Weekend School 2 - Negligence and Nuisance

LAW OF TORTS
Negligence Duty of Care

Clary Castrission
clary@40k.com.au
How will we cover

negligence?
Duty of Care at common law

Civil Liability Act and Duty of Care
More CLA and Breach of Duty
Damage and Particular Duty Areas
More Particular Duty Areas
Negligence- Duty of Care
Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
Proximity and Reasonable Foreseeability v
Incrementalism
Some interesting applications

Unborn children and the wrongful life cases
Legislative reform
NEGLIGENCE AND FAULT IN

TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
NEGLIGENT TRESPASS
Intentional or negligent act of D

which directly causes an injury to the
P or his /her property without lawful
justification
The Elements of Trespass:
fault: intentional or negligent act

injury must be direct
injury may be to the P or to his/her property
No lawful justification
NEGLIGENT TRESPASS
While trespass is always a direct tort, it is not
necessarily an intentional act in every
instance. It may be committed negligently
Negligent trespass is an action in trespass
not in negligence:
Where the facts of a case permit, it is
possible to frame an action in both trespass
and negligence on the same facts
Williams v. Molotin (1957) 97 CLR. 465.
What is Negligence?
It is the neglect of a legal duty
Negligence v carelessness
The law takes no cognisance of

negligence in the abstract. It concerns
itself with carelessness only where there
is a duty to take care and where failure
in that duty has caused damage. (Lord
MacMillan in D v S)
Tame v NSW (2002) 211 CLR 317
Negligence: The Elements

Duty of care
Negligence
Breach
Damage
Negligence: The Early Cases

Heaven v. Pender (1883)
The dicta of Brett MR:
whenever one person is by circumstances

placed in such a position with regard to another,
that every one of ordinary sense who did think
would at once recognise that if he did not use
ordinary care and skill in his own conduct with
regard to those circumstances he would cause
danger or injury to the person or property of the
other (person) a duty arises to use ordinary care
and skill to avoid such danger.
Donoghue v. Stevenson [1932]

AC 562
Facts
Understanding the relationships
Donoghue v Stevenson
(cont)
Dicta of Lord Atkin
The rule that you are to love your neighbour
becomes in law, you must not injure your
neighbour, and the lawyers question, who is my
neighbour? receives a restricted reply. 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 closely and directly affected by my act that I
ought reasonably to have them in mind to the acts
or omissions which are called into question (at 599)
The Manufacturers Duty

Grant v Australian Knitting Mills (1936)
The application of the rule in D v S
a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination, and with the knowledge that the
absence of reasonable care in the preparation or
putting up of the products will result in an injury to
the consumers life or property, owes a duty to the
consumer to take that reasonable care
Baar v Snowy Mountains Hydro-Electric Authority

(1970) 92 WN (NSW) 472
What did Lord Atkin mean?

What Lord Atkin did was use his
general conception to open up a
category of cases giving rise to a
special duty [The process] may be
described either as the widening of an
old category or as the creation of a new
and similar one. The general conception
can be used to produce other categories
in the same way.
Lord Devlin in Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465 (at 524)
Established Categories
Type of Harm
Type of Defendant
Type of Plaintiff
Manufacturer to consumer
Makers/repairers to users of chattels
Teachers to pupils
Occupiers of land to visitors
Skilled professionals to their clients
Highway workers to highway users
Checking In
Snails
Categories
_________
The harder ones:
Incrementalism

Legislative reform
Duty of Care in General

Where there is physical loss or injury
(or an established category), duty is
relatively easy to identify.
Rylands v Fletcher (1868) LR 3 HL 330
Where nature of harm is more

difficult to identify or quantify, it gets
tougher.
WHAT HAPPENS WHEN THE DUTY DOES

