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the parliament only intended that the penalty should be the only sanction for beach. Where a statutory provision is concerned with safety, the court is prepared to assume that the breach of the statutory provision gives rise to a private cause of action, even though there is no indication in the words of the statute that is what Parliament intended. Plaintiff must be of a class of persons that the statute was intended to protect, and suffered the type of harm at which the statute was directed. Need only prove that the defendant has breached the duty imposed by statute. The civil liability act stipulates that the authoritys act or omission does not amount to a breach of statutory duty unless it was in the circumstances so unreasonable that no authority having the same functions could consider the act or omission to be a reasonable exercise of its function. Statutory authorities are usually conferred a wide discretion about how to perform their statutory functions and must perform their function within limited resources. Heymans- a statutory authority is under no common law duty to exercise its statutory power , unless there is specific reliance, when the authority acts in such a way as to lead the plaintiff to believe that it will exercise its powers for their protection. Also general reliance- a general dependence on an authoritys performance of its function with due care. Policy v operational distinction Cases where no breach of statutory duty: Cutler v Wandsworth Stadium Ltd (1949) AC 398 the Bettings and Lotteries Act 1934 (UK) provided that the occupier should not exclude anyone from the track only because he wanted to bookmake, and should take all steps as necessary to ensure there is available space for bookmakers. The plaintiff brought an action against the defendant for not making a space available for him to carry on bookmaking. The House of Lords dismissed the appeal. Lord Reid construed the intention of the Act as providing adequate space for bookmakers as a group, not for individual bookmakers. Tucker v McCann (1948) VLR 222 at an intersection a motorcycle and a car collided. The plaintiff sued the defendant in negligence, the statement of claim included the allegation that the defendant failed to observe Road Traffic Regulations which required drivers to approach intersections at such a speed as to be able to stop immediately, and to give way to traffic approaching from the right. The Supreme Court of Victoria held that the intent of the regulations was to control traffic (not to confer rights on people who have been injured). As a result, the defendants common law breach of duty (negligence) did not give rise to damages for breach of statutory duty as the breach of the regulations must be considered when determining whether the defendant has exercised due care, not as a separate issue. Cases where duty imposed on defendant: Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) CLR the appellant (defendant) was required by the Navigation (Loading and Unloading) Regulations to securely fasten hatch beams before work began, in order to prevent its accidental displacement. It failed to do so and the respondent (plaintiff) was injured. The High Court had to decide whether civil right of action created by regulations. The plaintiff already sued the defendant for negligence at common law where the regulations were tendered as evidence (same as above case), therefore this case separate action. Reiterated the clearly established principle that where statute is passed requiring employer to protect employees, creates individual right of civil action in the class of persons to be protected, so that anyone injured by the breach can sue. But found defendant did not have control over
securing hatch beams (supervisor did) therefore did not breach statutory duty (this case is more about wording and fact). Mummery v Irvings Pty Ltd (1956) CLR the plaintiff entered the timber shed to buy some timber, moved towards defendants foreman who was working at a circular saw and was struck in the face by wood. Factories and Shops Act 1928 required guards to be provided for all dangerous parts of machinery, dangerous appliances and dangerous parts of the factory. High Court upheld trial judges decision that there was not enough evidence about the normal operation of the circular saw to establish that any part of it was dangerous or that it was without proper guards. Also, the Act was meant to prevent dangerous parts of the machine from flying out, however the piece of wood did not fit this description. Also, some dispute about whether the provisions for the safety or employees (and hence the plaintiff not within the class of persons protected). Case where duty imposed and breached: Galashiels Gas Co Ltd v ODonnell (1949) AC 275 respondent was widow of employee who died because lift broke (no explanation for life failure found). Factories Act 1937 required all lifts to be of good mechanical construction, sound material, adequate strength and properly maintained. Maintained was defined as being in efficient working order and good repair. Appellants argued that statute meant active steps had to be taken to ensure lift in working order, and since all steps taken, did not breach duty. House of Lords instead found that the statute imposed continuous obligation and that at the time accident happened, lift was not in efficient working order (although before that and after that it was okay). Conceded that this placed heavy burden but for the good of employees. Causation issue: Bonnington Castings Ltd v Wardlaw (1956) AC 613 Steelworker exposed to silica dust emanating from hammer and also swing grinders. Hammer didnt need dust extraction machine but swing grinders had faulty extraction things (therefore factory owners breached statutory duty). House of Lords had to decide whether breach of regulation (ie swing grinders not having proper extraction mechanism) caused plaintiffs disease (pneumoconiosis). Found that dust from swing grinders not negligible (ie contributed materially to the disease) therefore damages awarded. CLA- Obvious risk- no proactive duty to warn of obvious risk (matter of common knowledge), but does not apply if the plaintiff had requested advice or info, was required by law to be warned of the risk. No liability for materialisation of an inherent risk (risk that cannot be avoided by taking reasonable care and skill). Recreational activity- dangerous if there is a significant risk of physical harm. No liability for obvious s risks of dangerous recreational activity. No duty of care if risk warning was given.
Breach of Duty:
STANDARD OF CARE- WHO IS THE REASONABLE PERSON?
