s mother’s home town
where his treatment could continue. As planned Pettigrove was released the following day
and he and Rose began the 12 hour car journey. When they stopped on the way, Pettigrove
unexpectedly killed Rose. The plaintiffs, Rose’s mother and sister, sued the health
authority, claiming that the authority owed a duty to take reasonable care to prevent
Pettigrove causing physical harm to Rose. The plaintiffs claimed that as a result of the
breach of that duty they suffered psychiatric harm.
86 LAWBRIEF: TORTS

HELD • The health authority did not owe a duty of care to the plaintiffs. The High Court
noted that this novel case raised a number of salient factors including: the type of harm
claimed (pure psychiatric harm); exercise of statutory powers; indeterminacy of class of
potential plaintiffs; and coherency of the law. The court considered that the second factor,
the exercise of statutory powers, was determinative of the matter and so did not discuss
the other factors. When considering the exercise of statutory powers (in this case the
power to detain a mentally ill person), careful analysis of the legislative framework is
required. The power to continue to detain Pettigrove was found under the Mental Health
Act 1990 (NSW). Such power was only to be exercised if no appropriate care of a less
restrictive kind was reasonably available (s 20). Furthermore powers were to be exercised so
that any restriction on the liberty of patients was kept to a minimum necessary (s 4(2)(b)).
The court held that a duty owed to anyone who may be injured by a mentally ill person who
had been released would be inconsistent with the obligation of the authority to the mentally
ill person as set out in the sections noted.
[SEE ALSO • Australian Capital Territory v Crowley (2012) 7 ACTLR 142 – no duty owed by
police to the armed mentally ill man they were attempting to apprehend as such would be
inconsistent with the obligation of the police to protect the public.]

Statutory provisions affecting public authorities

[8.180] Legislative provisions within the Civil Liability legislation in all
States and Territories (excluding the Northern Territory and South
Australia) provide “principles” to be applied in determining “whether a
public or other authority has a duty of care or has breached a duty of care”
(Civil Liability Act 2003 (Qld) s 35). The provisions confirm that decisions
concerning the general allocation of resources are not justiciable and that
the functions required to be exercised by the statutory authority must be
considered in light of its budgetary and resource constraints and by
reference to “the broad range of its activities”. See CLWA (ACT)
ss 110 – 114; CLA (Qld) ss 35 – 37; CLA (NSW) ss 42 – 45; CLA (Tas)
ss 38 – 40; CLA (WA) ss 5W – 5Z and 5AA; WrA (Vic) ss 83 – 85.
Under civil liability legislation, a public authority will not be liable for
an act or omission (wrongful exercise or failure to exercise a function)
“unless the act or omission was in the circumstances so unreasonable that
no public or other authority having the functions of the authority in
question could properly consider the act or omission to be a reasonable
exercise of its functions” (CLA (Qld) s 36). See also CLA (NSW) s 43A; CLA
(WA) s 5X for similar provisions. In some jurisdictions due to the different
wording the corresponding provision may only apply to a breach of
statutory duty CLWA (ACT) s 111; CLA (Tas) s 40; WrA (Vic) s 81. For cases
interpreting these provisions see Allianz Australia Insurance Ltd v Roads and
 CHAPTER 8 DUTY OF CARE – OMISSIONS AND STATUTORY AUTHORITIES / 87

Traffic Authority of NSW (2010) 57 MVR 80; Warren Shire Council v Kuehne
[2012] NSWCA 81.
MindMap08

Duty of Care: Omissions Statutory Authorities

Distinguish Between Acts Historical Difficulty in

Duty to Control /
of Misfeasance and Determining when a Salient Factors
Supervise Others
Nonfeasance Statutory Authority Owes
Duty for Omission to Act
Nonfeasance involves a Situation where a duty of CL legislative provisions Note CL provisions
failure to act at all care may be owed for Special reliance on Broad range of activities – that provide
omission exercise of powers to be taken into account form of immunity
No general duty for
failure to act eg School – Student Sutherland Shire v Heyman Nature of statutory
(no general duty to rescue) Geyer v Downs
functions / powers
St Mark’s v Abraham
No clear test
Stovin v Wise
eg Prison Authority – Graham Barclay
Prisoners Pyreness Shire v Day Oysters v Ryan
Stuart v Kirkland- Amaca v NSW
NSW v Bujdoso
Veenstra (Gummow, Stuart v Kirkland-Veenstra
Contemporary approach
Hayne, Heydon JJ)
Note no duty was owed – multi-factorial
for harm to 3rd party approach Def’s control of risk of
which was too remote harm / vulnerability of Plt
from the escape Sullivan v Moody
NSW v Godfrey
Crimmins v SIFC
Determine salient ACT v Crowley
eg Parent – Child
features and apply
incremental approach Inconsistent obligations
Duty is not based
purely on blood relation
Hahn v Conley Hunter & New England v
McKenna
ACT v Crowley
Policy considerations
Robertson v Swincer

Factual circumstances
relevant
St Mark’s v Abraham
 Chapter 9

Duty of care – Pure

psychiatric injury and pure
economic loss
Duty of care – Pure psychiatric injury
and pure economic loss
[9.10] LIABILITY FOR PURE PSYCHIATRIC INJURY.................................. 90
[9.10] General principles ......................................................... 90
[9.20] The development of liability for pure psychiatric injury ............. 91
[9.30] The current approach – reasonable foreseeability .................. 92
[9.50] Statutory provisions ....................................................... 93
[9.80] LIABILITY FOR PURE ECONOMIC LOSS ....................................... 94
[9.80] Pure economic loss defined ............................................. 94
[9.90] Negligent misstatements ................................................. 94
[9.120] Professional undertakings and services ............................... 96
[9.130] Relational loss.............................................................. 97
[9.170] Defective property ......................................................... 98

Liability for pure psychiatric injury

General principles
[9.10] As a result of the defendant’s negligence, a plaintiff may suffer
some form of psychiatric harm. This may be consequential upon the
physical injury (such as depression after suffering a debilitating physical
injury), or may be the sole form of harm suffered by the plaintiff. In
situations where the plaintiff suffers psychiatric harm consequential upon
physical harm, duty of care is determined by reference to foreseeability of
the physical harm. Whether the defendant is also liable for the consequent
psychiatric harm is a question of remoteness of damage (see Chapter 13).
On the other hand, where a person suffers pure psychiatric injury (not
consequent on any physical injury) the courts have historically been
reluctant to recognise the existence of a duty of care. This has been because
of a fear of opening the floodgates to a number of false and spurious
claims, which would be difficult to disprove. With advances in medical
science and a greater understanding of psychiatric conditions, the courts
have gradually increased the types of cases in which a duty of care will be
recognised for negligent infliction of pure psychiatric harm. To amount to
 CHAPTER 9 DUTY OF CARE – PURE PSYCHIATRIC INJURY AND PURE ECONOMIC LOSS / 91

pure psychiatric harm, the plaintiff must have suffered a recognisable form
of psychiatric injury; mere grief or sorrow will not suffice (Mount Isa Mines
v Pusey (1970) 125 CLR 383).

The development of liability for pure psychiatric injury

[9.20] In the 19th century, it was held that recovery for psychiatric injury
was not available unless it was consequential upon physical impact and
injury to the plaintiff (Victorian Railways Commissioners v Coultas (1888) 13
App Cas 222). After Donoghue v Stevenson [1932] AC 562, recovery for
psychiatric injury was compensable on the basis of reasonable foreseeability
(Bourhill v Young [1943] AC 92) although the court’s view of what was
reasonably foreseeable was very narrow. See, for example, Chester v
Waverley Corporation (1939) 62 CLR 1, where a mother failed to establish
that a reasonable person in her position would suffer psychiatric injury
after watching her drowned seven-year-old son, who had been missing for
some hours, dragged from a council ditch.
However, the courts continued to impose a number of restrictions to
limit recovery. These included:
• A requirement that the plaintiff suffered the psychiatric injury out of fear
of physical injury or death to him/herself, or to a close relative.
• Where the plaintiff was claiming psychiatric harm as the result of
witnessing the aftermath of an accident, a requirement that there was a
close relationship between the plaintiff and the injured person, such as
relatives or co-workers (Mount Isa Mines v Pusey (1970) 125 CLR 383;
Jaensch v Coffey (1984) 155 CLR 549). This was based on the law at the
time that required proof of proximity in determining the existence of a
duty of care.
• A requirement that the plaintiff suffered the psychiatric injury as a result
of “sudden shock”; this included “direct perception” of an accident
aftermath (Jaensch v Coffey (1983) 155 CLR 549; Spence v Percy [1991] Aust
Torts Reports 81-116).
• A requirement that a person of “normal fortitude” in the position of the
plaintiff would have been likely to suffer psychiatric injury as a result of
the “shock”. This excluded claims from people considered to be
“hypersensitive” (Hinz v Berry [1970] 2 QB 40).
92 LAWBRIEF: TORTS

The current approach – reasonable foreseeability

[9.30] With the demise of proximity as a determinant of duty of care in
novel situations, the High Court reconsidered the approach to pure
psychiatric injury cases. In doing so, the court dismissed a number of the
restrictions that had been applied to exclude liability.

Tame v New South Wales; Annetts v Australian Stations Pty Ltd

[9.40] Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

FACTS • In Tame, the plaintiff claimed pure psychiatric injury as the result of an error
made by a police officer in recording her blood alcohol content after a motor vehicle
accident in which she was a driver. Despite the fact that the error was rectified both before
the plaintiff was aware of it and before any action was taken in relation to it, she claimed
that her later knowledge of the mistake caused her to suffer psychotic depression (she had
an aversion to alcohol). The Court of Appeal excluded liability on the basis that the
plaintiff was hypersensitive and there had been no sudden shock.
In Annetts, the plaintiffs claimed pure psychiatric injury after hearing of the death of their
16-year-old son through dehydration and exposure. The plaintiffs had allowed their son to
work as a “jackaroo” at the defendant’s cattle station after first being reassured by the
defendants that he would not be sent out to work alone on the remote property. In fact, only
seven weeks into his employment he was sent alone as caretaker of a remote part of the
property. He went missing and his parents participated in a long search for him to no avail.
Some months later the body was located and the plaintiffs were informed by telephone. The
Full Court excluded liability on the basis that the parents had not suffered a sudden shock,
but instead a slow accumulation of stress.

HELD • Liability for pure psychiatric injury need not be restricted to cases of sudden shock
as a result of direct perception of an accident or its aftermath. With advances in medical
science, concerns about false claims subsided and pure psychiatric claims could be
brought into line with negligence actions for physical injuries. This required an assessment
of whether it was reasonably foreseeable that a person in the position of the plaintiff could
suffer a psychiatric injury as a result of the defendant’s negligent act or omission. While a
plaintiff’s particular sensitivity, the directness of perception of the accident or aftermath,
and the suddenness of the injury may impact on whether or not psychiatric injury was
reasonably foreseeable, they should not be considered as bars to bringing an action in
negligence.
In Tame, the appeal was dismissed. No liability arose, as it was not reasonably foreseeable
that a person in the position of the plaintiff would suffer psychiatric injury as the result of
learning that such an administrative error had occurred. General comments were also
made that police generally do not owe a duty of care for investigative work.
 CHAPTER 9 DUTY OF CARE – PURE PSYCHIATRIC INJURY AND PURE ECONOMIC LOSS / 93

In Annetts, the appeal was allowed on the basis that it was reasonably foreseeable that
parents could suffer a psychiatric injury on learning that their son had died in such
circumstances, particularly after the parents had contacted the defendant seeking
reassurances as to their son’s safety before he went to work at the station.
[SEE ALSO • Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR
100; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 where the court considered the
scope of an employer’s duty of care to an employee for stress related psychiatric harm).]

Statutory provisions
[9.50] A number of jurisdictions have reintroduced some of the
exclusionary rules rejected by the High Court in Tame v New South Wales;
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317. The main changes
include:
• Reintroduction of the “normal fortitude test” in New South Wales,
Tasmania, Western Australia, South Australia, Victoria and the Australian
Capital Territory (CLWA (ACT) s 34; CLA (NSW) s 32; CLA (SA) s 33;
CLA (Tas) s 34; WrA (Vic) s 72; CLA (WA) s 5S).
• In New South Wales, recovery is limited to a person who actually
witnessed the accident or was a close family member of the person killed
or injured through the defendant’s negligent act or omission (CLA
(NSW) s 30).
The NSW provisions were considered in the following case.

Wicks v State Railway Authority of NSW

[9.60] Wicks v State Railway Authority of NSW (2010) 241 CLR 60

FACTS • The plaintiffs were two police officers who were among the first to arrive at the
scene of a serious train accident. They worked for many hours assisting seriously injured
passengers and freeing others from the wreckage. A number of people had also died. They
claimed damages from the railway authority for the psychiatric harm they suffered as a
result of the traumatic experience.

HELD • The defendant claimed that they were not entitled to damages as the NSW Civil
Liability provision denied recovery for pure psychiatric injury unless the plaintiff witnessed,
at the scene, the victim being killed, injured or put in peril (s 30). The lower courts
accepted this on the basis that the plaintiffs arrived at the scene after the accident
occurred. The High Court reversed the decision on the basis that at the time the plaintiffs
arrived, the victims were still being injured (mentally or physically) and/ or were in peril of
such injury. The case was remitted to the Court of Appeal to determine reasonable
94 LAWBRIEF: TORTS

foreseeability and whether they suffered from a recognised psychiatric illness.

[9.70] There are no statutory provisions in Queensland or the Northern

Territory affecting pure psychiatric injuries, so the common law as outlined
in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317 applies without modification.

Liability for pure economic loss

Pure economic loss defined
[9.80] Where, as a result of the defendant’s negligence, the plaintiff does
not suffer any physical or property damage but suffers only economic loss,
the case is referred to as one of pure economic loss. Originally, the courts
held that a person could not recover damages at all for pure economic loss
caused by the defendant’s negligence. The courts were concerned that
imposition of such a duty would raise issues of indeterminate liability.
After 1963, the courts began to recognise that a duty of care for pure
economic loss may be owed in limited circumstances. The particular
circumstances giving rise to a duty of care for pure economic loss are each
considered in turn.

Negligent misstatements
[9.90] Prior to 1963, a person could only recover for pure economic loss
as a result of relying on a fraudulent (as opposed to negligent) statement by
the defendant (Derry v Peek (1889) 14 App Cas 337). In 1963, the House of
Lords reconsidered the issue of negligently made statements that caused
pure economic loss and held that in limited circumstances such a duty may
arise.

Hedley Byrne and Co Ltd v Heller and Partners Ltd

[9.100] Hedley Byrne and Co Ltd v Heller and Partners Ltd [1964] AC 465

FACTS • The plaintiff, a firm of advertising agents, entered into a contract with Easipower
to place advertisements on television and in newspapers. It was agreed the plaintiff would
pay for the advertisements and later be reimbursed by Easipower. The plaintiff asked its
own bank to check the creditworthiness of Easipower with Easipower’s bank (the
defendant). The defendant bank advised that Easipower was “good for its engagements”,
although they noted that their advice was given “without responsibility”. Easipower failed
 CHAPTER 9 DUTY OF CARE – PURE PSYCHIATRIC INJURY AND PURE ECONOMIC LOSS / 95

to reimburse the plaintiff and went into liquidation. The plaintiff sued the bank, claiming
economic loss as a result of the negligent misstatement.

HELD • Although the defendant was not liable, due to the disclaimer provided with their
advice (“without responsibility”), the court acknowledged that where a person assumes
responsibility for the information they are providing in a situation where it is reasonable for
another to rely upon it, a duty to take care to avoid economic loss may arise.

[9.110] The principles in Hedley Byrne and Co v Heller and Partners Ltd
[1964] AC 465 were adopted in Australia in Evatt v Mutual Life and Citizens
Assurance Co Ltd (1967) 69 SR (NSW) 50. See also: L Shaddock and Associates
Pty Ltd v Parramatta City Council (1981) 150 CLR 255; Tepko Pty Ltd v Water
Board (2001) 206 CLR 1.
From these cases it can be seen that the primary requirements for
establishing a duty of care for pure economic loss as a result of a negligent
misstatement are:
1 Assumption of responsibility (whereby the speaker knows or ought to
know that the recipient of the information intends to act on the
information).
2 Reasonable reliance, by the recipient on the information.
Several factors have been identified as relevant in determining whether
these requirements have been met. They include:
• The information was sought in relation to a serious or business matter
(not provided in a social or casual context) (Evatt v Mutual Life and
Citizens Assurance Co Ltd (1967) 69 SR (NSW) 50). See also: San Sebastian
Pty Ltd v Minister Administering the Environmental Planning and Assessment
Act 1979 (1986) 162 CLR 340, where the plaintiff’s reliance on a
redevelopment plan published by the defendant and placed on public
display was not considered to be reasonable.
• There was an intention by the speaker to induce reliance by the plaintiff
on the information (Esanda Finance Corporation Ltd v Peat Marwick
Hungerfords (1997) 188 CLR 241).
• The speaker has or holds him/herself out to have special skill and it is
likely to be considered reasonable for the recipient to rely on the
information provided. In the case of a professional and client, reasonable
reliance may be implied (Pullen v Gutteridge [1993] 1 VR 27; Haskens and
Davey Pty Ltd [1993] 1 VR 27).
96 LAWBRIEF: TORTS

• Although in most instances the recipient will have requested the

information provided, a request is not necessary (San Sebastian Pty Ltd v
Minister Administering the Environmental Planning and Assessment Act 1979
(1986) 162 CLR 340).
• The duty of care will only extend beyond the immediate recipient of the
information in situations where the speaker knew or ought to have
known that the information would be supplied to an identified plaintiff
(or identifiable class of plaintiffs) for a specific purpose and that the
plaintiff would be likely to rely and act on that information (see Esanda
Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241).
See also: Interchase Corp Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd
(No 3) [2003] 1 Qd R 26.
Provisions under the Australian Consumer Law (ACL) which has been
adopted as a law of the Commonwealth (Competition and Consumer Act 2010
(Cth)) and all States and Territories prohibiting misleading and deceptive
conduct may be used as an alternative to negligence actions in relation to
misstatements that occur in “trade or commerce” (ACL, s 18, formerly Trade
Practices Act 1974 (Cth) s 52).

Professional undertakings and services

[9.120] Professionals can be sued by their clients both in tort and in
contract for negligent performance of their contractual obligations that
cause pure economic loss (Astley v Austrust Ltd (1999) 197 CLR 1). In some
instances, the assumption of responsibility by the professional, and the
duty of care owed, extends to third parties who suffer pure economic loss
as a result of the professional’s negligent advice, act or omission (Hill v Van
Erp (1997) 188 CLR 159).
In Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608, the High Court
considered that a pilot owed a duty of care to a company for the economic
loss it suffered when its employees were injured on a flight chartered for
the purpose of testing specialised communication equipment. The plane
crashed moments after take-off, primarily due to pilot error. Although the
reasoning of the court is difficult to follow it was noted that the pilot knew
or ought to have known of the economic loss the company would suffer if
the plane crashed as a result of his negligence. Furthermore the company
was considered vulnerable to the harm. The difficulty in interpreting this
case and the relevance of vulnerability as a factor in determining the duty
of care in pure economic loss cases was further considered in Apache Energy
Ltd v Alcoa of Australia Ltd (No 2) (2013) 45 WAR 379.
 CHAPTER 9 DUTY OF CARE – PURE PSYCHIATRIC INJURY AND PURE ECONOMIC LOSS / 97

Relational loss
[9.130] In 1976, the High Court extended the circumstances in which a
plaintiff could recover for pure economic loss to situations where the loss
occurred as a result of negligent damage inflicted by the defendant to the
property of a third party. Due to continued concerns of indeterminate
liability, the circumstances in which this would arise were and still are
considered exceptional.

Caltex Oil (Australia Pty Ltd) v The Dredge “Willemstad”

[9.140] Caltex Oil (Australia Pty Ltd) v The Dredge “Willemstad” (1976) 136 CLR 529

FACTS • While dredging a channel through Botany Bay the defendants negligently
damaged a pipeline belonging to Australian Oil Refinery Pty Ltd. The pipeline was used to
carry oil from the refinery to the plaintiff’s oil terminal. The plaintiff claimed it suffered
substantial financial loss as a result of having to transport the oil by road while the
pipeline was under repair. The question before the court was whether the plaintiff could
recover for the negligent act of the defendant when it (the plaintiff) had not suffered any
physical damage.

HELD • In situations where the defendant had knowledge, or the means of knowledge,
that the individual plaintiff would be likely to suffer pure economic loss as a result of the
defendant’s negligent conduct, a duty of care would arise. By limiting foreseeability of the
risk of injury to the individual plaintiff and not to a general class of potential plaintiffs,
liability could be contained within acceptable limits. As the defendant dredge operators
knew or should have known of the existence and purpose of the pipeline and consequently
of the specific plaintiff, a duty of care arose.

[9.150] Compare Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524;

Christopher v MV “Fiji Gas” [1983] Aust Torts Reports 81-202.
The High Court of Australia with particular emphasis on factors of
control and vulnerability has extended the duty to situations where the
plaintiff is not individually identifiable but is a member of an ascertainable
class of potential plaintiffs.
98 LAWBRIEF: TORTS

Perre v Appand Pty Ltd

[9.160] Perre v Appand Pty Ltd (1999) 198 CLR 180

FACTS • The defendant negligently supplied experimental potato seed that was infected
with bacterial wilt to a farmer in South Australia. The plaintiff owned a number of farming
interests within the neighbourhood of the farm where the infected seeds were planted. As
a result of detection of the disease, the plaintiff was unable to export its potatoes to
Western Australia (where potato prices were higher), as West Australian regulations
prohibited import of any potatoes grown within a 20-kilometre radius of a bacterial wilt
outbreak. Despite suffering no property damage to their own potatoes, the plaintiff sued
the defendant for the pure economic loss it suffered as a result of the defendant’s
negligent supply of the potato seed to a neighbour.

HELD • The class of potential plaintiffs to which the plaintiff belonged was not
unascertainable but limited to those farmers within a 20-kilometre radius of the affected
farm. Although the members of the High Court could not agree on a general principle that
could be applied to determine the existence of a duty of care, the issue of reasonable
foreseeability, control by the defendant over the source of the harm, the particular
vulnerability of the plaintiff in the sense that the plaintiff was unable to protect from the
harm, and the fact that the defendant knew or ought to have known that farmers (such as
the plaintiff) within the 20-kilometre radius were vulnerable to the risk of harm, all led to a
finding that a duty of care was owed.

Defective property
[9.170] Where a residential building has been negligently constructed, a
claim may arise for pure economic loss based on the loss of value in the
property. The courts have permitted recovery on the basis that the class of
potential owners of a residential property is not indeterminate and is
readily foreseeable as likely to suffer loss through negligent construction.
Furthermore the control the builder has over the construction based on the
specialist skill, and the relative vulnerability of the owner to protect from
the harm are salient factors favouring the imposition of a duty of care. See,
for example, Bryan v Maloney (1995) 182 CLR 609, where the third owner of
a house was able to claim against the original builder of the house for
inadequate foundations that caused cracks in the walls and consequent loss
in value of the dwelling.
Attempts to extend the principle to commercial buildings have failed,
primarily on the basis that the commercial purchaser of the property with
access to legal advice and the freedom to obtain contractual guarantees is
 CHAPTER 9 DUTY OF CARE – PURE PSYCHIATRIC INJURY AND PURE ECONOMIC LOSS / 99

not considered vulnerable to the consequences of negligent construction

(Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515). The
principle was also applied in Brookfield Multi-Plex Ltd v Owners Corporation
Strata Plan 61288 [2014] Aust Torts Reports 82-182, where the High Court
held that a builder did not owe a duty of care to the owner of the common
property of a complex of serviced apartments for latent defects in the
property. Relevant duties and remedies were governed by the contractual
arrangements between the parties.
MindMap09

Pure Psychiatric Injury Pure Economic Loss

Must be recognised Negligent Misstatement Professional Services Relational Loss

psychiatric harm
Mt Isa Mines v Pusey Assumption of Liability in tort and Limited circumstances
responsibility/ contract
Test of reasonable reasonable reliance Astley v Austrust Ltd Plt identifiable
foreseeability at Hedley Byrne v Heller Caltex v The Dredge
common law Evatt v Mutual Life “Willemstad”
Can extend to third parties
Tame v NSW: Annetts v Hill v Van Erp Plt identifiable class
Australian Stations Relevant factors
Perre v Appand

Serious business matter Plt vulnerability

Factors affecting
foreseeability San Sebastian v Minister Barclay v Penberthy
Planning
Normal fortitude
Tame Request for information
San Sebastian v Minister
Planning
Direct perception Defective Property
Tame
Special skill
Duty of builder to home
Pullen v Gutteridge
Nature of relationship owner
Gifford v Strang Bryan v Maloney
Koehler v Cerebos Rarely extends to third parties
Interchase v Grosvenor Hill
Does not extend to
Suddden shock
Tame
commercial property
(Plt not vulnerable)
Woolcock v CDG
Brookfield v Owners Corp
Statutory Provisions

Normal fortitude test

CLA – NSW, Tas, WA, SA,
Vic, ACT

Witness accident – NSW

provisions Wicks v SRA
Chapter 10

Breach of duty
Breach of duty
[10.10] GENERAL PRINCIPLES ............................................................. 102
[10.40] THE TEST .............................................................................. 103
[10.70] FORESEEABILITY OF THE RISK OF HARM.................................... 103
[10.100] NOT INSIGNIFICANT RISK ......................................................... 104
[10.110] RESPONSE TO THE RISK – THE NEGLIGENCE CALCULUS .............. 105
[10.140] Probability of harm occurring ............................................ 106
[10.160] Likely seriousness of the harm ......................................... 106
[10.180] Burden of taking precautions ............................................ 107
[10.210] Social utility of the defendant’s activity ................................ 108
[10.230] Other relevant matters .................................................... 109
[10.270] OBVIOUS RISKS ...................................................................... 110
[10.270] Common law ............................................................... 110
[10.290] Civil liability legislation .................................................... 111

General principles
[10.10] Once it is established that a duty of care is owed, the next step is
to determine if the duty has been breached. This involves consideration of
whether the defendant’s conduct fell below the standard of care expected
of a reasonable person.

Blyth v Birmingham Waterworks Co

[10.20] Blyth v Birmingham Waterworks Co (1856) 11 Ex 781
Negligence is the omission to do something which a reasonable man [sic] guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.

Alderson B at 782

[10.30] What amounts to the standard of care expected of a reasonable

person is a question of law. In the majority of cases, the standard required
will be that of the hypothetical “reasonable person”, although in a few
circumstances the court is prepared to adjust the standard to accommodate
particular characteristics of the defendant that can be objectively measured.
Standard of care is considered in the next chapter.
 CHAPTER 10 BREACH OF DUTY / 103

The test
[10.40] Determining whether the standard has been breached (or,
alternatively stated, whether there has been a breach of the duty of care
owed) is a question of fact. The test to be applied (which is based on the
previous common law position as stated by Mason J in Wyong Shire Council
v Shirt (1980) 146 CLR 40 with minor modification) is contained in the civil
liability legislation of each jurisdiction.

Civil Liability Act 2003 (Qld)

[10.50] Civil Liability Act 2003 (Qld), s 9(1)
(1) A person does not breach a duty to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought
reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would
have taken precautions.
[SEE ALSO • CLWA (ACT) s 43; CLA (NSW) s 5B; CLA (SA) s 32; CLA (Tas) s 11; WrA (Vic)
s 48; CLA (WA) s 5B.]

[10.60] The test requires determination of three questions. Was the risk of
harm foreseeable? Was the risk not “insignificant”? If so, would a
reasonable person in the position of the defendant have taken precautions
to avoid the risk?

Foreseeability of the risk of harm

[10.70] Foreseeability arises at each stage of the negligence determination.
For duty it is concerned with the foreseeability of the plaintiff, for breach it
is concerned with the foreseeability of the risk of injury. A defendant can
only be liable for an injury if they had knowledge of the risk of injury or
they ought to have foreseen the possibility of the risk of injury. The plaintiff
need only establish that the general nature of the risk of injury was
foreseeable.
104 LAWBRIEF: TORTS

Doubleday v Kelly
[10.80] Doubleday v Kelly [2005] NSWCA 151

FACTS • The seven-year-old plaintiff was injured when she attempted to roller-skate on a
trampoline in the backyard of her friend’s place. She sued her friend’s parents for failing to
supervise use of the trampoline. The defendants claimed that it was not foreseeable that
the plaintiff would attempt to roller-skate on the trampoline. In other words, that the risk
of injury from roller-skating on the trampoline was not reasonably foreseeable.

HELD • The defendants were liable. Although it may not have been foreseeable that the
girls would attempt to roller-skate on the trampoline, it was reasonably foreseeable that
they may have used the trampoline unsupervised, which involved a risk of injury. In the
circumstances, the risk of injury was generally foreseeable and a reasonable person could
have avoided the risk by merely turning the trampoline over to prevent its use.
[SEE ALSO • Wyong Shire Council v Shirt (1980) 146 CLR 40; Vairy v Wyong Shire Council
(2005) 223 CLR 422; [2005] HCA 62.]

[10.90] Whether or not the risk of injury was foreseeable cannot be

determined with the benefit of hindsight. See for example, Adeels Palace Pty
Ltd v Moubarak (2009) 239 CLR 420. In that case the High Court held that
the risk that a disgruntled patron would return to a restaurant with a gun
and injure other patrons and staff was not a risk of harm that the
defendant, the restaurant owner, ought reasonably to have foreseen.

Not insignificant risk

[10.100] Under the common law, the requirement that the risk of injury be
reasonably foreseeable was said to be satisfied whenever the risk of injury
was not “far-fetched and fanciful” (Wyong Shire Council v Shirt (1980) 146
CLR 40). This test was criticised as being too broad and undemanding. In
fact, it was said that it was “hard to imagine a happening which could not
be described as foreseeable” (Inverell Municipal Council v Pennington [1993]
Aust Torts Reports 81-234). As a result, the Ipp Panel recommended that the
risk of injury be “not insignificant”. The use of double negatives was used
to describe a risk that, while not as high as significant, was of a higher
probability than “far-fetched and fanciful”. The requirement that the risk of
injury be not insignificant has been said to be more demanding than the
common law position, but “not by very much” (Shaw v Thomas [2010] Aust
Torts Reports 82-065 at [44]).
 CHAPTER 10 BREACH OF DUTY / 105

Response to the risk – the negligence calculus

[10.110] Just because a risk of harm is reasonably foreseeable and not
insignificant is not sufficient to establish liability. It must also be shown that
a reasonable person would have taken precautions in response to the risk
that in turn would have avoided injury to the plaintiff. Again this must be
considered prospectively, not with the benefit of hindsight (Vairy v Wyong
Shire Council (2005) 223 CLR 422 at [124], [127]–[128]). Mirroring the
common law (Wyong Shire Council v Shirt), the civil liability legislation in
each jurisdiction requires a court to consider and balance a number of
factors, often referred to as the “calculus of negligence” in order to
determine whether the defendant should have taken precautions.

Civil Liability Act 2003 (Qld)

[10.120] Civil Liability Act 2003 (Qld), s 9(2)
(2) In deciding whether a reasonable person would have taken precautions against a risk
of harm, the court is to consider (among other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
[SEE ALSO • CLWA (ACT) s 43(2); CLA (NSW) s 5B(2); CLA (SA) s 32(2); CLA (Tas)
s 11(2); WrA (Vic) s 48(2); CLA (WA) s 5B(2).]

[10.130] The question is one of fact and, as can be seen from the various
cases and individual judgments, views as to what amounts to a reasonable
response to the risk of harm varies significantly among the judiciary. (See,
for example, Cole v South Tweed Heads Rugby League Football Club Ltd (2004)
217 CLR 469; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460;
Neindorf v Junkovic (2005) 222 ALR 631; Vairy v Wyong Shire Council (2005)
223 CLR 422; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR
330.)
106 LAWBRIEF: TORTS

Probability of harm occurring

[10.140] Even though a risk of injury may be foreseeable, the probability
or likelihood of it occurring may be very small. Where the likelihood of
injury occurring is very small, a defendant may be justified in failing to
take precautions to avoid the risk. The risk of injury must be correctly
identified and defined.

Roads and Traffic Authority of NSW v Dederer

[10.150] Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330

FACTS • The 14 year old plaintiff dived from a bridge into shifting tidal waters suffering
catastrophic injuries. There were signs prohibiting jumping or diving but the plaintiff
thought it was safe as he had seen people jumping and diving from the bridge without
injury on other occasions. The plaintiff claimed that the signs should have been more
explicit and the railings on the bridge modified (in line with changes in standards since
construction of the bridge many years earlier).

HELD • Evidence suggested the defendants (RTA and council) had been aware that
people had been jumping and diving from the bridge for many years (although there had
been no other injuries). The majority of the High Court disapproved of the Court of
Appeal’s identification of the risk as one of serious spinal injury from diving off the bridge.
Instead the High Court confirmed that the focus should have been on the risk of injury
from impact with the potentially shallow water and shifting sands. Viewed this way, the
probability of injury occurring was low and the defendants were justified in taking no
further precautions than the signs they had erected.
[SEE ALSO • Derrick v Cheung [2001] HCA 48; Bolton v Stone [1951] AC 850; Shaw v
Thomas [2010] Aust Torts Reports 82-065]

Likely seriousness of the harm

[10.160] The more serious the likely consequences of the defendant’s
conduct, the greater the precautions the defendant should take to avoid the
risk (Caledonian Collieries Ltd v Spiers (1957) 97 CLR 202).

Paris v Stepney Borough Council

[10.170] Paris v Stepney Borough Council [1951] AC 367

FACTS • The plaintiff was employed by the defendant to work in his garage as a fitter. The
 CHAPTER 10 BREACH OF DUTY / 107

defendant was aware that the plaintiff was blind in his left eye. While the plaintiff was
hammering, a fragment of metal flew off a bolt and lodged in his right eye, leaving him
totally blind. The plaintiff claimed the defendant was negligent in failing to provide safety
goggles.

HELD • The defendant was liable. The defendant was aware that the plaintiff had sight in
only one eye and should have taken added precautions to protect the plaintiff from the
foreseeable risk of injury that had the potential for such serious consequences for the
plaintiff.

Burden of taking precautions

[10.180] The plaintiff will be required to establish that it was reasonably
practicable for the defendant to take precautions. The burden (including
the cost and practicability) of taking precautions is a significant factor in
determining breach and often involves a great deal of debate in the cases.

Woods v Multi-Sport Holdings Pty Ltd

[10.190] Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460

FACTS • During a game of indoor cricket, the plaintiff was struck by a ball and suffered a
serious eye injury. He alleged that the defendant, who owned and operated the indoor
cricket facility, breached the duty of care owed by failing to provide the players with
protective headgear and failing to warn of the risk of injury. The trial judge and the Full
Court found for the defendant. The plaintiff appealed to the High Court.

HELD • By a majority of 3:2, the appeal was dismissed. The majority considered that
indoor cricket (played at high speed in confined spaces) was a contact sport that carried a
high risk of collision between players and a risk of being hit by balls. Evidence before the
court established that there were approximately two serious eye injuries from indoor
cricket (played by approximately 12,500 people) each year. The plaintiff was an adult who
voluntarily played the game with knowledge of the risk of injury. No headgear had been
designed for the game, it was not provided elsewhere and it would be inconvenient if worn
and posed other risks of injury from players colliding. On balance it was not practicable for
headgear to be provided. As risk of injury was obvious, and it would not be practical to
warn of all possible types of injury, there was no need to warn of the specific risk of eye
injury.
[SEE ALSO • Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR
431; Swain v Waverley Municipal Council (2005) 220 CLR 517. Failure to warn of obvious
and inherent risks is now also covered by legislation and is considered later in this chapter
108 LAWBRIEF: TORTS

and under defences (Chapter 16).]