NOT FIT AN ALREADY EXISTING CATEGORY?
What is needed is a conceptual

framework that will promote
predictability and continuity and at the
same time facilitate change when it is
needed. (McHugh J in Perre v Apand
(1999))
Principle v Category
Principle: Proximity and Reasonable
Foreseeability
Category: Incrementalism
There is still much disorder and
confusion- Kirby J Perre v Apand
What is Reasonable
Foreseeability?
Question of identity of the plaintiff:
Question of law
Is the P reasonably foreseeable (as

person or member of a class of
people) likely to be affected by Ds
actions?
Reasonable Foreseeability:
Case Law
Some illustrations
Palsgraf v. Long Island R.R. Co. (1928
Chapman v. Hearse (1961)
Reasonable Foreseeability: Established

Category Of Duty of Care
Wyong Shire Council v Shirt (1980) 146
CLR 40 per Brennan J:
risk must be real in the sense that a
reasonable person would not brush it aside
as far-fetched or fanciful.
Koehler -v- Cerebos (Australia) Limited

[2005] HCA 15
McHugh, Gummow, Hayne and Heydon JJ (majority):
The central inquiry remains whether, in all the circumstances,
the risk of a plaintiff sustaining a recognisable psychiatric
illness was reasonably foreseeable, in the sense that the risk was
not far fetched or fanciful [33]
Needs Something Else

Sullivan v Moody (2001) 207 CLR 562
The fact that it is foreseeable that a
careless act on the part of one person may
cause harm to another does not mean the
first is subject to a legal liability
Proximity
Jaensch v. Coffey (1984)
(Proximity involves) notions of nearness or
closeness and embraces physical proximity (in
the sense of space and time), circumstantial
proximity such as an overriding relationship of
employer and employee or of a professional
man and his client, and causal proximity in the
sense of the closeness or directness of the
relationship between the particular act or
cause of action and the injury sustained. (per
Deane at 584-585)
The High Point of Proximity

Bryan v Maloney (1995) 182 CLR 609
A duty of care arises under the common law
of this country only where there exists a
relationship of proximity between the parties
with respect to both the relevant class of act or
omission and the relevant damage. (at 543)
The Main Features of

Proximity
PROXIMITY
Degree of proximity
Physical
Circumstantial
Causal
Evaluation
Evaluation
of legal
and policy
considerations of
what is fair
and reasonable
Proximity Criticised
The High Court has expressed
reservations about the usefulness of
the notion of proximity in recent
times
Sutherland SC v Heyman (1985)

Hill v Van Erp (1997)
Perre v Apand (1999)
Modbury Triangle Shopping Centre Pty Ltd v
Anzil (2000)
Proximity - Criticised
Sullivan v Moody (2001) 207 CLR 562
Facts
Judgment
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan
JJ:
[573] foreseeability of harm is not sufficient
to give rise to a duty of care
[578] The formula is not proximity.
Notwithstanding the centrality of that concept,
for more than a century it gives little practical
guidance in determining whether a duty of care
exists in cases that are not analogous to cases
in which a duty has been established
Incrementalism
The Anns 2-Stage Test:

The UK Way
Anns v Merton London Borough
Council [1978] AC 728
2-Stage Test (Wilberforce):
It requires first a sufficient relationship of
proximity based upon foreseeability;
and secondly considerations of reasons why
there should not be a duty of care.
Australia Elaborates on
Anns
Jaensch v. Coffey (1984) per Deane J. p587-8
A duty situation could arise from the
following combination of factors
A reasonable foreseeability of real risk of injury to P
either as an identifiable individual or a member of a
class of persons, and
The existence of proximity between the parties with
respect to the act or omission
Absence of any rule that precludes such a duty
The 3-Stage Caparo Test

Caparo Industries Plc v Dickman
[1990] 2 AC 605
Was damage to P reasonably
foreseeable
Was relationship between P and D
sufficiently proximate, and if so
Would it be fair, just and reasonable to
apply DOC
Perre v Apand (1999) 198