Mental illnessAdamson v Motor Vehicle Insurance Trust (1957) 58 WALR- the defendant ran over the plaintiff while driving a stolen car. The defendant was a schizophrenic, who was suffering from delusions at the time of the accident. The plaintiff sued the defendant alleging negligent driving.
The court had to determine whether to take the defendants insanity into account. In Supreme Court of WA, it was held that the defendant had been negligent. His insanity was not taken into account, his actions were judged according to the standard of the reasonable, sane driver. In a sense, his insanity was treated as an idiosyncrasy, personal to the defendant. He also knew that what he was doing was wrong. ChildrenMcHale v Watson (1966) CLR- the defendant was a 12yr old who threw a dart at a wooden post while playing and hit the eye of a girl. The high court of Australia held by a majority of two to one that the defendant had not been negligent, although an adult in the same position might have been. a defendant does not escape liability by proving that he is abnormal in some respect which reduces his capacity for foresight or prudence. Basically, lowered the standard of care to the standard expected from a 12yr old child (still objective ie not taking into account individual idiosyncrasies). Lack of skill- extra skill Cook v Cook (1986) CLR- the plaintiff, an experienced driver, invited the inexperienced and unqualified defendant to drive her car while the plaintiff was a passenger. In trying to avoid a parked car, the defendant accelerated instead of braking, injuring plaintiff. The High court of Australia held that the defendant should not be judged against the standard of the reasonable learner driver, because the plaintiff was aware of the defendants inexperience, but had chosen to drive with her anyway. The duty of care between the driver and an ordinary user of the roadway will be measured by the same objective standard, but between themselves it is different. The standard of care is an objective one, but adjusted to fit the special relationship under which it arises. Held to be negligent as she had failed to live up to the reasonable standard expected even of a reasonable learner driver. Nature of relationship between plaintiff and defendant is important. The conduct of an unskilled and inexperienced defendant is judged according to the standard of a reasonable person with skill etc unless the plaintiff knows that the defendant cannot reasonably be expected to live up to that standard. In contrast, if the defendant has extra skill, training or experience that may be taken into account in determining the appropriate standard of care. The standard of reasonable care depends on the knowledge that the defendant, had or ought to have had. Professional NegligenceThe CLA 5O says that a professional cannot incur a liability for negligence if they acted in a manner that was widely accepted by peer professional opinion as competent practice, but not if the opinion is irrational. Differing widely accepted opinions can be relied on. Does not apply to duty to warn of risk. In medical negligence cases, the courts previously applied the Bolam principle. Overturned by Rogers v Whittaker Rogers v Whittaker- plaintiff blind in one eye had surgery done on it. Asked many questions about possible complications affecting her right eye but did not ask if complications might affect her other eye. Plaintiff suffered sympathetic ophthalmia, sued for negligence in failing to warn her of the risks. Evidence provided that info was only provided if specifically asked for. The High Court of Australia held that although the Bolam test might be appropriate I cases of diagnosis or treatment, it should not be applied in cases involving the provision of advice or information from doctor to patient, in the field of non-disclosure of risk and the provision of advice an information, the Bolam principle has been discarded and instead, the courts have adopted the principle that , while evidence of acceptable medical practice is a useful guide tot the courts, it is for the court to decide what is an appropriate standard of care
after giving weight to the paramount consideration that a person is entitled to make decisions about his life. Ratio- a doctor has a duty to warn a patient of a material risk inherent in a proposed treatment, a risk is material if in the circumstances of a particular case, a reasonable person in the plaintiffs position, if warned of that risk, would be likely to attach significance to it, or if the medical practitioner is aware that the particular patient, if warned of that risk, would be likely to attach significance to it. Plaintiffs keen interest in risk to bad eye implied that she would have been even more concerned about risks to good eye. The High Court of Australia held that the defendant should have been aware that the plaintiff would have regarded the risk as material, and should have been warned of the risk. Decided that a doctor could withhold info on the basis of therapeutic privilege- (provision of info will harm the patient). Intoxication- CLA 49 when determining standard of care it is not relevant to consider the fact that the person may be intoxicated and may be exposed to increased risk because the persons capacity is impaired. Intoxication does not affect the standard of care owed to the person. If person is intoxicated, the court cannot award damages unless it is satisfied that the injury would have occurred even if the person had not been intoxicated. Assumed to be contributorily negligent unless the persons intoxication did not contribute in any way to the cause of the injury. If presumption of contributory negligent, then the damages are reduced by 25% or greater. Intoxication must be self-induced. Self-defence and recovery by criminals- no liability if conduct was carried out in selfdefence in response to unlawful conduct. Pg 126 of CLA- when you can use self-defence. Good Samaritans Volunteers Apologies
CALCULUS OF NEGLIGENCE-
The CLA division 2, 5b is fairly consistent with the common law as it instructs the courts to consider the probability of the harm that would occur is precautions were not taken, likely seriousness of the harm, the burden of taking precautions to avoid the risk and the social utility of the activity that creates the risk. It also says that the subsequent taking of cations that would have avoided the risk of harm does not of itself constitute admission of liability. Wyong Shire v Shirt- the perception of a reasonable response falls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with expense, difficulty and inconvenience associated with taking action. Conflicting responsibilities. The sign in this case should have read deep water between signs. Probability Romeo v Conservation Commission of the Northern Territory (1998) CLR plaintiff injured when she fel off a cliff, under the influence of alcohol. No fence or warning sign where she fell. High Court held that the defendant had not been negligent, although there was a small but foreseeable risk that someone might fall over the cliff, it was deemed that a reasonable council would not have done anything to guard against the risk, because the burden of precautions to guard against that risk would have been unreasonable high. Obvious risk. Civil Liability Act- The subsequent taking of precautions that would have avoided the risks of harm is not in itself admission of liability in connection to the risk. Gravity Paris v Stepney Borough Council (1951) the greater the harm that