[10.200] Other matters the court will consider in determining the burden
or practicality of taking precautions include:
• The expense, difficulty and inconvenience involved in adoption of the
precautions (Caledonian Collieries Ltd v Spiers (1957) 97 CLR 202).
• The burden of taking precautions for all similar risks of harm that the
defendant may be required to avoid (Romeo v Conservation Commission
(NT) (1998) 192 CLR 431. See also: CLWA (ACT) s 44; CLA (NSW) s 5C;
CLA Qld) s 10; CLA (TAS) ss 11(3) and s 12; WrA (Vic) s 49).
• The overall functions, responsibilities and budgetary constraints of
public authorities (CLWA (ACT) s 110; CLA (NSW) s 42; CLA (Qld) s 35;
CLA (Tas) s 38; WrA (Vic) s 83; CLA (WA) s 5W).
• The fact that the defendant adopts precautions after the incident is not
conclusive evidence that the defendant was in breach of the duty of care
(Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201; Mulligan v Coffs
Harbour City Council (2005) 223 CLR 486; [2005] HCA 63). See also: CLWA
(ACT) s 44(b); CLA (NSW) s 5C(b); CLA (Qld) s 10(c); CLA (Tas) s 12(a);
WrA (Vic) s 49(b). However, adoption of precautions after the incident
may provide evidence that the taking of such precautions was
practicable (Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201).
• Depending on the likelihood and the gravity of the potential risk, the
court may find that “drastic measures” are required. See Caledonian
Colleries Ltd v Spiers (1957) 97 CLR 202, where the court held that
provision of catch points on a rail line which would derail runaway rail
trucks was a reasonable response to the dangers caused by the runaway
trucks at a level crossing.

Social utility of the defendant’s activity

[10.210] The court will also consider whether the social utility of the
activity the defendant was undertaking justified the risk of injury to the
individual plaintiff.

Watt v Hertfordshire County Council

[10.220] Watt v Hertfordshire County Council [1954] 1 WLR 835

FACTS • The plaintiff fireman was injured when a heavy jack that was unsecured on the
back of a fire truck slipped and rolled against him. The fire truck was on its way to assist a
woman trapped under a heavy vehicle. The fire truck that normally carried the jack in a
 CHAPTER 10 BREACH OF DUTY / 109

secured position was out on another job at the time. The plaintiff sued the defendant
council, claiming it was negligent to allow the jack to be carried on the truck without being
properly secured.

HELD • While the risk of injury was foreseeable, that risk had to be balanced against the
utility of the defendant’s activity. Due to the emergency and the need to act quickly to save
the trapped woman, the defendant was justified in taking the small risk of injury posed by
carrying the jack unsecured.
[SEE ALSO • E v Australian Red Cross Society (1991) 27 FCR 310; PQ v Australian Red Cross
Society [1992] 1 VR 19; Rhodes v Lake Macquarie City Council [2010] Aust Torts Reports
82-073.]

Other relevant matters

The relevance of statutory standards
[10.230] Some statutory provisions provide safety standards for particular
activities. Where a defendant breaches a statutory provision it may be
taken into account in determining whether there has been a breach of duty,
although it is not always conclusive.

Fox v Hack
[10.240] Fox v Hack [1984] 1 Qd R 391

FACTS • The plaintiff’s employment required him to lift heavy building blocks, some of
which were heavier than the weight allowed under the industrial award for manual lifting.
When the plaintiff suffered a back injury as a result of the repetitive lifting, he sued his
employer, claiming the employer was negligent in failing to provide a safe system of work.

HELD • Evidence of the award requirement was admissible. Here the award requirement
for manual lifting was reasonable and provided evidence of the standard expected of an
employer in the building trade. As the defendant had fallen below that standard, liability
was established.
[SEE ALSO • Fatur v IC Formwork Services Pty Ltd (2000) 155 FLR 70; Sibley v Kais (1967)
118 CLR 424; Tucker v McCann [1948] VLR 222.]

Common practice at the time of the accident

[10.250] In some cases, the defendant will seek to escape liability by
claiming that the activity undertaken followed a common practice.
110 LAWBRIEF: TORTS

Mercer v Commissioner for Road Transport and Tramways

[10.260] Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580

FACTS • The plaintiff was injured after the driver of the tram he was travelling in
collapsed at the controls, allowing the tram to continue out of control, eventually colliding
with another tram. The plaintiff claimed the defendant was negligent in failing to install a
“dead man’s handle” in its trams, which would automatically cut off the engine and bring
the tram to a stop when pressure on the controls was released. The defendant argued that
as such devices were not used in other tramway systems it was not a reasonable
precaution.

HELD • While evidence that the defendant followed a common practice may be an
important evidentiary fact, it does not establish that the defendant was acting reasonably.
The common practice itself may be negligent. This is a matter for the court to determine
and in this case it was held that the defendant had breached the duty of care by failing to
install the device.
[SEE ALSO • Erwin v Iveco Trucks Australia Ltd (2010) 267 ALR 752.]

Obvious risks
Common law
[10.270] As noted at [10.180], the obviousness of the risk of injury may be
relevant in determining whether the defendant breached the duty of care
(Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460). The High Court
has noted, however, that obviousness of risk is not conclusive of the
question of breach (this has been altered by virtue of civil liability
legislation in relation to the duty to warn in some jurisdictions). Each case
will depend on its own facts, with obviousness of the risk just one of the
relevant factors to be taken into account in determining whether the
defendant should have taken precautions to avoid the risk of injury.

Vairy v Wyong Shire Council

[10.280] Vairy v Wyong Shire Council (2005) 223 CLR 422

FACTS • The appeal in Vairy was heard together with the case of Mulligan v Coffs Harbour
City Council (2005) 223 CLR 486. In both cases, the plaintiffs, who were young men,
suffered serious injury after diving into shallow water and striking their heads on sand. In
 CHAPTER 10 BREACH OF DUTY / 111

Vairy, the plaintiff had dived from a natural rock platform into the sea below. In Mulligan,
the plaintiff had dived into a creek. Both plaintiffs claimed the defendant should have
provided a sign, warning of the dangers of diving.

HELD • The risk of diving into waters of unknown depth carried with it obvious risks of
injury. The judges placed varying significance on the fact of obviousness. The majority
agreed, however, that obviousness of the risk was not conclusive of the question of breach
but only one relevant factor to be taken into account. Other relevant factors included the
fact that the council did not create the risk or have sufficient control over it. Imposing a
requirement for signs at the particular spot where the injury occurred would impose
burdens on the authorities to provide signs all along the coast or creek areas under their
control. When all matters were balanced it was held the defendants were not liable in
either case (by majority of 4:3 in Vairy; unanimous decision in Mulligan).
[SEE ALSO • Neindorf v Junkovic (2005) 222 ALR 631; Romeo v Conservation Commission
of the Northern Territory (1998) 192 CLR 431; Clarke v Coleambally Ski Club Inc [2004]
NSWCA 376 cf Nagle v Rottnest Island Authority (1993) 177 CLR 423.]

Civil liability legislation

[10.290] Under civil liability legislation, in a number of jurisdictions, a
defendant does not owe a duty to warn a plaintiff of an obvious risk. An
exception applies where the plaintiff requests information about the risk, or
the defendant is obliged under written law to warn of the risk, or the
defendant is a professional and the risk relates to personal injury or death
(CLA (NSW) s 5H; CLA (Qld) s 15; CLA (SA) s 38; CLA (Tas) s 17; CLA
(WA) s 5O). Obvious risk is defined in the legislation and includes risks
that “would have been obvious to a reasonable person in the position of the
plaintiff”. This may include risks that have a low probability of occurring
or are not “prominent, conspicuous or physically observable” (CLA (NSW)
s 5G; CLA (Qld) s 13; CLA (SA) s 37; CLA (Tas) s 5N; WrA (Vic) s 54; CLA
(WA) s 5F). See also Laoulach v Ibrahim [2011] NSWCA 402 cf Queensland v
Kelly [2014] QCA 027.
MindMap10

Breach of Duty

Step One: Was the risk of injury reasonably Step Two: Would a reasonable person take
Other Relevant things
foreseeable and not insignificant? precautions in response to the risk?
Civil Liability Legislation
Civil Liability Legislation Civil Liability Legislation

Reasonable foreseeability 1. Probability of harm Examples of other things

of risk of injury relevant to the Step Two
Less probable – less likely question include:
General nature of risk not to need to take precautions
specific RTA (NSW) v Dederer Statutory standards

Doubleday v Kelly 2. Likely seriousness Fox v Hack

of harm
Must consider prospectively Common practice
(not with benefit of hindsight) More serious greater
precaution Mercer v Commissioner
Adeels Palace v Moubarak Paris v Stepney BC for Transport
Under CLA – no duty to
Not insignificant risk 3. Burden of taking Obvious risk warn of obvious risk
precautions Laoulach v Ibrahim
Vairy v Wyong Shire
Shaw v Thomas Council
Cost and practicality

Woods v Multi-Sport
Holdings
Caledonian Collieries
Ltd v Spiers

Burden for similar

risks/Overall functions of
statutory authority – CLA

Romeo v Conservation
KEY POINT Breach of Duty Commission

Breach of duty is a question of fact

4. Social utility of activity
Court must apply two stage test as per
the Civil Liability Legislation (CLA) Watt v Hertfordshire CC
Chapter 11

Standard of care
Standard of care
[11.10] SETTING THE STANDARD OF CARE — WHO IS THE “REASONABLE
PERSON”?.............................................................................. 114
[11.20] CHILDREN.............................................................................. 115
[11.40] MENTAL ILLNESS AND DISABILITY .............................................. 116
[11.70] PLAINTIFF’S KNOWLEDGE OF THE DEFENDANT’S DIMINISHED
ABILITY.................................................................................. 116
[11.70] Inexperience ................................................................ 116
[11.90] DEFENDANT’S SPECIAL SKILL.................................................... 117
[11.100] THE POSITION OF MEDICAL AND OTHER PROFESSIONALS ............ 118
[11.100] The common law .......................................................... 118
[11.130] Civil liability legislation .................................................... 119
[11.140] ISSUES OF PROOF .................................................................. 120
[11.140] Onus of proof .............................................................. 120
[11.150] Proof by inference ......................................................... 120
[11.170] TIME FOR ASSESSING THE STANDARD OF CARE.......................... 121
[11.200] RES IPSA LOCITUR — THE FACTS SPEAK FOR THEMSELVES ......... 121

Setting the standard of care — who is the “reasonable

person”?
[11.10] The last chapter considered the question of breach of duty. It was
noted that breach of duty involves a determination of whether the
defendant’s conduct fell below the standard expected of a reasonable
person. By referring to the standard of the reasonable person, the court is
imposing an objective test. In other words, a defendant’s conduct will be
measured against a hypothetical standard that would be considered
reasonable by community standards (McPherson v Whitfield [1996] 1 Qld R
474 at 483).
However, it is clear that not all people will respond to a risk of harm in
the same way. The most obvious example is that of a child, whose response
to a risk could not be expected to be the same as that of an adult. In such
circumstances, the question arises: should the court adjust the standard of
care required, to take into account the particular characteristics of the
defendant?
There are only a few situations where the court is prepared to adjust the
standard of care by endowing the reasonable person with the particular
 CHAPTER 11 STANDARD OF CARE / 115

qualities of the defendant. As the court is at pains to stress, the test remains
objective. The test takes into account the information that a reasonable
person in the position of the defendant would have had, or ought to have
had in his/her possession.
The standard of care required in each case is a question of law (Glasgow
Corporation v Muir [1943] AC 448 at 454). In the ACT and South Australia
the civil legislation makes specific mention of the standard of care that can
be expected of the reasonable person (CLA (SA) s 31(1); CLWA (ACT) s 42).
Each of the circumstances or characteristics that may (or may not) adjust
the standard of care are examined below at [11.20]–[11.130].

Children
[11.20] The court will lower the standard of care for a defendant child to a
standard that would be expected of an “ordinary”, reasonable child of a
similar age.

McHale v Watson
[11.30] McHale v Watson (1965) 115 CLR 199

FACTS • The defendant, aged 12, threw a homemade steel dart at a wooden post. The
dart glanced off the post and hit the nine-year-old plaintiff in the eye, blinding her. She
sued the defendant in negligence and trespass. The plaintiff alleged that the defendant
was negligent in throwing the dart. One of the questions before the court was whether the
standard to be applied to the defendant was that of the “reasonable man” (who would be
taken to be an adult) or that of a reasonable child of 12 years of age.

HELD • The appropriate standard of care was the standard “to be expected of an ordinary
child … of comparable age” (Kitto J at 215). In applying that standard, the court said the
test is to be applied objectively and would not take into account any peculiar idiosyncrasies
of the child, such as “abnormal” inexperience or disabilities. The defendant was not held
liable as his conduct did not fall below the standard of a reasonable 12-year-old child.
[SEE ALSO • Griffiths v Wood [1994] Aust Torts Reports 81-274. See also Zanner v Zanner
(2010) 79 NSWLR 702 where an 11 year old child was held to breach the standard of care
owed when he drove his mother’s vehicle under her supervision and his foot slipped from
the brake to the accelerator injuring his mother.]
116 LAWBRIEF: TORTS

Mental illness and disability

[11.40] Mental illness and physical disabilities will not be taken into
account in determining the standard of care of the defendant. The standard
will remain that of the “reasonable person” without such disabilities.

Carrier v Bonham
[11.50] Carrier v Bonham [2002] 1 Qd R 474

FACTS • The defendant, who was suffering from chronic schizophrenia, stepped in front
of a bus in an attempt to commit suicide. The plaintiff, who was driving the bus, suffered a
severe adjustment disorder and was forced to give up his job. He sued the defendant in
negligence. One of the questions before the court was whether the standard to be applied
to the defendant was that of the reasonable person (who would be not be suffering from
the mental illness) or could be lowered to take into account the defendant’s mental
incapacity.

HELD • The standard to be applied was that of the reasonable sane person. Unlike a
child, it was not possible to objectively assess the standard of “an ordinary reasonable
person suffering from mental illness” (McMurdo J at [8]).
[SEE ALSO • Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56.]

[11.60] Where the defendant suffers a sudden incapacity, for example, a

heart attack, which then causes the negligent conduct, the defendant will
not be liable (Waugh v James K Allan Ltd [1964] SC (HL) 102). However, if
there is any advance warning of the impairment, or the defendant should
have known of the possible impairment, the defendant will be liable
(Roberts v Ramsbottom [1980] 1 All ER 7). See also: Leahy v Beaumont (1981)
27 SASR 290, where the defendant was held liable for negligent driving
that occurred after he lost consciousness through a coughing fit. The court
held he had sufficient time between the start of the coughing and loss of
consciousness to pull safely off the road.

Plaintiff’s knowledge of the defendant’s diminished ability

Inexperience
[11.70] A defendant’s inexperience will not lower the standard of care.
Although there used to be an exception in learner driver/ supervisor
situations where the plaintiff (supervisor) had full knowledge of the
 CHAPTER 11 STANDARD OF CARE / 117

defendant’s inability to perform at the normal skill of the reasonable driver

(Cook v Cook (1986) 162 CLR 376), as the next case at [11.80] shows, this is no
longer the situation.

Imbree v McNeilly
[11.80] Imbree v McNeilly (2008) 236 CLR 510

FACTS • The plaintiff allowed the 16 year old defendant to drive his four wheel drive
vehicle on a gravel road in the Northern Territory. The plaintiff was a front seat passenger
at the time. The plaintiff knew that the defendant was unlicenced, did not hold a learner’s
permit and had limited driving experience. The plaintiff suffered serious injury when the
defendant lost control of the car attempting to avoid debris on the road. The court had to
determine the standard of care to apply. Should it be that of the reasonable competent
driver or the inexperienced, unlicensed novice (as had been held previously in Cook v Cook
(1986) 162 CLR 376)?

HELD • The High Court considered that the exception in Cook v Cook created an
anomaly that was unwarranted. The court noted that the learner driver owed to all other
road users and passengers the standard of care of a reasonable driver. Creating an
exception for the supervising passenger meant that there would be different standards
applied for different plaintiffs, despite the fact that conduct of the defendant was the same.
In overturning Cook v Cook the High Court held that the defendant’s inexperience was
irrelevant and did not alter the standard of care owed to the plaintiff. The standard owed to
all road users, including those with knowledge of his inexperience, was that of the
reasonable driver.

Defendant’s special skill

[11.90] Defendants who represent that they possess certain skills will be
held to the higher standard of care expected of a person possessing such
skills. So, for example, a person practising a profession such as a solicitor,
accountant or engineer is held to owe the standard of care expected of a
reasonable skilled person practising that profession (Hawkins v Clayton
(1988) 164 CLR 539 at 580). Specialist skills within a profession will also be
taken into account in assessing the standard owed (Rogers v Whittaker
(1992) 175 CLR 479, specialist eye doctor owed higher standard of care than
general practitioner).
118 LAWBRIEF: TORTS

The position of medical and other professionals

The common law
[11.100] In 1992, in a landmark Australian case, the High Court rejected
the United Kingdom’s “Bolam principle”. This principle, which derived
from Bolam v Frien Barnet Hospital Management Committee [1957] 2 All ER
118, allowed a defendant doctor to escape liability where it was established
that they had adopted a practice that was considered reasonable by a
responsible body of medical opinion.
According to the High Court, such a test ran the risk of denying a
patient the right to be fully informed and to make decisions regarding their
own medical treatment. It was more appropriate for the court to determine
both the standard of care required and the question of breach, having
regard to the opinion of the medical profession and the patient’s desire for
information.

Rogers v Whittaker
[11.110] Rogers v Whittaker (1992) 175 CLR 479

FACTS • The plaintiff had been almost totally blind in her right eye since she was nine
years old. The defendant, an ophthalmic surgeon, operated on the eye to remove scar
tissue. He performed the operation without negligence however the plaintiff suffered a
rare reaction, known as sympathetic ophthalmia, which caused blindness in her good left
eye. This rendered her almost completely blind. The plaintiff sued the defendant, claiming
that he was negligent in failing to inform her of this inherent risk of the surgical procedure.
There was evidence that, according to a body of medical opinion, a patient need not be
advised of this very small risk (approximately one in 14,000) unless they specifically
requested such information.

HELD • Dr Rogers was liable. The Bolam principle was not appropriate to the provision of
advice and information that a patient required in order to be fully informed and to make
decisions regarding their treatment. It was held that a doctor has a duty to warn of
“material risks” inherent in the proposed treatment. Material risks include those risks that
a reasonable person in the position of the plaintiff would be likely to consider significant.
As the plaintiff had asked a number of questions and was particularly concerned to know
of any risks to her bad eye, it was held that she would have considered the risk to her good
eye as material.
 CHAPTER 11 STANDARD OF CARE / 119

[11.120] Rejection of the Bolam principle was extended to all medical

situations including diagnosis and treatment by the High Court (by
implication) in Naxakis v Western General Hospital (1999) 197 CLR 269.

Civil liability legislation

[11.130] In light of the Ipp Panel’s recommendations, civil liability
legislation in all jurisdictions apart from the Australian Capital Territory
and Northern Territory now provides for a modified version of the Bolam
principle. The relevant provisions apply to professionals in relation to the
provision of services. “Professional” is defined in New South Wales,
Queensland, South Australia, Tasmania and Victoria, as a person “practising
a profession”. In Western Australia the provisions apply only to health
professionals.
The legislation allows the defendant to escape liability if the defendant
was acting in a way that was widely accepted as competent service by peer
professional opinion. In Queensland and Victoria a significant number of
respected practitioners in the field must hold that view. It does not matter
that the practice is merely one of a number of practices that may be
considered competent, or that the practice is not universally considered
competent. The court retains an overriding discretion to disregard the peer
professional opinion where such is considered by the court to be irrational
(or unreasonable in Victoria and Western Australia). See CLA (NSW) s 5O;
CLA (Qld) s 22; CLA (SA) s 41(1); CLA (Tas) s 22; WrA (Vic) s 59; CLA (WA)
s 5PB. In Queensland, New South Wales, Victoria and Tasmania, the
statutory test does not apply to advice or warnings associated with the
professional service being undertaken (CLA (NSW) s 5P; CLA (Qld) s 22(5);
WrA (Vic) s 60; CLA (Tas) s 22(5)). In New South Wales it has been held that
the provision (CLA (NSW) s 5O) operates as a defence (Dobler v Halverson
(2007) 70 NSWLR 151; Sydney South West Area Health Services v MD (2009)
260 ALR 702).
For medical professionals, the duty to warn of material risks as outlined
in Rogers v Whittaker (1992) 175 CLR 479 has been embodied in civil liability
legislation in Queensland and Tasmania. These provisions require a doctor
to provide a patient with information a reasonable person in the plaintiff’s
position would require (proactive duty) and information the doctor ought
to know that the particular patient wants to know (reactive duty) (CLA
(Qld) s 21(1); CLA (Tas) s 21).
120 LAWBRIEF: TORTS

Issues of proof
Onus of proof
[11.140] The onus of proving negligence rests on the plaintiff, who must
prove on the balance of probabilities that the defendant breached the duty
of care owed. Determining the standard owed is a question to be
determined by the judge as a matter of law. Breach is a question of fact to
be determined by the jury, or the judge sitting as a trier of fact without a
jury. It should be noted that only decisions of law can become precedent,
not decisions of fact (Swain v Waverley Municipal Council (2005) 220 CLR
517; 213 ALR 249 at [140]).

Proof by inference
[11.150] Where there are no independent witnesses and the parties
themselves are unable or unwilling to provide reliable evidence of what
occurred, the court may need to rely on inferences drawn from the
evidence to determine whether there has been a breach of duty. For the
defendant to be held liable, the inference of negligence must be more
probable than not; mere conjecture is insufficient.

Holloway v McFeeters
[11.160] Holloway v McFeeters (1956) 94 CLR 470

FACTS • The plaintiff’s husband was killed in a hit and run accident. She sued the
nominal defendant (a state insurance authority), as the driver could not be found. The
plaintiff bore the onus of proving the motorist negligently caused her husband’s death.
There were no witnesses to the accident. The only evidence available was the position of
the dead body in the middle of the road, the tyre marks on the road, mud and dirt at the
end of the tyre marks, and the excessive alcohol in the husband’s blood.

HELD • The defendant was liable. There was sufficient evidence to infer that it was more
probable than not that the motorist had been driving negligently. Although it was dark,
the visibility was good and the length of the tyre marks indicated the driver was most likely
speeding. Furthermore, the fact that the driver failed to stop also bore some evidential
weight.
[SEE ALSO • TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; Nestercuk v Mortimore
(1965) 115 CLR 140; West v Government Insurance Office of NSW (1981) 148 CLR 62.]
 CHAPTER 11 STANDARD OF CARE / 121

Time for assessing the standard of care

[11.170] The defendant’s conduct will be assessed against the relevant
standard of care at the time of the alleged breach. In other words, the
standard of care cannot be set with the benefit of hindsight.

Roe v Minister of Health

[11.180] Roe v Minister of Health [1954] 2 QB 66

FACTS • Two men were given a spinal anaesthetic on the same day, prior to a minor
operation. Afterwards they both became paralysed from the waist down. It was discovered
that the ampoules in which the anaesthetic had been stored had developed minute cracks
invisible to the naked eye, through which disinfectant had seeped. The disinfectant had
caused the injury. Both claimed that the doctors were negligent in failing to colour the
disinfectant, and/or allowing the ampoules to crack.

HELD • At the time this occurred it was not known that ampoules could develop such
minute undetectable cracks and, therefore, the likelihood that such an injury could occur
was unforeseeable. Due to the knowledge of the time, the doctors were not liable.
[SEE ALSO • H v Royal Alexandra Hospital for Children [1990] Aust Torts Reports 81-100. In
relation to professionals, see also CLWA (ACT) s 42; CLA (NSW) s 5O; CLA (Qld) s 22(1);
CLA (SA) s 41 (also s 31, which provides a similar provision to all defendants); CLA (Tas)
s 22; CLA (WA) s 5PB; WrA (Vic) s 59.]

[11.190] The fact that a defendant takes action after the alleged breach to
avoid a similar incident is not evidence of a breach of duty (CLWA (ACT)
s 44(c); CLA (NSW) s 5C(c); CLA (Qld) s 10(c); CLA (Tas) s 12(b); WrA (Vic)
s 49(c)). However it may be evidence that the action taken was a practicable
precaution that could have been taken to avoid the accident (Caledonian
Collieries Ltd v Spiers (1957) 97 CLR 202).

Res ipsa locitur — the facts speak for themselves

[11.200] In some circumstances, the very fact that the plaintiff has suffered
an injury can be used to infer a finding that it was caused by the
defendant’s negligence. The maxim res ipsa locitur is a rule of evidence that
allows a plaintiff to argue that, because he/she suffered damage in a certain
way, it can be inferred that the defendant must have been negligent. So, for
example, the fact that the plaintiff was injured when a barrel of flour fell
122 LAWBRIEF: TORTS

from the upper storey of the defendant’s shop was sufficient to infer
negligence on the part of the defendant (Byrne v Boadle (1863) 159 ER 299).
While res ipsa locitur provides an inference of negligence, it does not
necessitate such a finding (Davis v Bunn (1936) 56 CLR 246). Furthermore,
while the inference may require an explanation from the defendant to
avoid a finding of negligence, the onus of proving negligence remains with
the plaintiff (Mummery v Irvings Pty Ltd (1956) 96 CLR 99).
For res ipsa locitur to apply, three conditions must be met (Schellenberg v
Tunnel Holdings [2000] Aust Torts Reports 81-553):
1 The accident must be one that would not normally occur without
negligence (Byrne v Boadle; Fitzpatrick v Cooper (1935) 54 CLR 200).
2 The thing causing the accident must be under the control of the
defendant.
3 There is no explanation as to how the accident was caused (Mummery v
Irvings Pty Ltd (1956) 96 CLR 99).

Schellenberg v Tunnel Holdings

[11.210] Schellenberg v Tunnel Holdings [2000] Aust Torts Reports 81-553

FACTS • The appellant was injured at work when a hose that was carrying compressed air
into a tool that he was using came loose and hit him in the face. He sued his employer in
negligence. Unable to prove any specified act of negligence on behalf of the employer, he
claimed res ipsa locitur; the very fact of the accident inferred negligence on the part of
the employer.

HELD • The maxim res ipsa locitur did not apply in this case. As the trial judge had
concluded that the accident occurred through the hose separating from the coupling to
which it was attached, a cause of the accident was established. It was then necessary for
the plaintiff to establish on the balance of probabilities that this had occurred through the
defendant’s negligence (for example, in failing to provide a safe inspection system). As
there were a number of possible explanations for the occurrence of the accident, it could
not be said that this was an accident that would not normally occur without negligence.
[SEE ALSO • Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Crook v Thyssen Mining
Construction of Australia Pty Ltd [1992] 9 SR (WA) 10; Russell v London and South Western
Railway (1908) 24 TLR 548.]
MindMap11

Standard of Care

The Hypothetical Adjusting the Standard Medical and Other

Issues of Proof
Reasonable Person of Care Professionals

Defendant’s conduct May be lower standard for Doctors at common law – Plt bears onus of proof
measured against the children duty to warn of all Swain v Waverley MC
hypothetical reasonable material risks (rejection of
person McHale v Watson Bolam principle) Time for assessing risk

McPherson v Whitfield No adjustment for an Rogers v Whittaker

Measured against standard
inexperienced driver at time, not with hindsight
The standard of care Under CL Legislation Roe v Minister of Health
required in each case is a Imbree v McNeilly reintroduction of modified
question of law Bolam principle Action taken after event not
Or the mentally impaired proof of breach: see CL
Glasgow Corporation v Muir legislation
Under CL Legislation
Carrier v Bonham defendant not liable if But not if opinion
Proof by inference
acting in a way that was is irrational/
Higher standard will apply widely accepted as unreasonable
competent service by Holloway v McFeeters
where the defendant holds
special skills peer professional opinion
Res Ipsa Locitur – the
Rogers v Whittaker Applies to all professionals facts speak for
(except WA – only applies to themselves
health professionals)
Schellenberg v Tunnel
Dobler v Halverson Holdings

Under CL Legislation in Qld

and Tas; Dr has reactive
and proactive duty to
warn of risks.
KEY POINT
• Civil Liability (CL) legislation should
be consulted particularly in relation
to medical and other professionals
Chapter 12

Factual causation
Factual causation
[12.10] INTRODUCTION....................................................................... 124
[12.20] RECOGNISABLE FORM OF HARM ............................................... 124
[12.30] FACTUAL CAUSATION............................................................... 125
[12.30] At common law ............................................................ 125
[12.100] The legislative approach ................................................. 127
[12.120] Factual causation, material contribution and “exceptional
cases”........................................................................ 128
[12.150] Loss of chance and failure to warn .................................... 129
[12.190] Liability for successive injuries .......................................... 131
[12.210] ONUS OF PROOF .................................................................... 132

Introduction
[12.10] As harm is the essence of a negligence action, the plaintiff will be
required to establish that he/she suffered a recognisable form of harm that
was caused by the defendant’s breach of duty. Whether the defendant’s
breach caused the harm will require a determination of both factual
causation and what is referred to under civil liability legislation in all
jurisdictions (except Northern Territory) as the “scope of liability” (CLWA
(ACT) s 45; CLA (NSW) s 5D; CLA (Qld) s 11; CLA (SA) s 34; CLA (Tas)
s 13; WrA (Vic) s 51; CLA (WA) s 5C).

Recognisable form of harm

[12.20] Under the various civil liability provisions, harm is defined as
including: (a) personal injury or death; (b) damage to property; (c)
economic loss (CLWA (ACT) s 40; CLA (NSW) s 5; CLA (Qld) Sch 2; CLA
(SA) s 3; CLA (Tas) s 9; WrA (Vic) s 43; CLA (WA) s 3).
The courts have sometimes denied liability on the basis that the harm
claimed is not of a kind recognised by law. Examples include:
• Emotional distress not amounting to a recognisable psychiatric injury
(Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR
100. See also: CLWA (ACT) s 35; CLA (NSW) s 33; CLA (Tas) s 35; WrA
(Vic) s 74; CLA (WA) s 5T).
 CHAPTER 12 FACTUAL CAUSATION / 125

• Losses related to criminal activity. Harm is not recognised on policy

grounds (Mills v Baitis [1968] VR 583; Burns v Edman [1970] 2 QB 541;
State Railway Authority of NSW v Wiegold (1991) 25 NSWLR 500).
• Where the damage is of a type that cannot be calculated (Harriton v
Stephens (2006) 226 CLR 52).
• Loss of chance. See discussion of Loss of Chance below at [12.150] (Tabet
v Gett (2010) 240 CLR 537).

Factual causation
At common law
[12.30] At common law, the first step in determining factual causation is
application of the “but for” test, tempered by a consideration of the
“common sense” approach.

The “but for” test

[12.40] The “but for” test asks: would the plaintiff’s harm have occurred
“but for” the defendant’s conduct? If the answer is no, then a causal
relationship between the breach of duty and the plaintiff’s harm is
established.

Barnett v Chelsea and Kensington Hospital Management Committee

[12.50] Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB
428

FACTS • The plaintiff’s husband attended at the defendant’s hospital after drinking tea,
which he did not know was poisoned with arsenic. The duty doctor, who was not in
attendance at the hospital, informed the nurse via telephone that on the basis of the
symptoms as they had been described, the plaintiff’s husband did not require admittance
to the hospital and should be sent home to see his own doctor. He died five hours later.
The defendant accepted the breach of duty but denied the breach had caused the death.

HELD • The medical evidence suggested that even if the doctor had attended the hospital
and treated the plaintiff’s husband, the husband would probably still have died. As the
plaintiff could not establish that “but for” the defendant’s negligence, the husband would
not have died, the causal link between the breach and the harm suffered was not
established. The defendant was not liable.
126 LAWBRIEF: TORTS

[12.60] While the “but for” test is helpful in eliminating what is not the
cause of the plaintiff’s harm, it does not assist in identifying the actual
cause where there is more than one factor contributing to the harm, or there
is an intervening act between the defendant’s breach of duty and the
plaintiff’s harm. In such circumstances, the courts have applied the “but
for” test tempered by the “common sense” approach.

The “common sense” approach

[12.70] The “common sense” approach applies common sense, experience,
value judgements and policy considerations to determine whether the
defendant should be held to have caused the plaintiff’s harm.

March v E and M Stramare Pty Ltd

[12.80] March v E and M Stramare Pty Ltd (1991) 171 CLR 506

FACTS • In order to unload a fruit and vegetable truck, the defendant parked in the
middle of the road in the early hours of the morning. The road was moderately well lit and
the truck’s hazard and parking lights were left on. The plaintiff was injured when he drove
into the parked truck. It was established that the plaintiff was speeding and affected by
alcohol. The question the High Court had to determine was whether the defendant or the
plaintiff himself was the legally operative cause of the harm.

HELD • Here there were two independent causes of the plaintiff’s harm. Both the
defendant’s negligence in parking in the street and the plaintiff’s negligent manner of
driving contributed to the accident, but neither on their own were sufficient to have caused
the accident. In such circumstances, “common sense and experience” suggested that the
defendant should be held to have caused the accident, as the defendant’s wrongful
conduct created the risk of injury. Damages were reduced by 70% due to the plaintiff’s
contributory negligence.

[12.90] While this case has been widely applied, it has also been subject to
criticism for failing to articulate the grounds upon which causation was
decided. Instead, it was said to hide behind notions of “common sense and
experience”. See McHugh J in March v E and M Stramare Pty Ltd (1991) 171
CLR 506 at 535; Kirby J in Chappel v Hart (1998) 195 CLR 232 at 269.
 CHAPTER 12 FACTUAL CAUSATION / 127

The legislative approach

[12.100] Under civil liability legislation, factual causation is determined
by whether “the breach of duty was a necessary condition of the occurrence
of the harm” (CLWA (ACT) s 45; CLA (NSW) s 5D; CLA (Qld) s 11; CLA
(SA) s 34; CLA (Tas) s 13; WrA (Vic) s 51; CLA (WA) s 5C).
The “but for” test provides a guide to answering this question of fact
(Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420). The legislative
factual causation test excludes the value judgments and policy
considerations inherent in the “common sense” approach. Such normative
factors would now be considered under scope of liability.

Strong v Woolworths Ltd t/as Big W

[12.110] Strong v Woolworths Ltd t/as Big W (2012) 246 CLR 182

FACTS • At 12.30 pm the plaintiff, a customer in a shopping centre, slipped when one of
the crutches she was required to use came into contact with a greasy chip which was on
the floor. She suffered serious spinal injury. The defendant had control of the area of the
shopping centre where she fell. This area was close to the food court. The defendant
accepted that it owed the plaintiff a duty of care and that its system for periodic cleaning
of the area was not adequate, thereby breaching the duty of care. As there was no
evidence available to determine how long the chip was left on the floor, the issue before
the court was whether the defendant’s breach of duty was a necessary condition of the
plaintiff’s harm.