CLR 180
Facts
High Court gets the chance to

explore the current state of duty of
Care
Gaudron in Perre
Prox is too ambiguous: First, proximity as the
second stage in a three stage test has no more
content than it did when it was used as the
unifying criterion [Gaudron at 10]
Too powerful: would prevent incrementalism.
Concern that Caparo would be used in any case,
even where there is an established duty
category
Too troublesome: Fair, just and reasonable is
troublesome:- They are of little use, if they are
of any use at all, to the practitioners and trial
judges who must apply the law to concrete facts
arising from real life activities. [Gaudron at 12]
Gaudron Concluding
Need for predictability
When legal practitioners are unable to predict the
outcome of cases with a high degree of probability,
the choice for litigants is to abandon or compromise
their claims or defences or to expose themselves to
the great expense and unpredictable risks of
litigation. [Gaudron at 20]
Incrementalism is best compromise

Until a unifying principle again emerges, however,
the best solution is to proceed incrementally from the
established cases and principles. [Gaudron at 25]
Kirby J
Look at other jurisdictions
Reasonable foreseeability falls short, so
proximity has a role to play:
If on the other hand, proximity were to be confined to its
original historical purpose as a measure of nearness and
closeness between the parties in dispute, it cold yet
provide a meaningful gateway, in addition to reasonable
foreseeability of harm, to afford the starting point for the
allocation of a legal duty of care or exemption from its
burden. Then it would remain necessary to weigh
candidly the competing policy considerations relevant to
the imposition of a duty of care. [Kirby at 24]
Kirby J applying Caparo

Foreseeability
Proximity
Policy
Wrapping up the
approaches
The quest for the unifying principle
- Anns 2-Stage Test
- Caparo
Incremental Approach: A compromise
- Brodie v Singleton Shire Council (2001) 206 CLR 512
Checking In
Snails
Categories
The harder ones:
Incrementalism
----------------------

Legislative reform
Interesting Duty
Application 1
The unborn child:
There can be no justification for distinguishing between
the rights of a newly born infant returning home with
his /her mother from hospital in a bassinet hidden from
view on the back of a motor car being driven by his
proud father and of a child en ventre sa mere whose
mother is being driven by her anxious husband to the
hospital on way to the labour ward to deliver such a
child ( Per Gillard J in Watt v Rama)
- Lynch v Lynch (1991)
- Watt v Rama [1972] VR 353
Unborn Child
Wrongful life cases
Harriton v Stephens [2006] HCA 15 (9 May 2006) Appeal
dismissed (7 to 1 majority)
Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing),
Hayne J and Callinan J in separate judgments dismissed
the Appeal
Kirby J dissented
Harriton v Stephens
Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)

[244] It was not DrPRStephens's fault that Alexia
Harriton was injured by the rubella infection of her mother.
Once she had been affected by the rubella infection of her
mother it was not possible for her to enjoy a life free from
disability. ... DrPRStephens would have discharged his
duty by diagnosing the rubella and advising Mrs Harriton
about her circumstances, enabling her to decide whether to
terminate her pregnancy; he could not require or compel
Mrs Harriton to have an abortion.
Harriton v Stephens
Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)

[249] It is not to be doubted that a doctor has a duty to
advise a mother of problems arising in her pregnancy, and
that a doctor has a duty of care to a foetus which may be
mediated through the mother[403]. However, it must be
mentioned that those duties are not determinative of the
specific question here, namely whether the particular
damage claimed in this case by the child engages a duty of
care. To superimpose a further duty of care on a doctor to a
foetus (when born) to advise the mother so that she can
terminate a pregnancy in the interest of the foetus in not
being born, which may or may not be compatible with the
same doctor's duty of care to the mother in respect of her
interests, has the capacity to introduce conflict, even
incoherence, into the body of relevant legal principle
DUTY TO RESCUE
There are two separate issues in rescue:
The duty to rescue
The duty of care owed to the rescuer
There is no positive legal obligation in the

common law to rescue
The law does not cast a duty upon a man to go
to the aid of another who is in peril or distress,
not caused by him: Hargrave v Goldman (`963)
There may however exist a duty to rescue in

master servant relationships or boat owner
and guest relationships for instance
Horsley v Maclaren (The Ogopogo) (1971) 22 DLR
One is only required to use reasonable care

and skill in the rescue
THE DUTY OWED TO

RESCUERS
The rescuer is generally protected : torts recognizes the

existence of a duty of care owed to the rescuer.
The issue of volenti-non fit injuria: This principle does not
seem to apply in modern tort law to rescue situations.
The cry of danger is the summons to relief. The law does not
ignore these reactions of the mind.. It recognizes them as
normal and places their effects within the range of of the
natural and the probable [and for that matter the foreseeable]
per Cardozo J in Wagner v International Railway Co. (1921)
Chapman v Hearse
Videan v British Transport Commission (1963) (rescue attempt to get a child
trespassing on railway line)
Rescuers may recover for both physical injuries and nervous

shock
Mount Isa Mines v Pusey (1970)
The US fire-fighters Rule does not apply in Australia and the UK