will befall the defendant if the risk of injury eventuates, the greater the precautions that are required by the defendant. Plaintiff had only one eye, this was known to the employer. Good eye damaged because of failure of employer to provide safety goggles. House of Lords held that the defendant had been negligent. The likelihood of an accident happening and the gravity of the consequences must be taken into account. Civil Liability Act- the defendants intoxication does not increase the standard of care owed to them. Practicability Caledonian Collieries Ltd v Speirs (1957) CLR plaintiffs husband was killed when his car was hit by a lot of trucks that rolled down a hill. Appellant (defendant) argued that it was not reasonable or practicable to install catch-points which would have prevented the accident, as the installation or such catch-points would have been costly and disrupted the operation of the railway line. High Court decided that was reasonably foreseeable some accident would occur given that the road was quite busy, therefore despite the difficulties involved in installing catch-points, should have been carried out. Justifiability E v Australian Red Cross Society (1991) 31 FCR 299 in 1984 plaintiff given blood transfusion which gave him HIV. At that time there was no test for HIV. One ground on which it was argued the Red Cross was negligent was that it failed to adopt a system of testing for hepatitis antibodies (which were present in the donors blood and which would have led to blood being discarded). Trial judge found that it was not reasonable for the defendant to introduce such testing at that time because it would have reduced the blood supply (which would have endangered lives). However, did note that the plaintiff probably had some claim for financial assistance in coping with the illness.
Federal Court of Australia defined the duty of the respondents as taking reasonable care to see that blood products were safe, noting that duty was high one (given the magnitude of potential consequences and risk). Critical question is whether, given medical and scientific knowledge at that point in time, it was reasonable for Red Cross to test for hepatitis antibodies (surrogate testing). Court found that in 1984 there was great uncertainty about whether surrogate testing was actually useful in identifying HIV, and that even if testing was carried out it was a slow process, which would have led a great proportion of the blood untested. Basically, the introduction of such testing would not have been justified, therefore no breach of duty.
Causation:
Have to prove that the defendants negligence caused the injuries. The CLA 5d says that in order of negligence to be determined it must be proved that the negligence was a necessary condition of the occurrence of harm- factual causation (but-for test?), and that it is appropriate for the scope of the negligent persons liability to the harm so caused (common sense and policy judgements). If in a situation where factual causation cannot be established, the court should basically consider why responsibility for harm should be imposed on the negligent party. If it relevant to factual consideration what plaintiff would have if the defendant had not been negligent (mainly medical stuff I think), then you consider it subjectively and anything they say after the incident is inadmissible except if the evidence is against them. BUT-FOR test- would the plaintiffs injuries have been suffered nut for the defendants negligence? If the plaintiff would have been injured even if the defendant had not been negligent, then the defendants negligence is not the cause of the plaintiffs injuries. Must also use common sense (March & Chappell). Straight application of but-forBarnett v Chelsea and Kensington Management Committee- plaintiffs husband drank tea that had arsenic, got sick, and went to doctor. Duty doctor not there and when telephoned told the men to go home and call their doctors. Plaintiff died 5hrs later. Sued saying that the hospitals negligence had caused her husbands death. It was held that although the duty doctor had been negligent in not coming to the hospital, even if he had come, the husband could not have been saved in time. The test is only of limited usefulness. March v Stramare (1991) CLR- defendant parked car in middle of road in order to unload vegies. The drunk plaintiff drove car into back of truck. High court held that the defendants negligence did have some causative effect. The but-for test must be applied subject to certain qualifications. Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured in not causally connected with the injury, unless the risk of injury occurring at the time was greater. In truth, the application of the but-for test proves to be either inadequate or troublesome in various situations where there are multiple acts or events leading up to the plaintiffs injury. If the test yields unacceptable results, it must be tempered by the making of value judgements and the infusion of policy considerations (ie but for test not the exclusive test of causation). Chappel v Hart (1998) CLR- plaintiffs vocal cords were damaged, partial voice loss by surgery. At the time of surgery, it was elective, but the plaintiff eventually needed to have it. The defendant negligently failed to warn of the risks of perforation which were inherent in the operation. If risks were known to the defendant, then she would have it done later by a more
experienced surgeon. High court held that the defendants negligent failure to warn was the cause of the plaintiffs injuries. The very risk that had not been warned needs to materialise. Rosenberg v Percival (2001) CLR- plaintiff suffered complications after undergoing routine elective dental surgery. She was not warned of the risk and she said that she wouldnt have had the surgery if she had known of the risk. The High court rejected this, found that the trial judge was right in deciding for the defendant. The test to determine whether someone would have performed the test if the risk were known is a subjective test. What the reasonable person would have done in the plaintiffs position is an important factor but it is not conclusive. The provisions in the Civil Liability act do not seem to differ a lot from the common law position. It says that anything they say after the accident is inadmissible, except if used against them. Tells you to use subjective assessment. State Rail Authority v Wiegold (1991) NSW LR- plaintiff fell down railway embankment because of faulty torch provided by employer. Received workers comp, then started growing marijuana cos he was worried bout family. Was arrested and sentenced. The court of appeal in New South Wales held that the plaintiff was himself responsible for the actions as a matter of policy. Unreal to find that the defendant caused the plaintiff to engage in criminal conduct. McKiernan V Manhire (1977) SASR- plaintiff injured in a motor vehicle accident caused by the plaintiffs negligence. She suffered further injuries when she tripped over a step in a convalescent home where she was recovering from the injuries which she had sustained. Supreme Court of South Australia held that the defendants negligence was not the cause of the plaintiffs further injuries. Pyre v Wilkenfield (1981) SASR- same as previous but she later suffered further injuries when she stumbled on uneven ground because she was wearing a surgical collar to support her neck. The same court found that the defendants negligence caused the further injuries.