HELD • The plaintiff had to prove on the balance of probabilities that had the defendant
had a proper cleaning system in place the chip would have been removed prior to her fall.
A proper system of cleaning would have required the defendant to inspect and clean the
area every 20 minutes. This meant that if the chip had been dropped no longer than
20 minutes before the plaintiff fell, the defendant could not have been held to have
caused the injury. While there was no evidence as to exactly when the chip was dropped, it
was clear that the area had not been cleaned since opening 4½ hours earlier. Based on
these times it was more probable than not that the chip had been dropped in the longer
time period from 8 am – 12.10 pm, than the shorter period of 12.10 pm – 12.30 pm. The
defendant was held liable.
[SEE ALSO • Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Lithgow City Council
v Jackson (2011) 244 CLR 352.]
128 LAWBRIEF: TORTS

Factual causation, material contribution and “exceptional cases”

[12.120] The complex issue of multiple possible causes of the plaintiff’s
harm is dealt with as an issue of factual causation, under the civil liability
legislation in all jurisdictions (except the Northern Territory). The legislation
contemplates the exceptional and difficult situation where, due to a “gap”
in medical or scientific knowledge, the plaintiff is unable to prove that the
particular defendant’s negligent conduct was a necessary condition of the
plaintiff’s harm. It provides for the question of causation to be determined
by reference to “established principles”, in New South Wales, Queensland
and Tasmania and to determine (among other relevant matters) “whether
or not and why responsibility for the harm should be imposed on the
negligent party” (CLA (NSW) s 5D; CLA (Qld) s 11; CLA (Tas) s 13).
Similar, but differently worded provisions, are contained in CLWA (ACT)
s 45; CLA (SA) s 34(2); WrA (Vic) s 51; CLA (WA) s 5C.
Established principles (although not defined in the legislation) may be
found by reference to the common law where, in the United Kingdom, for
example, a causal link has been satisfied where the defendant’s negligent
conduct has materially contributed to the risk of harm occurring to the
plaintiff.

Fairchild v Glenhaven Funeral Services Ltd

[12.130] Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32

FACTS • The plaintiffs were exposed to asbestos during their employment with three
different employers over a number of years. They all contracted mesothelioma, a disease
caused by inhalation of asbestos dust. The plaintiffs were unable to establish which of
their employers actually caused the disease, as medical evidence was unable to establish
whether the disease was contracted through exposure to just one fibre or through
cumulative exposure to the fibres over time. The plaintiffs could not, therefore, establish
that “but for” the negligent conduct of any particular one of the defendant employers the
harm would not have occurred. The question before the House of Lords was whether in
such circumstances, where there was an evidentiary gap, causation could be established.

HELD • In exceptional cases, proof that the defendant’s negligent conduct materially
increased the risk of injury would suffice to establish the causal link. The court was careful
to restrict this to situations where at [2]: “in the special circumstances … principle,
authority or policy requires or justifies a modified approach to proof of causation.”
[SEE ALSO • McGhee v National Coal Board [1973] 1 WLR 1; Bonnington Castings Ltd v
Wardlaw [1956] AC 613; Wilsher v Essex Area Health Authority [1987] QB 730; Sienkiewicz v
Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore [2011] 2 All ER 857. The
 CHAPTER 12 FACTUAL CAUSATION / 129

principles set out in Fairchild v Glenhaven Funeral Services were clearly endorsed by the
Ipp Panel in recommending the “evidentiary gap” legislative provisions (Ipp Report [7.31]).]

[12.140] The High Court considered similar complex issues regarding

exposure to asbestos and other possible causes (smoking) in Amaca Pty Ltd
v Ellis (2010) 240 CLR 111, and exposure to asbestos from a number of
sources over different periods of time in Amaca Pty Ltd v Booth (2011) 246
CLR 36. In the former case, the plaintiff was unable to prove that but for
the negligent exposure to asbestos he would not have contracted lung
cancer. He was only able to establish that exposure to the asbestos may
have been a cause of the cancer. In the latter case the court held that the
negligent exposure to asbestos contributed to the plaintiff contracting
mesothelioma and causation was established. It should be noted that as
both these cases involved dust related diseases they fell outside the
provisions of the civil liability legislation and were dealt with under the
common law.

Loss of chance and failure to warn

Loss of chance
[12.150] Where a plaintiff can establish that there was a greater than 50%
probability that the defendant’s negligent conduct caused the plaintiff’s
harm, causation is established and the plaintiff is compensated on the basis
of 100% causation. If, however, the plaintiff can only establish that there
was a less than 50% chance that the defendant’s conduct caused their harm,
the action may fail (Hotson v East Berkshire Area Health Authority [1987] AC
750). The High Court has confirmed that where the plaintiff claims that the
negligence by the defendant caused the plaintiff to lose the chance of a better
medical outcome the claim will fail.

Tabet v Gett
[12.160] Tabet v Gett (2010) 240 CLR 537

FACTS • The six year old plaintiff was admitted to hospital suffering headaches, nausea
and vomiting. The initial diagnosis was chickenpox, meningitis or encephalitis. Three days
later she suffered a seizure. A CT scan detected a brain tumour which was surgically
removed. The plaintiff suffered irreversible brain damage. Although the surgery was
performed without negligence, the plaintiff claimed that the CT scan should have been
performed earlier. She claimed that the failure to do so caused her to lose the chance of a
better medical outcome.
130 LAWBRIEF: TORTS

HELD • It could not be established on the balance of probabilities that the failure to
perform the CT scan at an earlier time would have prevented the brain injury. All that
could be established was that there was a mere possibility that the brain injury would have
been less severe with earlier intervention and treatment. A mere possibility of a particular
outcome is not sufficient to prove causation. Referring to the injury instead as the “loss of
a chance of a better medical outcome” was not considered by the court to be actionable
damage. The court considered that a finding that a loss of chance was actionable would
require a radical change to the law, which should be left to Parliament. The claim failed.
[SEE ALSO • Naxakis v Western General Hospital (1999) 197 CLR 269; Rosenberg v Percival
(2001) 205 CLR 434.]

Failure to warn
[12.170] Where the plaintiff alleges that the defendant’s negligent conduct
consists of a failure to warn of a risk of injury, it will be necessary for the
plaintiff to establish on the balance of probabilities, that he/she would have
taken a different course of action and thereby avoided the injury, had the
warning been given (Rogers v Whittaker (1992) 175 CLR 479). This test,
which is necessary to establish the causal link between the defendant’s
breach of duty and the plaintiff’s harm, is subjective and asks what would
this particular plaintiff have done had the risk warning been given (Rosenberg
v Percival (2001) 205 CLR 434).
In response to a concern that most plaintiffs, with the benefit of
hind-sight, will claim that they would have taken a different course if
advised of the risk, the legislative response has been to disallow evidence
of “any statement made by the person after the occurrence of the harm
about what he or she would have done … except to the extent (if any) that
the statement is against his or her interest” (CLA (Qld) s 11(3); see also CLA
(NSW) s 5D(3); CLA (Tas) s 13(3); CLA (WA) s 5C(3)). Under these
provisions, the test remains subjective. Note, however, there is no liability
for failing to warn of an obvious risk under legislation in some jurisdictions
(see Chapter 10).

Chappel v Hart
[12.180] Chappel v Hart (1998) 195 CLR 232

FACTS • In this common law case the plaintiff lost her voice after her oesophagus, which
was punctured during a surgical procedure, became infected. While the operation was
elective, the plaintiff would have required the operation at some time in the future as she
was suffering from a deteriorating throat condition. It was accepted that the operation
 CHAPTER 12 FACTUAL CAUSATION / 131

was performed with all due care and skill and that the risk of perforation was inherent in
the procedure. The plaintiff claimed that the defendant surgeon had negligently failed to
warn her of the risk, and that if she had been advised she would have sought a more
experienced surgeon. The defendant claimed no causal connection between the failure to
warn and the subsequent injury, and that in effect the plaintiff’s claim was one of a loss of
chance, which was not recognised as a valid form of damage.

HELD • The majority of the High Court was not prepared to base the finding on “loss of
chance”. Instead, the majority preferred to see the case as one of a failure to warn of a risk,
which then materialised. It was held that, but for the defendant’s failure to warn, the
plaintiff would not have had the operation at that time and suffered the harm at that time.
The minority held that, as there was no evidence that the risk of injury would have altered
if she had the operation at a later time and with a different surgeon, causation was not
established.
[SEE ALSO • Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330;
Commissioner of Main Roads v Jones (2005) 215 ALR 418; Odisho v Bonazzi [2014] Aust
Torts Reports 82-155.]

[12.185] Note however that even where factual causation can be

established, the question of scope of liability (whether it is appropriate for
the scope of liability to extend to the harm caused) may affect the outcome.
In Wallace v Kam (2013) 250 CLR 375 the High Court held that a doctor had
failed to warn of two distinct inherent material risks of surgery. Only one of
the inherent risks eventuated. It was held that had the plaintiff been
warned of both risks he would have not undergone the surgery.
Accordingly the failure to warn of both risks was a necessary condition of
the harm that eventuated. However as the plaintiff would have undergone
the surgery if warned only of the one risk that did eventuate, it was held
that this one risk was acceptable to the plaintiff and the doctor could not be
held legally liable for this inherent risk. In other words the failure to warn
of one distinct risk (the risk the plaintiff would have considered
unacceptable but did not eventuate) could not be held to be the legal cause
of the harm that did in fact eventuate.

Liability for successive injuries

[12.190] In some situations the plaintiff is injured by more than one
tortfeasor (defendant). To establish causation in such circumstances, the
plaintiff must prove that the defendant’s breach of duty was a necessary
condition of the plaintiff’s harm or as explained in some cases, the breach
materially contributed to the plaintiff’s harm (Bonnington Castings Ltd v
Wardlaw [1956] AC 613). Where the injuries occur in succession it may be
132 LAWBRIEF: TORTS

difficult for the plaintiff to disentangle the harm caused by each defendant.
In such circumstances the court will consider how best to allocate the loss
suffered by the plaintiff as a result of the particular defendant’s negligent
act. Under the legislative civil liability schemes this may now be more
appropriately considered under the second stage of the causation
determination, the scope of liability.

Baker v Willoughby
[12.200] Baker v Willoughby [1970] AC 467

FACTS • The plaintiff suffered a permanently stiff leg, as a result of a car accident caused
by the defendant’s negligence. Some time after the accident, while working as a security
guard, the plaintiff was the victim of a robbery in which his injured leg was shot. The leg
had to be amputated. The defendant claimed that he could not be held liable for causing
the plaintiff any loss after his leg was amputated, as from that time he no longer suffered
from a stiff leg.

HELD • The court rejected the respondent’s argument. It was necessary for the plaintiff to
be fully compensated, not just for the stiff leg, but for his inability to lead a full life, which
was not diminished by the second tortious act. The calculation of the defendant’s liability
took place by considering the plaintiff’s total loss and subtracting from it the amount
attributable to the second tortfeasor. The balance was then awarded against the first
defendant.
[SEE ALSO • Performance Car v Abraham [1961] 3 All ER 413. Compare Jobling v
Associated Dairies Ltd [1982] AC 794; Faulkner v Keffalinos (1971) 45 ALJR 80.]

Onus of proof
[12.210] The plaintiff bears the onus of proving factual causation on the
balance of probabilities. In response to criticism by the Ipp Panel that this
requirement had been eroded in some circumstances (Bennett v Minister for
Community Welfare (1992) 176 CLR 408 at 420-421 per Gaudron J; Chappel v
Hart (1998) 195 CLR 232 at 240 per Gaudron J, 257 per Gummow J, 273 per
Kirby J), the legislature responded by confirming that “the plaintiff always
bears the onus of proving, on the balance of probabilities, any fact relevant
to the issue of causation” (CLA (Qld) s 12; see also CLWA (ACT) s 46; CLA
(NSW) s 5E; CLA (SA) s 35; CLA (Tas) s 14; WrA (Vic) s 52; CLA (WA) s 5D).
MindMap12
Form of Harm Factual Causation Other Tests and Considerations

Must be recognisable form Material contribution test

of harm Factual Causation Test
More than one possible cause
CL Legislation: personal injury; Common law
property; economic loss McGhee v National
“But for” test: but for the Coal Board
Harm not recognised/ defendant’s negligence would Amaca v Booth
compensable the plaintiff have been injured?
Evidentiary gap
Mere emotional stress Barnett v Chelsea Hospital
CL Legislation – apply
Gifford v Strang Common Sense Test: experience, established principles
value judgements and policy
Losses resulting from considerations Fairchild v Glenhaven
criminal activity Funeral Services
March v Stramare
SRA (NSW) v Wiegold Failure to warn
Civil liability legislation
Harm that cannot be Ask whether “the breach of duty Subjective test
calculated was a necessary condition of the Chappel v Hart
occurrence of the harm” Self-serving evidence not
Harriton v Stephens admissible under CL Legislation
“but for” is a guide (QLD, NSW, WA, Tas)
Loss of chance
Adeels Palace v Moubarak No duty failure to warn obvious
Tabet v Gett Strong v Woolworths risk some CL Legislation
 Chapter 13

Scope of liability/ remoteness

of damage
Scope of liability/ remoteness of
damage
[13.10] INTRODUCTION....................................................................... 134
[13.20] REMOTENESS OF DAMAGE....................................................... 135
[13.20] Reasonable foreseeability of damage.................................. 135
[13.60] Kind of harm and the manner of its occurrence..................... 136
[13.100] Extent of the harm: the “egg-shell skull” rule ........................ 138
[13.140] INTERVENING EVENTS — NOVUS ACTUS INTERVENIENS ............... 139
[13.150] The types of events amounting to a novus actus interveniens ... 140
[13.210] OTHER NORMATIVE CONSIDERATIONS........................................ 142

Introduction
[13.10] As was noted in Chapter 12, establishing that the defendant’s
breach of duty caused the plaintiff’s harm is a two-step process. Under civil
liability legislation it requires a determination of both “factual causation”
and “scope of liability”. Under “scope of liability” the court considers
whether “it is appropriate for the scope of the liability of the person in
breach to extend to the harm so caused” (CLA (Qld) s 11(1)(b); see also
CLWA (ACT) s 45(1)(b); CLA (NSW) s 5D(1)(b); CLA (SA) s 34(1)(b); CLA
(Tas) s 13(1)(b); WrA (Vic) s 51(1)(b); CLA (WA) s 5C(1)(b)).
Under the common law, the second stage of the causation determination
was concerned primarily with remoteness of damage. With the legislative
enactments, “scope of liability” takes into account a wider range of policy
and normative factors, some of which were previously dealt with under the
first stage of the factual causation determination. As noted by the High
Court in Wallace v Kam (2013) 250 CLR 375 at [22] this normative question is
generally determined through an analysis of precedent. This is likely to
include consideration of factors such as common sense and experience (if
relevant see Chapter 12); reasonable foreseeability of the kind of damage
(remoteness of damage); the “egg-shell skull” rule; whether there has been
a break in the chain of causation (novus actus interveniens) and any other
factors necessary to determine “whether or not and why responsibility for
the harm should be imposed on the party who was in breach of the duty”
(CLA (Qld) s 11(4); see also CLWA (ACT) s 45(3); CLA (NSW) s 5D(4); CLA
(SA) s 34(3); CLA (Tas) s 13(4); WrA (Vic) s 51(4); CLA (WA) s 5C(4)). Other
 CHAPTER 13 SCOPE OF LIABILITY/ REMOTENESS OF DAMAGE / 135

factors would include novel situations. See for example how scope of
liability was considered in Wallace v Kam (2013) 250 CLR 375, in relation to
the medical “failure to warn” cases (see [12.180]).
It should be noted that where factual causation is readily established and
the type of harm suffered is the very type likely to occur, scope of liability
is unlikely to be in issue (Zanner v Zanner (2010) 79 NSWLR 702; French v
QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214 at [55]).

Remoteness of damage
Reasonable foreseeability of damage
[13.20] Despite a finding of factual causation, in some circumstances the
defendant will not be held liable on the ground that the harm suffered by
the plaintiff is too remote a consequence of the defendant’s negligent
conduct. The defendant will only be liable where the type of injury that
occurred to the plaintiff was a reasonably foreseeable consequence of the
defendant’s breach of duty.

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (“Wagon
Mound” (No 1))
[13.30] Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (“Wagon Mound”
(No 1)) [1961] 1 AC 388

FACTS • While loading fuel onto the defendant’s ship (Wagon Mound), the defendant’s
employees negligently spilled a large amount of oil into the water. The oil drifted across
Sydney Harbour to the plaintiff’s wharf, where the plaintiff was conducting shipbuilding
operations. On seeing the oil, the plaintiff’s work manager initially stopped all welding
work. However, after speaking with the manager of the fuel oil berth, welding
recommenced. The parties thought that the high flash point of oil when it was spread
across a large body of water meant that the oil could not be ignited. Some time the
following day, during welding work, the oil caught on fire, damaging the wharf and two
ships. The plaintiff sued the defendant, alleging the destruction of their wharf was caused
by the negligence of the defendant’s employees. The trial judge found that the oil must
have ignited when molten metal fell onto floating cotton debris, which ignited and acted
as a wick. The question was whether the defendant should be held liable for this remote
damage.

HELD • Although it was reasonably foreseeable that damage could occur from the
pollution of the waters by the oil spill, the loss of the plaintiff’s wharf by fire was not a
reasonably foreseeable consequence of the defendant’s negligence. The defendant was
136 LAWBRIEF: TORTS

not liable for the fire destruction to the wharf.

[13.40] In a later action brought against the defendants by the owners of

the two destroyed ships, the Privy Council further defined what was meant
by reasonable foreseeability of damage.

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (“Wagon Mound”
(No 2))
[13.50] Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (“Wagon Mound” (No 2))
[1967] 1 AC 617

FACTS • The plaintiffs, the owners of the two ships destroyed in the fire, presented
different evidence from that presented in “Wagon Mound” (No 1), alleging that it was in
fact reasonably foreseeable that the oil might catch fire.

HELD • The defendant was liable. On the basis of different evidence that was presented
to the court, it was reasonably foreseeable that the oil might have caught on fire. A
reasonable person in the position of the chief engineer of the Wagon Mound, with his
knowledge and experience, ought to have known that there was a real risk that the oil
could catch fire and cause serious damage to ships docked in the harbour. A real risk was
one that a reasonable person in the defendant chief engineer’s position would not brush
aside as “far-fetched”.

Kind of harm and the manner of its occurrence

[13.60] The harm that occurs must be of the same kind, class, character or
type as that which was reasonably foreseeable. So, for example, physical
harm would form one type of harm, as would economic injury. The court is
not concerned with foreseeability of the precise manner in which the harm
occurred, provided the resultant harm was of a type that was reasonably
foreseeable.

Jolley v Sutton London Borough Council

[13.70] Jolley v Sutton London Borough Council [2000] 3 All ER 409

FACTS • An old boat had been abandoned in the grounds of council flats. The council
failed to remove the boat and it became derelict and rotten. The plaintiff and his friend
 CHAPTER 13 SCOPE OF LIABILITY/ REMOTENESS OF DAMAGE / 137

jacked the boat up in an attempt to repair it. The plaintiff, aged 14, suffered paraplegia
when the jack gave way and the boat collapsed on top of him. He sued the council,
alleging negligence in failing to remove the boat. The defendant council accepted that it
was negligent in failing to remove the boat. However, it argued that while it was
foreseeable that a child may be injured while playing on the boat, for example, by falling
through rotten planks, it was not foreseeable that someone would work on the boat and
thereby be injured.

HELD • The defendant council was liable. It was reasonably foreseeable that children
would “meddle” with the boat and could thereby suffer some physical injury. The old boat
was an attraction to young people to come and interfere with it in many ways, including
mimicking adult behaviour. Once it was established that the plaintiff suffered physical
harm as a result of “meddling” with the boat, it was not necessary for the precise manner
in which the injury occurred to also be foreseeable.
[SEE ALSO • Chapman v Hearse (1961) 106 CLR 112; Hughes v Lord Advocate [1963] AC
837; Mount Isa Mines v Pusey (1970) 125 CLR 383; Gittani Stone Pty Ltd v Pavkovic [2007]
Aust Torts Reports 81-924; Metrolink Victoria Pty Ltd v Inglis [2009] Aust Torts Reps
82-032.]

[13.80] However if the damage is of a kind that is unforeseeable it will be

too remote.

Commonwealth v McLean
[13.90] Commonwealth v McLean (1996) 41 NSWLR 389

FACTS • The plaintiff was serving in the Australian navy when the ship he was on collided
with another Australian navy ship during naval exercises. As a result of the collision a
number of navy personnel were killed and injured. The plaintiff suffered post-traumatic
stress disorder (PTSD). He claimed that the PTSD caused him to drink and smoke
excessively a result of which he suffered from throat cancer. The question before the court
was whether the throat cancer was too remote a consequence of the collision.

HELD • It was not enough that the PTSD was a reasonably foreseeable consequence of
the negligence, and that the further damage (the throat cancer) may have flowed from
that damage. The further damage either had to be considered as the same type, kind or
class as the PTSD, or be a reasonably foreseeable consequence of the negligent collision
in its own right.
[SEE ALSO • Metrolink Victoria Pty Ltd v Inglis [2009] Aust Torts Reps 82-032, where the
defendant driver collided with a tram operated by the plaintiff. The majority of the
Victorian Court of Appeal held that not only was the property damage to the tram
138 LAWBRIEF: TORTS

recoverable, but also the operational performance penalties the plaintiff was contractual
obliged to pay to the State government while the tram was out of service. Such financial
loss of revenue, including the penalties, was a type of damage that was reasonably
foreseeable.]

Extent of the harm: the “egg-shell skull” rule

[13.100] Under the “egg-shell skull” rule, a defendant must take the
plaintiff as he/she finds him/her and will be held liable for the full extent
of the plaintiff’s harm even where, due to the plaintiff’s pre-existing
vulnerability, the harm is far greater than expected.

Smith v Leech Brain

[13.110] Smith v Leech Brain [1962] 2 QB 405

FACTS • While employed as a galvaniser by the defendant, the plaintiff suffered a burn to
his lip. Due to pre-existing pre-malignant tissue on his lip, the plaintiff developed cancer
at the site of the burn. He sued the defendant for failing to provide protective gear. The
question before the court was whether the scope of the defendant’s liability extended
beyond the initial burn to the cancer suffered by the plaintiff.

HELD • The defendant was liable. The risk of a burn injury was reasonably foreseeable
and the consequent development of the cancer was a variant of the foreseeable risk. The
defendant had to take the plaintiff with his pre-existing pre-malignant disposition as he
found him. This was a case where the type of harm was foreseeable but the extent of harm
actually suffered was far greater due to the pre-existing condition.

[13.120] The “egg-shell skull” rule also applies where the accident induces
an abnormal susceptibility to further injury (Stephenson v Waite Tileman Ltd
[1973] 1 NZLR 152; Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006).
It must be noted, however, that the rule applies only to greater than
expected harm, provided that the harm suffered is of the same type, kind or
class as was reasonably foreseeable (Commonwealth v McLean (1996) 41
NSWLR 389). What is considered reasonably foreseeable in this context has
sometimes been very broadly defined (see case at [13.130]).
 CHAPTER 13 SCOPE OF LIABILITY/ REMOTENESS OF DAMAGE / 139

Kavanagh v Akhtar
[13.130] Kavanagh v Akhtar (1998) 45 NSWLR 588

FACTS • The plaintiff suffered injury to her arm and shoulder when a heavy box fell on her
while shopping at the defendant’s store. As a consequence, she cut her long hair, as she
was no longer able to care for it. She was a devout Muslim and the cutting of a woman’s
hair, in some circumstances, was considered to be a betrayal of religion. Her husband,
upset by the change, became abusive and eventually divorced her. The plaintiff, in turn,
suffered depression and psychiatric illness. She sued the defendant store for the full
extent of her harm, including the psychiatric condition.

HELD • The defendant had to take the plaintiff as found, which included the family,
religious and cultural setting, and the effect that may have on the plaintiff. It was
irrelevant that the marriage breakdown occurred in unusual circumstances, what was
required was that psychiatric harm was a reasonably foreseeable consequence of the
negligent conduct and initial physical injury. As a strain on (or possible breakdown of) a
marital relationship was a foreseeable consequence of a severe and continuing shoulder
injury, the defendant was liable for the full extent of the plaintiff’s harm including the
psychiatric harm.
[SEE ALSO • Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501.]

Intervening events — novus actus interveniens

[13.140] There may be several factors that all contribute to the plaintiff’s
harm and each may be considered a necessary condition. In some instances
the defendant may argue that one of those factors (an intervening event)
broke the chain of causation between the defendant’s initial breach of duty
and the plaintiff’s harm, so that the defendant should not be held liable for
the plaintiff’s eventual harm. This is referred to as a novus actus interveniens.
Under the civil liability legislation this would be dealt with at the scope
of liability stage. The question becomes whether or not and why the
consequences (including the intervening act) fall within the scope of
liability for the defendant’s negligence.
140 LAWBRIEF: TORTS

The types of events amounting to a novus actus interveniens

[13.150] An event that severs the chain of causation (falls outside the
scope of liability) may occur through the plaintiff’s own independent act, a
subsequent tortuous or criminal act by a third party or through a set of
independent conditions amounting to a sufficient cause of the plaintiff’s
harm.
Where it is the plaintiff’s own intervening act occurring between the
defendant’s negligence and the ultimate damage suffered, the act must be
voluntary to amount to a novus actus interveniens.

Haber v Walker
[13.160] Haber v Walker [1963] VR 339

FACTS • The plaintiff’s husband suffered serious injuries, including brain injury, in a
motor vehicle accident caused by the defendant’s negligence. He also suffered clinical
depression and anxiety which continued to deteriorate. Eighteen months after the
accident he committed suicide. The plaintiff sued the defendant under the Wrongs Act
1958 (Vic). The defendant claimed, among other things, that the husband’s voluntary act of
suicide broke the chain of causation between the death and the defendant driver’s
negligence.

HELD • The defendant was liable, as the act of suicide was an involuntary response to the
psychiatric injury directly brought about by the defendant’s negligent act. Smith J stated:
[T]he intervening occurrence, if it is to be sufficient to sever the connection, must ordinarily be
either—(a) human action that is properly to be regarded as voluntary, or (b) a causally
independent event the conjunction of which with the wrongful act or omission is by ordinary
standards so extremely unlikely as to be termed a coincidence.

[SEE ALSO • Caterson v Commissioner for Railways (NSW) (1973) 128 CLR 99; Medlin v
State Government Insurance Commission (1995) 182 CLR 1.]

[13.170] If the intervening act is a foreseeable consequence of the

defendant’s original negligence then it will not break the chain of causation
and will be within the scope of liability (see case at [13.180]).
 CHAPTER 13 SCOPE OF LIABILITY/ REMOTENESS OF DAMAGE / 141

Mahony v Kruschich (Demolitions) Pty Ltd

[13.180] Mahony v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

FACTS • The plaintiff was injured at work. As a result of the injuries, he required
considerable medical treatment. The plaintiff sued his employer for negligently causing
his injury. The employer cross-claimed against the plaintiff’s treating doctor, Dr Mahony,
claiming that Mahony had negligently treated the plaintiff’s injuries, which in turn caused
or contributed to the plaintiff’s ongoing disabilities. One of the questions before the court
was whether the doctor’s negligent treatment could amount to a novus actus
interveniens.

HELD • A degree of negligence in the administration of medical treatment is considered a

foreseeable consequence of seeking medical assistance. Where a plaintiff acts reasonably
in obtaining medical treatment for injuries caused by the defendant’s negligence only
gross medical negligence that exacerbates the original injury could be considered to have
broken the chain of causation and to be the sole cause of the plaintiff’s condition.

[13.190] Similarly, if the intervening act is considered to be the very kind of

thing likely to occur in the ordinary course of events, following the defendant’s
negligence, it will not break the chain of causation and the defendant will
be unable to escape liability. So, in March v E and M Stramare Pty Ltd (1991)
171 CLR 506 (Chapter 12), the court held that the plaintiff’s own negligence
in driving into the back of the defendant’s parked truck was the very thing
likely to occur as a result of the risk created by the defendant’s negligent
conduct. In such circumstances, the defendant could not avoid liability for
his original negligence by claiming that the plaintiff’s conduct broke the
chain of causation. See also: Chapman v Hearse (1961) 106 CLR 112; Bennett v
Minister for Community Welfare (1992) 176 CLR 408.
An unforeseeable malicious intervention by a third party will fall
outside the scope of the defendant’s liability.

Rickards v Lothian
[13.200] Rickards v Lothian [1913] AC 263

FACTS • The basin of a bathroom on the fourth floor of a building was deliberately
blocked with nails and soap and the tap turned on full. The overflowing water damaged
the plaintiff’s goods, which were stored on the floor below. The plaintiff sued the
defendant landlord who had control of the bathroom, claiming that the defendant was
142 LAWBRIEF: TORTS

negligent by failing to provide an outlet drain in the floor.

HELD • The defendant was not liable. The malicious act of the third party in blocking the
drain had broken any possible link between the defendant’s negligence in failing to
provide an outlet drain and the plaintiff’s injury. The court held that the true cause of the
harm was the third party’s malicious act. Even if an outlet drain had been provided, it
would not have prevented the third party achieving the aim of causing a flood, as the third
party would merely have blocked the outlet drain as well.
[SEE ALSO • State Rail Authority of NSW v Chu [2008] Aust Torts Reports 81-940.]

Other normative considerations

[13.210] As noted at [13.10] policy considerations and value judgments
are relevant to determining the scope of liability. In many cases such
considerations are implicit in the judgment, however as the next case
shows they may also be explicitly discussed and pivotal to the
determination.

State Railway Authority of NSW v Wiegold

[13.220] State Railway Authority of NSW v Wiegold (1991) 25 NSWLR 500

FACTS • The plaintiff was employed as a railway linesman when he fell down a railway
embankment at night and was seriously injured. The torch provided to the plaintiff by the
defendant (employer) did not work, making it difficult for him to see where he was going.
He received workers’ compensation payments for the injury, but he became concerned
about how to support his family when the payments ran out. He began to cultivate Indian
Hemp for sale. He was convicted and imprisoned. He claimed he would not have
cultivated the drug and been imprisoned but for the original negligence of the employer.
The question was whether the scope of the defendant’s liability extended beyond the
physical injury suffered by the plaintiff to the loss he suffered upon his imprisonment.

HELD • The but-for test was not appropriate in the circumstances of this case. The
criminal law had found that the plaintiff was guilty of a crime and thereby responsible for
the consequences of his actions. For the law of negligence to hold that the defendant, not
the plaintiff, was causally responsible for the consequences of the illegal activity would be
inconsistent with the criminal law and would thereby bring the law into disrepute. Kirby P
dissented in the case, preferring the view as found by the trial judge, that the plaintiff had
been punished by the criminal law and should not be punished twice by denying him the
compensation otherwise due as a consequence of the defendant’s negligence.
 CHAPTER 13 SCOPE OF LIABILITY/ REMOTENESS OF DAMAGE / 143

[SEE ALSO • Harvey v PD (2004) 59 NSWLR 639; Hunter Area Health Service v Presland
(2005) 63 NSWLR 22.]
MindMap13

Scope of Liability /
Remoteness of Damage

Scope of Liability – Stage

Remoteness of Damage Other Normative
Two of the Intervening Events
Wagon Mound Cases Considerations
CL Legislative Test

Considers whether it is The type of injury that Policy considerations

appropriate for scope of occurred to the plaintiff An intervening event
liability to extend to harm must be a reasonably breaks the chain of May be explicit or implicit
foreseeable causation between the in judgment
Under common law 2nd consequence of the defendant’s initial breach
stage concerned mainly defendant’s breach of of duty and the plaintiff’s SRA (NSW) v Wiegold
with remoteness of damage duty harm Hunter Area Health
Service v Presland
Under CL legislation wide Wagon Mound cases Must be a voluntary and
range of policy and
causally independent event Common sense
normative factors
Harm must be of same
Generally determined
kind as reasonably Haber v Walker Asks whether as a matter of
through an analysis of foreseeable common sense and
precedent: Deliberate malicious act of experience defendant
Wallace v Kam Not concerned with 3rd party will break the should be held liable for
foreseeability of manner in chain plaintiff’s harm
which harm occurred
Includes: common
Rickards v Lothian March v Stramare
sense and experience;
remoteness of damage; Jolley v Sutton London BC
“egg-shell skull” rule; Cth v McLean If event is a reasonably
break in the chain of Metrolink v Inglis foreseeable event – there is
causation; other no break in chain of
relevant factors causation
Egg-shell skull rule
Only gross medical
Take victim as found – negligence will break
Liable for full extent of harm chain causation

Smith v Leech Brain

Mahoney v Kruschich
Kavanagh v Akhtar

KEY POINT: Scope of Liability – where factual causation is

readily established and the type of harm suffered is the very
type likely to occur, scope of liability is unlikely to be in issue
Zanner v Zanner; French v QBE Insurance (Australia) Pty Ltd
 Chapter 14

Defences to negligence
Defences to negligence
[14.10] INTRODUCTION....................................................................... 146
[14.20] CONTRIBUTORY NEGLIGENCE ................................................... 147
[14.20] Contributory negligence defined ........................................ 147
[14.50] Establishing contributory negligence ................................... 148
[14.60] Special legislative provisions — intoxication.......................... 148
[14.70] Apportionment .............................................................. 149
[14.80] VOLENTI NON FIT INJURIA — VOLUNTARY ASSUMPTION OF RISK ... 149
[14.80] Volenti non fit injuria defined ............................................ 149
[14.90] The requirement for subjective knowledge............................ 149
[14.130] Volenti and obvious risks................................................. 151
[14.140] Obvious risks and dangerous recreational activities ................ 151
[14.150] No liability for the materialisation of an inherent risk ............... 152
[14.160] Volenti and the intoxicated driver ....................................... 152
[14.170] ILLEGALITY ............................................................................ 152
[14.170] Joint illegal enterprise..................................................... 152
[14.200] Statutory exclusion — plaintiff’s illegal activity ....................... 154
[14.210] LIMITATION OF ACTIONS........................................................... 154
[14.210] General principles ......................................................... 154
[14.220] Time limitation .............................................................. 155
[14.230] Date action accrues ....................................................... 155
[14.240] Date of discoverability .................................................... 155
[14.250] Special plaintiffs............................................................ 155

Introduction
[14.10] Once the plaintiff establishes prima facie negligence, the burden of
proof shifts to the defendant who may raise common law and statutory
defences to defeat the plaintiff’s claim (or in the case of contributory
negligence, reduce the plaintiff’s claim). Under civil liability legislation
there are also a number of immunities from liability that apply in certain
circumstances, for example, in relation to volunteers acting in good faith
and to Good Samaritans (see Chapter 7). Only the main defences of
contributory negligence, voluntary assumption of risk and illegality are
considered in this chapter. Time limitations that operate to make an action
statute barred are also briefly covered.
 CHAPTER 14 DEFENCES TO NEGLIGENCE / 147

Contributory negligence
Contributory negligence defined
[14.20] Contributory negligence arises where the plaintiff fails to meet the
standard of reasonable care for her/his own safety and, in doing so,
contributes to the injuries she/he suffers. It is not necessary for the plaintiff
to owe the defendant a duty of care (Commissioner of Railways v Ruprecht
(1979) 142 CLR 563), or for the plaintiff’s negligent conduct to contribute to
the cause of the accident in any way. The issue is whether the plaintiff’s
conduct contributed to the injury or loss suffered by the plaintiff (Froom v
Butcher [1976] 1 QB 286). Whether a plaintiff is guilty of contributory
negligence is a question of fact to be determined objectively.

Joslyn v Berryman
[14.30] Joslyn v Berryman (2003) 214 CLR 552

FACTS • The plaintiff and defendant had been drinking heavily at a party until the early
hours of the morning. After only a few hours of sleep and still under the influence of
alcohol they travelled in the plaintiff’s car to a nearby town for breakfast. On the way back
to the party, the plaintiff (who had been nodding off at the wheel) allowed the defendant
to drive. Shortly thereafter the defendant lost control of the vehicle, which overturned,
injuring the plaintiff. The plaintiff was aware that the defendant had previously lost her
licence and had not driven for three years. He was also aware that the car had a number of
defects including a tendency to roll. The plaintiff claimed the defendant was negligent in
the manner of driving the vehicle. The defendant claimed that the plaintiff was contributory
negligent, by allowing her to drive the vehicle.