Ogwo v Taylor (1988) AC 431
IMPACT OF THE CIVIL LIABILITY ACT ON

THE DUTY OF CARE
The Civil Liability Act 2002 together with the
Civil Liability Amendment (Personal
Responsibility) Act 2002 govern the law of
negligence in NSW.
The Civil Liability Act 2002 was enacted 28th May
2002 and received assent on 18 June 2002
Rationale behind the legislation:

to limit the quantum of damages for personal
injury and death in public liability instances;
resultantly lowering insurance premiums.
to discourage over litigation, by the imposition
of restrictions and obligations and responsibilities
upon plaintiffs and counsel
Civil Liability Act 2002: Duty of

Care
Statute overrides the common law and
that any negligence claim commenced
since 20 March 2002 will be governed by
the Civil Liability Act 2002.
Next lecture, we will consider the
application of:
general duty of care provisions of s.5B;

situations of obvious/inherent risks under
ss.5F to I; and
situations of dangerous recreational activities
under ss.5J to N.
The Rationale for Reform

[I]t's my view that this country is tying
itself up in tape because of over
litigation, a long-term trend to see us
litigate for everything, to try to settle
every problem in our lives...by getting
a big cash payment from the
courts....a country as small as ours
can't afford to have the Americanstyle culture of litigation". (Bob Carr)
The Rationale for Reform

We need to restore personal responsibility and
diminish the culture of blame.That means a
fundamental re-think of the law of negligence, a
complex task of legislative drafting.
There is no precedent for what we are doing,
either in health care or motor accident law, or
in the legislation of other States and Territories.
We are changing a body of law that has taken
the courts 70 years to develop (Bob Carr)
The Approach to Reform:

Governments View
We propose to change the law to exclude
claims that should never be brought and
provide defences to ensure that people who
have done the right thing are not made to pay
just because they have access to insurance
(Bob Carr)
We want to protect good samaritans who help
in emergencies. As a community, we should
be reluctant to expose people who help others
to the risk of being judged after the event to
have not helped well enough (Bob Carr)
Wrap-Up
Snails
Categories
The harder ones:
Incrementalism

Legislative reform
TORTS
Civil Liability Act: An Overview of the Duty of Care*
Clary Castrission
Clary@40k.com.au
*Later lectures will focus on other aspects of the Act (viz breach of duty and
damages)
Overview for Tonight

S35
Duty of Care- s5B
Duty Areas under the CLA
Risk (will cover in defences)
Assumption of Risk: ss5F- I
Recreational Activities: s5J- 5N
Public Authorities: ss40-46

Good Samaritands: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
Claims excluded from

operation of the Civil Liability
Act: s3B(1)
(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
(AND A WHOLE BUNCH OF OTHERS LIKE DUST
DISEASES, SMOKING ETC)
See s3B as it lists where CLA and Motor Accidents
Compensation Act 1987 overlap
Duty of Care
S 5B:(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), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the persons
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.
Section 3B V s5B
Deliberate Act intended to cause
harm: s3B (not covered by act)
Omission which causes harm: s5B
(covered by the act)
Deliberate Act without due care NOT
intended to cause harm: Drinkwater
v Howarth [2006] NSWCA 222
Duty of Care commentary

Section 5B(1) provides a person is not negligent
unless (b) the risk was not insignificant.
- Wyong Shire Council v Shirt (1980) 146 CLR 40:
risk must be real in the sense that a
reasonable person would not brush it aside as
far-fetched or fanciful.
- It is unclear whether not insignificant in
Section 5B(1)(b) is more restrictive than not
far-fetched or fanciful in Wyong Shire Council v
Shirt
Wyong Shire Council v Shirt

