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NEGLIGENCE
A defendant will only be liable, in negligence, for the failure to take reasonable care to prevent a certain kind of foreseeable
harm to the plaintiff, in circumstances where the law imposes a duty to take such care: Sullivan v Moody
1 Duty of Care
- Defendant must take reasonable care to avoid acts or omissions that injure their neighbour (Neighbour
principle): Donoghue v Stevenson
A Established Categories
- Road users to other road users
- Owed to road users and persons and property adjacent to the road: Imbree v McNeilly
- Owed to pedestrians: Heywood v Miller
- Scope of duty is to take reasonable care to avoid foreseeable risks: Davies v Tomkins
- Legal Practitioners to clients:
- Solicitors owe a duty of care to clients to carry out terms of the retainer: D’Orta-Ekenaike v Victoria
Legal Aid; Giannarelli & Shulkes v Wraith
- Barristers/solicitors acting as advocates do not owe a duty of care: Heydon v NRMA Ltd
- Medical Professionals to patients:
- Medical professionals owe a duty of care to clients: Rogers v Whittaker. Non-delegable: Ellis v
Wallsend District Hospital (means they have a duty to make sure others take reasonable care)
- Definition of medical professionals: CLA, s 5PA
- Landlords to occupiers of leased premises:
- Landlords owe a duty of care to occupiers/tenants: Northern Sandblasting v Harris (electrical faults)
- Manufacturers to consumers:
- Manufacturers owe a duty of care to consumers where the product cannot be reasonably inspected:
Donoghue v Stevenson
- Employers to employees:
- Employers owe a duty of care to employees to prevent reasonably foreseeable harm, non-delegable and
may be vicariously liable: Kondis v State Transport Authority (injured by third party crane operator)
- Vicarious liability does not need fault: Samin v Queensland
- Occupiers to entrants:
- Occupiers owe all entrants a duty to take reasonable care: Australian Safeway Stores v Zaluzna
- Occupier is any person with significant enough control of an area to realise a failure to take care may
cause injury: Wheat v E Lacon & Co Ltd
C Novel Categories
- Incremental approach - try to apply established categories to make an analogy: Sutherland Shire Council v
Heyman
- Salient Features approach - reasonable foreseeability (that P or class of Ps would suffer harm), indetermi-
nate liability, D’s autonomy, P’s vulnerability, D’s knowledge: Perre v Apand
2 Breach
- Omitting to do something that a reasonable person would have done: Blythe v Birmingham Water Works
- CLA, s 5B(1): person not liable unless the risk was foreseeable, not insignificant, and a reasonable person
would have taken those precautions in those circumstances
- CLA, s 5B(2), circumstances: probability harm would occur, likely seriousness of the harm, burden of
taking precautions, social utility
- Wyong Shire Council v Shirt: foreseeability - far-fetched and fanciful, may be foreseeable but not likely
- Shaw v Thomas: Risk of child falling from bunk bed was not insignificant
- Ipp Report: not insignificant is higher; Drinkwater v Howarth: not insignificant may be the same thing
- Probability: Bolton v Stone (cricket ball)
- Likely seriousness: Burnie Port Authority v General Jones Pty Ltd (fire, destruction of property)
- Burden: Graham Barclay Oysters Pty Ltd v Ryan (would have to stop production or clean every oyster)
- Social utility: E v Australian Red Cross (blood donations); Bader v Jelic (view); Harris v Bulldogs Rugby
League Club Ltd (football matches); Rhodes v Lake Macquarie City Council (native trees)
- Reasonable person is objective test with subjective characteristics: McHale v Watson
- Lower standard for children (McHale v Watson)/mentally ill (Adamson v Motor Vehicle Insurance Trust)
- Higher standard for skilled professionals such as doctors: Rogers v Whittaker
- No lowered standard for inexperienced defendants: Imbree v McNeilly
3 Causation
- A question of how a particular harm occurred: Wallace v Kam
A Factual Causation
- Necessary condition/“but for” test: Barnett v Chelsea & Kensington Hospital (poisoned tea); Adeels
Palace Pty Ltd v Morbarak (restaurant robbery, P shot), CLA, s 5C(1)(a)
- P must prove what they would have done if not for the injury: Fitzpatrick v Job; CLA s 5C(3)
- P must prove on the balance of probabilities what they would not have suffered injuries but for the defen-