HELD • Although most judges in the High Court dealt with this issue under the provisions
of the Motor Accidents Act 1988 (NSW), McHugh J considered the issue of contributory
negligence under the common law. In doing so he confirmed that the test of contributory
negligence is objective and takes into account all the circumstances that an ordinary
reasonable person in the position of the plaintiff knew or ought to have reasonably foreseen
would expose him/ her to a risk of injury. The reasonable person is a sober person. The
plaintiff had been with the defendant during the night and was, or ought to have been,
aware of her state of intoxication. In those circumstances an ordinary, reasonable person
would not have consented to her driving the vehicle while he was a passenger. It made no
difference that the plaintiff himself was intoxicated at the time that the defendant took over
the driving. The plaintiff’s damages were reduced on the basis of the contributory
negligence.
148 LAWBRIEF: TORTS

[14.40] Contributory negligence was once a complete defence to a

negligence claim. However, with the introduction of apportionment
legislation in the 1950s, a finding of contributory negligence reduces the
plaintiff’s damages “to the extent the court considers just and equitable
having regard to the claimant’s share in the responsibility for the damage”
(Law Reform Act 1995 (Qld) s 10(1)(b); for similar provisions in other
jurisdictions see CLWA (ACT) s 102; Law Reform (Miscellaneous Provisions)
Act 1965 (NSW) s 9(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT)
s 16(1); Law Reform (Contributory Negligence and Apportionment of Liability)
Act 2001 (SA) s 7; Wrongs Act 1954 (Tas) s 4(1); WrA (Vic) s 26(1); Law Reform
(Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 4(1)).

Establishing contributory negligence

[14.50] Historically, the courts applied a lower standard of care to
plaintiffs than to defendants. This was said to reflect a view that it is
acceptable for plaintiffs to take less care for themselves than for others
(Caterson v Commissioner of Railways (NSW) (1973) 128 CLR 99). However,
under civil liability legislation the same objective standard applicable to
defendants is to be used in determining whether the plaintiff is guilty of
contributory negligence (CLA (NSW) s 5R; CLA (Qld) s 23; CLA (SA) s 44;
CLA (Tas) s 23; WrA (Vic) s 62; CLA (WA) s 5K).
As with the standard of care for defendants, some subjective qualities of
the plaintiff are taken into account in determining the standard of care, in
particular the young age of the plaintiff (Kelly v Bega County Council
(unreported, Court of Appeal of NSW, 13 September 1982); New South Wales
v Griffin [2004] NSWCA 17; Doubleday v Kelly [2005] NSWCA 151). An adult
defendant’s mild intellectual disability was taken into account in
determining contributory negligence in Russell v Rail Infrastructure
Corporation [2007] NSWSC 402. In relation to employees it has also been
accepted that “mere inadvertence or inattention” by an employee may not
amount to contributory negligence, dependent on the nature of the
employment (McLean v Tedman (1984) 155 CLR 306; Czatyrko v Edith Cowan
University (2005) 214 ALR 349).

Special legislative provisions — intoxication

[14.60] A number of jurisdictions have enacted legislative provisions to
deal with situations where the plaintiff is intoxicated or relies on a
defendant who is intoxicated. In such cases there is a presumption of
contributory negligence. Unless the presumption is rebutted, a minimum
reduction to the plaintiff’s damages must be applied. Where the negligence
involves a motor vehicle accident and alcohol or drugs are involved, higher
 CHAPTER 14 DEFENCES TO NEGLIGENCE / 149

minimums are imposed. For the various provisions see CLWA (ACT)
ss 95 – 96; Motor Accidents Compensation Act 1999 (NSW) s 138; PILDA (NT)
ss 14 – 15; CLA (Qld) ss 47 – 49; CLA (SA) ss 46 – 50; CLA (Tas) s 5; WrA
(Vic) s 14G; CLA (WA) s 5L; see also Mackenzie v The Nominal Defendant
(2005) 43 MVR 315; [2005] NSWCA 180.
Of even greater consequence is a provision in New South Wales that
operates to defeat a plaintiff’s claim if the plaintiff was intoxicated at the
time of the injury and is unable to prove that the harm would have been
likely even if sober (CLA (NSW) s 50; see eg Russell v Edwards (2006) 65
NSWLR 373; [2006] NSWCA 19; Jones v Dapto Leagues Club Ltd [2008]
NSWCA 32).

Apportionment
[14.70] In order to assess the percentage by which the plaintiff’s damages
are to be reduced for contributory negligence, the court compares the
culpability of the parties (Pennington v Norris (1956) 96 CLR 10). Under the
common law it is not possible to apportion 100% contributory negligence to
the plaintiff (Wynbergen v Hoyts Corporation (1998) 149 ALR 25). However, in
some jurisdictions, civil liability legislation provisions allow a finding of
100% apportionment, which, if applied, defeats the plaintiff’s claim (CLWA
(ACT) s 47; CLA (NSW) s 5S; CLA (Qld) s 24; WrA (Vic) s 63).

Volenti non fit injuria — voluntary assumption of risk

Volenti non fit injuria defined
[14.80] A defendant may escape liability by establishing that the plaintiff
freely and voluntarily assumed the risk of injury from the defendant’s
negligence. At common law, in order to succeed, the defendant must prove
(Scanlon v American Cigarette Co (Overseas Pty Ltd (No 3) [1987] VR 289;
Imbree v McNeilly (2008) 236 CLR 510):
• that the plaintiff had full knowledge and appreciation of the risk
• that the plaintiff freely and willingly agreed to encounter the risk.

The requirement for subjective knowledge

[14.90] As the test at common law requires proof of the plaintiff’s
subjective knowledge and appreciation of the risk, the defence has proved
very difficult for the defendant to establish. Mere knowledge of a risk does
not imply consent, particularly in an employment context.
150 LAWBRIEF: TORTS

Smith v Charles Baker and Sons

[14.100] Smith v Charles Baker and Sons [1891] AC 325

FACTS • The plaintiff was employed by the defendants. He was required to cut away at a
rock face with a hammer and chisel. Above him a crane was lifting and moving rocks when
a rock fell, severely injuring him. He sued the defendants, who, in turn, claimed that by
accepting work in those conditions the plaintiff was voluntarily assuming the risk of injury.

HELD • While the plaintiff may have possessed full knowledge of the hazard, that was not
enough. The defendant would also need to establish that the plaintiff consented to take
on the risk of injury occurring by virtue of the defendant’s negligence. As the defendant
could not establish such consent, the defence failed.
Compare Imperial Chemical Industries v Shatwell [1965] AC 656.

[14.110] At common law the plaintiff must have accepted the precise risk
that eventuated, not some general risk associated with the activity.

Rootes v Shelton
[14.120] Rootes v Shelton (1967) 116 CLR 383

FACTS • The plaintiff was injured when performing a cross-over manoeuvre whilst
water-skiing. The injury occurred as a result of the plaintiff crashing into a moored boat.
The plaintiff sued the defendant driver of the boat, claiming that the defendant drove too
close to the moored boat and failed to warn the skiers of its presence. The defendant
claimed that the plaintiff had voluntarily engaged in a dangerous activity, accepting the
risks involved.

HELD • The defendant was liable. Although the plaintiff was aware of the dangers
involved in water-skiing (in particular, in cross-overs) and accepted those, this did not
mean the plaintiff consented to the risk of the defendant negligently driving the boat and
failing to advise of the presence of obstacles.
[SEE ALSO • Kent v Scattini [1961] WAR 74; Leyden v Caboolture Shire Council [2007] QCA
134, where the court accepted that circumstances of volenti were rare but considered that
a 15 year old BMX bike rider had voluntarily accepted the risks involved in riding on the
council BMX track which had been modified by other users.]
 CHAPTER 14 DEFENCES TO NEGLIGENCE / 151

Volenti and obvious risks

[14.130] Civil liability legislation in most jurisdictions has deemed a
plaintiff aware of the risk in situations where the risk is obvious. An
obvious risk is defined in the legislation as a risk that would be obvious to
a reasonable person in the position of the plaintiff. The effect of these
provisions is to require the plaintiff to rebut the presumption of knowledge
of the general risk (not specific), where such risk is obvious. The defendant
will, however, still be required to establish that the plaintiff appreciated
and voluntarily accepted that risk (CLA (NSW) ss 5F – 5G; CLA (Qld)
ss 13 – 14; CLA (SA) ss 36 – 37; CLA (Tas) ss 15 – 16; WrA (Vic) ss 53 – 54;
CLA (WA) ss 5F – 5N).

Obvious risks and dangerous recreational activities

[14.140] In some jurisdictions, a defendant will not be liable for harm
occurring to the plaintiff as the result of the materialisation of an obvious
risk arising from participation in a “dangerous recreational activity”. Both
“obvious risk” and “dangerous recreational activity” are defined in the
relevant legislation (CLA (NSW) ss 5K – 5L; CLA (Qld) ss 17 – 19; CLA
(Tas) ss 18 – 20; CLA (WA) ss 5E – 5I). For the recreational activity to be
dangerous it must involve a significant risk of physical harm (CLA (NSW)
s 5K). The definition of “dangerous recreational activity” differs in some
jurisdictions. The activity must be considered in the context and
circumstances in which it was undertaken. So for example walking along a
cliff in the daytime may not be considered a dangerous recreational activity,
but walking at night without lighting may be (Fallas v Mourlas (2006) 65
NSWLR 418, per Ipp JA at [36]). Dangerous recreational activities have
been held to include: kangaroo shooting at night (but only in the context in
which it occurred Fallas v Mourlas (2006) 65 NSWLR 418); diving into water
of unknown depth from a wharf (Jaber v Rockdale City Council [2008] Aust
Torts Reps 81-952); riding a BMX bike in a skate park (Vreman v Albury City
Council [2011] NSWSC 39); doing a backflip from a rope into a river (Streller
v Albury City Council [2013] Aust Torts Reports 82-146); flying a light or
ultralight plane (Campbell v Hay [2014] Aust Torts Reps 82-169). Activities
not considered to be dangerous recreational activities have included: sport
of Oztag (Falvo v Australian Oztag Sports Association [2006] Aust Torts Reps
81-831); dolphin watching from a boat (Lormine Pty Ltd v Xuereb [2006]
NSWCA 200); weight lifting at a gym (Drouet v Garbett (2011) 75 SR (WA)
231); diving from a moored boat (Laoulach v Ibrahim [2011] NSWCA 402);
spear fishing (Smith v Perese [2006] NSWCA 288).
152 LAWBRIEF: TORTS

No liability for the materialisation of an inherent risk

[14.150] Although not strictly an issue of volenti, it must be noted that a
defendant is not liable to a plaintiff for harm suffered as the result of the
materialisation of an inherent risk (CLA (NSW) s 5I; CLA (Qld) s 16; CLA
(SA) s 39; WrA (Vic) s 55; CLA (WA) s 5P). An inherent risk is a risk that
cannot be avoided, even where all reasonable care is taken. This exclusion
of liability that arises both at common law and statute does not apply to a
duty to warn of an inherent risk. This is particularly relevant to medical
procedures (Rogers v Whittaker (1992) 175 CLR 479).
A defendant does not owe a duty to warn of an obvious risk under civil
liability legislation in some jurisdictions; this was considered under breach
of duty (see Chapter 10).

Volenti and the intoxicated driver

[14.160] The defence of volenti non fit injuria has sometimes been raised in
cases where the plaintiff knowingly accepts a lift with an intoxicated driver.
In such circumstances, it must be established that the plaintiff was fully
aware of the defendant’s incapacity to drive and accepted that risk
(Insurance Commissioner v Joyce (1948) 77 CLR 39). In situations where the
plaintiff is also intoxicated, proof of subjective knowledge and appreciation
of the risk is difficult to establish. As a result, the defence has rarely been
found to apply, with the courts preferring to apply contributory negligence
(O’Shea v Permanent Trustee Co of NSW Ltd [1971] Qd R 1; Duncan v Bell
[1967] Qd R 425).
Civil liability legislation in some jurisdictions prevents the defence of
volenti applying where a plaintiff relies on the skill of an intoxicated
defendant generally (CLWA (ACT) s 36(5); CLA (Qld) s 48(5); CLA (SA)
s 47(6)), and in New South Wales on an intoxicated driver only (Motor
Accidents Compensation Act 1999 (NSW) s 140).

Illegality
Joint illegal enterprise
[14.170] This common law defence applies where both the plaintiff and
the defendant are together engaged in an illegal enterprise, and the plaintiff
is injured as a result of the defendant’s negligent conduct. In such
circumstances the defendant may escape liability on the basis that either
 CHAPTER 14 DEFENCES TO NEGLIGENCE / 153

the defendant cannot be said to owe the plaintiff a duty of care or that the
defence of joint illegality denies such a claim (Smith v Jenkins (1970) 119
CLR 397).
The defence will not apply to all unlawful activity jointly engaged in by
the defendant and the plaintiff. The courts have formulated various tests in
determining the effect of joint illegal activity. Where the criminal activity is
less serious and the defendant’s negligence is not connected to the criminal
activity, the defence will not apply and the defendant may be liable (Jackson
v Harrison (1978) 138 CLR 438). In situations where the standard of care
cannot be determined without reference to the criminal activity, no duty of
care will arise (Gala v Preston (1991) 172 CLR 243). More recently the High
Court has stated that whether or not the joint illegality will affect the duty
of care owed must be determined by analysing the purpose of the statute
governing the criminal activity. If imposing a duty of care would be
inconsistent with the purpose of the criminal law provisions, no duty
should be owed. This ensures coherency of the law.

Miller v Miller
[14.180] Miller v Miller (2011) 275 CLR 611

FACTS • The 16 year old plaintiff had been drinking and decided to steal a car to get
home. She asked her unlicenced sister to drive the car. As they left the car park, the
defendant (the plaintiff’s uncle) saw them and told them that he would drive. While at first
the defendant drove reasonably, he began speeding and going through red lights. The
plaintiff asked him to slow down and to stop and let her out of the vehicle. He refused and
lost control of the vehicle crashing into a pole and seriously injuring the plaintiff.

HELD • Pursuant to the legislative framework, the offence of illegally using a car is closely
associated with reckless and dangerous driving. It would be incongruous for the law of
negligence to hold that when jointly engaging in such illegal activity one offender owes
the other a duty to take reasonable care. In this case however the plaintiff had attempted
to withdraw from the illegal activity by asking to stop. She was therefore no longer jointly
engaged in the illegal activity with the defendant driver when the injury occurred and a
duty of care was thereby owed to her.

[14.190] By virtue of the High Court approach in Miller v Miller (2011) 275
CLR 611 it could be argued that joint illegal activity is not strictly a defence
to negligence but is part of the determination of whether or not the
defendant owes the plaintiff a duty of care.
154 LAWBRIEF: TORTS

Statutory exclusion — plaintiff’s illegal activity

[14.200] A number of jurisdictions responded to public concern that a
person injured whilst engaged in criminal activity should not be entitled to
an award of damages. The legislative exclusion applies to plaintiffs acting
alone, as well as in concert, and in relation to any defendant.
While the legislation varies across the jurisdictions, it generally provides
that recovery of damages is precluded where the plaintiff is involved in a
serious criminal offence at the time of the negligent conduct by the
defendant (CLA (NSW) s 54; PILDA (NT) s 10; CLA (Qld) s 45; CLA (SA)
s 43; CLA (Tas) s 6; see also Corliss v Gibbings-Johns [2010] QCA 233). The
plaintiff’s illegal conduct must contribute materially to the risk of the harm.
In situations where the result of the exclusion would be harsh or unjust, the
court still has the discretion to award damages. In Victoria there is no
exclusion of liability but a requirement to consider the illegal conduct in
relation to the question of breach: WrA (Vic) s 14G.

Limitation of actions
General principles
[14.210] Legislation in all jurisdictions prevents a plaintiff from bringing
an action for personal injury or property damage if the prescribed time
limitation has expired. In these circumstances the cause of action is said to
be statute barred. The rationale for providing a time limitation period is
said to include:
• Preservation of evidence.
• Difficulties caused to defendants if they are required to try to defend
claims after a long period of time has expired.
• The need for defendants to arrange their affairs on the basis there will be
no more claims made against them.
• Need for certainty for insurers, public institutions and businesses.
See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
As the legislation varies significantly across the jurisdictions, only
general principles, primarily in relation to personal injuries will be
discussed. Reference should then be made to applicable legislative
provisions in each jurisdiction (Limitation Act 1985 (ACT); Limitation Act
1969 (NSW); Limitation Act (NT); Limitation of Actions Act 1974 (Qld);
Limitation of Actions Act 1936 (SA); Limitation Act 1974 (Tas); Limitation of
Actions Act 1958 (Vic); Limitation Act 2005 (WA)).
 CHAPTER 14 DEFENCES TO NEGLIGENCE / 155

Time limitation
[14.220] For personal injuries, the time limitation is generally three years,
and for property damage, six years (except in the Northern Territory where
it is three years). Depending on the jurisdiction, the limitation period
commences from either the date on which the cause of action accrues or
from the date of discoverability.

Date action accrues

[14.230] The time period commences from the date at which the cause of
action is complete. In relation to negligence actions, this will be from the
time the plaintiff suffers damage. Even if the plaintiff is unaware of the
damage, time will begin to run, provided some material damage has
occurred (Cartledge v E Jopling Sons Ltd [1963] AC 758).
The harshness of this rule has been alleviated by providing the court
with discretion to extend the limitation period where the plaintiff was
ignorant of material facts of a decisive character relating to the cause of
action.

Date of discoverability
[14.240] Time runs from the date the plaintiff knew or ought to have
known that injury had occurred. In order to protect the defendant from
claims brought many years after the negligent act or conduct, a long-stop
provision is provided. This means that no action can be brought after a
period of 12 years, irrespective of whether the plaintiff had “discovered”
the injury. Discretion exists for the court to extend the period where it
would be just and reasonable to do so.

Special plaintiffs
[14.250] Special rules apply to children and those with mental incapacity.
The relevant legislation should be consulted to ascertain the appropriate
time limitations.
MindMap14

Defences to Negligence

Voluntary Assumption Dangerous Recreational

Contributory Negligence Illegal Activity
of Risk Activity

Plt’s failure to meet Common law CL legislation (some At Common Law

standard of care for own jurisdictions): Def not
safety Plaintiff must have full liable for harm occurring Joint Illegal Activity – no
knowledge of risk and to plaintiff as the result duty owed by defendant to
Objective test voluntarily assumed risk of the materialisation of plaintiff
obvious risk arising from
Joslyn v Berryman Smith v Charles Baker participation in a Gala v Preston
and Sons “dangerous recreational
Plt’s conduct contributes to activity” Duty cannot be
injury Imbree v McNeilly NSW, Qld, Tas, WA. inconsistent with criminal
law

Froom v Butcher Plaintiff must accept Was Pltf undertaking a

precise risk recreational activity? Miller v Miller
Intoxication
Recreational activity Illegality under CL
Rootes v Shelton
defined in CL legislation Legislation
Presumption of
contributory negligence CL legislative provisions
CL legislation Was it dangerous? Damages excluded if
– obvious risk and volenti engaged in serious crime
Russell v Edwards
at time of negligence
Significant risk of
Where the risk is “obvious”; Corliss v Gibbings-Johns
physical harm
Damages are apportioned knowledge of the general Falvo v Australian Oztag
pursuant to legislation in risk is presumed
each State
Volenti may not apply where Activity considered in
a plaintiff relies on the skill context
Can be 100% under CL
of an intoxicated defendant Fallas v Mourlas
legislation
under CL legislation in some Jaber v Rockdale CC
jurisdictions

KEY POINT: Legislation in all jurisdictions prevents a plaintiff

from bringing an action for personal injury or property damage
if the prescribed time limitation has expired. In these
circumstances the cause of action is said to be statute barred.
 Chapter 15

Personal injuries damages –

Part 1
Personal injuries damages – Part 1
[15.10] INTRODUCTION....................................................................... 158
[15.20] CATEGORIES OF DAMAGES ...................................................... 159
[15.20] Compensatory damages.................................................. 159
[15.30] Aggravated damages ..................................................... 159
[15.40] Exemplary damages ...................................................... 159
[15.50] Nominal damages ......................................................... 159
[15.60] GENERAL PRINCIPLES OF COMPENSATORY DAMAGES FOR
PERSONAL INJURY .................................................................. 160
[15.70] The compensatory principle ............................................. 160
[15.80] The once and for all rule................................................. 160
[15.90] The lump sum rule ........................................................ 160
[15.100] ASSESSING COMPENSATORY DAMAGES — TERMINOLOGY ............ 161
[15.110] Special damages and general damages .............................. 161
[15.120] Terminology under civil liability legislation............................. 161
[15.130] ASSESSMENT OF ECONOMIC LOSS............................................ 162
[15.130] Medical and care expenses ............................................. 162
[15.160] Gratuitous care............................................................. 162
[15.180] Loss of earning capacity ................................................. 164
[15.210] Lost years................................................................... 165
[15.220] Discounting for contingencies and vicissitudes of life............... 165

Introduction
[15.10] A plaintiff who has succeeded in establishing that the defendant’s
breach of duty was the cause of his/her harm will be entitled to
compensation. The court orders that the defendant pay compensation to
the plaintiff for each aspect of the harm suffered. This monetary sum is
referred to as the “damages” payable, and must be distinguished from the
“damage”, which refers to the type of harm suffered by the plaintiff.
Awards for damages are governed by both the common law and statute.
Under the various civil liability regimes, limitations have been imposed on
recovery of damages in negligence, vastly reducing the availability and
amount of compensation available to some potential plaintiffs under the
common law. Note, however, in some jurisdictions, certain intentional torts
fall outside the legislation (see, for example, McCracken v Melbourne Storm
 CHAPTER 15 PERSONAL INJURIES DAMAGES – PART 1 / 159

Rugby League Football Club [2005] NSWSC 107; New South Wales v Ibbett
(2005) 65 NSWLR 168). Dust and tobacco related injuries may also be
exempt (see Chapter 1).

Categories of damages
Compensatory damages
[15.20] Compensatory damages are awarded to compensate the plaintiff
for the actual damage suffered. These damages form the basis of tortious
actions and are designed, as far as money can do so, to place the plaintiff in
the position they would have been had the tort not been committed
(Todorovic v Waller (1981) 150 CLR 402 at 412). They are awarded for all
aspects of the actual damage suffered. For personal injuries, compensatory
damages will generally include both personal losses (such as pain and
suffering, loss of enjoyment of life) and financial losses (loss of income and
costs of care).

Aggravated damages
[15.30] Aggravated damages are awarded in situations where the
defendant’s conduct is so culpable as to warrant compensating a plaintiff
for humiliation and emotional distress. They are awarded in respect of
actions where a person’s dignity is likely to be injured, such as defamation
or sexual assault.

Exemplary damages
[15.40] Exemplary damages are not a form of compensatory damages but
are seen as a punishment and deterrent for outrageously bad conduct by a
defendant. The conduct warranting exemplary damages has been described
as involving “a conscious and contumelious disregard for the plaintiff’s
rights” (XI Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985)
155 CLR 448, per Brennan J at 471). Although available at common law for
negligence actions in “exceptional circumstances” (Gray v Motor Accident
Commission (1998) 196 CLR 1), both aggravated and exemplary damages
have been excluded as a form of damages for negligence actions in a
number of jurisdictions under civil liability legislation (CLA (NSW) s 21;
PILDA (NT) s 19; CLA (Qld) s 52).

Nominal damages
[15.50] Nominal damages are awarded in situations where the plaintiff
has not suffered any damage, but the cause of action has been successfully
160 LAWBRIEF: TORTS

proven. The amount is nominal and is only available where damage is not
a required element of the action, such as trespass. As negligence requires
damage to be proven, nominal damages are not available.

General principles of compensatory damages for personal

injury
[15.60] These general principles should be kept in mind when assessing
the damages that may be awarded to a plaintiff for personal injury.

The compensatory principle

[15.70] The compensatory principle states that the award of damages
should, as nearly as possible, place the plaintiff in the same position as
he/she would have been had the tort not been committed (Todorovic v
Waller (1981) 150 CLR 402 at 412).

The once and for all rule

[15.80] This rule states that damages are assessed once and for all. It is
not possible for the plaintiff to come back to court at a later stage seeking
more compensatory damages for the same cause of action, even where
his/her condition has significantly worsened since the assessment of
damages was made (Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR
1023 at 1027). Awards for damages include calculations based on what may
occur in the future and, as such, they are susceptible to miscalculation and
inaccuracies. As the House of Lords commented in relation to the
estimation of damages for future loss, “[t]here is really only one certainty:
the future will prove the award to be either too high or too low” (Lim v
Camden and Islington Area Health Authority [1980] AC 174 at 183).

The lump sum rule

[15.90] At common law the plaintiff receives the compensatory damages
as a lump sum of money and is entitled to do what he/she wishes with it
(Todorovic v Waller (1981) 150 CLR 402). The defendant has no say in how
the money is spent. However, under civil liability legislation, parties are
entitled to a structured settlement for personal injuries claims. Courts can
approve the structured settlement, which provides for payment of the
compensation by way of periodic payments (CLWA (ACT) s 45; CLA
(NSW) s 24; PILDA (NT) s 32; CLA (Qld) s 65; Supreme Court Act 1935 (SA)
s 30BA; WrA (Vic) s 28N; CLA (WA) s 15). In some States, compensation
schemes for motor vehicle accidents and workers compensation also
provide for periodic payments.
 CHAPTER 15 PERSONAL INJURIES DAMAGES – PART 1 / 161

Assessing compensatory damages — terminology

[15.100] Courts generally assess the damages to be awarded under
various categories or “heads of damages”. All amounts are calculated to
ensure there are no omissions or overlap of damages awards. So, for
example, in the case of Sharman v Evans (1977) 138 CLR 563 at [15.140], a
reduction was made to the amount allocated for a loss of earning capacity
on the basis that costs of maintaining oneself, which would normally be
paid out of earnings (if not injured), had been provided for as part of the
medical and care expenses. Once this is done, the amounts are added
together and the amount awarded as a lump sum.
In CSR Ltd v Eddy (2005) 226 CLR 1, Gleeson CJ, Gummow and
Heydon JJ noted that there are three types of loss:
• Non-pecuniary (non-economic) loss which includes pain and suffering,
loss of amenities, loss of expectation of life and disfigurement.
• Loss of earning capacity both before and after trial.
• Pecuniary (economic) loss for actual financial loss including for example
living expenses and medical expenses.

Special damages and general damages

[15.110] Traditionally under the common law a further distinction has
been made between special damages that compensate for actual monetary
losses occurring up to the date of verdict (which can be calculated with
precision) and general damages that are awarded to compensate for losses
that cannot be calculated with precision and include both pecuniary
(economic) and non-pecuniary (non-economic) loss (Paff v Speed (1961) 105
CLR 549). As noted by McHugh J in CSR Ltd v Eddy (2005) 226 CLR 1 (at
[90]), the distinction between special and general damages has often been
blurred in the cases, with some judges preferring to refer to the categories
of pecuniary and non-pecuniary damages as noted at [15.100].

Terminology under civil liability legislation

[15.120] Terminology under the various civil liability legislative schemes
differs slightly but most commonly refers to general damages as involving
awards for non-pecuniary (non-economic) loss (CLA (NSW) Pt 2; CLA
(Qld) Ch 3 Pt 3; WrA (Vic) Pt VB; CLA (WA) Pt 2). Further headings and
references under the legislation include loss of earnings, future loss and
gratuitous services. In this chapter, damages are discussed under the broad
headings of economic loss and non-economic loss.
162 LAWBRIEF: TORTS

Assessment of economic loss

Medical and care expenses
[15.130] The plaintiff is compensated for all expenses that are reasonably
incurred. In determining what is reasonable the court will take into account
a number of factors including the cost of care and the health benefits to the
plaintiff.

Sharman v Evans
[15.140] Sharman v Evans (1977) 138 CLR 563

FACTS • The plaintiff was 20 years old when she was severely injured in a motor vehicle
accident caused by the defendant. Her injuries included quadriplegia, epilepsy, loss of
speech and impaired respiratory functioning. She was fully aware of her plight and sought
damages that included the cost of medical care to be provided at her parents’ home. One
of the questions before the court was whether the cost of care at home was a reasonable
expense or should be limited to the lower cost of hospital care.

HELD • The court held in the circumstances that, although not ideal, the reasonable
requirements of the plaintiff could be met through the provision of less expensive hospital
care. It was felt that as hospital care would not affect her physical or mental health; it was
therefore reasonable. While this would clearly be a less attractive option for the plaintiff,
the court awarded a greater amount of damages under loss of enjoyment of life.

[15.150] However, compare: Government Insurance Office of NSW v Mackie

[1990] Aust Torts Reports 81-053; Burford v Allen [1993] Aust Torts Reports
81-226; and Rosecrance v Rosecrance (1995) 105 NTR 1 — where the court
noted that home care was far preferable for the plaintiff’s wellbeing than
institutional care. This reflects the strongly held view that in today’s society
institutional care must be considered as a last resort.

Gratuitous care
[15.160] At common law where care is provided free of charge by a friend
or relative, the plaintiff is entitled to the sum of money that represents the
reasonable costs of such care (Griffiths v Kerkemeyer (1977) 139 CLR 161). The
amount is assessed according to the market value of the care provided and
not on the basis of the lost earnings of the care provider (Van Gervan v
 CHAPTER 15 PERSONAL INJURIES DAMAGES – PART 1 / 163

Fenton (1992) 175 CLR 327). Furthermore, the sum will be paid even where
the care provider is also the defendant (Lynch v Lynch (1991) 25 NSWLR
411; Kars v Kars (1996) 187 CLR 354).
The Ipp Panel recommended limitations be introduced to Griffiths v
Kerkemeyer damages. As a result, legislative thresholds have been introduced
in a number of jurisdictions. Under the provisions, to be eligible for Griffiths
v Kerkemeyer awards, the plaintiff must require care for a minimum period
of time (CLA (NSW) s 15; PILDA (NT) s 23; CLA (Qld) s 59; CLA (SA) s 58;
CLA (Tas) s 28B; WrA (Vic) s 218A; CLA (WA) s 12). Different restrictions
may apply in respect of no fault schemes in various jurisdictions (for
example motor vehicle and work accidents).
The need for gratuitous services must arise solely from the injury caused
by the defendant.

Woolworths Ltd v Lawlor

[15.170] Woolworths Ltd v Lawlor [2004] NSWCA 209

FACTS • Mrs Lawlor was injured when she fell on a moving walkway at the defendant’s
shopping complex. She sued the defendant, claiming damages, which included the costs
of the gratuitous care provided by her husband. The defendant (appellant) argued that
the trial judge had failed to take into account the fact that, first, the tasks performed by the
plaintiff’s husband were provided also for his own benefit and, second, that as the plaintiff
had a pre-existing condition that was aggravated by the fall, the need for care could not be
said to arise “solely” from the injury as required by s 15 of the Civil Liability Act 2002
(NSW).

HELD • The trial judge had made appropriate deductions in the calculation of the
gratuitous care provided, to take account of any services or tasks that were for the
husband’s own benefit and would have been performed even if the accident had not
occurred. Furthermore, the requirement that the care arose solely from the injury caused
did not mean that aggravation to a pre-existing injury excluded the right to recovery.
Assessment could be made for the amount of extra care arising “solely” from the injury.
[SEE ALSO • CSR Ltd v Eddy (2005) 226 CLR 1 where the High Court held that the
damages do not extend to cover the cost of gratuitous services that the plaintiff was
providing to another prior to the injury to the plaintiff. Some legislative provisions do
however provide for damages for gratuitous domestic services provided by an injured
plaintiff in limited circumstances (CLWA (ACT) s 100; CLA (NSW) s 15; PILDA (NT) s 23;
CLA (Qld) s 59A; CLA (SA) s 58; CLA (Tas) s 28B; WrA (Vic) s 218A; CLA (WA) s 12).]
164 LAWBRIEF: TORTS

Loss of earning capacity

[15.180] Damages under this heading are assessed for lack of earning
capacity, not for lost wages or income. While evidence of past earnings may
provide guidance for calculating the loss, it is not determinative of the
amount to be awarded for earning capacity.

Husher v Husher
[15.190] Husher v Husher (1999) 197 CLR 138

FACTS • The plaintiff was in a partnership arrangement with his wife at the time he was
injured through the defendant’s negligence. While the partnership paid the income in
equal shares to the plaintiff and his wife, he claimed the full amount of the partnership’s
income as his loss of future earning capacity. The defendant claimed he should only be
entitled to 50%, as this represented his loss of earnings.

HELD • The basis of the damages was for loss of earning capacity, not loss of actual
income. As the husband was able to establish that he controlled the capacity of the
partnership to earn, he was entitled to the assessment of the full amount of the
partnership income as representing his loss of earning capacity.
[SEE ALSO • Batt v Wilkinson [1983] 2 Qd R 619; Atlas Tiles v Briers (1978) 144 CLR 202 at
210; Thomas v Iselin [1972] QWN 15; Maes v Alcoa of Australia (1993) 9 SR (WA) 370. Note
also that income tax is taken into account, so that the plaintiff receives the net (after tax)
value of the earning capacity (Cullen v Trappell (1980) 146 CLR 1.]

[15.200] At common law, the amount received for loss of earning capacity
is based on the plaintiff’s pre-injury earning capacity, no matter how high
that may have been. This reflects the principle that the plaintiff must be
placed, as far as money can do so, in the same position he/she would have
been had the tort not been committed. As a result, damages for loss of
earning capacity often forms the greatest part of a damages award. The Ipp
Panel recommended that caps be placed on this head of damages. The
panel noted that high-income earners should be in a position to insure
against income loss.
In accordance with the Ipp Panel recommendations, legislative caps have
been placed on the amount to be awarded for loss of earning capacity. In all
jurisdictions, except for South Australia, the maximum a plaintiff can be
awarded is three times the average weekly earnings (CLWA (ACT) s 98;
CLA (NSW) s 12; PILDA (NT) s 20; CLA (Qld) s 54; CLA (Tas) s 26; WrA
(Vic) s 28F; CLA (WA) s 11). In South Australia it is indexed at $2,200,000
 CHAPTER 15 PERSONAL INJURIES DAMAGES – PART 1 / 165

(CLA (SA)s 54). For cases dealing with the civil liability provisions referred
to see Allianz Australia Insurance v Kerr (2012) 83 NSWLR 302; Tuohey v
Freemasons Hospital (2012) 37 VR 180.
Damages for loss of employer superannuation contributions may also be
awarded (CLA (NSW) s 15C; CLA (Qld) s 56; CLA (Tas) s 25).

Lost years
[15.210] Lost years refer to the expected reduction in the plaintiff’s life
expectancy as a result of the defendant’s negligence. A plaintiff will still be
awarded damages for future loss of earning capacity up until the
pre-accident date of retirement, even if this exceeds the expected
post-accident date of death. However, as the plaintiff will not require
medical care and other living expenses for the lost years, damages are
discounted to take that into account (Sharman v Evans (1977) 138 CLR 563).

Discounting for contingencies and vicissitudes of life

The discount factor
[15.220] By receiving the damages in one large lump sum, the plaintiff
can invest the money to earn further income well into the future. This
means that the money can increase significantly in value, thereby
representing a far greater award than had originally been assessed, and
possibly over-compensating the plaintiff. On the other hand, inflation
invariably increases the cost of living, so that damages of $270,000 awarded
to Ms Evans in 1977 (Sharman v Evans (1977) 138 CLR 563), which was one
of the largest awards at the time, could not in today’s society provide for
her care, medical expenses and loss of earning capacity. In balancing the
potential windfall the plaintiff receives through a lump sum payment
against inflation and increases in real income, the courts adjusts the lump
sum damages by applying a discount factor at common law of 3%
(Todorovic v Waller (1981) 150 CLR 402) and in most jurisdictions a statutory
discount of 5% (CLA (NSW) s 14; PILDA (NT) s 22; Supreme Court Act 1995
(Qld) s 16; CLA (Qld) s 57; CLA (SA) ss 3A and 55; CLA (Tas) s 28A; WrA
(Vic) s 28I; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 5 (rate as
fixed by the Governor by order or 6%)).