Mason J
[13] ... when we speak of a risk of injury as being
foreseeable we are not making any statement as
to the probability or improbability of its occurrence,
save that we are implicitly asserting that the risk is
not one that is far-fetched or fanciful. Although it is
true to say that in many cases the greater the
degree of probability of the occurrence of the risk
the more readily it will be perceived to be a risk, it
certainly does not follow that a risk which is
unlikely to occur is not foreseeable.
Duty of Care in Certain

Situations contained in the Act
Duty Areas
Assumption of Risk s5F-I
Recreational Activities- s5J to s5N
Public Authorities (ss40-46)

Good Samaritans (ss55-58)
Volunteers (ss59-66)
Mental Harm (ss27-33)
Part 5 Liability of Public &

Other Authorities
Sections 40 to 46
Provides specific additional
protection for public authorities
including:
-
the Crown
Government departments
Local councils
Other prescribed bodies
Part 5 Liability of Public &

Other Authorities
Section 42 sets out the principles to apply in
determining whether a public or other authority has a

duty of care or has breached a duty of care including:
(a) the functions required to be exercised by the authority are limited

by the financial and other resources that are reasonably available
to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not
open to challenge,
(c) the functions required to be exercised by the authority are to be
determined by reference to the broad range of its activities (and
not merely by reference to the matter to which the proceedings
relate),
(d) the authority may rely on evidence of its compliance with the
general procedures and applicable standards for the exercise of
its functions as evidence of the proper exercise of its functions in
the matter to which the proceedings relate.
Council of the City of Liverpool v Turano & Anor [2008] NSWCA
270
S45- Roads Authorities

(1) A roads authority is not liable in proceedings for civil
liability to which this Part applies for harm arising from a
failure of the authority to carry out road work, or to
consider carrying road work, unless at the time of the
alleged failure the authority had actual knowledge of
the particular risk the materialisation of which resulted in
the harm.
(2) Doesnt create duty of care simply because the roads
authority had actual knowledge of the risk.
(3) Carry out roadwork defined to include construction,
installation, maintenance, inspection, repair.
This done to overturn recent HCA decision in:
Brodie v Singleton Shire Council Council; Ghantous v

Hawkesbury City Council (2001) 206 CLR 512
Porter v. Lachlan Shire Council [2006]

NSWCA 126
Facts
S45 (3) In this section:
"carry out road work" means carry out any activity in
connection with the construction, erection, installation,
maintenance, inspection, repair, removal or replacement of
a roadwork within the meaning of the Roads Act 1993 .
Roads Act 1993 (dictionary)
"road work" includes any kind of work, building or structure
(such as a roadway, footway, bridge) that is constructed,
installed or relocated on or in the vicinity of a road for the
purpose of facilitating the use of the road as a road. and
"carry out road work" includes carry out any activity in
connection with the construction, erection, installation,
maintenance, repair, removal or replacement of a road work.
s45 - Porter v. Lachlan Shire Council

Hodgson JA (Beazley JA & Giles JA agreeing)
34 In my opinion, this case does come within s45, on either

of two bases.
35 First, where that part of a road used for

pedestrian purposes has been altered by the
installation of a footpath and a gutter, leaving
what may be called a nature strip in between, it is
in my opinion an unduly narrow view of what
constitutes a road work to say that, while the
made footpath is a road work and the gutter is a
road work, the nature strip between them is
neither a road work nor part of a road work. In my
opinion the better view is that the whole of the
area for pedestrian purposes, comprising the
made footpath, the nature strip and the gutter,
comprises a road work.
s45 - Porter v. Lachlan Shire

