OVERVIEW

LOSS/DAMAGE
INTENTIONAL TORTS
 Intentional infliction of harm without just cause or excuse
 Types: battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to
land, trespass to chattels, conversion
 Trespass to person and trespass to land require physical interference or the threat of physical
interference with person or land
 Actionable per se; no need to establish damage such as personal injury, psychiatric illness,
property damage or economic loss
 General damages are at large: compensate for the wrong that has occurred + actual damage +
vindication of rights
 Trespass:
o Plenty v Dillon (1991) 171 CLR, 654-5
 Common law rule: a person is a trespasser unless they enter another person’s
land with consent; caveat for exceptions under statute – which did not apply here
(service of a summons)
 ‘If the Courts of common law do not uphold the rights of individuals by granting
effective remedies, they invite anarchy, for nothing breeds social disorder as
quickly as a sense of injustice which is apt to be generated by the unlawful
invasion of a person’s right, particularly when the invader is a government
official…. The appellant is entitled to have his right of property vindicated by a
substantial award of damages.’
 Here, the trespass was not of a trifling nature; the defendant’s entered Mr
Plenty’s land against his express wish – matter remitted back to SAFC for
damages assessment
o Causation: where the other elements of the tort are made out, a finding that the
defendant intended the consequences which came to pass will be sufficient to support an
award of damages against the defendant in respect of that consequence (see, Palmer
Bruyn & Parker P/L v Parsons (2001) 208 CLR 388)
 Reasonable foreseeability does not apply to limit liability; damages will flow from
losses that are either intended by defendant, or losses that are the natural and
probable consequence of the defendant’s intentional act (see, Palmer Bruyn &
Parker P/L v Parsons (2001) 208 CLR 388)
 What is a natural and probable consequence depends on the circumstances of
the case and it a question of fact (see, TCN Channel Nine Pty/Td v Aning [2002]
NSWCA 82, [104])
 Employer may be vicariously liable (see, Zorom Enterprises P/L v Zabow & Ors
[2007] NSWCA 106)
o Choice of cause of action – negligence vs. trespass to person
o Difference in damages - capped under Civil Liability Act 2002 (NSW)
o Injury need not be physical (see, State of NSW v Ibbett (2005) 65 NSWLR 168)
o ‘Injury’ is to be distinguished from injury as per section 11 of the Civil Liability Act 2002
(NSW) (see, Houda v State of NSW [2005] NSWSC 1053 - examples: damage to
reputation, hurt feelings, indignity, humiliation, disgrace…
o Cf ‘personal injury including prenatal injury, impairment of physical and mental condition,
or disease’ as per legislation + limits to pure mental harm
o Injury need not be criminal (see McCracken v Melbourne Storm Rugby League Football
Club [2007] NSWCA 353)
 Trespass to person:
o Section 3B(a) Civil Liability Act 2002 (NSW)
 The provisions of this Act do not apply to or in respect of civil liability (and awards
of damages in those proceedings) as follows:
 (a) Civil liability of a person in respect of an intentional act that is done by
the person with intent to cause injury or death or that is sexual assault or
other sexual misconduct committed by the person—the whole Act
except:
o (i) Section 15B and section 18(1) (in its application to damages
for any loss of the kind referred to in section 18(1)(c)), and
o (ii) Part 7 (Self-defence and recovery by criminals) in respect of
civil liability in respect of an intentional act that is done with
intent to cause injury or death, and
o (iii) Part 2A (Special provisions for offenders in custody).
o Trespass to the person in the medical context vs. negligence
o Consent is a complete defence to battery and assault
o Test: Was the patient advised in broad terms of the nature of the procedure to be
performed?
o Is there a difference between consent obtained through negligence in explaining risks of
treatment compared to consent obtained through fraud?
o Does recklessness satisfy the requirement of intention to cause harm?
 See Dean v Phung [2012] NSWCA 223
 See White v Johnson (2015) 87 NSWLR 779
o
 CAUSATION
FACTUAL CAUSATION (NEGLIGENCE)
 Differs to intentional torts
 It requires a plaintiff to prove factual and normative causation — the test is the same under
common law and statute law
 Common law:
o ‘But for’ test per March v Stramare
 Statute law:
o Civil Liability Act s 5D(1)(a)
o See also Strong v Woolworths (2012) 246 CLR 182 [18] — ‘The determination of factual
causation under s 5D(1)(a) is a statutory statement of the “but for” test of causation …’
Some general principles:
 Necessary condition:
o See Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
 Different occasion theory:
o See Chappel v Hart (1998) 195 CLR 232
 Material contribution:
o See Zanner v Zanner [2010] NSWCA 343
 Multiple sufficient causes:
o See Elayoubi v Zipser [2008] NSWCA 335
 Apportionment
 Proportionate liability
 Exceptional case

NORMATIVE CAUSATION
 Section 5D(1)(b)
 Section 5D(4)
 REMOTENESS
Issue Rule Law
Deceit/intentional Natural and probable consequences
torts
Negligence Reasonable foreseeability
Contract Within the contemplation of the parties at
the time of entering the contract