The determination of whether or not the intervening event severed the causal connection is a matter of circumstance and degree. Chapman v Hearse (1961) CLR- a car overturned in the road as a result of the negligence of its driver, Chapman. A doctor named Cherry went to his assistance as he had been thrown free and was lying on the road. While Dr Cherry was helping, he was run over and killed by another car driven by Hearse. Issue was whether Hearses negligence was a novus actus intervenien, severing the chain of causation between Chapmans original act of negligence and Dr Cherrys death. High Court of Australia held that Hearses negligence was not the sole cause of Cherrys death. Baker v Willoughby (1970) AC 467 Plaintiff injured leg and ankle in car accident but before trial he was shot in same leg which then had to be amputated. Question was whether and by how much the damages should be reduced because of this second injury (the respondent argued that since leg gone no loss suffered thereafter could be attributed to the first injury). House of Lords found that appellant will continue to suffer from disabilities caused by the car accident for as long as he would have done if his leg had not been shot or amputated.
Mound. Came to the conclusion that the oil on the water could not be ignited, as fuel oil floating on water could not reach the flash point temp. But it did catch on fire (molten metal had ignited a cotton rag which acted as a wick) and destroyed the wharf and the Corrimal. Plaintiffs sued saying that the damage was caused by the defendants employees negligence. Privy Council held that the defendants were not liable because the loss of the plaintiffs wharf by fire was not a reasonably foreseeable consequence of the defendants negligence in spilling the fuel oil. Wagon Mound No 2- it was held that it was reasonably foreseeable that the oil on the water might catch fire. A reasonable person with the knowledge and experience of a chief engineer should have known that there was a real risk of the oil catching on fire. Only necessary that the kind of damage needs to be foreseeable, not the extent. Hughes v Lord Advocate (boy suffers severe burns as a result of a lamp left unattended.) Manner does not need to be foreseeable Jolley v Sutton London Borough Council (2000) ER- plaintiff and friend decided to repair a derelict boat that was on council grounds with sticker do not touch unless you are the owner of the vehicle). The boat was supposed to be taken away within 7 days but the council failed to do so. Plaintiff and friend used a carjack to try and repair a boat, but the boat fell on him and left him a paraplegic. House of Lords upheld that the trial judges decision that is was foreseeable that this type of accident and kind of injury were reasonably foreseeable. Liability of the wider risk had to be borne by the council. Council admit that they should have removed the boat in the event that minor injuries could occur to children as a result of the rotting planks, but the concession shows that if there were a wider risk, the council would have had to incur no additional expense to eliminate it. They would only have to do what they admit they should have done anyway. Australian authority Mount Isa Mines v Pusey (1971) CLR- defendants employees suffered severe burns while working at powerhouse due to defendants negligence. The plaintiff saw the accident, found out later that one of the men had died, and then developed schizophrenia. Sued employer. High court held that the schizophrenia was not too remote a consequence of the defendants negligence, since mental disturbance was a reasonably foreseeable consequence. Nader v Urban Transit Authority (1996) NSWLR- plaintiff, a boy suffered injuries from falling out of moving bus, then developed symptoms of a rare psychiatric disorder, which was partly due to the over protectiveness of his parents following the accident. Court of appeal of NSW held that the disorder was not too remote a consequence of the negligence of the bus driver. Egg shell skull principle- taking the plaintiff as you find them. The defendant must take the witness with all his weaknesses, beliefs, and reactions as well as his capabilities, attributes. Kavanagh v Akhtar (1998) NSWLR- a Indian Muslim women had to cut her culturally significant hair as a result of injury to head and shoulder suffered due to defendants negligence. Her husband got angry and left her, and she suffered depression and suicidal tendencies. Her psychiatric damage was not held too remote, no reason why you shouldnt take the plaintiff in her family and cultural environment. Is the damage suffered by the plaintiff of the same kind as was reasonably foreseeable as a consequence of the defendants negligence that a reasonable person would not regard as farfetched or fanciful?