Vicissitudes or contingencies of life

[15.230] In attempting to reflect the position the plaintiff would have been
in had the accident never occurred, the court takes into account a number
of factors both positive and negative that may impact upon a person’s
earning capacity throughout their working life. For example, illness,
166 LAWBRIEF: TORTS

pregnancy and childrearing, and economic and industrial conditions may

force a person out of work for periods of time and, conversely, promotion
opportunities may arise that increase a person’s earning capacity. If no
account is taken of these contingencies, the plaintiff, by receiving all the
loss of earning capacity in one lump sum, receives an amount that is
possibly far greater than that which he/she would have received
throughout their working life if not injured. In consideration of these
factors, the court assesses an amount by which the lump sum should be
adjusted to accurately reflect the possibility of these contingencies.

Wynn v NSW Insurance Ministerial Corporation

[15.240] Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485

FACTS • Mrs Wynn was employed at American Express in 1981 and within five years was
promoted to manager of authorisations. She was injured in a motor vehicle accident
caused by the defendant’s negligence in 1986 and, while she returned to work for a period
after the accident, she was forced to leave in 1988 due to her deteriorating condition. In
determining the appropriate award, the defendant argued, among other things, that the
amount to be awarded for loss of earning capacity should be reduced to take into account
the possibility that the plaintiff would have spent some of the earnings on childcare if she
had not been injured and had decided to raise a family.

HELD • The possibility that a person may have needed childcare in order to earn income
was not a factor to be taken into account in discounting the lump sum payment for
contingencies of life. Due to the variations inherent in types of childcare and costs, it was
simply another cost associated with childrearing, which was essentially private in nature
and not to be used as a deduction in calculating loss of earning capacity. On the other
hand, possible absence from work (and earning capacity) due to maternity leave could be
taken into account. By balancing the factors of a previous injury, possible maternity leave
and also the possibility of further promotion, the court determined that the appropriate
discount amount for the plaintiff’s economic loss was 12.5%.
MindMap15

Personal Injuries Damages – Part 1

General Principles of Assessing Compensatory

Categories of Damages
Compensatory Damages Damages

Nominal damages Once and for all rule Three types of loss

Aggravated/exemplary Not possible for the plaintiff Non-pecuniary

to come back to court at a (non-economic) loss
damages
later stage seeking more
compensatory damages for Loss of earning capacity
Aggravated: awarded for the same cause of action
humiliation and emotional Pecuniary (economic) loss
distress
Lim v Camden and
Exemplary: punishment and Islington Area Health Economic loss categories
deterrent for outrageously Authority
bad conduct by a defendant Medical and care expenses
Compensatory principle
Compensatory damages Sharman v Evans
The award of damages
Compensate the plaintiff for should, as nearly as Gratuitous care
the actual damage suffered possible, place the plaintiff CLA restrictions
in the same position as
he/she would have been Griffiths v Kerkemeyer;
Todorovic v Waller
had the tort not been Kars v Kars
committed Woolworths v Lawlor
CSR v Eddy
Todorovic v Waller
Loss of earning capacity
Legislation in some
Lump sum rule CLA restrictions
jurisdictions allows for
structured settlements
At common law: The plaintiff Husher v Husher
receives the compensatory Allianz Australia
damages as a lump sum of Insurance v Kerr
money with it
Discounting contingencies /
vicissitudes of life
Todorovic v Waller
Legislative discount
CLAs

Wynn v NSW Insurance

 Chapter 16

Personal injuries damages –

Part 2: Wrongful death and
survival actions
Personal injuries damages – Part 2:
Wrongful death and survival actions
[16.10] INTRODUCTION....................................................................... 168
[16.20] NON-ECONOMIC (OR NON-PECUNIARY) LOSSES........................... 168
[16.20] General principles ......................................................... 168
[16.50] The legislative schemes .................................................. 170
[16.60] DAMAGES AND THE ONUS OF PROOF ........................................ 171
[16.80] THE DUTY TO MITIGATE ........................................................... 171
[16.90] OTHER FACTORS .................................................................... 172
[16.90] Interest....................................................................... 172
[16.100] Receipt of other benefits ................................................. 172
[16.140] WRONGFUL DEATH.................................................................. 173
[16.140] General principles ......................................................... 173
[16.170] Requirements under the legislation .................................... 174
[16.230] SURVIVAL ACTIONS ................................................................. 176

Introduction
[16.10] Chapter 15 was primarily concerned with assessment of a
plaintiff’s economic loss for damages for personal injuries. As was noted,
economic (or pecuniary) loss is concerned with loss of earning capacity,
general care expenses and medical expenses. This chapter continues the
exploration of personal injuries damages by looking at non-economic (or
non-pecuniary) loss, which is concerned with intangible damages such as
pain and suffering, loss of amenities, loss of expectation of life, and
disfigurement. Onus of proof, the plaintiff’s duty to mitigate, and the effect
of interest and other benefits on damages are also considered before
turning to the right of the dependants to bring actions for the wrongful
death of the family member.

Non-economic (or non-pecuniary) losses

General principles
[16.20] Damages under this head are defined differently under the civil
liability schemes across the jurisdictions, as either “general damages”,
 CHAPTER 16 PERSONAL INJURIES DAMAGES – PART 2: WRONGFUL DEATH AND SURVIVAL ACTIONS / 169

“non-pecuniary loss”, or “non-economic loss”. Broadly speaking, they

cover pain and suffering, loss of amenities, loss of expectation of life, and
disfigurement. These damages are assessed subjectively so that the
unconscious plaintiff, who is unaware of his/her plight, will receive less for
non-economic loss than a plaintiff who is fully aware of what he/she has
lost as a result of the defendant’s negligence. The next case at [16.30],
decided before introduction of the legislative reforms, illustrates how these
damages are calculated.

Skelton v Collins
[16.30] Skelton v Collins (1966) 115 CLR 94

FACTS • The plaintiff was 19 years old when he was injured through the defendant’s
negligence. He did not regain consciousness after the accident due to extensive brain
injury, and was expected to die within six months of the trial date. The questions on appeal
included the appropriate basis for determining non-economic damages and the loss of
earning capacity.

HELD • The plaintiff was not entitled to any damages for pain and suffering as he had no
feeling from the date of the accident. Loss of expectation of life is calculated without
reference to mental anguish (mental anguish is calculated under loss of amenities). Loss
of expectation of life, therefore, includes a relatively small and conventional sum awarded
in recognition of the objective fact that there has been a shortening of the plaintiff’s life
expectancy.
Damages for loss of amenities involves consideration of the plaintiff’s subjective loss of
enjoyment of life. As stated per Taylor J (at 113):
[A] person who is obliged for the rest of his life to live with his incapacity, fully conscious of the
limitations which it imposes upon his enjoyment of life, is entitled to greater compensation than
one who, although deprived of his former capacity is spared, by insensibility, from the realisation
of his loss and the trials and tribulations consequent upon it.

As discussed in Chapter 15, loss of earning capacity (an economic loss) is calculated on
the pre-accident life expectancy of the plaintiff.

[16.40] Compare Sharman v Evans (1977) 138 CLR 563, where the plaintiff
suffered horrific injuries, including quadriplegia and was fully aware of her
plight. She received substantial damages for pain and suffering (she
underwent numerous operations and would continue to suffer pain in her
shoulder and larynx) and for loss of enjoyment and amenities of life (taking
into account that she would have to remain in hospitalised care for the rest
of her life).
170 LAWBRIEF: TORTS

The legislative schemes

[16.50] Under civil liability legislation the different factors (pain and
suffering, loss of amenities, loss of expectation of life, and disfigurement)
are considered, although the amount is awarded as one sum under the
heading of non-economic damages (or non-pecuniary or general damages
as the case may be). There are caps on the maximum amount of
non-economic damages that may be awarded in some jurisdictions (CLA
(NSW) s 16(2); PILDA (NT) s 27(1)(a); CLA (Qld) s 63; CLA (SA) s 52; WrA
(Vic) s 28G; CLA (WA) s 10). There is no cap in Tasmania or the ACT. In
New South Wales, the Northern Territory, South Australia, Tasmania and
Western Australia there are also minimum thresholds that must be met
before an award of general non-pecuniary damages can be made.
The assessment of non-pecuniary damages varies under the different
legislative schemes. In New South Wales, the Northern Territory,
Queensland and South Australia sliding scales are used, with the most
serious injuries attracting a tariff at the higher end of the scale. For further
detail, each of the schemes should be considered.
It can be said, however, that factors, similar to those under the common
law, are taken into account in determining the plaintiff’s positioning on the
scale. These include:
• The degree of insight the plaintiff possesses into his/her plight. See
[16.20], and the discussion in Skelton v Collins (1966) 115 CLR 94.
• The extent of the pain and suffering. See [16.40], and the discussion in
Skelton v Collins (1966) 115 CLR 94 and Sharman v Evans (1977) 138 CLR
563.
• Loss of amenities, which refers to the reduction in the ability of the
plaintiff to participate in activities and enjoy life to the same extent as
prior to the accident. The plaintiff’s age, lifestyle and awareness will all
bear upon this assessment. The loss of an Indigenous person’s tribal
status as the result of injuries sustained has been recognised as a loss of
amenity (Napalumba v Baker (1982) 29 SASR 192).
• Age and life expectancy. A younger person who suffers permanent injury
will generally be entitled to a higher amount of damages than an older
person with similar injuries. Life expectancy is also taken into account.
 CHAPTER 16 PERSONAL INJURIES DAMAGES – PART 2: WRONGFUL DEATH AND SURVIVAL ACTIONS / 171

Damages and the onus of proof

[16.60] The plaintiff bears the onus of proving the extent of his/her
damages. Where the damages relate to loss that occurred prior to trial,
proof is on the balance of probabilities. Where the damages relate to future
losses and are based on what might have occurred or what may occur, the
court assesses or adjusts the damages on the basis of the possibility of the
hypothetical event occurring.

Malec v JC Hutton Pty Ltd

[16.70] Malec v JC Hutton (1990) 169 CLR 638

FACTS • The plaintiff worked in the defendant’s meatworks from 1972 until 1980. As a
result of the defendant’s negligence he contracted acute brucellosis (an infectious disease
acquired from animals) some time between 1975 and 1977. He sued the defendant,
claiming damages for the brucellosis, as well as a psychiatric illness (depression), which
developed in 1979, and a back condition, which developed in 1982 (which he claimed
sprung from the brucellosis). The question before the court was whether the plaintiff was
able to establish that both the psychiatric condition and the back condition were related
to the brucellosis and therefore part of the defendant’s liability.

HELD • The defendant was liable for the psychiatric condition but not the back condition.
As both these events had occurred prior to the trial date, the plaintiff had to establish that
it was more probable than not (51%) that they were as a result of the brucellosis. He
established it was more probable than not that the depression was a result of the
brucellosis. This then was treated as a certainty and he was entitled to be compensated
for it. He could not establish on the balance of probabilities that the back injury was the
result of the brucellosis, so on the all or nothing basis he was not entitled to any damages
for the back injury. The court then went on to consider the defendant’s argument, that the
plaintiff would have suffered the depression at some time in the future as a result of the
degenerative back condition, even if he had not suffered the brucellosis. As the court
accepted that there was a possibility that this would have occurred, the plaintiff’s
damages were reduced to take into account that chance.

The duty to mitigate

[16.80] The plaintiff is obliged to take reasonable steps to minimise
(mitigate) his/her loss. Proof by the defendant of the plaintiff’s failure to
mitigate may result in a reduction or denial of compensation to the plaintiff
172 LAWBRIEF: TORTS

(Glavonic v Foster [1979] VR 536). The test of objective reasonableness

involves consideration of subjective factors personal to the particular
plaintiff (Medlin v State Government Insurance Commission (1995) 182 CLR 1;
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345). See also CLA (Qld)
s 53, which allows a defendant to provide a notice to the plaintiff advising
of action the plaintiff should take to mitigate damages.

Other factors
Interest
[16.90] There is often a considerable amount of time that has lapsed
between the date of the plaintiff’s injuries and the date of the matter
reaching court, or settlement as the case may be. This is due in part to the
need to ensure injuries have settled to obtain a true picture of the extent of
the loss, and also partly due to the length of time inherently involved in
court proceedings. Although the award of damages is designed to
compensate the plaintiff from the date of injury, it may be a matter of years
before the lump sum payment is finally awarded. The plaintiff can thereby
lose the amount he/she could have made on investing the money if paid at
the time of the injury.
In recognition of this, the court may award interest on the damages from
the date of injury until the date of trial. Legislation in each jurisdiction
defines how the court exercises its discretion in awarding interest as a
component of the damages.

Receipt of other benefits

[16.100] As a result of the injury, the plaintiff may be entitled to benefits
from a range of sources, prior to receiving any damages from the
defendant. For example, the plaintiff may be entitled to sickness benefits or
may receive money through a private insurance scheme. In some instances,
the benefits may have to be repaid or deducted from (set off against) the
amount of damages finally awarded. The type of benefit and its source will
determine how the benefit is treated in the final damages award.
Workers’ compensation payments
[16.110] Workers’ compensation payments received by the plaintiff must
generally be paid back to the statutory scheme after receipt of common law
damages (Workers Compensation Act 1954 (ACT) s 184(2); Workers
Compensation Act 1987 (NSW) s 151A; Workers Compensation Act 1958 (Vic)
s 65(1); Workers’ Compensation and Injury Management Act 1981 (WA) s 92).
 CHAPTER 16 PERSONAL INJURIES DAMAGES – PART 2: WRONGFUL DEATH AND SURVIVAL ACTIONS / 173

Under s 237 of the Workers Compensation and Rehabilitation Act 2003 (Qld)
limitations are placed on a worker’s right to seek damages.

Social security payments

[16.120] A plaintiff is generally required to pay back any social security
benefits received as a result of the injury (Social Security Act 1991 (Cth)
ss 1178, 1179). In assessing a person’s eligibility for social security, the
Department is entitled to take into account any compensation or damages
received by the plaintiff, which is then treated as income (Social Security Act
1991 (Cth) s 17).

Private insurance and employment benefits

[16.130] Payments made to the plaintiff through a private insurer are
generally not set off against the damages award (Bradburn v Great Western
Railway Co (1874) LR 10 Exch 1). As it is the insurance company who
normally initiates the proceedings under the plaintiff’s name, they will
recover any payments made by them to the plaintiff from the award, as per
their insurance contract.
Where an employee receives sick pay from their employer, the amount
will be set off against the damages award, although pensions, redundancy
payments and superannuation are generally not (Graham v Baker (1961) 106
CLR 340).

Wrongful death
General principles
[16.140] While it was once the case that a plaintiff’s right of action ceased
with the death of either the plaintiff or the defendant, that rule was
overcome in England and its colonies with the introduction of the Fatal
Accidents Act 1846 (UK). Known as Lord Campbell’s Act, similar statutes
were introduced in all Australian jurisdictions, allowing for dependants or
family members of the deceased to pursue an action for wrongful death.
This was so, provided that if the deceased had lived, he/she would have
had a right of action against the defendant wrongdoer for the injuries
suffered (British Electric Railway Co v Gentile [1914] AC 1034; Partridge v
Chick (1951) 84 CLR 611). Any complete defences that would have been
available to the defendant against the deceased continue to apply (for
example, voluntary assumption of risk, illegality or time limitations).
Contributory negligence on the part of the deceased may also reduce
damages available in some jurisdictions.
174 LAWBRIEF: TORTS

The legislation in each Australian jurisdiction differs slightly. The

following provides an example:

Wrongs Act 1958 (Vic)

[16.150] Wrongs Act 1958 (Vic), s 16
Whensoever the death of a person is caused by a wrongful act neglect or default and the
act neglect or default is such as would (if death had not ensued) have entitled the party
injured to maintain an action and recover damages in respect thereof, then and in every
such case the person who would have been liable if death had not ensued shall be liable
to an action for damages notwithstanding the death of the person injured.

[16.160] See Civil Law (Wrongs) Act 2002 (ACT) s 24; Compensation (Fatal
Injuries) Act 1974 (NT) s 7(1); Compensation to Relatives Act 1897 (NSW)
s 3(1); Civil Proceedings Act 2011 (Qld) s 64; Civil Liability Act 1936 (SA) s 23;
Fatal Accidents Act 1934 (Tas) s 4; Fatal Accidents Act 1959 (WA) s 4.
While the most common Lord Campbell’s Act actions relate to death
caused by tortious conduct such as negligence, the action extends to other
wrongs including breach of contract (Woolworths Ltd v Crotty (1942) 66 CLR
603). Different limitation periods in which to bring a Lord Campbell’s Act
action exist across the jurisdictions, ranging from three to six years, and are
calculated to run from either the date of death or the date on which the
cause of action arose.

Requirements under the legislation

Causation
[16.170] The plaintiff must establish that the defendant caused the
deceased’s death.

Haber v Walker
[16.180] Haber v Walker [1963] VR 339

FACTS • The plaintiff’s husband committed suicide some time after receiving serious
injuries, including brain injury, in a motor vehicle accident caused by the defendant’s
negligence. The plaintiff sued the defendant. One of the questions before the court was
whether the defendant by “some act, neglect or default” had caused the defendant’s
death.

HELD • The plaintiff need only establish that the defendant’s act directly or materially
 CHAPTER 16 PERSONAL INJURIES DAMAGES – PART 2: WRONGFUL DEATH AND SURVIVAL ACTIONS / 175

contributed to the deceased’s death. There is no further requirement that the nature of
the death was reasonably foreseeable.

[16.190] Compare however Lisle v Brice [2002] 2 Qd R 168; Lyle v Soc (2009)
38 WAR 418 (CA) (court applied a test of reasonable foreseeability).

Eligible claimants
[16.200] Dependents who may claim for wrongful death include the
spouse, parent, child (including stepchildren), siblings and grandchildren
of the deceased person. Where there are a number of claimants, the court
will apportion the damages on the basis of the loss suffered by each. The
damages are awarded only for the loss of support, representing contribution
to the household that was provided, or expected to be provided, by the
deceased person. Claims cannot be made for any form of non-economic
loss.

Nguyen v Nguyen
[16.210] Nguyen v Nguyen (1990) 169 CLR 245

FACTS • The plaintiffs (claimants) were the husband and infant children of the woman
who died as a result of the defendant’s negligent conduct. Part of the plaintiffs’ claim
included the costs of providing services that the wife and mother had provided to the
household such as cooking, cleaning and childcare. A question before the court was
whether the plaintiffs were entitled to this amount, even if they were receiving the services
gratuitously from another family member and/or had no intention of paying for help to fill
the void.

HELD • The plaintiffs were entitled to the amount of lost services. The services provided
to the household by the wife and mother were capable of monetary calculation, and the
plaintiffs had lost the right to the services. Just like Griffiths v Kerkemeyer (1977) 139 CLR
161 damages, there was no disentitlement to the award just because the services were
being provided gratuitously.

Assessment of damages
[16.220] Damages are assessed in accordance with the principles of
compensatory damages and are based on the claimant’s reasonable and
foreseeable expectation of benefit had the deceased lived. The deceased’s
earning capacity will be calculated, taking into account relevant
176 LAWBRIEF: TORTS

contingencies and vicissitudes of life. No claim can be made for the pain
and suffering or other non-economic loss suffered by the deceased. While
the claimant’s award was sometimes reduced to take into account the
prospect of remarriage, this is no longer the case. Instead a discount is
applied for all the possible contingencies as a single sum (De Sales v Ingrilli
(2002) 212 CLR 338).

Survival actions
[16.230] The cause of action for most tortious acts (excluding defamation)
survives the death of the plaintiff and defendant. This means that the estate
of the plaintiff can sue the defendant, or the plaintiff can sue the
defendant’s estate in the event the defendant has died. Varying time
requirements in which to bring the action exist across the jurisdictions.
The plaintiff’s estate can sue to recover only the economic damages that
arose between the date of the injury and the plaintiff’s death. This includes
loss of earning capacity and medical and care expenses during that period.
There is no entitlement to future economic loss or non-economic damages
(except for dust-related injuries).
MindMap16

Damages – Part 2 Wrongful Death Survival Actions

Assessment for Lord Campbell’s Act – Cause of Action Survives

Non-Economic Loss Adopted in each Death of Plaintiff or
Australian Jurisdiction Defendant (except
Defamation Actions)
Include: Pain and
suffering Allows for dependants or
Loss of amenities family members of the Plaintiff can sue
Loss of expectation of life deceased to pursue an defendant’s estate
Disfigurement action for wrongful death
Plaintiff’s estate can sue
Skelton v Collins; the defendant
Requirements for action
Sharman v Evans

Defendant caused the death Damages are sought for the

Legislative schemes economic loss occurring
CL legislation – imposes between injury and
caps on damages Haber v Walker plaintiff’s death

Factors taken in to account Must be an eligible claimant

No entitlement to future
economic loss or
Extent of pain and Includes: spouse, non-economic damages
suffering parent, child (including (except for dust-related
Sharman v Evans stepchildren), siblings injuries)
and grandchildren of the
deceased person
Age; Life expectancy
Damages are awarded for
Degree of insight loss of support
Skelton v Collins
Nguyen v Nguyen
Loss of amenities
Napalumba v Baker Damages assessed on
basis of reasonable
expectation of support
Duty to mitigate
Glavonic v Foster
Discount for contingencies
De Sales v Ingrilli
Onus of proof
Malec v JC Hutton
 Chapter 17

Vicarious liability,
non-delegable duties and
multiple tortfeasors
Vicarious liability, non-delegable duties
and multiple tortfeasors
[17.10] INTRODUCTION....................................................................... 178
[17.20] VICARIOUS LIABILITY ............................................................... 179
[17.20] General principles ......................................................... 179
[17.30] Employee or independent contractor? ................................. 179
[17.70] Acts in the course of employment...................................... 181
[17.140] NON-DELEGABLE DUTIES ......................................................... 183
[17.140] General principles ......................................................... 183
[17.150] Non-delegable duty of employers....................................... 184
[17.170] Non-delegable duty of hospitals and schools ........................ 184
[17.180] Non-delegable duty of occupiers........................................ 185
[17.210] Indemnities.................................................................. 185
[17.220] CONCURRENT LIABILITY AND PROPORTIONATE LIABILITY .............. 186

Introduction
[17.10] In certain circumstances a defendant may be held liable for a tort
committed by another. Generally, this is because of the relationship
between the defendant and the tortfeasor (the person who committed the
tort), or the relationship between the defendant and the person injured.
Liability may arise because the defendant is said to be vicariously liable for
the tortfeasor’s actions, or because the defendant owes to the plaintiff a
special duty that cannot be delegated to another person.
Where there is more than one defendant liable for the same damage, the
defendants are referred to as concurrent tortfeasors and at common law are
jointly and severally liable for the whole of the plaintiff’s damages (solidary
liability). Each of these three different forms of liability is considered in this
chapter.
 CHAPTER 17 VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND MULTIPLE TORTFEASORS / 179

Vicarious liability
General principles
[17.20] Vicarious liability is a form of strict liability, where a person is
held responsible for the tort or wrong of another, irrespective of personal
fault. Vicarious liability is justified on the basis that:
• it provides the plaintiff with the opportunity to sue a person who has the
means to compensate them for the loss suffered
• employers vicariously liable for the wrong of their employees are
encouraged to take care in the selection and training of employees to
minimise loss
• employers who receive all the benefits of the business enterprise must
also take responsibility for burdens of the enterprise
• employers are in a position to insure against third-party liability.
The most significant category of vicarious liability, the liability of
employers for wrongful conduct of employees, is considered in this
chapter. In determining whether an employer is vicariously liable for a tort
committed by an employee, two questions must be answered:
1 Was the tortfeasor the defendant’s employee or an independent
contractor?
2 Was the tortfeasor acting in the course of his/her employment at the
time the tort was committed?

Employee or independent contractor?

[17.30] Employers are only responsible for the tortious acts of their
employees, not for torts committed by independent contractors. An
employee is engaged under a contract of services, whereas an independent
contractor is engaged under a contract for services.
Determining the exact nature of the relationship between the parties can
be difficult and a number of tests have been formulated. The most
important of these is the control test, which focuses on the degree of control
that the employer has over the type, manner and performance of the work
completed. The greater the degree of control exercised by the defendant,
the more likely the relationship is one of employer and employee (Cassidy v
Ministry of Health [1951] 2 KB 343). However, while the control test works
well in relation to unskilled workers, it is of less relevance in relation to
highly skilled workers who may need or receive very little direction
(Stevenson, Jordan and Harrison Ltd v MacDonald and Evans [1952] 1 TLR 101).
180 LAWBRIEF: TORTS

Today the courts prefer to employ a multifaceted approach, which looks

at the totality of the relationship between the parties.

Stevens v Brodribb Sawmilling Co Pty Ltd

[17.40] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

FACTS • The defendant sawmilling company employed “fellers” to cut down trees,
“sniggers” to push and pull the logs by tractor up a ramp and into trucks, and “truckers” to
transport the logs to the sawmill. The plaintiff was a trucker who sued the defendant when
he was injured through the negligence of a snigger in moving the logs. The question
before the court was whether the snigger was an employee of the defendant, in which case
the defendant would be vicariously liable for his negligent act.

HELD • While the control test remains the most important criteria for determining
employment relationships, it is not always enough on its own. Factors that indicate the
nature of the relationship is that of employer–employee include: the right to have a
particular person do the job; the right to dismiss; the right to the exclusive services of the
person engaged; and the right to control the hours worked, the place of work and the
performance of the work. Factors that indicate a contract for services (independent
contractor) include: supply by the professional or tradesperson of their own tools,
equipment and place of work; the creation of saleable assets and goodwill by the person
engaged; and the payment of his/her own business expenses and taxation obligations.
This list is not exhaustive and the significance of each will depend on the particular
circumstances of the case. In this case, the sniggers supplied their own vehicles,
determined their own hours of work and were paid by the volume of timber. The work was
not guaranteed and they could seek work elsewhere if weather prevented work at the mill.
All of these factors indicated the contract was one for services rather than of services.
Therefore, the snigger was not an employee but an independent contractor and the
defendant was not vicariously liable for the snigger’s tortious act.

[17.50] Control is still the most significant factor, as illustrated in the

following case.

Hollis v Vabu
[17.60] Hollis v Vabu (2001) 207 CLR 21

FACTS • The plaintiff, who worked as a courier, was injured when another courier on a
bicycle ran into him. The cyclist did not stop, but the plaintiff was able to identify him by a
shirt he was wearing, which bore the defendant’s logo. He sued the defendant courier
 CHAPTER 17 VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND MULTIPLE TORTFEASORS / 181

company for the negligence of the courier who had run into him. The Court of Appeal held
the couriers were independent contractors on the basis that the couriers provided and
maintained their own bikes. The plaintiff appealed.

HELD • The factors indicating the relationship was one of employer–employee included:
the respondent allocated the work that the courier could not refuse; the respondent
trained and directed the couriers and provided their company uniforms that the couriers
had to wear; rates of pay were set by the respondent without negotiation, and deductions
were made from the pay for insurance and the position did not require any special skills or
special qualifications. While the couriers provided their own bikes, it was held that this was
not conclusive, because the cost of the equipment was not substantial. Furthermore, the
respondent provided other items of equipment that remained the property of the
respondent. As these factors all indicated that the respondent exercised a great deal of
control over the couriers, the couriers were held to be employees.
[SEE ALSO • Scott v Davis (2000) 204 CLR 333; 175 ALR 217; Roe v Minister of Health
[1954] 2 QB 66 (doctors, nurses and medical professionals employees of hospital in which
they work); Gold v Essex County Council [1942] 2 KB 293; Commonwealth v Connell (1986) 5
NSWLR 218; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; Lloyd v Borg [2013]
Aust Torts Reports 82-140.]

Acts in the course of employment

[17.70] An employer will only be vicariously liable for the tortious
conduct of an employee where the conduct occurs during the course of the
employment. In other words, the tortious conduct must be referable to the
employment relationship.

Improper mode of doing authorised work

[17.80] Acting within the course of employment includes acts committed
while undertaking authorised work in an unauthorised or even wrongful
manner (Bugge v Brown (1919) 26 CLR 110). An example is where a security
guard, of a licenced premises, used excessive force and assaulted a patron.
Even though the conduct of the security guard was not authorised by the
employer, the conduct was so closely related to the work and in
furtherance of the objectives of the work, as to come within the course of
employment (Ryan v Ann St Holdings Pty Ltd [2006] 2 Qd R 486).

Acts not authorised to perform

[17.90] However, where the employee is said to be on a frolic of their
own, acting well outside the scope of their employment, the employer will
not be vicariously liable.
182 LAWBRIEF: TORTS

Deatons Pty Ltd v Flew

[17.100] Deatons Pty Ltd v Flew (1949) 79 CLR 370

FACTS • A barmaid, angered by the continued bad language of a hotel patron, threw a
glass of beer at him. The patron sued the hotelier, claiming vicarious liability for the act of
the barmaid.

HELD • The barmaid’s act was a “spontaneous act of retributive justice”, which was not
considered to be a consequence of her employment. It was neither an authorised nor an
unauthorised mode of undertaking authorised work and, as such, the employer was not
vicariously liable for her acts.

[17.110] This “frolic doctrine” also applies to situations where an

employee, during work time, uses time and resources for personal
purposes (Storey v Ashton (1869) LR 4 QB 476 cf Chaplin v Dunstan Ltd
[1938] SASR 245). It must be noted that the employer may still be liable for
wrongful acts that occur during the course of the employment, even
though the employer had expressly prohibited the wrongful act (Phoenix
Society Incorporated v Cavanagh and Walla (1996) 25 MVR 143; Rose v Plenty
[1976] 1 WLR 141; Canterbury Bankstown Rugby League Football Club Ltd v
Rogers; Bugden v Rogers [1993] Aust Torts Reports 81-246; cf McClure v
Commonwealth [1999] NSWCA 392). A more recent example of the frolic
doctrine occurred where an employee struck the plaintiff (a co-worker)
behind his knee causing him to collapse and receive a severe back injury.
As this was considered to be the spontaneous act of a prankster and not
incidental to his employment, the employer was not liable (Blake v JR Perry
Nominees Pty Ltd (2012) 38 VR 123).

The scope of liability — intentional and criminal conduct

[17.120] While the majority of vicarious liability cases involve employee’s
negligent conduct, an employer may also be held liable for intentional torts
and criminal offences committed by the employee (Lloyd v Grace and Smith
and Co [1912] AC 716; Ffrench v Sestili (2007) 98 SASR 28). In determining
whether the conduct falls within the course of the employment it has been
suggested that if the employee’s misconduct is sufficiently connected to the
risks of the employer’s enterprise, the employer will be vicariously liable
(Bazley v Curry (1999) 174 DLR (4th) 45); Hollis v Vabu (2001) 207 CLR 21).
The possible tests and limits of liability for intentional torts were discussed
by the High Court in a case involving the sexual abuse of school children
by teachers.
 CHAPTER 17 VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND MULTIPLE TORTFEASORS / 183

New South Wales v Lepore; Samin v Queensland; Rich v Queensland

[17.130] New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212
CLR 511

FACTS • Two cases from Queensland and one case from New South Wales came before
the High Court on appeal and were all heard together. The cases all involved abuse
(including in Queensland gross sexual abuse), by teachers upon pupils during school time
or on school premises. One of the questions before the court was whether the States, as
the teachers’ employers, were vicariously liable for the intentional and criminal conduct of
their employees.

HELD • The members of the High Court held different views as to whether the State could
be held liable for such deliberate and improper conduct by teachers. Gummow and
Hayne JJ took a narrow view, holding that the sexual assaults by the teachers could not be
considered acts “done in the intended pursuit of the interests of the state in conducting
the … school … [nor] in the apparent execution of any authority [the teachers] had” at
[243]. Callinan J refused to accept that intentional criminal conduct by a teacher could
ever be considered within the scope of a teacher’s employment duties. Gleeson CJ
considered that where there was a sufficient undertaking of personal protection and
intimacy within the teacher–pupil relationship, sexual misconduct may be sufficiently
closely connected to the employment. Kirby J referred to the enterprise risk test noting
that due to the immaturity and vulnerability of children and the position of authority of
teachers, such a risk was inherent in the enterprise. Gaudron J similarly held that a school
could be vicariously liable for such conduct. McHugh J believed the issue did not arise, as
he considered that the school owed a non-delegable duty to the pupil. This view was not
shared by other members of the court (see [17.140]).
[SEE ALSO • Deatons Pty Ltd v Flew (1949) 79 CLR 370; Mattis v Pollock [2003] 1 WLR 2158.]

Non-delegable duties
General principles
[17.140] The application of non-delegable duties provides another
opportunity for a defendant to be held liable for the negligent conduct of
another. It arises where the defendant owes the plaintiff a special duty to
ensure that care is taken, and that duty cannot be delegated to a third party.
The duty is based on the control, care or supervision exercised by the
defendant over the person or property of another, and the special
184 LAWBRIEF: TORTS

dependence or vulnerability of the person owed the non-delegable duty

(Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-551).
The non-delegable duty covers only negligent acts of third parties, not
intentional acts (New South Wales v Lepore (2003) 212 CLR 511).
Where a non-delegable duty exists, the defendant will be liable for the
acts of employees and also independent contractors. There are a number of
different categories of relationship or activity where a non-delegable duty
has been held to exist. Although it has been said that the categories for
non-delegable duties are not closed, the High Court has demonstrated a
reluctance to extend the categories beyond those currently recognised
(Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22).

Non-delegable duty of employers

[17.150] An employer owes a duty to take care of employees, and that
duty cannot be delegated to a third party.

Kondis v State Transport Authority

[17.160] Kondis v State Transport Authority (1984) 154 CLR 672

FACTS • The plaintiff was employed by the defendant to dismantle a structure at railway
yards. He was injured when part of a crane, which was being operated by an independent
operator, fell on him. He sued his employer in negligence, claiming that the employer was
responsible for the negligence of the crane operator.

HELD • Although not vicariously liable for the tortious conduct of the independent
contractor, the defendant employer was personally responsible and liable for the injury
caused. The employer’s responsibility for the crane driver’s negligence arose due to the
failure to provide a safe system of work. The duty to provide the safe system of work could
not be delegated to an independent contractor.
[SEE ALSO • Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 (non-delegable duties
extend to employees only, not independent contractors); Galea v Bagtrans Pty Ltd [2011]
Aust Torts Reports 82-078.]

Non-delegable duty of hospitals and schools

[17.170] A hospital owes a non-delegable duty to its patients (Roe v
Minister of Health [1954] 2 QB 66), although it may not extend to specialists
who are merely using the hospital facilities for a private patient (Ellis v
Wallsend District Hospital (1989) 17 NSWLR 553).
 CHAPTER 17 VICARIOUS LIABILITY, NON-DELEGABLE DUTIES AND MULTIPLE TORTFEASORS / 185

A school authority owes a non-delegable duty of care to its pupils in

relation to negligent acts (Commonwealth v Introvigne (1982) 150 CLR 258).
In New South Wales v Lepore (2003) 212 CLR 511, the High Court held that
the State did not owe a non-delegable duty in relation to the intentional
sexual abuse of the pupils by the teachers.