Council
Hodgson JA (Beazley JA & Giles JA agreeing)
36 Second, in any event, where there is a hole in that part of a road
which is a nature strip within the area used for pedestrian purposes,
it would be road work to fill and make good that hole. That view is
not in my opinion precluded by the use of the words constructed
and installed in the definition of road work in the Roads Act,
which, unlike the relevant definition in s45 of the Civil Liability
Act, is an inclusive definition and not an exhaustive definition.
Once it is accepted that to fill and make good the hole would be
road work, then the question would arise whether failure to do this
would be failure to carry out any activity in connection with the
construction, erection, installation, maintenance, repair or
replacement of a road work within s45(3). In my opinion, it would
be: although the words construction and installation, and the
indefinite article a in front of road work, could be taken as inapt
for the filling and making good of a hole, on balance I think it
would be too narrow an approach to hold that the words do not
extend to such activity.
s45 - Porter v. Lachlan Shire

Council
Hodgson JA (Beazley JA & Giles JA
agreeing)
37 On either basis, s45 applies: on the
first basis, the allegation would be that
the respondent failed to maintain a road
work, and on the second basis, it would
be that the respondent failed to
construct or install a road work.
s.45 Actual Knowledge:

North Sydney Council v- Roman [2007]
NSWCA 27
Facts
At Trial
s.45 North Sydney Council-vRoman

Held, allowing the appeal, per Basten JA
(Bryson JA agreeing):
1. For the purposes of s.45 actual knowledge must
be found in the mind of an officer within the council
having delegated (or statutory) authority to carry
out the necessary repairs.
2. The evidence demonstrated that no Council
officer at a decision-making level had actual
knowledge of the particular pothole and therefore
the appellant did not have such knowledge.
Accordingly, the exception to s.45 was not engaged
and the statutory immunity prevailed.
Note McColl JA (dissenting)
Parts 8 Good Samaritans

S56
For the purposes of this Part, a "good samaritan"

is a person who, in good faith and without
expectation of payment or other reward, comes
to the assistance of a person who is apparently
injured or at risk of being injured.
s57
(1) A good samaritan does not incur any

personal civil liability in respect of any act or
omission done or made by the good samaritan
in an emergency when assisting a person who is
apparently injured or at risk of being injured.
Part 8: Good Samaritans

S58 where liability not exempted
Where good samaritan caused the injury
in the first place
The good samaritan was under the
influence of drugs/alcohol AND failed to
take reasonable care
The good samaritan was impersonating
emergency service worker, policeman or
pretending to have the skills to address
the current injury
Part 9: Volunteers (ss59-66)

Section 60: Defines community work
to mean work that is not for private
financial gain and that is done for a
charitable, benevolent, philanthropic,
sporting, educational or cultural
purpose. It excludes community
service orders imposed by a court.
Volunteers (cont)
Section 61: No civil liability for a
volunteer doing community work, but
does not extend to:
Criminal acts (s62)
Acts while intoxicated AND volunteer failing
to exercise reasonable care (63)
Actions outside the scope of the charitable
organisation contrary to instructions (s64)
Where the volunteer is required by State law
to be insured (s65)
Or motor vehicle accidents (s66)
Mental Harm
At common law- only type of pure
mental harm where this liability is
recognised psychiatric illness
Thus grief or sorrow doesnt sound
damages: Mount Isa Mines v Pusey
(1970) 125 CLR 383
Mental Harm pre Annetts

Suffer from a recognised psychiatric
illness
Be a person of reasonable fortitude
Be subject to a sudden shock
Have directly perceived the accident
or its immediate aftermath
The 2 major cases

Both heard together:
Tame v NSW (2002) 211 CLR 317
Annetts v Australian Stations Pty Ltd
(2002) 211 CLR 317
Affecting Factors
Was illness result of sudden shock?
Cases of protracted suffering, as opposed to
sudden shock could raise difficult issues of
causation and remoteness of damage. Difficulties
of that kind are more appropriately analysed with
reference to the principles of causation and
remoteness, not through an absolute denial of
liability. (Gleeson CJ, Gaudron, Gummow , Kirby
and Hayne JJ in separate jments)
Direct perception of distressing events?