Notwithstanding Wagon Mound (No. 1), defendant must take the plaintiff as he finds him: Stephenson v Waite Tileman Ltd (1973) 1 NZLR 152 plaintiff suffered a cut as a result of the negligence of his employer. Within a couple of days his hand swelled up and he became feverish. Six yrs later he could hardly look after himself and required a walking stick. A neurologist thought he suffered irreversible brain damage as a result of a viral infection, while a psychiatrist found he had a vulnerable personality, and that while brooding in the hospital he became neurotic. Jury found that the cut was the cause of the disability but that such disability not reasonably foreseeable by defendant. New Zealand Court of Appeal found that should only look at reasonable foreseeability of the initial injury, not the consequences, and thus if initial injury reasonably foreseeable, then ultimate consequences can be forged as cause and effect. Hence found for the plaintiff (also applied eggshell skull rule).
Defences:
CONTRIBUTORY NEGLIGENCE
When defendant fails to take reasonable care for their own safety. Apportionment of liability- Law Reform Misc Act 1965 NSW s15, & Civil Liability Act NSW. Last opportunity rule has not survived (March). CLA says that same rules determining if someone has been negligent apply in determining contributory negligence. Determined objectively- what person knew or ought to have known. Can be reduced by a 100%. Bywell castle- the conduct of a party in a situation of emergency may be viewed with more latitude. The plaintiffs contributory negligence may be viewed using the same principles that are used to measure the reasonableness of the defendants conduct. There is a distinction between mere inadvertence and negligence. The plaintiffs conduct will also be viewed against a lower standard where the plaintiff is a child. Kelly v Bega Valley Council CaNSW- plaintiff was an 11 yr old boy who was electrocuted after touching light pole terminal. Only reduced damages by 25% for contributory negligence. The conduct of a particular infant plaintiff charged with contributory negligence is to be measured according to the hypothetical conduct of an infant (ie standard of care reduced to level of children class of persons). Must also prove that the plaintiffs negligence causally contributed to their own injury. Froom v Butcher (1976) QB - failure to wear a seatbelt does constitute contributory negligence (even though at that time by law it was not required to wear one). The question is not what is the cause of the accident, but what is the cause of the damage. Plaintiff did get full damages for breaking his little finger, as wearing a seatbelt would not have prevented such injury (more of a causation issue). Sudden emergency: Caterson v Commissioner for Railways (1973) 128 CLR 99 plaintiff had just carried friends luggage onto train when without warning it started to move. Plaintiffs son was along on platform 64km from home. Next station was around 128km away. Plaintiff jumped from train and was injured. High Court found that by jumping out of train, plaintiff did not act unreasonably because train was moving very slowly and wanted to avoid the inconvenience (similar to the doctrine of alternative danger although this involves inconvenience not danger). Anticipation of others negligence:
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Sibley v Kais (1967) CLR defendant was on plaintiffs left at intersection, and should have given way to the plaintiff. Trial judge found plaintiff not contributorily negligent even though looked to his left too late. Full Court of WA reduced plaintiffs damages by for contributory negligence. High Court upheld this decision because common law duty to take reasonable care is present even though there are regulations. Thus plaintiff failed to take reasonable care of himself (should have slowed down etc), instead relied on assumption that defendant would give way.
Damages:
CLA- damages doesnt include payments from superannuation scheme or anything from insurance policy. Non-economic loss is pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. Special damages compensate for damages that can be proved with relative precision. Eg. Hospitable and medical expenses. General damages are for those things that cannot be proved with relative precision (all losses that plaintiff will suffer in the future), also pain and suffering after accident.
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Pecuniary losses are those that are in some way related to money, eg. Medical expenses, loss of earning capacity. Non-pecuniary does not arise from the loss of money. Damages for non-pecuniary losses always form part of general damages, because they cannot be calculated precisely. Damages for future pecuniary loss form part of general damages, but damages for pecuniary losses between accident and trial form part of special damages. The courts divide award of damages into components, called heads of damages for ease of identification. Not always appropriate to consider them as distinct items in a balance sheet (Teubner v Humble). ECONOMIC LOSS: Loss of earning capacity- compensate the difference between pre and post earning capacity. Includes vicissitudes of life. Take what they could have earned, multiply by the number of working weeks then deduct percentage of total for vicissitudes of life. Net earnings to be used (Cullen v Trappell), so not subject to tax again. Deduct any expenses that were necessary in order to carry on employment. Hospital expenses reduced by the cost of lodging etc. (Sharman v Evans). Award damages on the basis of loss of ability to exercise earning capacity. Wege V Elphick- was an engineer but working as a watchmaker so he was compensated as tho he was a watchmaker. CLA 12 says that you need to disregard any amount by which claimants gross weekly earnings exceed 3 times the average weekly earnings. Claimant must satisfy the court that the assumptions about future earning capacity accord with the most likely future circumstance but for the injury. Adjust for vicissitudes of life. Damages for future economic loss to be discounted at a rate of 5% or rate prescribed by regulation. NON-ECONOMIC LOSSCLA 16- No damages awarded for non-economic loss unless the severity of accident is at least 15% of a most extreme case. Max that can be awarded is 350 000. Damages to be determined in accordance with the table provided in CLA. You determine severity in accordance with most extreme case, the maximum for most extreme, then calculate the % of most extreme to be awarded from table. Amount is adjusted by the % change in average weekly earnings. In determining damages for non-economic loss, court may refer to earlier decisions for establishing appropriate award, so parties can bring forward awards of damages for non-economic loss from earlier decisions. 18- No interest on damages awarded for noneconomic loss or gratuitous care. If interest is being awarded for other damages, it is awarded from period when loss was incurred according to established principles. Rate is according to regulations or relevant interest rate (Cmon govt 10yr bond rate). When multiple parties need to pay the damages, it is determined in percentage terms according to what the court thinks is just and equitable. Third party contribution (p124 of CLA). Loss of amenity- damage to compensate for continuing disability. Can construct a relative scale to measure the loss (called a tariff) but not used in Australia. The civil liability act has endorsed the use of tariffs in determining damages for non-economic loss. Pain and suffering- Skelton v Collins- no damages awarded under this category for permanently unconscious plaintiff. A brave person gets less for pain and suffering but more for loss of amenity. Loss of expectation of life- if plaintiffs life is shortened then compensated for loss of life expectancy. Represent plaintiffs subjective enjoyment of lost years. Collateral benefits- accident insurance bought by plaintiff not set off against the damages, invalid pension not set off against damages but Commonwealth and Medicare may recover directly from the plaintiff, unemployment benefits set off against the loss of earning capacity. Sick leave is set off against the award of damages. Charity, sick leave and pensions ignored. CLA- Loss on superannuation entitlements is just the percentage of the damages awarded for impairment of earning capacity.