Non-delegable duty of occupiers

[17.180] An occupier owes a non-delegable duty in relation to things on
their property and under their control that could cause injury to others.
Again, the duty is dependent on notions of control and vulnerability.

Burnie Port Authority v General Jones Pty Ltd

[17.190] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

FACTS • The defendant occupied a warehouse. It allowed independent contractors to

carry out welding work near a pile of cardboard cartons that contained highly flammable
material. A fire broke out that damaged a part of the building where the plaintiff stored
frozen vegetables. The plaintiff sued both the independent contractors (who admitted
negligence but were insolvent) and the defendant occupier.

HELD • The defendant was liable. The plaintiff had no control over the dangerous
situation that the defendant had brought onto the property, and was dependent on the
defendant to exercise all due care. The defendant as occupier had control over what
occurred on its premises and therefore owed the plaintiff a non-delegable duty, which the
defendant had breached.

[17.200] Landlords, however, do not owe a non-delegable duty to tenants

(Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Jones v Bartlett
(2000) 205 CLR 166).

Indemnities
[17.210] Under the common law an employer can seek to recover from the
employee the damages paid to the plaintiff (Lister v Romford Ice and Cold
Storage Co Ltd [1957] AC 555). There are exceptions to this, and in a number
of jurisdictions the right to recover from the employee has been abolished
(Insurance Contracts Act 1984 (Cth) s 66; Employees Liability Act 1991 (NSW)
s 3; Civil Liability Act 1936 (SA) s 59; Law Reform (Miscellaneous Provisions)
186 LAWBRIEF: TORTS

Act 1956 (NT) s 22A). In some jurisdictions the employee will lose this
protection where their misconduct is serious and wilful (New South Wales v
Eade [2006] NSWSC 84).

Concurrent liability and proportionate liability

[17.220] Where multiple tortfeasors cause the same damage to the
plaintiff, they are referred to as “concurrent tortfeasors”. This can occur
where the tortfeasors were jointly responsible for the conduct that caused
the plaintiff injury (“joint tortfeasors”). An example is where the tortfeasors
engage in concerted action (Thompson v Australian Capital Television (1996)
186 CLR 574). Concurrent tortfeasors is also used to describe the situation
where there are several tortfeasors each responsible for causing the
plaintiff’s damage, but through separate or independent tortious conduct
(“several tortfeasors”).
Pursuant to legislation in each jurisdiction, a plaintiff is entitled to bring
an action against any of the multiple tortfeasors. Solidary liability refers to
the rule that any one concurrent tortfeasor is liable for the whole of the
plaintiff’s damage. This does not, however, prevent the plaintiff from
bringing a further action against any of the other tortfeasors, although
there are caps on the recovery of the damages, and restrictions on costs in
any subsequent action. Where only one tortfeasor is sued, the liable
tortfeasor can then claim against the other tortfeasors, seeking contribution
to the damages awarded to the plaintiff.
Since the introduction of civil liability reforms, a number of jurisdictions
have introduced proportionate liability in relation to negligently caused
property damage and economic loss. This means that defendants will only
be held liable for the proportion of the damage they caused on the basis of
what is just and reasonable (CLWA (ACT) ss 107F and 107D(2); CLA (NSW)
s 35(1), (3), (4); CLA (Qld) Chapter 2 Part 2; CLA (Tas) Part 9A; WrA (Vic)
s 24AI; CLA (WA) s 5AK). For examples of cases where contributions have
been calculated and awarded under the proportionate liability provisions
see Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR
762.
MindMap17

Vicarious Liability Non-Delegable Duties

General Principles Employer – Employee General Principles Categories

Question Two
A form of strict liability Duty cannot be Employer – Employee
Was employee acting delegated to third party
One person liable for tort of within scope of Kondis v State Transport
another irrespective of employment? Authority
Basis for duty
personal fault
Employer liable for tortious
Defendant’s degree of
Occupiers
Justification for vicarious liability conduct occurring within
control, care or supervision
the course of employment
Burnie Port Authority v
Person sued has means to pay General Jones Pty Ltd
Burnie Port Authority v
Frolic doctrine – General Jones Pty Ltd
Promotes care in selection Employer not liable Hospital – Patients
and training of employees
Plt’s dependency or
Deatons v Flew vulnerability Roe v Minister of Health
Employers can insure
against third party harm
Improper mode of doing Schools – Students
Burnie Port Authority v
authorised work – General Jones Pty Ltd
Employer – Employee Employer liable
Question One Cth v Introvigne
Applies only to negligent
Bugge v Brown acts Not closed but courts
Was tortfeasor an employee? Ryan v Ann St Holdings
reluctant to expand
NSW v Lepore
Employer liable for acts of Criminal conduct – Leichhardt Municipal
employee only not Employer may be liable Council v Montgomery
independent contractor
Lloyd v Grace and Smith
Tests applied
Enterprise risk
Control test
NSW v Lepore
Control exercised by
employer over the manner
of work
Cassidy v Ministry of Health

Multi-factorial test

Considers totality of
relationship
Stevens v Brobribb
Sawmilling Co
Hollis v Vabu
Chapter 18

Nuisance – Part 1
Nuisance – Part 1
[18.10] INTRODUCTION....................................................................... 188
[18.20] PUBLIC NUISANCE................................................................... 188
[18.20] Public nuisance defined .................................................. 188
[18.30] Title to sue.................................................................. 188
[18.50] Interference with public right............................................. 189
[18.60] PRIVATE NUISANCE ................................................................. 190
[18.60] Private nuisance defined ................................................. 190
[18.70] Harmful interference with the plaintiff’s use of land ................. 190
[18.90] Types of interferences .................................................... 191
[18.140] Unreasonableness of the interference ................................. 192
[18.280] The plaintiff’s title to sue ................................................. 196
[18.290] Onus of proof .............................................................. 196

Introduction
[18.10] At common law there are two types of nuisance, public and
private nuisance. Public nuisance is concerned with interferences with the
rights of the public at large. Private nuisance is concerned with
unreasonable interferences with a person’s private right to the use and
enjoyment of their land. Each form of nuisance requires separate
consideration.

Public nuisance
Public nuisance defined
[18.20] A public nuisance will arise where an act of the defendant
adversely affects or unreasonably interferes with the rights of a section of
the public. The interference must be substantial and unreasonable. The
rights protected include such things as the right to a clean and safe
environment and the right to unobstructed public roadways. Public
nuisance is also a crime for which the defendant can be prosecuted.

Title to sue
[18.30] As public nuisance is concerned with the rights of the public at
large, it is considered unreasonable that a single person should be required
to institute proceedings seeking relief from the nuisance. Generally, it is the
 CHAPTER 18 NUISANCE – PART 1 / 189

Attorney-General who will seek relief as representative of the affected

community, either in his/her own right, or through an individual in what
is called a “relator action”.
Where a particular person suffers some “special” or “particular” damage
beyond what was suffered by the rest of the public, they may be able to
initiate proceedings in public nuisance on their own behalf.

Walsh v Ervin
[18.40] Walsh v Ervin [1952] VLR 361

FACTS • The defendant and plaintiff were neighbouring farmers with a small public
roadway dividing their properties. The defendant blocked off part of the roadway and
planted crops. This caused the plaintiff inconvenience in moving sheep from one paddock
to another. He sued the defendant, claiming public nuisance in obstructing a public
roadway. A question before the court was whether the plaintiff could institute proceedings
on his own behalf for a public nuisance.

HELD • The plaintiff was entitled to bring an action in nuisance as he had suffered
sufficient “special” damage above and beyond that of the general public. The “special” or
“particular” damage consisted of substantial inconvenience and delay. The general public
did not suffer this damage, as the small public road was not generally used by people
other than the farmers.
[SEE ALSO • Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524, where the plaintiffs, who
were commercial fisherman, were unsuccessful in arguing that interference with their
fishing licences amounted to “special damage”. The interference was alleged to have
occurred when the defendant deposited sand into a bay in which they fished. Similarly, no
public right was interfered with when a local council changed parking conditions in public
streets surrounding the plaintiff’s restaurant, thereby causing a decrease in custom
(Deepcliffe Pty Ltd v The Council of the City of Gold Coast [2001] QCA 342).]

Interference with public right

[18.50] The plaintiff must establish that the right being interfered with
was a right belonging to the public at large, or a section of the public
indiscriminately (Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at
170). To constitute public nuisance, the number of people required to be
affected by a defendant’s act will vary dependent on the circumstances.
190 LAWBRIEF: TORTS

Private nuisance
Private nuisance defined
[18.60] In Hargrave v Goldman (1963) 110 CLR 40 at 49, Windeyer J defined
a private nuisance as “an unlawful interference with a person’s use or
enjoyment of land, or some right over, or in connexion with it” (quoting
from Winfield on Torts, 6th ed).
Unlike trespass, private nuisance involves both direct and indirect
interferences with the land. It also includes both tangible interferences,
such as physical damage to property, and intangible interferences, such as
noise, smell, pollution and in some instances offensive sights. Also, as
nuisance derives from action on the case, damage must be proven.

Harmful interference with the plaintiff’s use of land

[18.70] Not all interferences with a person’s use and enjoyment of land
are capable of protection under the tort of nuisance. For example, it will not
generally amount to nuisance to obstruct another’s view (Phipps v Pears
[1965] 1 QB 76) or to peer into another’s property from outside the land

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor

[18.80] Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

FACTS • The plaintiff operated a racecourse to which members of the public paid an
admission fee to view horse races. The defendant broadcast via local radio details of the
horse races, which were called from a platform that had been erected on a neighbouring
property. The plaintiff sued the defendant in nuisance, claiming an unlawful interference
with the enjoyment of the land. The plaintiff claimed the interference resulted in a
decrease in the number of patrons attending the races and the diminution in the value of
the land as a racecourse.

HELD • The defendant was not liable for creating a nuisance. Unlike the diminution in the
value of land caused by interferences through noxious fumes or unreasonable noise,
freedom from view was not considered an interest that the law would protect. Latham CJ
noted (at 494): “the law cannot by injunction in effect erect fences which the plaintiff is not
prepared to provide.” The court stated that the plaintiff was really seeking to protect the
profitable conduct of its business, and not the enjoyment of the land.
Despite this case it should be noted that snooping deliberately into another’s property
through the use of a video camera has been held to amount to a nuisance Raciti v Hughes
(1995) 7 BPR 14,837 (see also the discussion of breach of privacy in Chapter 3)
 CHAPTER 18 NUISANCE – PART 1 / 191

[SEE ALSO • Elston v Dore (1982) 149 CLR 480, where the High Court held that removal
of a drain from the defendant’s property, which resulted in a natural flow of water onto the
plaintiff’s land, did not constitute a nuisance; Hunter v Canary Wharf Ltd [1996] 2 WLR 348
where interference with television reception did not constitute a nuisance (but compare
Nor-Video Services v Ontario Hydro (1978) 84 DLR (3d) 221 (Can)).]

Types of interferences
[18.90] The courts have traditionally distinguished between interferences
causing material physical damage to a plaintiff’s property and interferences
that impact on a plaintiff’s ability to enjoy the property.

Physical injury to the plaintiff’s property

[18.100] Where the interference by a defendant causes a plaintiff to suffer
a “sensible material injury” to his/her property, the courts have often held
that prima facie nuisance is established (St Helen’s Smelting Co Ltd v Tipping
(1865) 11 HLC 642; Lester-Travis v City of Frankston [1970] VR 2). The fact
that the plaintiff’s property is located in an industrial area where some
interference could be expected will not matter, provided the damage is of a
sufficient degree (Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145).
Some examples of interferences causing physical damage to property
include:
• Destruction of vegetation through noxious fumes (St Helen’s Smelting Co
Ltd v Tipping (1865) 11 HLC 642).
• Blocking of a watercourse and causing flooding (Thorpes v Grant Pastoral
Co Pty Ltd (1954) 92 CLR 317).
• Damage to property from escaping golf balls from a recreational golf
course (Lester Travis v City of Frankston [1970] VR 2).
With the expansion of negligence actions and the narrowing of the
distinction between negligence and nuisance, some judges have suggested
that it will be necessary to establish fault before liability in nuisance will
arise even where physical injury was caused to the property (The Wagon
Mound (No 2) [1967] 1 AC 617; Cambridge Water Co v Eastern Counties Leather
Plc [1994] 2 AC 264; Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC
1248).

Interference with a plaintiff’s amenity of land

[18.110] An interference with a plaintiff’s amenity or enjoyment of land
occurs where a defendant’s conduct causes an “inconvenience materially
interfering with the ordinary comfort physically of human existence”
192 LAWBRIEF: TORTS

(Walter v Selfe (1851) 4 De G and Sm 315 per Knight-Bruce V-C); in other

words, where the interference affects the ability of a person to enjoy the
normal comforts and rights associated with possession of land. To amount
to nuisance the interference must be more than “fanciful”, it must be
substantial.

Munro v Southern Dairies

[18.120] Munroe v Southern Dairies [1955] VLR 332

FACTS • The plaintiff who was the owner and occupier of a house in a suburban area,
complained that flies, smell and noise emanating from the keeping of horses on the
defendant’s neighbouring dairy, interfered with his use and enjoyment of the land.

HELD • The court noted that in order to amount to a nuisance there must be substantial
interference with the personal comfort of the plaintiff. What amounts to a substantial
interference with personal comfort will be measured according to ordinary sensibilities
and not abnormal sensitivities. Even though the defendant’s conduct in operating the
dairy was in accordance with accepted standards, the interference was considered
substantial due to its duration and continuous nature. Accordingly the interference
amounted to a nuisance.

[18.130] Although it has been argued that a trivial interference will not
amount to nuisance, the following have been held to amount to a nuisance:
• Loss of sleep through excessive noise (Andreae v Selfridge and Co Ltd
[1937] 3 All ER 255 at 261).
• Use of neighbouring premises for prostitution (Thompson-Schwab v
Costaki [1956] 1 All ER 652 (CA)).
• Floodlights in a backyard (Raciti v Hughes (1995) 7 BPR 14,837).
• Extreme reflection of sunlight into neighbouring buildings (Bank of New
Zealand v Greenwood [1984] 1 NZLR 525).
• Picketing that deters customers or involves obstruction (Dollar Sweets Pty
Ltd v Federated Confectioners Assn [1986] VR 383).
• Vibration from a factory (Sturges v Bridgman (1879) 11 Ch D 852).

Unreasonableness of the interference

[18.140] The interference must not only be substantial, it must also be
unreasonable. The law recognises that there must be some “give and take”
and that people are required to tolerate some degree of interference from
 CHAPTER 18 NUISANCE – PART 1 / 193

their neighbours (Bamford v Turnley (1860) 3 B and S 66 at 84). It is only

when a defendant’s interference is considered unreasonable that a nuisance
will arise. In determining the unreasonableness of the interference, the
court must balance two competing interests: a plaintiff’s right to
undisturbed enjoyment of his/her property and a defendant’s right to
undertake the activity allegedly causing the nuisance. In balancing the
competing factors the court refers to the following factors.

The severity and type of activity

[18.150] The more severe the interference the more likely it is that the
interference will be considered unreasonable.

Andreae v Selfridge and Co Ltd

[18.160] Andreae v Selfridge and Co Ltd [1937] 3 All ER 255

FACTS • The plaintiff owned and operated a hotel on one side of an island. The defendant
company purchased land on the other side of the island, where they began demolishing
buildings in order to rebuild. The plaintiff claimed the defendant’s conduct caused dust
and noise, which interfered with the reasonable enjoyment of her property.

HELD • While the plaintiff had to expect and tolerate some interference with enjoyment
caused by reasonable building activity, interferences at night that disrupted sleep could
not be considered trivial. Such activity, even if destroying only one night’s sleep, was
considered an unreasonable interference, amounting to nuisance.

[18.170] The nature or type of the activity will also determine the
reasonableness of the interference. For example, union picketing or
protestor’s demonstrating will be deemed unreasonable where it interferes
with a plaintiff’s right to access their property (Dollar Sweets Pty Ltd v
Federated Confectioners Assn [1986] VR 383; Animal Liberation (Vic) Inc v
Gasser [1991] 1 VR 51 cf Broderick Motors Pty Ltd v Rothe [1986] Aust Torts
Reports 80-059). Conversely, where the interference is no greater than
expected it will not be considered unreasonable.

Clarey v The Principal and Council of the Women’s College

[18.180] Clarey v The Principal and Council of the Women’s College (1953) 90 CLR 170

FACTS • The plaintiffs were the owners and occupiers of a building, part of which they let
to a university council for use as students’ residence. The plaintiffs claimed the students’
194 LAWBRIEF: TORTS

noise (laughter and talking into the night) amounted to a nuisance and they sued the
defendant university council, seeking to recover the portion of the building let.

HELD • The noise was no more than could be expected from a students’ residence. It did
not disturb other neighbouring residents but only the plaintiff who must have expected
some noise due to the fact that they all resided under the one roof of an old weatherboard
building. In the circumstances, the interference could not be considered unreasonable.

Duration and time

[18.190] The time of day at which the interference occurs will also be
relevant. For example, building noise at night in a residential area may be
considered unreasonable, but may not be so during the day. On the other
hand, building during the day in a business district may be considered
unreasonable.

Wherry v KB Hutcherson Pty Ltd

[18.200] Wherry v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107

FACTS • The plaintiff worked as a solicitor in offices in the Sydney CBD. The plaintiff
complained that noise and vibration, coming from the defendant’s excavation work on a
neighbouring site, interfered with his ability to work effectively.

HELD • The noise and vibrations during office hours constituted a nuisance. The court
granted an injunction restraining the defendant from making noise between 9am and
1pm, and 2pm and 5pm.

[18.210] Similarly, the duration of the interference will be relevant.

Although a minor interference that is unlikely to be repeated will probably
not amount to a nuisance, it may be considered unreasonable if it continues
over a long period of time (Sedleigh-Denfield v O’Callaghan [1940] AC 880).
Location
[18.220] The location where the interference occurs will be relevant to a
determination of its reasonableness. For example, a person living in an
industrial area can expect to have to tolerate greater interference from
noise, smell and pollution than a person living in a residential area (Sturges
v Bridgman (1879) 11 Ch D 852). Even so, where the defendant’s interference
exceeds that which could be expected, even in an industrial area, a
nuisance may arise (Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145).
 CHAPTER 18 NUISANCE – PART 1 / 195

The plaintiff’s sensitivity

[18.230] The court determines whether the interference is reasonable
according to standards of the reasonable person. Where a plaintiff is
abnormally sensitive to a defendant’s activities, the interference may not be
considered unreasonable.

Robinson v Kilvert
[18.240] Robinson v Kilvert (1889) 41 Ch D 88

FACTS • As part of his manufacturing business the plaintiff stored paper and twine in
part of a building leased from the defendant. As part of his own manufacturing business in
the same building, the defendant later installed a boiler in the cellar of the premises. The
plaintiff claimed that the extra heat released from the boiler adversely affected his paper
and twine.

HELD • Although the defendant’s activities did give rise to a small degree of additional
heat, it was not noxious and would not ordinarily interfere with the reasonable use or
enjoyment of the property. As such, the defendant’s conduct could not constitute a
nuisance merely because the plaintiff chose to carry on a hypersensitive business.
[SEE ALSO • Bridlington Relay Ltd v Yorkshire Electricity Board [1965] Ch 436.]

Motive
[18.250] Where the defendant’s conduct is undertaken with a malicious
motive in order to disturb the plaintiff, it may amount to a nuisance. This is
so even where the defendant’s conduct would not ordinarily be considered
unreasonable.

Hollywood Silver Fox Farm Ltd v Emmett

[18.260] Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468

FACTS • The defendant fell out with his neighbour, the plaintiff, who owned a silver fox
farm. Knowing that silver foxes were particularly sensitive to sudden noise, the defendant
discharged guns on his own property with the intention of adversely affecting the foxes’
breeding season. The plaintiff claimed the defendant’s conduct constituted a nuisance.

HELD • While the hypersensitivity of the plaintiff’s own activity might ordinarily have
196 LAWBRIEF: TORTS

prevented the defendant’s conduct from being considered unreasonable, the fact that the
defendant had acted maliciously meant his conduct was unreasonable and amounted to a
nuisance.
[SEE ALSO • Christie v Davey [1893] 1 Ch 316.]

Precautions undertaken by the defendant

[18.270] The precautions that a defendant undertakes in order to
minimise any interference with another’s use of property is relevant to the
question of the reasonableness of the interference. Where a defendant fails
to take reasonable precautions or adopt alternate methods that would
minimise the interference, nuisance may arise. The reasonableness of
alternative methods or precautions will depend on their practicality and
cost (Painter v Reed [1930] SASR 295; McMahon v Catanzaro [1961] QWN 22).

The plaintiff’s title to sue

[18.280] In order to sue for nuisance, a plaintiff must establish that
he/she had a legally recognised interest in the land. This will occur where
a plaintiff has exclusive possession of the land as either the tenant or owner
of the property (Oldham v Lawson (No 1) [1976] VR 654), or in some
circumstances where the person is in exclusive possession as a trespasser.
In the United Kingdom, the House of Lords has clearly stated that mere
occupation of a property as a licensee will not suffice (Hunter v Canary
Wharf Ltd [1996] 2 WLR 348). This case overruled an earlier decision where
the court had held that a young woman, who lived with her parents in
their home, could sue the defendant in nuisance for persistent harassing
and unwanted phone calls (Khorasandjian v Bush [1993] QB 227). In
Australia, it also appears to be the case that a licensee has insufficient title
to maintain an action in nuisance (Stockwell v Victoria [2001] VSC 497, but
note the earlier case of Deasy Investments Pty Ltd v Monrest Pty Ltd [1996]
QCA 466, decided before Hunter v Canary Wharf Ltd, where a mere licensee
was held to have sufficient interest to sue in nuisance).

Onus of proof
[18.290] The onus is on the plaintiff to establish title to sue and an
unreasonable interference with the use and enjoyment of land caused by
the defendant. In order to avoid liability the defendant will be required to
establish that their use of the land was reasonable and/or a defence (as
discussed in Chapter 19) exists (Kraemers v Attorney-General (Tas) [1966] Tas
 CHAPTER 18 NUISANCE – PART 1 / 197

SR 113). Although note the discussion above regarding material sensible

damage at [18.100].
MindMap18

Public Nuisance Private Nuisance – Part 1

Can Amount to Both a Material Physical Interference with a Defendant’s Interference

Tort and a Crime Damage Plaintiff’s Use and Unreasonable
Enjoyment of Land
Unreasonable Involves interference Balance between the
interference with rights that causes physical Must interfere with plaintiff’s right to
of public at large, or large damage to plaintiff’s protected interest undisturbed enjoyment
section indiscriminately property and the defendant’s right
Victoria Park v Taylor to undertake activity
Attorney-General v PYA Location is generally
Quarries irrelevant to question of Must be a substantial Location
reasonableness interference Sturges v Bridgman
Rights protected
eg clean and safe Halsey v Esso Severity / type activity
Munro v Southern Dairies
environment Petroleum Andreae v Selfridge
Andreae v Selfridge
Clarey v Women’s College
eg unobstructed public Sturges v Bridgman
roadways Some cases have held that
defendant’s liable even Time and duration
where conduct not
Plaintiff must have title Wherry v KB Hutcherson
Interference must be to sue
unreasonable
substantial and Plt’s sensitivity
unreasonable Robinson v Kilvert
St Helen’s Smelting Co Exclusive Possession
Ltd v Tipping Hunter v Canary Wharf
Title to sue Stockwell v Victoria Motive
Hollywood Silver Fox Farm v
But note some earlier cases Emmett
Attorney-General through
relator action have held licensee enough
Deasy v Monrest Precautions
Painter v Reed
Attorney-General v PYA
Quarries

Individual – who has

suffered particular damage

Walsh v Ervin
 Chapter 19

Nuisance – Part 2: Breach of

statutory duty
Nuisance – Part 2: Breach of statutory
duty
[19.10] NUISANCE: PART 2: WHO CAN BE SUED?.................................... 200
[19.10] Creator of the nuisance .................................................. 200
[19.30] Occupier’s liability.......................................................... 201
[19.90] DEFENCES ............................................................................. 203
[19.90] Statutory authority ......................................................... 203
[19.110] Consent...................................................................... 204
[19.140] Contributory negligence................................................... 205
[19.150] REMEDIES ............................................................................. 205
[19.150] Abatement................................................................... 205
[19.160] Injunction .................................................................... 205
[19.170] Damages .................................................................... 205
[19.180] BREACH OF STATUTORY DUTY.................................................. 206
[19.180] Introduction ................................................................. 206
[19.190] When will a cause of action arise under the statute? .............. 206
[19.200] Imposition of the statutory duty on the defendant................... 207
[19.240] Breach of statutory duty and causation ............................... 208
[19.250] Defences .................................................................... 208
[19.260] Breach of statutory duty and public authorities ...................... 208

Nuisance: Part 2: Who can be sued?

Creator of the nuisance
[19.10] A person who creates a nuisance can be sued, irrespective of
whether they have any property rights over the land from which the
nuisance originates.

Fennel v Robson Excavations Pty Ltd

[19.20] Fennel v Robson Excavations Pty Ltd [1977] 2 NSWLR 486

FACTS • The defendant excavating company was contracted to excavate part of a

developer’s property. They completed the work and left the land believing that the
developer would build a retaining wall (as agreed) to protect the neighbouring property
 CHAPTER 19 NUISANCE – PART 2: BREACH OF STATUTORY DUTY / 201

from a possible subsidence of land caused by the excavation. Unfortunately, the developer
went broke before completing the development, and there was a large subsidence of land
on the plaintiff’s adjoining property. The plaintiff sued the defendant excavators in
nuisance.

HELD • Although the defendant had never been in possession of the land where the
excavation had occurred, the defendant was on the land carrying out its operations with
the authority of the owner. The defendant was held liable to the plaintiff as the creator of
the nuisance.
[SEE ALSO • Pantalone v Alaouie (1989) 18 NSWLR 119; Kraemers v Attorney-General (Tas)
[1966] Tas SR 113; Casley-Smith v FS Evans and Sons Pty Ltd (No 5) (1988) 67 LGRA 108;
Animal Liberation (Vic) v Gasser [1991] 1 VR 51.]

Occupier’s liability
[19.30] In most cases a defendant who created the nuisance is the
occupier of the land from which the nuisance originated. The defendant
may even be a previous occupier or owner of the land, provided the
nuisance began while the defendant was still in possession or occupation of
the land (South Australia v Simionato (2005) 143 LGERA 128). There are also
situations where the defendant occupier will be held liable for a nuisance
that has been created by others on his/her land.
For acts of persons on the land with permission

De Jager v Paynehaus and Magill Lodges Hall Inc

[19.40] De Jager v Paynehaus and Magill Lodges Hall Inc (1984) 36 SASR 498

FACTS • The plaintiff complained of noise, in particular amplified music, which stemmed
from a suburban hall owned by the defendant and which had been hired out for functions.
Despite the defendant’s attempts to limit the noise, hirers of the hall continued to play
loud music, and the plaintiff sued the defendant in nuisance.

HELD • Despite the fact the defendant had attempted to prevent loud noise, and was not
personally responsible for creating the nuisance, it had to take responsibility as occupier
to ensure the land was not used in a way that created a nuisance to others. As the
defendant had permitted the use of the premises in a way that created a risk of nuisance, it
was liable for the nuisance created.
[SEE ALSO • Challen v McLeod Country Golf Club [2004] Aust Torts Reports 81-760.
Compare Casley-Smith v FS Evans and Sons Pty Ltd [1989] Aust Torts Reports 80-227.]
202 LAWBRIEF: TORTS

For acts of a tenant

[19.50] Where a landlord leases property and gives permission, either
expressly or impliedly, for the tenant to engage in conduct that amounts to
a nuisance, the landlord may be held liable (Matheson v Northcote College
[1975] 2 NZLR 106; Tetley v Chitty [1986] 1 All ER 663). Generally however a
landlord is not liable in nuisance for the acts of tenants (Peden Pty Ltd v
Bortolazzo [2006] QCA 350).

For adopting or continuing a nuisance

[19.60] An occupier is liable for a nuisance he/she did not create where
he/she is, or ought to be, aware of the nuisance and fails to take reasonable
precautions to bring it to an end within a reasonable time. Liability arises
as the defendant is said to “continue” the nuisance by failing to prevent it,
or “adopt” it by making use of the structure said to cause the nuisance.
This applies whether the nuisance occurs as a result of nature, or the acts of
a third party including a trespasser.

Sedleigh-Denfield v O’Callaghan
[19.70] Sedleigh-Denfield v O’Callaghan [1940] AC 880

FACTS • The council entered upon the defendants’ land without permission (therefore, as
a trespasser) and laid a pipe to carry off excess rainwater. After the defendants became
aware of the pipe they used it to drain their fields and placed a grate over it, in an attempt
to stop the pipe from becoming blocked with leaves. During a heavy rainstorm the pipe
became blocked and overflowed, causing damage to the plaintiff’s land. The plaintiff sued
the defendant. The defendants claimed they were not the creator of the nuisance as they
had not laid the pipe.

HELD • As the defendants were aware of the nuisance and continued and “adopted” it by
making use of the pipe, they were liable in private nuisance to the plaintiff.

[19.80] For failing to abate a nuisance that has been created by natural
causes see Leakey v National Trust for Places of Historic Interest [1980] QB 485
(failure to remove rock and rubble that caused damage to a neighbouring
property); Stockwell v Victoria [2001] VSC 497 (failure to prevent feral dogs
on the defendant’s land entering the plaintiff’s paddocks and destroying
sheep). Compare Elston v Dore (1982) 149 CLR 480, where surface water
that flowed naturally from the defendant’s land onto the plaintiff’s was
held not to amount to a nuisance.
 CHAPTER 19 NUISANCE – PART 2: BREACH OF STATUTORY DUTY / 203

The defendant will not be liable if he/she was unaware and had no way
of being aware of the nuisance (Montana Hotels Pty Ltd v Fasson Pty Ltd
(1986) 69 ALR 258; Torette House Pty Ltd v Berkman (1940) 62 CLR 637).

Defences
Statutory authority
[19.90] Legislation may allow a defendant to commit an act that would
otherwise amount to a nuisance at common law. Generally, the act is
permitted to provide a necessary service or a public service, or to protect a
public interest. A defence to an action in nuisance will therefore arise where
the interfering conduct is the inevitable consequence of the defendant
performing the task authorised by statute.
The onus will be on a defendant to establish that it was the intention of
the legislature to impose a duty to undertake the particular activity, which
inevitably resulted in nuisance (Allen v Gulf Refinery Ltd [1981] AC 1001;
Metropolitan Asylum District v Hill (1881) 6 App Cas 193).
The defence will only be allowed in circumstances where the authorised
activity could not reasonably be undertaken in any other way to avoid the
nuisance.

Kempsey Shire Council v Lawrence

[19.100] Kempsey Shire Council v Lawrence [1996] Aust Torts Reports 81-375

FACTS • In 1976, the defendant council was authorised to construct a channel for treated
effluent to flow into a creek system. After the council deepened the channel in 1985, the
plaintiff complained that the nutrient-enriched waters had encouraged the growth of a
form of weed that had spread onto their pastures. The defendant relied on the statutory
authority to construct the channel for the passage of effluent, as a defence to the nuisance
action.

HELD • In interpreting the legislation, the court held that it did not cover the act
complained of, namely the damage caused by the effluent. While the legislation
authorised the construction of a channel, the defendant was unable to establish that the
damage caused to the plaintiff was the inevitable consequence of the construction of the
sewerage works and discharge into the creek system. In other words, the authorised
activity could have been undertaken in a way that did not interfere with the plaintiff’s use
and enjoyment of land.
204 LAWBRIEF: TORTS

[SEE ALSO • Lester-Travis v City of Frankston [1970] VR 2 (where the court held that
although legislation permitted the council to build a golf course for recreational purposes
it did not require it to be built in the chosen location, which caused a nuisance to
surrounding residences); Cohen v City of Perth [2000] WASC 306 (where the defendant
was unable to establish that it had taken reasonable steps to reduce the excessive noise
created by its garbage collection service, a service that was authorised by statute);
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660.]

[19.105] Some statues explicitly confer immunity in circumstances where

the authorised activity is undertaken by the defendant in good faith
(Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660).

Consent
[19.110] In some situations the fact that parties occupy the same building
implies consent to potential nuisances, which arise from the provision of
shared services. This will only be the case where there is no negligence on
the part of the defendant.

Kiddle v City Business Properties Ltd

[19.120] Kiddle v City Business Properties Ltd [1942] 1 KB 269

FACTS • The plaintiff leased a shop in an arcade that was part of a building belonging to
the defendants. The arcade had a glass roof. When it rained, water would run from the
glass roof into a downpipe that adjoined the plaintiff’s shop. Due to rubbish blocking the
pipe, water overflowed into the plaintiff’s basement, damaging stock. The plaintiff sued
the defendant in nuisance.

HELD • The defendant was not liable. The defendant had a reasonable system of
inspection to ensure the pipes were regularly cleared and no negligence could be
established on this occasion. As the plaintiff occupied a shared building with the necessity
for shared services, consent to the potential nuisance was implied.

[19.130] Consent must be distinguished from the claim that a plaintiff

“came to the nuisance”. It is no defence to claim that the plaintiff
voluntarily moved to the area where the activity constituting the nuisance
was, and had been for some time, undertaken (Bliss v Hall (1838) 4 Bing
(NC) 183; Miller v Jackson [1977] 3 QB 966).
 CHAPTER 19 NUISANCE – PART 2: BREACH OF STATUTORY DUTY / 205

Contributory negligence
[19.140] Contributory negligence was a complete defence under the
common law to a claim in nuisance. Since introduction of apportionment
legislation contributory negligence will lead to a reduction of damages in
most jurisdictions.

Remedies
Abatement
[19.150] Abatement is a self-help remedy that allows a plaintiff to take
reasonable measures to stop an existing or threatened nuisance. This
remedy is most commonly used when a person removes branches or roots
that have encroached upon their land from a neighbouring property. Any
entry onto the neighbour’s property to remove the offending vegetation
without consent would amount to a trespass (Gazzard v Hutchesson [1995]
Aust Torts Reports 81-337).

Injunction
[19.160] An injunction is the most common remedy for nuisance. It is
granted to remove a nuisance (mandatory injunction) or to stop the
defendant from committing a threatened nuisance (a quia timet injunction).
The court may, in its discretion, grant an interlocutory injunction to stop
the nuisance prior to trial where a serious issue of nuisance arises.

Damages
[19.170] Damages are generally awarded to compensate the plaintiff for
past nuisances. In some circumstances, equitable damages can be awarded
in lieu of an injunction. Similar to negligence actions, the purpose of
common law damages in nuisance is to place the plaintiff in the position
that he/she would have been had the interference not occurred. The extent
of the defendant’s liability for the damage depends on the reasonable
foreseeability of the damage. If the type of damage is too remote it will not
be recoverable (Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd
(“Wagon Mound” (No 2)) [1967] 1 AC 617).
206 LAWBRIEF: TORTS

Breach of statutory duty

Introduction
[19.180] There are numerous examples of duties that are imposed by
statute upon individuals, organisations and public authorities. For example,
traffic laws and regulations impose duties on road users; workplace health
and safety laws impose duties on employers; building and planning laws
impose duties on builders, developers and councils. In some circumstances,
where a plaintiff is harmed by a defendant’s breach of a statutory duty, the
plaintiff may have an action in negligence. The plaintiff would need to
prove all the elements of a negligence action, namely: duty, breach and
damage. Breach of the duty imposed by statute may provide evidence of
the breach element of the negligence action (Tucker v McCann [1948] VLR
222).
A breach of a duty imposed by statute may also result in an action for
breach of statutory duty. This specific tort of breach of statutory duty
differs from the tort of negligence and arises in limited circumstances.
Breach of statutory duty provides a person harmed by the defendant’s
breach of duty with a private cause of action for breach of statutory duty. In
some circumstances, the statute provides for strict liability; in other words,
the defendant may be liable for the breach of statutory duty irrespective of
fault.