dant’s negligence: CLA, s 5D
- D’s negligence does not have to be the only cause of harm, just a probable cause: Amaca Pty Ltd v Ellis
(asbestos)
- If P would have accepted the risk anyway, no causation: Rosenberg v Percival (dangerous surgery)
- Causation may be satisfied if D materially increased the risk of harm: Fairchild v Glenhaven Funeral Ser-
vices Ltd (asbestos)
B Scope Of Liability
- P’s injury must not be too far removed from D’s negligence, must be causally connected: March v Stra-
mare
4 Defences To Negligence
A Contributory Negligence
- P exposes themselves to a risk that was foreseeable and avoidable, and suffers injury: Joslyn v Berryman
- Was a complete defence but the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act
1947 (WA) changed it to a partial defence
- CLA s 5K: The same principles used to determine whether D is liable are used to determine whether P is
contributorily negligent. P’s standard of care is a reasonable person as per McHale v Watson
- CLA s 5L: Intoxicated Ps are assumed to be contributorily negligent unless they can establish otherwise
- Breach: Consolidated Broken Hill Ltd v Edwards (bike on bridge), Carey v Lake Macquarie City Council
(bike in park in dark with insufficient lights)
- Causation: Gent-Diver v Neville (accepted lift from D on motorbike even though lights not working, in-
jured by dangerous riding, was not contributory negligent because breach didn’t cause injury)
- Apportionment of blame, will affect damages: Pennington v Norris
B Voluntary Assumption Of Risk
- P had perceived and voluntarily accepted the risk: Roggenkamp v Bennett
- Rootes v Shelton (waterskiing, D crashed boat. No voluntary assumption)
- ICI v Shatwell (disobeyed instructions so voluntarily assumed the risk)
- CLA s 5N: P presumed to be aware of obvious risk. (s 5F: definition, obvious to reasonable person)
- CLA s 5O: No duty to warn of an obvious risk unless P specifically asks or D is bound by law to do so
- Obvious risk modified for child (reasonable person): Doubleday v Kelly
- CLA s 5H: D not liable for harm from recreational activity where there is an obvious risk to that activity (s
5E: definition of recreational activity: any sport or activity for enjoyment, relaxation or leisure)
NUISANCE
An unreasonable interference, created by a Defendant, with a Plaintiff’s use or enjoyment of an interest in land capable of
protection: Hargrave v Goldman
1 Unreasonable Interference
- An interference that is substantial, and not trivial: Munro v Southern Dairies
- Interference includes utility damage, encroachment and physical damage: Halsey v Esso Petroleum Co Ltd
- Locality of land: Gales Holdings Pty Ltd v Tweed Shire Council; Sturges v Bridgman. Extent and intensi-
ty: Feiner v Domachuk. Duration, time and frequency: Wherry v KB Hutcherson; Siedler v Luna Park.
Undue sensitivity: Robinson v Kilvert. Malice: Hollywood Silver Fox Farm v Emmet. Physical damage to
P’s land: Halsey v Esso Petroleum Co Ltd
4 Defendant’s Liability
- Liable if it is foreseeable that there will be a nuisance: Gales Holdings Pty Ltd v Tweed Shire Council
- Liable if they created the nuisance: Fennel v Robson Excavations Pty Ltd Evan
- Liable if they continue the nuisance on their land: Sedleigh-Denfield v O’Callaghan
- Occupiers are liable for third parties using their premises if there is a “special danger of nuisance”: De
Jager v Payneham & Magill Lodges Hall Inc
5 Defences To Nuisance
- Statutory authority: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conser-
vation and Land Management (proscribed burnings case)
- Prescription, if P has tolerated for 20 years: Sturges v Bridgman
- The fact that P came to the nuisance is not a defence: Sturges v Bridgman
REMEDIES IN TORT
1 Compensatory Damages
- P should be put in the same position they would have been in had the tort not occurred: Butler v Egg and
Egg Pulp Marketing Board
- Can be general damages, which cannot be exactly calculated, or specific damages, which can.
- Eggshell skull principle (D must take P as they find them): Nader v Urban Transport Authority
A Compensatory Damages For Property Damage
- SSYBA Pty Ltd v Lane (Brackets on wall); Glenmont Investments Pty Ltd v O’Loughlin (dinosaur)
- Use diminutive value (amount they’ve lost from it) unless restorative value (repairing property) is the only
reasonable way: Evans v Balog