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Todorovic v Waller (1981) CLR- in the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and forever, and must be awarded as a lump sum; the court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the court has no concern about the matter in which the plaintiff uses the sum of money awarded to them, the plaintiff is free to do what he likes with it. Fourth, the burden lies on the plaintiff to prove the injury or loss for which he seeks damages. High court held that a discount rate of 3% should apply in all cases. Hospital, medical and care expenses All future medically related expenses that would be reasonable to incur in treating injury. In determining whether a particular expenditure is reasonable in the circumstances, the court weighs the cost against the health benefit to the patient. Sharman v Evans (1977) CLR- involved in motor vehicle accident, lost power of speech, respiratory impairment. Initially awarded 300000, which included 150-170000 for future costs of nursing. The high court thought this was too excessive and reduced it to 270500. The question is what are the reasonable requirements of the plaintiff. The present case is a case of alternatives in which the difference in relative costs is great whereas the benefit to the plaintiff for being cared for at home is one of amenity, benefit is not to her health but tot the future enjoyment of life. Must be assessed on the basis of life substantially spent in hospital, damages for loss of enjoyment of life was increased by 200000. Gratuitous serviceCLA 15 says that it can only be considered if a reasonable need for it arose solely because of the injury. It needs to be greater that 6hrs a week and over 6mths. If provided for greater than 40hrs a week, the amount awarded must not exceed average weekly total earnings, if less than 40hrs just use the rate of 1/40th of average weekly earnings. No interest awarded on this damage. Griffiths v Kerkemeyer (1977) CLR- injured plaintiff required ongoing nursing care which was to be provided by the plaintiffs family at no cost. The High Court held that the award should include a sum representing the value of nursing services provided by the plaintiffs family, even though the plaintiff would not be required to pay for those services. The plaintiffs relevant loss is his capacity to look after himself as demonstrated by the need for nursing services and this loss is to be quantified by reference to the value or cost of nursing services. The fact that someone is prepared to provide those services gratuitously is not a circumstance that accrues to the advantage of the plaintiff. The true loss is the loss of capacity which occasions the need for the service. Van Gervan v Fenton (1992) CLR- plaintiff injured so wife had to give up her employment as a nurse aide to care for him on a full-time basis. Once it is recognised that it is the need for services which the plaintiff the right to an award of damages, it follows that the damages that he or she receives are not determined by reference to the actual cost to the plaintiff of having provided them (income foregone). The market cost of the services is the reasonable and objective value. But in some cases, the market value may be too high to be the reasonable value of the services, the income foregone may be the starting point in cases where the nature and duration of the services provided are roughly comparable. Kars v Kars- gratuitous services provided by the husband who caused the accident, but the damages for those services are still awarded. Compensation is based on the plaintiffs need.
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Sullivan v Gordon- she suffered brain damage. The loss of ability to care for children (childcare) compensated on the basis of the Kerkemeyer approach- market value of the childcare. Will allow for subjective feelings of loss. Skelton v Collins (1966) CLR- in assessing damages for the loss of amenities resulting from impairment of some part of the body, it is impossible to ignore the subjective element. As a head of damage in a personal injury case, it is intended to denote a loss of capacity of the injured person consciously to enjoy life to the full. Court only awarded small sum for loss of amenity cos plaintiff was unconscious and suffered no subjective feelings of loss. Manser v Spry- To figure out whether benefits are to be enjoyed independently, you look at the intent of the legislature- financial source of the benefit, presence of a provision which requires repayment out of the damages awarded and the nature of the benefit. Exemplary damages CLA- court cannot award exemplary for aggravated damages where defendants conduct is so outrageous that court regards compensatory damages as inadequate to punish and deter the defendant or to deter others from acting similarly, court may award further sum to the plaintiff (also known as punitive damages). Lamb v Cotogno (1987) CLR plaintiff became very angry and threatened to kill defendant. When defendant tried to drive away plaintiff threw himself across bonnet. Defendant drove off anyway with plaintiff clinging to the car. Defendant drove at about 3540km/hr veering from side to side in an attempt to shake off the plaintiff. Defendant braked sharply, plaintiff flew off and hit the road. Defendant drove off leaving plaintiff lying bloodied on the ground. NSW Supreme Court awarded $5000 exemplary damages, Court of Appeal upheld the award. Defendant argued that the award of exemplary damages failed to punish the defendant for his actions or to deter others because of the compulsory motor insurance. High Court found that besides deterring the defendant and other like-minded people, exemplary damages act as a deterrent for other such activities that may not involve a motor vehicle. Such damages also serve to assuage any urge for revenge (although this may not apply as much).