When will a cause of action arise under the statute?

[19.190] A statute rarely expressly states that breach of a duty gives rise to
a private torts action. An exception to this is consumer protection
legislation (Australian Consumer Law s 236). Whether the statute provides
for a right of action in the event of breach is therefore a matter of
interpretation by the courts and, as such, is a question of law (O’Connor v
SP Bray Ltd (1937) 56 CLR 464). Interpretation involves consideration of the
purpose of the legislation and application of some presumptions of
statutory intention. The tort most commonly applies to breaches of
statutory provisions that provide for the safety of workers in factories and
industrial workplaces (see, for example, Downs v Williams (1971) 126 CLR
61; Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; Darling Island
Stevedoring Co Ltd v Long (1957) 97 CLR 36).
Presumptions of statutory intention include:
• If a common law duty to take reasonable care for the safety of others
arises under the statute, it is also likely to include a breach of statutory
duty (O’Connor v SP Bray Ltd).
 CHAPTER 19 NUISANCE – PART 2: BREACH OF STATUTORY DUTY / 207

• If the statute provides for a sanction (usually a fine) and that is adequate,
it is less likely that an action for breach of statutory duty will also arise
(Haylon v Purcell (1949) 49 SR (NSW) 1). Note however that provision of a
sanction does not preclude an action in breach of statutory duty (Schiliro
v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518).
• A statute that provides for a specific and precise standard of conduct is
more likely to give rise to an action for breach of statutory duty than a
statute that provides for a duty in very general terms (General
Constructions v Peterson (1962) 108 CLR 251).
• The statute must be directed to the protection of the plaintiff as the
member of a specified class of persons. If the purpose of the statute is to
protect a specified group of individuals, it is more likely to give rise to an
action for breach of statutory duty than a statute that is intended to
protect the public in general (Phillips v Britannia Hygenic Laundry Co Ltd
[1923] 1 KB 539). It is for this reason that traffic regulations that are
designed to protect the public as a whole do not give rise to a cause of
action for breach of statutory duty (Hopewell Baranyay [1962] VR 311;
Tucker v McCann [1948] VLR 222).

Imposition of the statutory duty on the defendant

[19.200] A plaintiff must establish that the statute imposes a duty on the
defendant.

Darling Island Stevedoring Co Ltd v Long

[19.210] Darling Island Stevedoring Co Ltd v Long (1957) 97 CLR 36

FACTS • The plaintiff was injured when he was hit by a hatch beam while unloading
goods on a ship. The plaintiff sued his employer for breach of a statutory duty, which
provided that the “person in charge” of unloading and loading ships had to ensure the
hatch was properly secured.

HELD • The defendant was not liable. The “person in charge”, referred to in the
regulations, was the supervisor or foreman and not the employer. As such, the duty was
not imposed upon the defendant employer. Compare Progress and Properties Ltd v Craft
(1976) 135 CLR 651.

[19.220] The plaintiff must also establish that he/she falls within the
group of persons who are owed a duty under the statute.
208 LAWBRIEF: TORTS

Read v Croydon Corporation

[19.230] Read v Croydon Corporation [1938] 4 All ER 631

FACTS • The defendant supplied water to the borough where the adult plaintiff was a
rate-paying resident. His daughter (the minor plaintiff) contracted typhoid after drinking
the water. As a result, the adult plaintiff incurred expenses in obtaining treatment for her.
Both plaintiffs sued the defendant for (amongst other things) breach of statutory duty.

HELD • The relevant statute imposed a duty on the defendant to supply pure water to
ratepayers (it referred to those “willing to pay a water rate”). As the minor plaintiff was not
a ratepayer, she was not owed a duty under the statute and could not sue for breach of
statutory duty. The defendants were held liable in negligence at common law.

Breach of statutory duty and causation

[19.240] The plaintiff will be required to establish that the statutory duty
has been breached by the defendant. This will involve a determination of
the standard of care required and whether the statute imposed strict
liability or required fault to establish breach of duty. This is a matter of
construction of the statute (Galashiels Gas Co Ltd v O’Donnell [1949] AC 275).
The plaintiff will also be required to establish that the harm suffered is
within the scope or type of harm the provision was directed at preventing
(Betts v Whittingsloe (1946) 71 CLR 637; McVicar v S & J White Pty Ltd (t/as
Arab Steed Hotel) (2007) 97 SASR 160).

Defences
[19.250] Contributory negligence may be pleaded in relation to a breach
of statutory duty (Piro v Foster (1943) 68 CLR 313; Warren v Queensland
Electric Steel Ltd [1974] Qd R 139). However, the defences of volenti non fit
injuria (voluntary assumption of risk) and joint illegality are not available
(Wheeler v New Merton Board Mills [1933] 2 KB 669; Progress and Properties
Ltd v Craft (1976) 135 CLR 651). It should be noted that some provisions
under the various civil liability legislation may apply to breaches of
statutory duty.

Breach of statutory duty and public authorities

[19.260] Due to the discretion afforded public authorities and government
in relation to budgetary, policy and resource issues, the courts have been
 CHAPTER 19 NUISANCE – PART 2: BREACH OF STATUTORY DUTY / 209

reluctant to find that duties imposed on public authorities give rise to a

private action for breach of statutory duty (Miller and Croak Pty Ltd v
Auburn Municipal Council [1960] SR (NSW) 398; X v Bedfordshire County
Council [1995] 2 AC 633). This is because the statutory duty will be directed
towards a wide class of persons in the community and is unlikely to
construe an individual right of action for damages. In Matthews v SPI
Electricity Pty Ltd [2001] VSC 168, a class action for breach of statutory duty
against the police, brought by victims of the “Black Saturday” bushfires
failed. The legislation empowering police to co-ordinate relevant agencies
during emergencies was directed towards the protection of the public, not a
specified class of persons. Furthermore it was held that the Act did not
impose a duty on police to provide warnings of the emergency.
Under civil liability legislation, a public authority will not be liable for
breach of statutory duty “unless the act or omission was in the
circumstances so unreasonable that no public or other authority having the
functions of the authority in question could properly consider the act or
omission to be a reasonable exercise of its functions” (CLA (Qld) s 36. See
also CLWA (ACT) s 111; CLA (NSW) s 43A; CLA (Tas) s 40; WrA (Vic) s 84;
CLA (WA) s 5X). In some jurisdictions this provision also applies to a
breach of duty in negligence.
MindMap19

Nuisance – Part 2 Breach Statutory Duty

Who Can be Sued? Defences and Remedies Does Statute Create Plaintiff Must Establish
Duty?

Creator of nuisance Defences A matter of Statute imposes a duty

interpretation – a on the defendant
Even where no property Consent question of law
rights over land from which Darling Island Stevedoring
nuisance originates Kiddle v City Business O’Connor v SP Bray v Long
Properties
Fennel v Robson Interpretation Plaintiff is within class
No defence – coming to Presumptions of persons owed a duty
Occupier nuisance under the statute
If common law duty of care
For permitting activity that Miller v Jackson arises may also give rise to Read v Croydon Corp
causes nuisance statutory duty
Statutory Authority Defendant breached the
De Jager v Paynehaus O’Connor v SP Bray duty imposed
Kempsey SC v
Not generally liable for Lawrence If statute provides adequate
fine may not also give rise Defendant’s breach
tenant’s nuisance unless
activity allowed to statutory duty caused the harm and
Remedies
the harm is within the
Peden Pty Ltd v Haylon v Purcell scope of harm the
Abatement
Bortolazzo provision was directed
Matheson v Northcote Damages Specific conduct towards
Wagon Mound (No 2)
For adopting the nuisance General Constructions v Betts v Whittingsloe
Injunction Peterson
Sedleigh-Denfield v
O’Callaghan Specified class Defences

Phillips v Britannia
Contributory negligence
Hygenic Laundry

Piro v Foster

Provisions under some

CL legislation

Statutory Authorities not

liable unless conduct so
unreasonable no other
authority would consider
the act a reasonable
exercise of its functions
Chapter 20

Defamation
Defamation
[20.10] INTRODUCTION....................................................................... 212
[20.20] ELEMENTS OF DEFAMATION ..................................................... 213
[20.30] The matter must be defamatory ........................................ 213
[20.70] The defamatory matter must identify the plaintiff .................... 215
[20.80] Publication of the defamatory matter .................................. 215
[20.90] PROCEDURE .......................................................................... 216
[20.100] DEFENCES ............................................................................. 216
[20.110] Justification (truth) ......................................................... 216
[20.120] Contextual truth ............................................................ 217
[20.130] Fair comment/honest opinion............................................ 217
[20.160] Absolute privilege.......................................................... 219
[20.170] Public documents and protected reports .............................. 219
[20.180] Qualified privilege.......................................................... 220
[20.210] Triviality...................................................................... 221
[20.220] REMEDIES ............................................................................. 221

Introduction
[20.10] The law of defamation seeks to protect a person’s reputation. It
does this by providing a remedy to the plaintiff in situations where another
person has published matter concerning the plaintiff that is considered
defamatory. Defamatory matter is spoken words or written material that
lowers a person’s reputation, causes them to be shunned or ridiculed, or
causes them to be excluded from society. While it is relatively easy to
establish defamation, a number of defences exist, which provide protection
for another important right: the right to free speech.
In 2004, the Attorney-Generals of each State and Territory agreed to
enact uniform defamation laws. Prior to the introduction of the uniform
legislation, the States and Territories had different defamation laws. Some
States had codified the law of defamation (Queensland and Tasmania),
others applied the common law combined with various and differing
legislative provisions. As plaintiffs were entitled to bring their action across
the jurisdictions, significant problems were encountered as judges and
juries were required to interpret and apply the different laws, sometimes
within the one proceeding. Under the uniform laws, the pre-existing
common law as it relates to defamation remains, supplemented and
modified by the uniform provisions found within the legislation (CLWA
 CHAPTER 20 DEFAMATION / 213

(ACT) Ch 9; Defamation Act 2005 (NSW); Defamation Act 2006 (NT);

Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005
(Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA)). This has now
created one scheme that is applied throughout Australia.
In this chapter, unless otherwise stated, the law referred to is that of the
common (or general) law. Where uniform legislative provisions apply, this
will be noted, although the respective numbered provisions will not be
given. The relevant legislation for the particular jurisdiction should be
consulted.

Elements of defamation
[20.20] The plaintiff is required to establish three elements of a
defamation action (Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW)
86 at 88). These are:
1 that the matter was defamatory
2 that the matter referred to (identified) the plaintiff
3 that the matter was published to a person other than the plaintiff.

The matter must be defamatory

[20.30] Matter refers to either spoken words (previously defined as
slander) or written material (previously referred to as libel). Matter is
defined under the uniform laws to include articles, reports, newspapers,
magazines or other periodicals; programs, reports and advertisements on
television, radio, the internet or other forms of electronic communication;
letters, notes or other writings; pictures, gestures or oral utterances; and
any other thing used for communication.
Defamatory imputations (accusations) must be identified in the matter.
Matter will be held to be defamatory where reasonable people (often
referred to as “right minded” people of “fair average intelligence”) can
identify the imputation as conveying a defamatory meaning. This will
occur where the imputations injure the plaintiff’s reputation. The general
test for determining whether the imputations will injure the plaintiff’s
reputation involves a determination of whether the “esteem in which that
person is held by the community is diminished in some respect” (Radio
2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 466). The same test
applies to situations in which a person is discredited in his/her trade or
profession or business.
Other tests which have been held to amount to defamatory situations
include where the imputations
214 LAWBRIEF: TORTS

• cause people to shun or exclude the plaintiff from society, or

• ridicule the plaintiff.
For examples, see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR
519; Hawke v Tamworth Newspapers [1983] 1 NSWLR 699; Ettinghausen v
Australian Consolidated Press (1991) 23 NSWLR 443.
The imputations may be expressed through the literal meaning of the
words, or by innuendo (insinuation). Where the innuendo is obvious to the
ordinary person it is referred to as a “popular” or “false” innuendo.
Examples of false innuendos include statements that a person was “bent”;
“crooked”; “queer”; a “wog”; a “junkie”.

Bjelke Peterson v Warburton

[20.40] Bjelke Peterson v Warburton [1987] 2 Qd R 465

FACTS • Ministers of the Queensland Government sued the leader of the Opposition after
he stated that a number of Ministers had “their hands in the till”.

HELD • Such a statement was understood to mean, by innuendo, that a number of the
Ministers were corrupt. This statement was held to be defamatory.
[SEE ALSO • Ettinghausen v Australian Consolidated Press (1991) 23 NSWLR 443; Reader’s
Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Chakravarti v Advertiser Newspapers
Ltd (1998) 193 CLR 519.]

[20.50] In some circumstances the innuendo is only identifiable by

people with special or extrinsic knowledge of the circumstances of the
plaintiff. In this situation the imputation is referred to as a “legal” or “true”
innuendo.

Cassidy v Daily Mirror Newspapers Ltd

[20.60] Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331

FACTS • A married man, who went by the name of Corrigan, posed while at a race
meeting in the company of a woman for a press photo. The woman was described as his
fiancee. Corrigan’s real name was Cassidy. The plaintiff, Cassidy’s wife, sued the newspaper
claiming that people who had met Cassidy at her flat would assume they were not married
and that she was engaged in an immoral relationship.
 CHAPTER 20 DEFAMATION / 215

HELD • The imputation (that she was engaged in an immoral relationship) was a true
innuendo, as it would only have been considered by those people who had been
introduced to Cassidy at her flat as her husband.
[SEE ALSO • Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643; Radio 2UE Sydney
Pty Ltd v Chesterton (2009) 254 ALR 606 at [60]; Cornes v The Ten Group Pty Ltd (2011) 114
SASR 1.]

The defamatory matter must identify the plaintiff

[20.70] Under the uniform laws only natural persons who are alive may
be defamed (similarly, actions cannot be taken against a defendant who has
since died). Not-for-profit corporations with fewer than 10 employees are
also entitled to bring an action in defamation. But larger corporations and
public bodies are not.
If the plaintiff is not identified by name, he/she may be identified by
innuendo. Again, it may only be those with special knowledge of the
plaintiff who are able to identify the plaintiff (Morgan v Odhams Press Ltd
[1971] 2 All ER 1156; Henry v TVW Enterprises [1990] Aust Torts Reports
81-031). If the plaintiff is not notorious and cannot call witnesses to give
evidence that they were able to identify the plaintiff, the action will fail
(Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86).
Where a group is defamed, an individual member of the group may be
entitled to bring an action if he/she can show that the group was small
enough to individually identify him/her as a member of the group (Bjelke
Peterson v Warburton [1987] 2 Qd R 465; cf Mann v The Medicine Group (1992)
38 FCR 400).

Publication of the defamatory matter

[20.80] The defamatory matter must be published (communicated) to a
person other than the plaintiff. An individual will suffice, provided the
person is able to glean the defamatory imputation.
It does not matter that the defendant did not intend to defame the
plaintiff, provided that the publication itself was intentional or, where
unintentional, that publication was the natural consequence of the
defendant’s action. See, for example, Theaker v Richardson [1962] 1 WLR 151,
where the plaintiff’s husband opened mail addressed to his wife (which
appeared to be election material) and which contained defamatory matter
about the plaintiff.
216 LAWBRIEF: TORTS

Passing on defamatory information obtained from another source will

also amount to defamation, even where the defendant states that he/she is
merely repeating another’s statements (John Fairfax Publications Pty Ltd v
Rivkin (2003) 201 ALR 77).
Under the uniform laws a person who distributes the matter, not as the
main publisher, but as a secondary (subordinate) distributor, may be able to
claim the defence of “innocent disseminator”. The defendant would have
to establish that he/she had no knowledge (or was not negligent in failing
to discover) that the matter was defamatory.

Procedure
[20.90] Under the uniform laws there are a number of provisions for
resolution of defamation disputes without recourse to litigation. Basically,
they provide for offers to make amends and for the defendant to provide
an apology.
Jury trials have been abolished in the Northern Territory and South
Australia. The CLWA (ACT) Ch 9 is silent on the issue. Elsewhere the
plaintiff or the defendant can elect to have the case heard by jury. Where
the court decides (on grounds set out in the uniform laws) that the case is
not appropriate for a jury, the court may order that it be dealt with by a
judge alone.

Defences
[20.100] Once matter is held to be defamatory, the defendant bears the
onus of raising and proving a defence.

Justification (truth)
[20.110] Under the uniform laws, the defendant will not be liable if
he/she can establish that the imputations contained in the matter are
substantially true. Substantially true is defined as meaning “true in
substance or not materially different from the truth” (section 4 definitions).
The defence differs from the defence of justification that existed previously
in some jurisdictions where the defendant also had to establish that the
matter was for the public benefit or in the public interest (ACT, NSW, Qld
and Tas).
It is not necessary to prove that the published matter is literally true.
Truth must attach to the “sting” of the imputation. Provided truth of the
“sting” can be established it will not matter that there were minor or trivial
 CHAPTER 20 DEFAMATION / 217

errors in the publication, which did not further damage the plaintiff’s
reputation (Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1 at [306]).
Where there are a number of defamatory imputations, some of which are
true and others false, the plaintiff can pick and choose the imputations on
which to base the claim. The defendant is not then allowed to raise
evidence of the truth of imputations that are not subject of the plaintiff’s
claim to establish a defence to others (Polly Peck plc v Trelford [1986] QB
1000; see also, Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1). Note
however the defence of contextual truth below at [20.120].

Contextual truth
[20.120] Under the uniform laws, the defence of contextual truth allows
the defendant to establish that the imputations the plaintiff has chosen to
claim as defamatory do not cause the plaintiff any greater harm than the
harm resulting from the other true imputations contained in the same
publication and as such the “matter” as a whole is not defamatory (John
Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Fairfax Media
Productions Pty Ltd v Kermode (2011) 81 NSWLR 157). The defendant will
need to prove that the publication as a whole is substantially true. Where,
however, the false imputations cause further damage than the other
imputations contained in the same publication, the defence will fail (John
Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541).

Fair comment/ honest opinion

[20.130] At common law the defence of fair comment is available where
the defendant can establish that the defamatory imputation or imputations
represented an honest opinion on a matter of public interest.
The defendant will need to establish that:
1 the matter was a statement of opinion not a statement of fact
2 the opinion was honestly held
3 the opinion is based on true facts (or privileged facts)
4 the comment is based on matters of public interest.
It is often difficult to establish whether the statement is a comment or a
statement of fact. A comment includes deductions, analysis, inferences,
criticisms, judgements or observations (O’Shaughnessy v Mirror Newspapers
Ltd (1970) 125 CLR 166).
A wide interpretation of “honest” opinion is applied. Provided the
statement of opinion is one that an ordinary person could glean from the
factual basis of the matter, it will be held to be honest, irrespective of the
218 LAWBRIEF: TORTS

biased or exaggerated nature of the comment (Hawke v Tamworth

Newspapers Co Ltd [1983] 1 NSWLR 699). The comment would not be
considered fair and honest if it was motivated by malice on the part of the
defendant (Gardiner v John Fairfax and Sons Ltd (1942) 42 SR (NSW) 171 at
173). The plaintiff bears the onus of establishing that the defendant was
actuated by malice.
The true facts (or privileged information) on which the comment is
based must be set out in the publication to enable the recipient to form
their own judgment on the validity of the comment. Where the facts are
notorious, this will not be necessary. Similarly, if the comment is about an
artistic work or production, a detailed account of all the surrounding facts
would not be required (Gardiner v John Fairfax and Sons Ltd (1942) 42 SR
(NSW) 171). This is because the ordinary, reasonable person would
recognise the publication as a review, which necessarily contains matters of
opinion. Note however, that where the review goes beyond criticism and
could be viewed by a reasonable person as a statement of fact the defence
may fail (O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166).
Where the publication provides only a select account of the facts, which
have the effect of distorting the truth, the defence will fail. Where
insufficient facts are provided, so that it cannot be considered that the
matter is one of opinion the defence will succeed.

Channel Seven Adelaide Pty Ltd v Manock

[20.140] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245

FACTS • A promotion for a television current affairs program suggested that evidence
relevant to murder trials had been concealed and that there were variations and
discrepancies in the evidence. The plaintiff (the forensic pathologist who gave evidence at
the trial) had his image broadcast on the promotion. The defendant claimed (among other
things) that the imputations conveyed by the television promotion were fair comment on a
matter of public interest.

HELD • Due to the brief impact of television promos it was difficult for an audience to
distinguish statement of fact from comment. Audiences who saw only the promotion did
not get the opportunity to review and draw their own conclusions. The facts were not
sufficiently notorious or identified to permit a conclusion that they were well founded. The
defence failed.
 CHAPTER 20 DEFAMATION / 219

[20.150] To be of public interest, the matter must be of more than

curiosity value or mere interest to the community. It must be based on
something that affects the public and in which they have a legitimate
interest in being informed. Views and conduct of politicians and public
officials, and the conduct of sportspersons could be of public interest
(provided the information is not of a particularly personal nature) as are
artistic or literary works.
The defence of honest comment under the uniform legislation largely
reflects the common law. The differences include: there is no requirement
for the defendant to establish that the comment was one that a reasonable
person could draw from the matter; not every fact upon which the matter
is based must be true, provided sufficient amount of the matter is true; a
lack of honest belief by the defendant in the comment will defeat the
defence.

Absolute privilege
[20.160] The defence of absolute privilege provides a total defence to
publications made on an occasion of absolute protection. This relates
primarily to parliamentary proceedings (hence, the often heard threat to
the maker of the statement to repeat the statement outside the House of
Parliament); to ministerial communications and to judicial and quasi-
judicial proceedings (including documents, evidence and court judgments).
The protection attaches to the occasion on which the publication is made,
as opposed to the content of the matter.

Public documents and protected reports

[20.170] The uniform laws provide protection for the publication,
summary or extract of public documents (the common law also allowed
such publication). A non-exhaustive list of public documents is provided in
the legislation.
The uniform laws also provide a defence for publication of a fair report
of a proceeding of public concern. There is a list of proceedings that are
considered to be of public concern, including, for example, public
proceedings of parliaments, councils, courts and tribunals, law reform
bodies and public meetings of shareholders of a public corporation. For the
report to be considered fair it must be accurate and not misleading in any
way (Jones v Fairfax (1986) 4 NSWLR 466).
The defences will be defeated if the plaintiff is able to establish that the
defamatory matter was not published honestly for the information of the
public or the advancement of education.
220 LAWBRIEF: TORTS

Qualified privilege
[20.180] Similar to absolute privilege, qualified privilege provides
protection to publications made on certain occasions. The privilege is lost if
the publication is actuated by malice, hence, the qualification to the
defence. The defence exists under both the common law and the uniform
law. A defendant may choose to rely on either of the defences, which differ
slightly.
Common law
[20.190] The defence will only be available in situations where the
defendant had a legitimate interest or duty to publish the information and
the recipient had a reciprocal interest or duty in receiving it (Cush v Dillon
(2011) 243 CLR 298). Some classic examples of the reciprocal interest or
duty include: the report of suspected criminal activity to the police and
provision of a character reference to potential employers. The duty need
not be legal but may be a moral duty.
The publication must be made only to those specific people with the
reciprocal duty. The defence rarely covers the media, who in general
publish widely, well beyond those with an immediate duty or interest in
receiving the information (Stephens v West Australian Newspapers Ltd (1994)
182 CLR 211 at 242-243). The categories of qualified privilege can be
broadly grouped into:
• Issues of public interest, for example, views and conduct of politicians,
senior public servants and reports of judicial proceedings.
• Protection of the publisher or recipient, for example, where the
publication is made in defence of an attack on the defendant’s own
reputation, or in some circumstances to protect the interests of the
recipient (such as a work reference).
• Political and governmental communications to the public at large.
This latter category, which provides protection for discussion and criticism
of political and governmental matters, came about through the landmark
decision of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Under this defence it is recognised that the public as a whole has an
interest in receiving information regarding government matters. This is
said to be crucial to a democratic system of governance as created by the
Constitution. In order to succeed the defendant will be required to establish
that the defamatory publication was reasonable in the circumstances.
Reasonableness will require the defendant to have reasonable grounds
for believing the imputation was true, taking reasonable steps to verify the
truth and, where possible, seeking a response from the person defamed
 CHAPTER 20 DEFAMATION / 221

(Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574; see
also Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1).
Where the defendant acted with an improper purpose, or with a
dominant purpose to injure the plaintiff, the publication may be held to
have been made with malice and will fail (Horrocks v Lowe [1975] AC 30).
As it is essential to allow free debate in relation to political elections,
attempting to injure a candidate’s reputation is not an instance of malice,
provided the publication is related to the views, conduct and policies of the
plaintiff (Roberts v Bass (2002) 212 CLR 1).

Uniform laws
[20.200] Under the uniform laws there is no need for a reciprocal interest
or duty in the giving and receiving of the communication. It is sufficient
that the recipient only had an interest or duty in receiving the
communication. Reasonableness is required and malice will similarly
defeat the defence. The legislation sets out a number of factors to be taken
into account in determining if an interest arose in receiving the information,
and the defendant acted reasonably.

Triviality
[20.210] The uniform laws provide a defence where the claim in
defamation is considered to be trivial and unlikely to cause any harm to the
plaintiff.

Remedies
[20.220] Compensatory damages form the basis of a defamation action. A
person can receive damages for both non-economic loss (loss for harm that
is not calculable) and economic loss. Under the uniform laws the maximum
amount of damages is prescribed. In exceptional circumstances (where
defamation is clear and there are no defences) an interim injunction
preventing publication may be granted. The uniform legislation also
provides for the publisher of the defamatory matter to make an offer of
amends as a way of avoiding litigation.
MindMap20

Defamation

Elements of Defence of Truth / Fair Comment / Honest

Defamation Generally Privilege
Defamation Justification Opinion

Law of defamation Matter must be Truth – at common law At common law – fair Absolute Privilege
seeks to protect a defamatory is a defence if comment Protection attaches to
person’s reputation imputation is true in occasion of publication
Causing ordinary substance and in fact Under uniform laws –
Consists of matter – people to think less of honest opinion Parliamentary
spoken and written, Reputation not lowered proceedings; judicial and
Plt
gestures, pictures, beyond proper level quasi-judicial
newspapers etc
Radio 2UE v Chesterton Statement of opinion not
Rofe v Smith’s proceedings
a statement of fact
Newspapers
In 2004, the Can be through false
Based on proper material Qualified Privilege
Attorney-Generals of each innuendo
Bjelke Peterson v Justification – under
State and Territory agreed
Warburton uniform laws where Matter of public interest At common law –
to enact uniform
defamation laws
imputations are Reciprocal duty / interest
Can be through true substantially true Opinion was honestly
innuendo held Under uniform rules –
Under the uniform laws,
Cassidy v Daily Mirror Substantially true = not recipient has
the pre-existing common
Newspapers Ltd materially different from O’Shaughnessy v Mirror duty/interest
law as it relates to
defamation remains, the truth Newspapers Ltd
supplemented and Plaintiff must be Channel Seven Extended form covers
Adelaide Pty Ltd v political/governmental
modified by the uniform identified Contextual Truth –
provisions found within Manock discussion
defamatory Lange v ABC
the legislation Where not named may be imputations do not
through true innuendo cause the plaintiff any Must be reasonable
Morgan v Odhams Press
greater harm than the
harm resulting from Malice will defeat defence
Must be published to the other true
some person other imputations
than the plaintiff who
comprehends the John Fairfax Publications
defamatory meaning Pty Ltd v Zunter

Theaker v Richardson

KEY POINT: a number of provisions exist under the

uniform rules for resolution of defamation disputes
without recourse to litigation; including offers to make
amends and for the defendant to provide an apology.
Under the uniform rules damages are capped.
 Glossary
Abatement of nuisance
a self-help remedy which allows a plaintiff to take reasonable measures to
stop an existing or threatened nuisance.

Action on the case

Historically, a form of action which developed to provide a remedy in
situations where the plaintiff was injured through an indirect interference
by the defendant.

Actionable per se
A form of action that does not require proof of loss or damage.

Aggravated damages
Damages awarded to compensate the plaintiff for humiliation and
emotional distress.

Appellant
The party appealing a decision from a lower court to a superior court.

Assault
A threat by the defendant which causes the plaintiff to apprehend direct,
imminent harmful or offensive contact with his or her person.

Bailment
A bailment arises where one party, (the bailor), delivers goods to another
(the bailee) under a contract that allows the bailee to use the goods for a
specified period. Once the time period expires, the goods must be returned
to the bailor.

Battery
Battery involves direct and intentional or negligent conduct which causes
contact with the body of another without consent.

Bona fide
Honestly, without fraud or wrongdoing.

Chattel
Chattel is another word for moveable goods and includes personal
property, both tangible and intangible.

Compensatory damages
Compensatory damages are awarded to compensate the plaintiff for the
actual damage suffered. Compensatory damages are designed, as far as
money can do so, to place the plaintiff in the position he or she would
have been had the tort not been committed.
224 LAWBRIEF: TORTS

Concurrent liability
Where two or more persons are both held liable for damage caused to the
plaintiff, either through acting together or separately in committing the
tortious act.

Continuing trespass
Failure to remove an object from land, once consent has been withdrawn
amounts to a trespass which continues until the object is withdrawn.

Contributory negligence
Where the plaintiff fails to meet the standard of reasonable care for his or
her own safety, and in doing so contributes to the injury suffered.

Conversion
Dealing with goods in a manner which is repugnant to another’s right to
possession of the goods.

Damages
Monetary sum provided as compensation to the plaintiff for the damage
suffered.

Defamation
The tort of publishing to third parties matter which is defamatory to the
plaintiff. Matter will be defamatory where it lowers the plaintiff’s
reputation, ridicules the plaintiff or causes the plaintiff to be shunned.

Defendant
The party against whom civil legal proceedings are brought.

Detinue
The tort of detinue occurs where a person wrongfully detains goods and
refuses on demand to return them to the person who has an immediate
right to possession of the goods.

Duty of care
An obligation owed by the defendant to take reasonable care not to injure
the plaintiff.

Egg-shell skull rule

Requires the defendant (tortfeasor) to take the plaintiff as he or she finds
him or her, including any pre-existing weaknesses or vulnerabilities to
further injury.

Exclusive possession
Possession to the exclusion of all others.

Exemplary damages
Damages that are awarded against the defendant as a punishment and
deterrent for outrageously bad conduct by the defendant.
 GLOSSARY / 225

False imprisonment
False imprisonment occurs where the defendant by a direct act, totally
deprives the plaintiff of freedom of movement, without lawful justification
or excuse.

General damages
Under the common law general damages are awarded to compensate for
losses that cannot be calculated with precision and include both economic
(pecuniary) and non-economic (non-pecuniary) loss. Under civil liability
legislation general damages refers to non-economic loss.

Immediate right to possession

An interest in property, whereby a person who was once in actual
possession of property has the immediate right to regain possession of the
property.

Inherent risk
A risk that cannot be avoided, even where all reasonable care is taken.

Injunction
A court order requiring a person to do or refrain from doing some act.

Innominate
Unnamed.

Ipp Panel
The panel of “eminent persons” appointed by the Federal Government in
2002 (referred to as the Ipp Panel after the chairperson of the panel Justice
Ipp) to review the law of negligence.

Ipp Report
The report of the Ipp Panel which reviewed the law of negligence and
made several recommendations many of which were adopted in the
various civil liability legislative reforms introduced in each Australian
jurisdiction between 2002 and 2003.

Joint illegal enterprise

A common law defence to a negligence claim where both the plaintiff and
the defendant are together engaged in an illegal enterprise, and the
plaintiff is injured as a result of the defendant’s negligent conduct.

Licence
Permission (or permit) to do something, such as enter another’s land.

Licensee
Person to whom the licence (permission) is granted.

Misfeasance
Doing of some positive act badly or wrong-fully.
226 LAWBRIEF: TORTS

Nominal damages
Nominal damages are a small or token monetary sum, awarded in
situations where the plaintiff has not suffered any damage, but the cause of
action has been successfully proven.
Non-delegable duties
A special or higher duty of care owed by the defendant to the plaintiff,
which cannot be delegated to another person.
Non-economic loss
Damages which are awarded to cover pain and suffering, loss of amenities,
loss of expectation of life, and disfigurement.
Nonfeasance
Negligent failure to act, when under a duty to do so.
Novus actus interveniens
An independent, intervening act which breaks the chain of causation
between the defendant’s initial breach of duty and the plaintiff’s harm, so
that the defendant is not held liable for the plaintiff’s eventual harm.
Plaintiff
The party initiating civil legal proceedings.
Prima facie
At first sight, or based on the first impression. A prima facie case is one
that on the initial evidence (before thorough examination of defences) has
a real possibility of being successfully proven.
Private nuisance
Unreasonable interferences with a person’s private right to the use and
enjoyment of their land.
Proportionate liability
Where proportionate liability applies defendants will only be held liable
for the proportion of the damage they caused.
Proximity
Once considered test for determining the existence of a duty of care,
proximity refers to a closeness of relationship between the defendant and
plaintiff, such that the defendant ought to have the plaintiff in mind as a
person likely to be injured by the defendant’s negligent act or omission.
Public (or statutory) authority
Public or statutory authorities are established under an Act of Parliament
to perform public duties on behalf of the executive government.
Public nuisance
Where an act of the defendant adversely affects, or unreasonably interferes
with, the protected rights of a section of the public. Public nuisance is also
a crime for which the defendant can be prosecuted.
 GLOSSARY / 227

Res ipsa locitur

The maxim res ipsa locitur is a rule of evidence which allows a plaintiff to
argue that, because she or he suffered damage in a certain way, it can be
inferred that the defendant must have been negligent.

Respondent
The party responding to an appeal from a decision from a lower court to a
superior court.

Special damages
Under the common law special damages refer to damages which
compensate for actual monetary losses (such as medical expenses and loss
of earnings) that have occurred up to the date of trial.

Strict liability
Liability without any fault.

Tort
The word tort originates from the French, and means “wrong” or “injury”.
A tort is a civil wrong, committed by breaching a duty imposed by the law
(as opposed to a contractual duty imposed by the parties to the contract).

Tortfeasor
A person who has committed a tortious (wrongful) act.

Trespass to land
Trespass to land involves direct and intentional or negligent interference
with land in the exclusive possession of another without consent or other
lawful authorisation.

Trespass to goods
Trespass to goods involves direct and intentional or negligent interference
with goods in the possession of another, without consent.

Vicarious liability
A form of strict liability, where a person is held responsible for the tort or
wrong of another, irrespective of personal fault.

Volenti non fit injuria

A defence to a negligence claim that allows the defendant to escape
liability by establishing that the plaintiff freely and voluntarily assumed
the risk of the defendant’s negligence.