Relationship between primary and secondary
victim
Relationship between Plaintiff and Defendant
Ipp Report
... the law has said that a duty to avoid
causing mental harm would be imposed
only in relation to harm caused by shock;
that this duty was owed only to persons
who were physically near to the scene of
the shocking events at the time they
occurred, or who witnessed their
immediate aftermath; and that the duty
was owed only to those who witnessed the
shocking events or their aftermath with
their own unaided senses. (138, 9.12)
Ipp Report Continued

The fundamental proposition which Tame/Annetts
seems to establish is that reasonable foreseeability of
mental harm is the only precondition of the existence
of a duty of care. It also establishes, however, that a
duty of care to avoid mental harm will be owed to the
plaintiff only if it was foreseeable that a person of
normal fortitude might suffer mental harm in the
circumstances of the case if care was not taken. This
test does not require the plaintiff to be a person of
normal fortitude in order to be owed a duty of care. It
only requires it to be foreseeable that a person of
normal fortitude in the plaintiffs position might suffer
mental harm. In this sense, being a person of normal
fortitude is not a precondition of being owed a duty of
care. (138, 9.13) (Original emphasis)
Mental harm
27 Definitions
In this Part:
"consequential mental harm" means mental harm that is a
consequence of a personal injury of any other kind.
"mental harm" means impairment of a persons mental
condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
(a) pre-natal injury,
(b) impairment of a persons physical or mental condition, and
(c) disease.
"pure mental harm" means mental harm other than
consequential mental harm.
Mental Harm
29 Personal injury arising from
mental or nervous shock
In any action for personal injury, the
plaintiff is not prevented from
recovering damages merely because
the personal injury arose wholly or in
part from mental or nervous shock.
Mental harm
30 Limitation on recovery for pure

mental harm arising from shock
(1) This section applies to the liability of a person ("the

defendant) for pure mental harm to a person ("the
plaintiff") arising wholly or partly from mental or nervous
shock in connection with another person ("the victim")
being killed, injured or put in peril by the act or omission
of the defendant.
(2) The plaintiff is not entitled to recover damages for pure
mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being
killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
Mental harm
32 Mental harmduty of care
(1) A person ("the defendant") does not owe a duty of
care to another person ("the plaintiff") to take care
not to cause the plaintiff mental harm unless the
defendant ought to have foreseen that a person of
normal fortitude might, in the circumstances of
the case, suffer a recognised psychiatric illness if
reasonable care were not taken.
Codifies the common law test for foreseeability of risk

of mental harm in Tame v NSW; Annetts v
Australian Stations Pty Ltd [2002] HCA 35
Mental harm
33 Liability for economic loss for
consequential mental harm
A court cannot make an award of damages for
economic loss for consequential mental harm
resulting from negligence unless the harm
consists of a recognised psychiatric illness.
Overview for Tonight

S35
Duty of Care- s5B
Duty Areas under the CLA
Assumption of Risk: ss5F- I
Recreational Activities: s5J- 5N
Public Authorities: ss40-46

Good Samaritands: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
Practice Question
Arnold was a serving police officer who attended the scene of an horrific
train derailment in Katoomba NSW, whereby six people were killed and
many were injured.
He was among the first ones at the scene following the derailment and
was involved in the rescue operation by providing emergency first-aid
and assisting the injured from the carriages.
Arnold searched through the train where he saw dead bodies in horrible
condition, as well as badly injured people. One of them, he recognised to
be his high-school friend, Steve.
Arnold suffered post traumatic stress syndrome, nervous shock and
major depressive disorder.
State Rail had failed to ensure the trains deadmans safety device was
operating
Arnold brought a claim for damages against State Rail alleging he had
suffered psychiatric injury due to the negligence of State Rail in failing,
inter alia, to ensure the trains deadmans safety device was operating,
or was designed so as to operate in the event of the incapacitation of the
driver.
Did State Rail owe Arnold a Duty of Care?
TORTS LECTURE
PARTICULAR DUTY AREAS