COMMON LAW TEST

 Test 1: Very low degree of probability of damage is sufficient
o See, Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1967] AC 617, 643-4 per
Lord Reid (‘Wagon Mound No 2’)
 ‘If a real risk is one which would occur to the mind of a reasonable man in the
position of the defendant’s servant and which he would not brush aside as far-
fetched … then surely he would not neglect such a risk if action to eliminate it
presented no difficulty involved no disadvantage, and required no expense.’
o See, Wyong Shire Council v Shirt (1980) 146 CLR 40, 48 per Mason J
 ‘A risk of injury which is remote in the sense that it is extremely unlikely to occur
may nevertheless constitute a foreseeable risk. A risk which is not far fetched or
fanciful is real and therefore foreseeable.’
 Test 2: It is only the kind of damage which must be foreseeable, not the extent
o See, Mount Isa Mines v Pusey (1970) 125 CLR 383
 Injury was severe schizophrenic reaction on witnessing workplace injury
 The type of damage, ie psychological reaction, was foreseeable
 Matters not that the subtype and extent of that damage was not foreseeable
o See, Richards v State of Victoria
 Classroom school fight in the presence of a teacher
 A blow that caused neurological damage
 Test 3: The manner in which the damage occurred need not be foreseeable
o ‘Relaxes’ foreseeability
o See, Chapman v Hearse (1961) 106 CLR 112, 121 per Dixon CJ, Kitto, Taylor and Windeyer
JJ
 ‘It would be quite artificial to make responsibility depend upon, or to deny liability
by reference to, the capacity or upon his capacity to foresee the precise events
leading to the damage complained of.’

STATUTE TEST
Civil Liability Act 2002 (NSW): section 5B General principles
1) A person is not negligent in failing 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 to
have known), &
b. the risk was not insignificant, &
c. in the circumstances, a reasonable person in the person's position would have
taken those precautions.
2) In determining whether a reasonable person would have taken precautions against a risk of
harm, the court is to consider the following (amongst 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.
 MITIGATION

*tips*
 Review the three common law rules from last week …
 Remember there is a subjective/objective test for PI matters (see Glanjovic v Foster)
 In some areas, legislation has strengthened the case law requiring the plaintiff to mitigate their
loss

RULE 1
 The defendant is not liable for loss that would have been avoided had the plaintiff behaved
reasonably and attempted to mitigate their loss
 What is reasonable conduct for a plaintiff is measured against the information the plaintiff had at
the relevant time
 If the plaintiff acts unreasonably, the defendant’s liability is confined to that which would have
occurred had the plaintiff acted reasonably
 Reverse onus of proof- the defendant must prove the plaintiff’s conduct was unreasonable
 Case law states that: The plaintiff need not undertake costly, complex or extravagant measures
including those likely to damage their position of reputation
 In personal injury cases, a subjective/objective test has been applied (see Glavonjic v Foster
[1979] VR 536 and approved in other appellate level decisions)

RULE 2
 The plaintiff may recover from the defendant the costs involved with mitigating their loss
 This applies even where it may increase rather than mitigates the loss
 See Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322
o Here, the plaintiff was left with a number of open speculative contracts as a result of the
defendant’s breach of duty. Rather than close them out, he held on to them in the hopes
of a more favorable development in the market. There was no favorable development. As
the defendant could not establish that holding on to the contracts was unreasonable
conduct on the part of the plaintiff, the court held that the defendant was liable for the
loss flowing from that conduct

RULE 3
 The defendant is entitled to the benefit accruing from mitigating steps taken by the plaintiff
 Reverse onus - the defendant must prove that the benefit flowed from the mitigating steps
 An exception applies where the benefit is ‘collateral’
 Where there is uncertainty as to loss, resort to balance of probabilities

CASES
Arnott v Choy [2010] NSWCA 259 [161]
 Material facts: Mr Choy suffered an acquired brain injury following an MVA. Although an
employment agency was unable to place him in employment, he had completed a TAFE course,
a few work trials, and was employed in his family business. He did not work for the period after
his legal case was commenced up until the trial
 At trial: the medical evidence was that Mr Choy’s emotional, behavioural and cognitive residual
disabilities inhibited his capacity to perform in a competitive manner in full employment.
 Despite this, the trial judge found that Mr Choy had no residual earning capacity and no duty to
mitigate his loss by trying to find work.
 Relevant issue: Did the trial judge err in finding the respondent failed to mitigate his loss of
earning capacity by taking no steps to find employment for a particular period of time?
 Holding on this issue: (per McColl JA):
o “A person with such disabilities might reasonably, in my view, be overwhelmed by the
prospect of having to deal both with seeking employment and complying with the
demands of an impending court case, particularly where many demands are made on
the person to attend medical examinations. In this respect it should be noted that the
period in which the respondent did not seek work coincided with the commencement of
the proceedings in April 2007 and the hearing in July 2008. In my view it was open to
the primary judge, having regard to the disabilities he concluded afflicted the
respondent, to conclude the latter’s explanation for not seeking work in the 18 or so
months prior to trial was cogent rather than baseless.”
DAMAGES