VICARIOUS LIABILITY
CLA 5Q says that non-delegable duty should be treated as if it were vicarious liability in order to determine the scope of liability. Broader application and scope than non-delegable duty Employer/ employee, principal/agent. Whether the tortfeasor was an employee and whether the tortfeasor was acting in the course of their employment. No liability for independent contractors. Factors such as employers right to control employees work. Is an instance of strict liability seen as advancing the aims of torts in relation to compensation, deterrence and fair allocation of risk. Must not be in a frolic of his own- what was he authorised to perform?. Hollis v Vabu Pty Ltd (2001) CLR- plaintiff run over and injured by a bicycle courier who was negligently and illegally riding on the pavement. Wearing a jacket that said crisis couriers, the defendants business name. Sued for vicarious liability. Defendant set rates of pay, allocated work to the couriers, provided uniforms and couriers had to provide own bicycle. High court held that the courier was an employee for whom the defendant was vicariously liable. cannot disclaim responsibility for accident that was characteristic of its activities. The bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. Indicative that they were employees. Must be committed in the course of employment.
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Bugge v Brown (1919) CLR- defendants employee was entitled to be supplied with cooked meat, which he was told to cook in a hut. He went somewhere else to cook it, in the course of which caused a fire that damaged the plaintiffs damage. High court held that the lighting of the fire was within the scope of employment. Basically says that an employee may be acting within the scope of their employment if they perform an authorised task in an unauthorised, or even prohibited manner. Deatons Pty Ltd v Flew (1949) CLR- barmaid threw a glass of beer at the face of the defendant, blinding him in one eye. High court held that the defendant was not vicariously liable as she was not acting in the course of her employment ie the act was not what she was employed to do. Lister v Hesley Hall (2002) ER- plaintiffs systematically assaulted by the warden in annex in boarding school. Held that the wardens employer was vicariously liable. Instead of asking whether the sexual abuse was unauthorized mode of performing tasks the House of Lords looked more broadly at his job which was to care for the plaintiffs. New South Wales v Lepore, Samin v Queensland, Rich v Queensland (2003) sexual abuse of school students by teachers. Held that the school authority could be vicariously liable for the sexual assaults committed by teachers. Found schools were not in breach of non-delegable duty. Cannot dismiss the possibility of a school authoritys vicarious liability merely because it constituted serious misconduct on the part of the teacher. If there is sufficient connection between what teacher is employed to do and the sexual misconduct for it to be regarded as in the course of employment, it must be because of the nature of the teachers responsibilities and relationship with pupils created by those responsibilities. Where the teacher-student relationship is invested with a high degree of power and intimacy, the use of it to commit sexual assault may be a sufficient connection between the misconduct and employment to consider it as occurring in the course of employment. Although school owed a non-delegable duty to its pupils, that duty cannot be breached by a deliberate and intentional act of sexual assault by teacher. Employers right to indemnity has been abolished by legislation. Although a defendant is not vicariously liable for torts committed by an independent contractor, it may be in some cases liable to a plaintiff injured as a result of what the independent contractor has done. Kondis v State transport Authority (1986) CLR- plaintiff was injured during the course of his employment with the defendant. The jib of a crane fell on him while it was being manually extended by an independent contractor hired by the defendant. Plaintiff sued alleging that the injuries were caused by the defendants negligence. The high court held that the defendant was not vicariously responsible for the negligence of the independent contractor, but was directly liable to the plaintiff for the breach of duty owed to him. Said that the defendant owed a non-delegable duty which was not just a duty to take reasonable care but to ensure that reasonable care was taken for the plaintiffs safety. The element of special relationship between the parties must be present in order for a non-delegable duty to be imposed. Hospitals and schools the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of person or property as to assume a particular responsibility for their safety. Non-delegable duty: need control, special vulnerability (foreseeable risk of danger), and a relationship pof dependence Burnie Port Authority v General Jones Pty Ltd (1994) CLR- the fire on premises occupied by the defendant was started by the negligence of the independent contractor in carrying out welding operations near cardboard cartons of highly flammable material. Spread to plaintiffs premises and caused damage. High Court held that the defendant owed the
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plaintiff a non-delegable duty to ensure that the contractor took reasonable care. The relationship of proximity giving rise to the no-delegable duty is marked by special dependence or vulnerability on the part of that person. The relationship of proximity is characterised by a central element of control and by such special dependence and vulnerability. One party to that relationship is a person who is in control of the premises and who has taken advantage of that control to introduce thereon a dangerous substance. The other party is person outside the premises and without control of what occurs within, whose person or property is thereby exposed to the foreseeable risk of danger. The person outside is obviously in a position of special vulnerability and dependence. Northern Sandblasting v Harris (1997)- duty owed by landlord to occupants of leased premises is not a non-delegable one. Civil Liability act prescribes the extent of a defendants liability for breach of a nondelegable duty to ensure that reasonable care is taken by the person carrying out the delegated work. The defendants liability is treated as if it were vicarious liability for the persons negligence. This largely negates the effects of Lepore by providing that the defendant can be held be liable for beaching the no-delegable duty whether or not he or she could have done anything to avoid the harm. The presumed vicarious liability only applies if the tort was negligent act, not intentional.