Writ
A written order issued to commence an action in a court.
 Index
A B

Absolute privilege [20.160] Bailment

conversion [4.120], [4.130]
Action on the case overview [4.40]

— see also Negligence

Barristers
— see also Nuisance duty of care immunity [7.190], [7.200]
historical development [1.40], [1.60]
intentional infliction of harm [2.10],
Battery
[2.280]
— see also Assault
calculated to cause harm [2.280],
consent [2.80]
[2.290], [2.300]
defences
psychiatric harm [1.60], [2.300]
— see Defences
highway cases [2.140]
Advocates negligent trespass [2.110]
duty of care immunity [7.190], [7.200] fault [2.110], [2.120], [2.130], [2.140]
United Kingdom [2.130]
Asbestos exposure [12.140] offensive contact [2.90]
ordinary conduct of life [2.90], [2.100]
Assault overview [2.20], [2.80]
— see also Battery
apprehension of contact [2.160], [2.170], Breach of contract
[2.180] negligence, and [1.30]
reasonable apprehension [2.200] torts, distinction [1.30]
conditional threats [2.180], [2.190] wrongful death [16.160]

defences
Breach of duty
— see Defences
causation [13.10]
overview [2.20], [2.150]
intervening events [13.140]-[13.200]
threat of imminent contact [2.180],
remoteness of damage
[2.200]
[13.20]-[13.130]
words alone [2.180]
damages
— see Damages
Australian Consumer Law
factual causation [12.10], [12.30], [13.10]
defective products [7.180]
“but for” test [12.40]-[12.60], [12.100]
misleading and deceptive conduct “common sense” approach
[9.110] [12.70]-[12.90], [12.100]
right of action [19.190] failure to warn [12.170]-[12.185]
legislative approach [12.100],
Australian Law Reform Commission [12.110]
invasion of privacy [1.90], [3.240] loss of chance [12.150], [12.160]
230 LAWBRIEF: TORTS

material contribution [12.120], unforeseeable damage [13.80],

[12.130] [13.90]
multiple possible causes res ipsa locitur [11.200], [11.210]
[12.120]-[12.140] conditions for application [11.200]
onus of proof [12.210] scope of liability [12.10], [12.100],
successive injuries [12.190], [12.200] [13.10]
foreseeability of risk [10.60], [10.70] failure to warn [12.185]
benefit of hindsight [10.90] intervening events [13.140]
general nature of risk [10.70], [10.80] policy considerations [13.210],
harm [12.10] [13.220]
definition [12.20] value judgments [13.210], [13.220]
types not recognised [12.20] standard of care [10.10], [10.20], [11.10]
intervening events [13.140] question of law [10.30], [11.140]
foreseeable consequence, as [13.170], time for assessing [11.170]-[11.190]
[13.180] test to determine [10.40], [10.60]
likely to occur [13.190] civil liability acts [10.40], [10.50]
malicious interventions [13.190],
[13.200] Breach of statutory duty
types of events [13.150] causation [19.240]
voluntary acts [13.150], [13.160] contributory negligence [19.250]
not an insignificant risk [10.60], [10.100] defences [19.250]
obviousness of risk [10.270], [10.280] imposition of duty [19.200], [19.210]
civil liability acts [10.290] negligence, and [19.180]
onus of proof [11.140] overview [1.130], [19.180]
overview [10.10], [11.10] persons owed a duty [19.220], [19.230]
precautionary measures [10.60], [10.110] public authorities [19.260]
burden of precautions right of action [19.190]
[10.180]-[10.200] presumptions of statutory intention
calculus of negligence [10.110], [19.190]
[10.120] strict liability [19.180]
common practice [10.250], [10.260] workplace safety [19.190]
likely seriousness of harm [10.160],
[10.170] C
probability of harm [10.140],
[10.150]
question of fact [10.130] Causation
reasonable response [10.130] breach of statutory duty [19.240]
social utility of activity [10.210], “egg-shell skull” rule [13.100], [13.110]
[10.220] application of rule [13.120]
statutory standards [10.230], [10.240] reasonable foreseeability [13.120],
proof by inference [11.150] [13.130]
probability [11.150], [11.160] factual causation
remoteness of damage [13.20]
— see Factual causation
“egg-shell skull” rule intervening events [13.140]
[13.100]-[13.120] foreseeable consequence, as [13.170],
kind of harm [13.60] [13.180]
manner of occurrence [13.60], likely to occur [13.190]
[13.70] malicious interventions [13.190],
reasonable foreseeability [13.200]
[13.20]-[13.50], [13.120], [13.130] types of events [13.150]
 INDEX / 231

voluntary acts [13.150], [13.160] immunities from liability [14.10]

overview [13.10], [13.220] medical professionals [11.130]
remoteness of damage [13.20] wrongful conception [7.70]
“egg-shell skull” rule excluded injuries [1.110]
[13.100]-[13.120] intoxication [14.160]
kind of harm [13.60] materialisation of inherent risk [14.150]
manner of occurrence [13.60], obvious risk [10.290], [14.130]
[13.70] dangerous recreational activities
reasonable foreseeability [14.140]
[13.20]-[13.50], [13.120], [13.130] definition [14.130], [14.140]
unforeseeable damage [13.80], overview [1.110], [1.130]
[13.90] professionals [11.130]
wrongful death [16.170], [16.180] proportionate liability [17.220]
reasonable foreseeability [16.180], pure psychiatric harm [9.50], [9.60]
[16.190] scope of liability [12.10], [12.100],
[13.10]
Chattels failure to warn [12.185]
— see Interference with goods intervening events [13.140]
policy considerations [13.210],
[13.220]
Children
value judgments [13.210], [13.220]
— see also Parent and child
statutory authorities [8.180]
— see also Unborn child
breach of statutory duty [19.260]
medical treatment [5.100]
wrongful conception [7.70]
consent [5.100]
standard of care [11.20], [11.30]
Concurrent tortfeasors [17.220]

Civil liability acts

Consent
breach of duty [10.40], [10.50]
battery [2.80]
factual causation [12.100], [12.110],
implied consent [3.100], [3.110], [5.50]
[12.120], [12.170], [12.185]
nuisance [19.110], [19.130]
obviousness of risk [10.290]
scope of consent [3.120], [3.130]
precautionary measures [10.110],
sports involving contact [5.60],
[10.120], [10.200]
[5.70]
scope of liability [12.10], [12.100],
informed consent [5.50]
[12.185], [13.10], [13.140],
medical treatment [5.50], [5.80], [5.90]
[13.210], [13.220]
capacity to consent [5.100]
breach of statutory duty [19.250]
children [5.100]
public authorities [19.260]
emergencies [5.80]
contributory negligence [14.70]
nuisance [19.110], [19.130]
damages [15.10], [15.120]
implied consent [19.110], [19.120]
earning capacity [15.200]
overview [5.50]
general damages [15.120], [16.20],
sports involving contact [5.60], [5.70]
[16.50]
trespass to land [3.100]
gratuitous care [15.160], [15.170]
implied consent [3.100]-[3.130],
limitations on recovery [15.10],
[5.50]
[15.200], [16.50]
revocation of consent [3.140],
wrongful conception [7.70]
[3.150], [5.50]
factual causation [12.100], [12.110]
failure to warn [12.170], [12.185]
multiple possible causes [12.120]
232 LAWBRIEF: TORTS

Contract D
— see also Breach of contract
obligations [1.30]
Damages
Contributory negligence aggravated damages [15.30]
apportionment [14.40] assessment of damages [15.60], [15.100],
assessment of percentage [14.70] [16.10]
legislation [14.40] discounting [15.220]
availability of defence [5.240], [5.250] earning capacity [15.180]-[15.200],
conversion [5.260] [15.230], [15.240]
breach of statutory duty [19.250] gratuitous care [15.160], [15.170]
definition [14.20] life expectancy [15.210]
employees [14.50] medical and care expenses
establishing [14.50] [15.130]-[15.150]
intoxication [14.60] non-economic loss [16.20]-[16.50]
nuisance [5.240], [19.140] terminology [15.100]-[15.120]
objective test [14.20], [14.30]
vicissitudes or contingencies of life
overview [14.20], [14.30]
[15.230], [15.240]
standard of care [14.50]
categories of damages [15.20]-[15.50]
wrongful death [16.140]
civil liability acts [15.10], [15.120]
earning capacity [15.200]
Conversion general damages [15.120], [16.20],
acts of conversion [4.150] [16.50]
destruction of goods [4.160] gratuitous care [15.160], [15.170]
moving of goods [4.170], [4.180] limitations on recovery [15.10],
wrongful delivery [4.230] [15.200], [16.50]
wrongful detention [4.200], [4.210] wrongful conception [7.70]
wrongful disposition [4.220] compensatory damages [15.20]
wrongful taking [4.170] wrongful death [16.220]
wrongful use [4.190] contributory negligence [14.40]
contributory negligence, and [5.260] apportionment legislation [14.40]
defences assessment of percentage [14.70]
— see Defences wrongful death [16.140]
definition [4.110] conversion [4.240]
fault requirement [4.140] criminal activity [14.200]
overview [4.110] damage, distinction [15.10]
remedies [4.240] defamation [20.220]
title to sue [4.120] detinue [4.310]
bailment [4.120], [4.130] earning capacity [15.180], [15.190]
legislative caps [15.200]
Crimes pre-injury capacity [15.200]
overview [1.20] vicissitudes or contingencies of life
torts, distinction [1.20] [15.230], [15.240]
economic loss [15.100], [15.110],
Criminal law [15.120], [16.10]
assault [2.80] discounting [15.220]
damages, and [14.200] earning capacity [15.180]-[15.200],
duty of care, and [14.170], [14.180], [15.230], [15.240]
[14.190] gratuitous care [15.160], [15.170]
vicarious liability [17.120], [17.130] life expectancy [15.210]
 INDEX / 233

medical and care expenses types of loss [16.200], [16.210],

[15.130]-[15.150] [16.220]
vicissitudes or contingencies of life
Dangerous recreational activities
[15.230], [15.240]
definition [14.140]
exemplary damages [15.40]
obvious risk [14.140]
general damages [15.110], [15.120],
[16.20]
Defamation
general principles [15.60] damages [20.220]
compensatory principle [15.70] defamatory matter [20.30]
lump sum rule [15.90] identifiable imputations [20.30]
once and for all rule [15.80] innuendos [20.30]-[20.60]
gratuitous care [15.160], [15.170] matter, definition [20.30]
limitations [15.160] publication of matter [20.80]
interest awards [16.90] defences [20.100]
medical and care expenses [15.130] absolute privilege [20.160]
cost of care [15.130], [15.140] contextual truth [20.120]
home care [15.140] distributors of matter [20.80]
mitigation of loss [16.80] honest comment [20.150]
multiple tortfeasors [17.220] honest opinion [20.130]-[20.150]
nominal damages [15.50] justification [20.110]
non-economic loss [15.100], [15.110], protected reports [20.170]
[15.120], [16.10] public documents [20.170]
caps on amount [16.50] qualified privilege [20.180]-[20.200]
civil liability acts [16.50] triviality [20.210]
life expectancy [16.30], [16.50] distributors of matter [20.80]
loss of amenities [16.30], [16.40], elements [20.20]
[16.50] defamatory matter [20.30]-[20.60]
pain and suffering [16.40], [16.50] identification of plaintiff [20.70]
types of loss [16.20], [16.30], [16.40] publication of matter [20.80]
nuisance [19.170] groups [20.70]
onus of proof [16.60], [16.70] honest opinion [20.130]
other sources of benefits [16.100] interpretation [20.130]
employment benefits [16.130] public interest [20.150]
private insurance [16.130] statements of facts [20.130], [20.140]
social security benefits [16.120] identification of plaintiff [20.70]
workers’ compensation [16.110] innuendos [20.30], [20.40]
overview [15.10] identification of plaintiff [20.70]
provocation, and [5.220] legal or true [20.50], [20.60]
pure economic loss [9.80] intention to defame [20.80]
special damages [15.110] jury trials [20.90]
survival of actions [16.230] overview [1.130], [20.10]
trespass to goods [4.90], [4.100] publication of matter [20.80]
trespass to land [3.220] qualified privilege [20.180]
trespass to the person [5.220] common law defence [20.190]
wrongful conception [7.50], [7.60] improper purpose [20.190]
civil liability acts [7.70] political and government matters
wrongful death [16.140], [16.220] [20.190]
eligible claimants [16.200], [16.210] reciprocal interest [20.190], [20.200]
statutory provisions [16.140], uniform laws [20.200]
[16.150] remedies [20.220]
234 LAWBRIEF: TORTS

resolution of disputes [20.90] self-defence [5.170]

uniform laws [20.10] response to threat [5.170], [5.180]
statutory authority [5.270]
Defective buildings wrongful death [16.140]
duty of care [9.170]
Defences to negligence
Defective products — see also Limitation of actions
Australian Consumer Law [7.180] contributory negligence
duty of care [7.10], [7.180]
— see Contributory negligence
scope of duty [7.180]
illegality [14.200]
strict liability [1.100]
damages [14.200]
joint illegal enterprise
Defences
[14.170]-[14.190]
breach of statutory duty [19.250]
statutory exclusion [14.200]
consent [5.50]
materialisation of inherent risk [14.150]
informed consent [5.50]
overview [14.10]
medical treatment [5.50],
volenti non fit injuria [14.80]
[5.80]-[5.100]
intoxication [14.160]
nuisance [19.110]-[19.130]
obvious risk [14.130], [14.140]
sports involving contact [5.60],
precise risk [14.110], [14.120]
[5.70]
subjective knowledge [14.90],
defamation [20.100]
[14.100]
absolute privilege [20.160]
contextual truth [20.120]
distributors of matter [20.80] Definitions
honest comment [20.150] contributory negligence [14.20]
honest opinion [20.130]-[20.150] conversion [4.110]
justification [20.110] dangerous recreational activity [14.140]
protected reports [20.170] harm [12.10]
public documents [20.170] matter [20.30]
qualified privilege [20.180]-[20.200] obvious risk [14.130], [14.140]
triviality [20.210] professional [11.130]
defence of another [5.190], [5.200] proximity [6.70]
defence of property [5.210] private nuisance [18.60]
judicial authority [5.270] public nuisance [18.20]
inevitable accident [5.20] pure economic loss [9.80]
mistake, distinction [5.40] tort [1.10]
trespass to goods [5.30] trespass to goods [4.30]
insanity [5.270] trespass to land [3.10]
necessity [5.110] volenti non fit injuria [14.80]
justification of act [5.130], [5.140]
medical emergencies [5.80], [5.120] Detinue
reasonable conduct [5.110], [5.150], acts of detinue [4.280]
[5.160] demand [4.290]
nuisance [19.90] refusal [4.300]
consent [19.110]-[19.130] defences
statutory authority [19.90]-[19.105] — see Defences
overview [5.10] fault requirement [4.270]
provocation [5.220] overview [4.250]
trespass to the person [5.220], remedies [4.310]
[5.230] title to sue [4.260]
 INDEX / 235

Doctors school authorities [8.50], [8.60]

— see Medical practitioners statutory authorities [8.110]
negligent misstatements [9.90]
Duty of care Hedley Byrne v Heller [9.100]
— see also Non-delegable duties primary requirements [9.110]
breach of duty relevant factors [9.110]
scope of duty [9.110]
— see Breach of duty
occupiers of premises [7.10], [7.100],
control and supervision of others [8.40]
parent and child [8.70], [8.80] [7.110]
prison authorities [8.90], [8.100] intoxicated persons [7.130], [7.140]
school authorities [8.50], [8.60] scope of duty [7.120]-[7.170]
criminal activity, and [14.170], [14.180], third parties [7.150]-[7.170], [8.30]
[14.190] type of entrant [7.100], [7.110]
defective products [7.10], [7.180] overview [6.10], [7.10]
scope of duty [7.180] parent and child [8.70]
development of principle [6.20], [6.40] failure to supervise [8.70]
common callings [6.20] scope of duty [8.80]
difficulties in applying test [6.50] prison authorities [8.90]
Donohue v Stevenson [6.30] escaped prisoners [8.90], [8.100]
incremental approach [6.80] public policy, and [7.190], [7.200]
occupiers of premises [7.100] pure economic loss [9.80]
proximity test [6.70] defective buildings [9.170]
pure psychiatric harm [9.20] negligent misstatements
“three-stage” approach [6.80] [9.90]-[9.110]
“two-stage” approach [6.60] professional undertakings [9.120]
established categories [6.10] relational loss [9.130]-[9.160]
exemptions [7.10] pure psychiatric harm [9.10], [9.70]
advocates immunity [7.190], [7.200] civil liability acts [9.50], [9.60]
good Samaritans [7.220] development of liability [9.20],
military personnel [7.210] [9.30]
volunteers [7.220] former restrictions [9.20], [9.30]
existence of duty [6.10], [6.40], [6.170], reasonable foreseeability [6.160],
[7.10] [9.30], [9.40]
current test [6.90] witnesses to accident [9.30], [9.50],
difficulties in applying test [6.50] [9.60]
incremental approach [6.80] reasonable foreseeability [6.20], [6.40],
policy considerations [7.190], [8.70] [6.120]
proximity test [6.70] difficulties in applying test [6.50]
salient factors approach members of a class [6.120], [6.130],
[6.90]-[6.110], [7.10], [8.30], [8.70], [6.140], [6.150]
[8.110], [8.120] objective test [6.120]
“three-stage” approach [6.80] pure psychiatric harm [6.160], [9.30],
“two-stage” approach [6.60] [9.40]
summary of tests [6.50], [6.60]-[6.90] rescue [8.10]
failure to act [8.10], [8.40] salient factors approach [6.90]
interference with autonomy [8.10], examples of factors [6.110]
[8.20] failure to act [8.30]
parent and child [8.70], [8.80] parent and child [8.70]
prison authorities [8.90], [8.100] statutory authorities [8.110], [8.120]
relationship between parties [8.30] Sullivan v Moody [6.100]
236 LAWBRIEF: TORTS

wrongful life [7.80] civil liability acts, and [12.100]

scope of duty [6.170], [6.180] March v Stramare [12.80], [12.90]
standard of care failure to warn [12.170], [12.180]
— see Standard of care Chappel v Hart [12.180]
statutory authorities [8.110] civil liability acts [12.170]
civil liability acts [8.180] obvious risk [12.170]
control and vulnerability [8.120], scope of liability [12.185]
[8.130] legislative approach [12.100], [12.110]
failure to act [8.110], [8.180] loss of chance [12.150], [12.160]
inconsistent obligations [8.160], multiple possible causes [12.120]
[8.170] asbestos exposure [12.140]
nature of functions [8.140], [8.150] material contribution [12.120],
unborn child [7.10], [7.20] [12.130]
doctors [7.40]-[7.90] tobacco related injuries [12.140]
mothers [7.20], [7.30] onus of proof [12.210]
overview [12.10], [13.10]
E successive injuries [12.190], [12.200]

False imprisonment
Economic loss awareness of restraint [2.260]
— see Damages defences
— see Pure economic loss — see Defences
lawful justification [2.270]
no means of escape [2.240]
Employee benefits
overview [2.20], [2.210]
damages, and [16.130]
partial obstruction [2.220], [2.230]
psychological coercion [2.240], [2.250]
Employees
contract of services [17.30]
contractor or employee [17.20], [17.30] G
control test [17.30], [17.50], [17.60]
multifaceted approach [17.30],
Good Samaritans
[17.40]
duty of care immunity [7.220]
tests to determine [17.30]
non-delegable duties, and [17.140]
Goods
— see Interference with goods
Employers
non-delegable duties [17.150], [17.160] Government departments
right to recover damages [17.210] — see Statutory authorities
vicarious liability
— see Vicarious liability
H
F
Hospitals
non-delegable duties [17.170]
Factual causation
“but for” test [12.40], [12.50] I
civil liability acts [12.100]
limitations of test [12.60]
common law [12.30] Illegality
“common sense” approach [12.70] damages [14.200]
 INDEX / 237

joint illegal enterprise [14.170], [14.190] Invasion of privacy

application [14.170] — see Privacy
determination of effect [14.170]
duty of care [14.170], [14.180], Ipp report [1.110], [10.100], [15.160],
[14.190] [15.200]
statutory exclusion [14.200]
J
Independent contractors
contract for services [17.30]
employee or contractor [17.20], [17.30] Jury trials
control test [17.30], [17.50], [17.60] defamation [20.90]
multifaceted approach [17.30],
[17.40]
L
tests to determine [17.30]
non-delegable duties, and [17.140]

Landlords
Inevitable accident — see also Tenants
mistake, distinction [5.40] non-delegable duties [17.200]
overview [5.20] nuisance [19.50]
trespass to goods [5.30]

Licensees
Injunctions trespass to land [3.70]
nuisance [19.160]
trespass to land [3.230]
Limitation of actions
date of accrual [14.230]
Insurance payments date of discoverability [14.240]
damages, and [16.130] overview [14.210]
special plaintiffs [14.250]
Intentional infliction of harm time period [14.220]
— see also Trespass to person commencement [14.230]
calculated to cause harm [2.280], [2.290] wrongful death [16.160]
meaning [2.300]
defences Local councils
— see Defences — see Statutory authorities
overview [2.10], [2.280]
psychiatric harm [1.60], [2.300]
M
Interference with goods
— see also Conversion Medical emergencies
— see also Detinue good Samaritans [7.220]
— see also Trespass to goods necessity defence [5.80], [5.120]
chattels, meaning [4.20]
intangible items [4.20] Medical practitioners
overview [4.10] duty of care [7.40]
wrongful birth [7.40]
Intoxicated persons wrongful conception [7.50]-[7.70]
occupier’s duty [7.130], [7.140] wrongful life [7.80], [7.90]
contributory negligence [14.60] duty to warn [11.110], [11.130], [14.150]
volenti non fit injuria [14.160] standard of care [11.90], [11.100]
238 LAWBRIEF: TORTS

Bolam principle [11.100], [11.110], breach of statutory duty, and [19.180]

[11.120] civil liability acts
civil liability acts [11.130] — see Civil liability acts
duty to warn [11.110], [11.130] contributory negligence
peer professional opinion [11.130] — see Contributory negligence
Rogers v Whittaker [11.110] defences
— see Defences to negligence
Medical treatment development of action [1.60]
advance medical directives [5.100] duty of care
consent [5.50], [5.80], [5.90] — see Duty of care
capacity to consent [5.100] failure to act [8.10]
children [5.100] forms of conduct [8.10]
refusal of treatment [5.100] harm requirement [12.10]
legislative reforms [1.110], [1.130]
Mental incapacity limitation of actions
standard of care [11.40], [11.50] — see Limitation of actions
sudden incapacity [11.60] misfeasance [8.10]
non-delegable duties
Military personnel — see Non-delegable duties
duty of care immunity [7.210] overview [1.60], [1.130], [6.10], [10.10]
proportionate liability [17.220]
Misleading and deceptive conduct pure economic loss [9.80]
misstatements [9.110] res ipsa locitur [11.200], [11.210]
conditions for application [11.200]
trespass, and [1.60], [1.130]
Mistake
trespass to person [2.110], [2.120]
inevitable accident, distinction [5.40]
United Kingdom [2.130]
vicarious liability
Motor vehicle accident schemes — see Vicarious liability
contributory negligence [14.60] wrongful birth [7.40]
overview [1.110], [1.120] wrongful conception [7.50]
damages [7.50], [7.60], [7.70]
Multiple tortfeasors wrongful death [16.140], [16.150],
concurrent tortfeasors [17.220] [16.160]
overview [17.10], [17.220]
proportionate liability [17.220] Negligent misstatements
duty of care [9.90]
N Hedley Byrne v Heller [9.100]
primary requirements [9.110]
relevant factors [9.110]
Necessity defence scope of duty [9.110]
justification of act [5.130], [5.140]
medical emergencies [5.80], [5.120] Non-delegable duties
overview [5.110] employers [17.150], [17.160]
reasonable conduct [5.110], [5.150], right to recover damages [17.210]
[5.160] hospitals [17.170]
available alternatives [5.150] indemnities [17.210]
landlords [17.200]
Negligence occupiers [17.180], [17.190]
breach of contract, and [1.30] overview [1.130], [17.10], [17.140]
 INDEX / 239

school authorities [17.130], [17.170] duration of interference [18.210]

location of interference [18.220]
Nuisance no more than expected [18.170],
abatement [19.150] [18.180]
consent [19.110], [19.130] sensitivity of plaintiff [18.230],
implied consent [19.110], [19.120] [18.240], [18.260]
contributory negligence [5.240], [19.140] severity of interference [18.150],
damages [19.170] [18.160]
defences [19.90] time of interference [18.190],
consent [19.110]-[19.130] [18.200]
statutory authority [19.90]-[19.105] type of activity [18.170]
development of action [1.60]
direct interference [18.60]
O
harmful interference [18.70], [18.80]
indirect interference [18.60]
injunctions [19.160]
Occupiers
malicious motive [18.250]
duty of care [7.10], [7.100], [7.110]
obstruction of view [18.70], [18.80]
development of principles [7.100]
occupier’s liability [19.30]
intoxicated persons [7.130], [7.140]
adopting a nuisance [19.60], [19.70]
scope of duty [7.120]-[7.170]
awareness of nuisance [19.80]
third parties [7.150]-[7.170], [8.30]
continuing a nuisance [19.60],
type of entrant [7.100], [7.110]
[19.70]
non-delegable duties [17.180], [17.190]
failure to abate [19.80]
nuisance [19.30]
persons on land with permission
adopting a nuisance [19.60], [19.70]
[19.40]
awareness of nuisance [19.80]
tenants [19.50]
continuing a nuisance [19.60],
onus of proof [18.290]
[19.70]
overview [1.130], [18.10], [18.60]
failure to abate [19.80]
persons able to be sued [19.10]
persons on land with permission
creator of nuisance [19.10], [19.20],
[19.40]
[19.30]
tenants [19.50]
occupiers [19.30]-[19.80]
precautionary measures [18.270]
private nuisance, definition [18.60] Onus of proof
public nuisance [18.10] breach of duty [11.140]
definition [18.20] factual causation [12.210]
interference with public right [18.50] damages [16.60], [16.70]
number of persons affected [18.50] negligent trespass [2.110], [2.120]
special damage [18.30], [18.40] United Kingdom [2.130]
title to sue [18.30], [18.40] nuisance [18.290]
title to sue [18.280] trespass to person [2.70]
types of interferences [18.90] highway cases [2.140]
amenity of land [18.110], [18.120] negligent trespass [2.110], [2.120],
physical injury to property [18.100] [2.130]
substantial interference [18.110],
[18.120] P
trivial interference [18.130]
types of nuisance [18.10]
unreasonable interference [18.140] Parent and child
competing factors [18.140] duty of care [8.70]
240 LAWBRIEF: TORTS

failure to supervise [8.70] witnesses to accident [9.30], [9.50],

scope of duty [8.80] [9.60]

Personal injuries Public authorities

— see Damages — see Statutory authorities
— see Motor vehicle accident schemes
— see Negligence Public nuisance
— see Workers’ compensation definition [18.20]
interference with public right [18.50]
Prison authorities number of persons affected [18.50]
duty of care [8.90] overview [18.10], [18.20]
escaped prisoners [8.90], [8.100] title to sue [18.30]
overview [8.110] special damage [18.30], [18.40]

Pure economic loss

Privacy
defective buildings [9.170]
developments in law [1.90], [2.310],
definition [9.80]
[3.240]
duty of care [9.80]
New Zealand [3.240]
defective buildings [9.170]
United States [3.240]
negligent misstatements
trespass to land [3.240]
[9.90]-[9.110]
trespass to person [2.310]
professional undertakings [9.120]
relational loss [9.130]-[9.160]
Private nuisance
negligent misstatements [9.90]
— see Nuisance
Hedley Byrne v Heller [9.100]
primary requirements [9.110]
Professional undertakings relevant factors [9.110]
pure economic loss [9.120] scope of duty [9.110]
professional undertakings [9.120]
Professionals relational loss [9.130], [9.140]
— see also Medical practitioners ascertainable class [9.150], [9.160]
standard of care [11.130] control and vulnerability [9.150],
[9.160]
Provocation
damages, and [5.220] Pure psychiatric harm
overview [5.220] duty of care [9.10], [9.70]
trespass to the person [5.220] civil liability acts [9.50], [9.60]
criminal law defence [5.230] development of liability [9.20]
former restrictions [9.20], [9.30]
Psychiatric harm reasonable foreseeability [6.160],
intentional infliction of harm [1.60], [9.30], [9.40]
[2.300] witnesses to accident [9.30], [9.50],
overview [9.10] [9.60]
pure psychiatric harm [9.10], [9.70] overview [9.10]
civil liability acts [9.50], [9.60]
development of liability [9.20], Q
[9.30]
former restrictions [9.20], [9.30]
reasonable foreseeability [6.160], Qualified privilege
[9.30], [9.40] categories of privilege [20.190]
 INDEX / 241

common law defence [20.190] Social security benefits

improper purpose [20.190] damages, and [16.120]
overview [20.180]
political and government matters Sports involving contact
[20.190] implied consent [5.60], [5.70]
reciprocal interest [20.190], [20.200]
uniform laws [20.200]
Standard of care
adjustment of standard [11.10]
R
children [11.20], [11.30]
inexperience [11.70], [11.80]

Reasonable person standard knowledge of diminished capacity

— see Standard of care [11.70], [11.80]
medical practitioners [11.90],
Reforms [11.100]-[11.130]
negligence [1.110], [1.130] mental incapacity [11.40], [11.50]
professionals [11.130]
Remedies special skills [11.90]
conversion [4.240] contributory negligence [14.50]
damages medical practitioners [11.90], [11.100]
— see Damages Bolam principle [11.100], [11.110],
defamation [20.220] [11.120]
detinue [4.310] civil liability acts [11.130]
injunctions duty to warn [11.110], [11.130]
— see Injunctions peer professional opinion [11.130]
nuisance [19.150] Rogers v Whittaker [11.110]
abatement [19.150] mental incapacity [11.40], [11.50]
damages [19.170] sudden incapacity [11.60]
injunctions [19.160] overview [10.10], [10.20], [11.10]
trespass to goods [4.90], [4.100] question of law [10.30], [11.10], [11.140]
trespass to land [3.210] time for assessing [11.170], [11.180]
damages [3.220] actions post-breach [11.190]
injunctions [3.230]
Statutory authorities
Res ipsa locitur [11.200], [11.210] breach of statutory duty [19.260]
civil liability acts [8.180], [19.260]
S duty of care [8.110]
civil liability acts [8.180]
control and vulnerability [8.120],
School authorities [8.130]
duty of care [8.50], [8.60] failure to act [8.110], [8.180]
non-delegable duties [17.130], [17.170] inconsistent obligations [8.160],
vicarious liability [17.120], [17.130] [8.170]
nature of functions [8.140], [8.150]
Self-defence salient factors [8.110], [8.120]
overview [5.170] examples [8.110]
response to threat [5.170], [5.180] overview [8.110]

Survival of actions [16.230]

242 LAWBRIEF: TORTS

T Trespass to goods
acts constituting trespass [4.80]
damage requirement [4.90]
Tenants damages [4.90], [4.100]
— see also Landlords defences
nuisance [19.50] — see Defences
trespass to land [3.70] definition [4.30]
direct interference [2.20], [4.30], [4.70]
Tobacco related injuries [12.140], [15.10] elements [2.20]
inevitable accident [5.30]
Torts overview [4.30]
action on the case remedies [4.100]
— see Action on the case damages [4.90], [4.100]
breach of contract, distinction [1.30] title to sue [4.40]
crimes, distinction [1.20] finders of goods [4.60]
definition [1.10] possession of goods [4.40], [4.50]
determination of obligations [1.30]
historical development [1.40], [1.60] Trespass to land
Hutchins v Maughan [1.50] acts constituting trespass [3.100]
negligence entry without consent [3.100]
— see Negligence exceeding authority to enter [3.190],
nuisance [3.200]
— see Nuisance leaving objects on land [3.170],
origins of term [1.10] [3.180]
overview [1.20], [1.130] placing material on land [3.160]
purpose [1.20] throwing material on land [3.160]
survival of actions [16.230] withdrawal of consent [3.140],
trespass [3.150]
— see Trespass airspace [3.20], [3.30], [3.40]
scaffolding [3.40]
Torts liability consent [3.100]
developments [1.90] implied consent [3.100]-[3.130],
fault requirement [1.100] [5.50]
foundation of liability [1.100] revocation of consent [3.140],
limits to liability [1.70], [1.80] [3.150], [5.50]
loss distribution [1.100] continuing trespass [3.170], [3.180]
multiple tortfeasors [17.220] injunctions [3.230]
overview [1.70] damages [3.220]
rights protected [1.90] defences
strict liability [1.100] — see Defences
vicarious liability definition [3.10]
— see Vicarious liability direct interference [2.20], [3.80]
elements [2.20], [3.80], [3.90]
Trespass entry without consent [3.100]
direct interference [1.40], [1.60], [2.20] fault requirement [2.20], [3.90]
Hutchins v Maughan [1.50] implied licence [3.100], [3.110]
elements [2.20], [5.20] scope of consent [3.120], [3.130]
historical development [1.40] indirect interference [3.80]
negligence, and [1.60], [1.130] injunctions [3.230]
overview [1.60], [1.130] land, meaning [3.20]
 INDEX / 243

airspace [3.20], [3.30], [3.40] U

beneath the surface [3.40]
overview [3.10]
privacy [3.240] Unborn child
remedies [3.210] duty of care [7.10], [7.20]
damages [3.220] doctors [7.40]-[7.90]
injunctions [3.230] mothers [7.20], [7.30]
title to sue [3.50] scope of duty [7.20]
exclusive possession [3.50], [3.60] wrongful birth [7.40]
licensees [3.70] wrongful conception [7.50]
tenants [3.70] civil liability acts [7.70]
damages [7.50], [7.60], [7.70]
viewing activities [3.240]
wrongful life [7.80]
Harriton v Stephens [7.90]
Trespass to person
— see also Trespass to person V
assault [2.20], [2.150]
nature of threat [2.160]-[2.190]
reasonable apprehension [2.200] Vicarious liability
battery [2.20], [2.80] course of employment [17.70]
consent [2.80] “frolic doctrine” [17.110]
highway cases [2.140] improper mode of work [17.80]
negligent trespass [2.110], [2.120], unauthorised acts [17.90], [17.100]
[2.130] criminal offences [17.120], [17.130]
offensive contact [2.90] determining liability [17.20]
ordinary conduct of life [2.90], employee or contractor [17.20], [17.30]
[2.100] control test [17.30], [17.50], [17.60]
damages [5.220] multifaceted approach [17.30],
[17.40]
defences
tests to determine [17.30]
— see Defences general principles [17.20]
direct interference [2.20], [2.30], [2.70] loss distribution [1.100]
indirect, distinction [2.30] overview [1.130], [17.10], [17.20]
series of events [2.40] scope of liability [17.120], [17.130]
elements [2.20] strict liability [1.100], [17.20]
false imprisonment [2.20], [2.210]
awareness of restraint [2.260]
lawful justification [2.270] Volenti non fit injuria
no means of escape [2.240] definition [14.80]
partial obstruction [2.220], [2.230] intoxication [14.160]
psychological coercion [2.240], obvious risk [14.130]
[2.250] dangerous recreational activities
fault requirement [2.50], [2.60] [14.140]
onus of proof [2.70], [2.110], [2.120], overview [14.80]
[2.130], [2.140] precise risk [14.110], [14.120]
highway cases [2.70], [2.140] subjective knowledge [14.90], [14.100]
overview [2.10]
privacy [2.310]
provocation [5.220] Voluntary assumption of risk
criminal law defence [5.230] — see Volenti non fit injuria
244 LAWBRIEF: TORTS

Wrongful death
causation [16.170], [16.180]
Volunteers reasonable foreseeability [16.180],
duty of care immunity [7.220] [16.190]
damages [16.140], [16.150]
W assessment [16.220]
types of loss [16.200], [16.210],
[16.220]
Workers’ compensation eligible claimants [16.200], [16.210]
damages, and [16.110] general principles [16.140]
overview [1.110], [1.120] historical background [16.140]
limitation of actions [16.160]
Workplace safety overview [16.10], [16.140]
breach of statutory duty [19.190] statutory provisions [16.140], [16.160]
requirements [16.170]-[16.210]
Wrongful birth [7.40] Victoria [16.150]

Wrongful conception Wrongful life

damages [7.50], [7.60] duty of care [7.80]
civil liability acts [7.70] Harriton v Stephens [7.90]