Theoretical Readings
Richard L Abel, A Critique of Torts
The main purposes of tort law are to pass moral judgment on what has happened, respond to the victims need for compensation, and encourage future safety. Moral Judgment Violates principle of proportionality between the wrongfulness of an act and the magnitude of penalty imposed, ie is either too lenient or too severe. It is too severe when momentary inadvertence results in catastrophic injury (eg when driver takes his eyes off the road for a second and kills someone) and too lenient when unsafe conduct causes little or no injury through chance or intervention of others (refer to article about fate, fortune and hurt Waldron?). Notions of fault are inadequate to assign responsibility today. Vicarious liability ensures victim compensation but insulates wrongdoer from moral judgment. Most people believe compensation should be paid by those who can afford it most easily (because they are wealthy or can spread the burden) or who benefit from the activity that caused the injury (employers, manufacturers, etc). This means that moral judgment is not passed on the tortfeasor. Thus tort law has replaced moral judgment with concern for efficient allocation of resources. Additionally, most cases are settled rather than adjudicated, with most settlements specifically not acknowledging fault. Abel suggests that tortfeasor should acknowledge wrongdoing and apologise and that all victims should be encouraged to claim. Also suggests that people should stop blaming victims (through legal doctrines like contributory negligence, voluntary assumption of risk). Compensation Liability is a function of fault not need. A victim injured by someone not at fault will remain uncompensated. A victim at fault can never receive full compensation. Even when victim is faultless and defendant at fault, consequences of liability depend on particular circumstances between the two (eg if defendant is broke). Tort damages are unequal for several reasons. Firstly, poor people, old people etc are more likely to be victims of crimes. Also, workers comp payments are substantially less than other damages which perpetuates social inequality, as most people who receive such payments are poor individuals in the first place.
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Damages cannot restore victims to their status quo before the accident. Money is a poor equivalent for non-pecuniary loss therefore torts cannot really compensate victims. Abel suggests compensation should focus on what happened rather than how it happened, ie focus on the need not the fault. Should be available universally (to people who have themselves to blame, to those who dont know what caused the injury etc). Also, medical care should be freely available to all according to need. Intangible harm should not be compensated. Safety The threat of damages encourages companies to minimise liability not accident costs, which often compromises safety rather than improving it. For instance, may conceal information, settle out of court, stall, etc. Abel believes safety should be the first priority, as accidents should be prevented. He offers two contradictory proposals.
Breach of Duty- The Reasonable person. Feminist Critique J Conaghan Tort law and the feminist critique of reason in A Bottomley Feminist Perspectives on the Foundational Subjects of law
One approach has been to focus on the formal exposition of tort law as a set of legal rules which embody or protect the individual right. Feministic scholars have argued that such traditional presentations are misleading in presenting as a coherent body of knowledge, what is characterised as misleading. Think it is more loaded towards principles and values such as individual responsibility and freedom of contract, over desirable goals such as promotion of social responsibility and the empowerment of vulnerable groups. The way in which tort cases
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are resolved reflects a mode of analysis that is distinctly male. Tendency for judges to abstract a dispute from its particular context, and seek a universal guiding principle by which the conflict can be resolved- more feminine approaches to dispute resolution which emphasise the relevance of context and its importance in preserving and developing particular relationships. The test of reasonableness which governs the standard of care, the traditional distinction between acts and omissions entailing the distinction that there is no duty to rescue, the burden of proof both on negligence and causation, the assessment of damages and the availability of remedies generally- subject of critical feminist appeal. Thus it has been asserted that tort law, while quick to preserve and protect interests traditionally valued by men (such as good rep) is slow to respond to the concerns which typically concern females (freedom from sexual harassment). Challenge the view that tort law is fair. Although it may reflect a common sense view of how people should behave towards one another, the common sense reflects male rather than female perceptions about the scope and nature of human relationships. Feminists- greater emphasis on our dependence and involvement with others than our separate and individual status. Stuff like why dont we rescue a drowning child, why should ppl be able to pay their way out. Women are measured according to a standard that was devised without having them in mind. Article says that even feminist concepts can be oppressive as they only reflect values of some women (white, educated). Question of what standards to adoptconcept of justice that is good for all. The critique of the reasonable man that governs the standard of care in negligence.
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Legal Liability Liability is excluded for harm of an unforeseeable nature, therefore is limited. Additionally, it must be proven that a particular persons conduct caused the injury otherwise there is no liability either.
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victim were not injured (ordinary currency of family life and obligation). Additionally, the compensation provided can not exceed average weekly earnings.
Mental Harm damages- look at CLA pg 124 Liability of Public authorities- pg 125
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