Clary Castrission
clary@40k.com.au
(p) 02 9221 4030
Road Map for Tonight

(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Products Liability
Defective Structures
Professional opinions - done
Nervous Shock- done
Council and Public Authorities- done
Commercial Premises
Hotelier/Publican to Intoxicated Patron
Pure Ecomic Loss
PRODUCT LIABILITY
Common law:
- Donoghue v Stevenson [1932] AC 562
- Grant v Australian Knitting Mills [1936] AC 85
a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination, and with the knowledge that the absence
of reasonable care in the preparation or putting up of
the products will result in an injury to the consumers
life or property, owes a duty to the consumer to take
that reasonable care
PRODUCT LIABILITY
Relevant Statutes:
Sale of Goods Act 1923 (NSW)
Pt 4 Performance of the Contract (ss.30 to 40)
Pt 6 Actions for Breach of the Contract (ss.51 to 56)
PRODUCT LIABILITY
Relevant Statutes:
- Fair Trading Act (NSW)
Part 4- NSW Consumer Safety and Information
Requirements
PRODUCT LIABILITY
Relevant Statutes:
- Trade Practices Act 1974 (Cth)- now
Competition and Consumer Act 2010
(from 1 January 2011)
- Absolute mammoth! Australian Consumer
Law in Schedule 2 of Div 2 of Part XI
See www.consumerlaw.gov.au
Professional Opinion
Civil Liability Act
- s.5O Civil Liability Act 2002 Peer
professional opinion (ie. The UK
Bolam test)
- S.5P Civil Liability Act 2002 Duty to
warn remains
DEFECTIVE STRUCTURES
Builders:
Bryan v Maloney (1995) ATR 81- 320
Architects:
Voli v Inglewood Shire Council (1963) 110 CLR 74
Commercial Premises
Thompson v Woolworths
(Queensland) Pty Ltd (2005) 221
CLR 234 at 246-247
Timberland Property Holdings
Pty Ltd v Bundy [2005] NSWCA 419
at [25]-[27]).
Hotelier/Publican to Intoxicated
Patron
Cole v South Tweed Heads Rugby
League Football Club Limited (2004)
217 CLR 469
Facts
Held
Cole v South Tweed Heads Rugby League Football

Club Limited (2004) 217 CLR 469
Majority 4 to 2 (McHugh & Kirby JJ dissenting) no duty of care

owed by the Club
Gleeson CJ:
14.Although there are exceptional cases, as Lord Hope of
Craighead pointed out in Reeves v Commissioner of Police of
the Metropolis[6], it is unusual for the common law to
subject a person to a duty to take reasonable care to prevent
another person injuring himself deliberately. A duty to take
care to protect an ordinary adult person who requests supply
from risks associated with alcohol consumption is not easy to
reconcile with a general rule that people are entitled to do as
they please, even if it involves a risk of injury to themselves.
17. It is possible that there may be some circumstances in
which a supplier of alcohol comes under a duty to take
reasonable care to protect a particular person from the risk
of physical injury resulting from self-induced intoxication[7].
However, the appellant cannot succeed in this case unless
there is a general duty upon a supplier of alcohol, at least in
a commercial setting, to take such care. I do not accept that
there is such a general duty.
Cole v South Tweed Heads Rugby League

Football Club Limited (2004) 217 CLR 469
Gummow & Hayne JJ:
65. The appellant's contention that her collision with the driver's
vehicle was caused or contributed to by the Club's negligence in
continuing to serve her alcohol, when the Club knew or should have
known that she was intoxicated, was a contention that depended
upon taking a number of steps, some (perhaps all) of which may be
contested.
66. First, what exactly is meant by "serving" the appellant alcohol?
Does it encompass, or is it limited to, selling alcohol which it is
known that the appellant will consume? Does it extend to selling, to
others, alcohol which it is suspected that the appellant will
consume? How is the Club to control what other patrons may do with
bottles of alcohol which the Club sells them? Given the uncertainties
about how and from whom the appellant obtained alcohol during the
second half of the day, these are questions that go directly to the
formulation of the duty which is said to have been breached.
67. Secondly, the evidence of what the Club knew, or could reasonably
be taken to have known, of what alcohol the appellant took during
the day was very slight...

Gummow & Hayne JJ:
68. Unsurprisingly, there was no evidence which would have revealed that
servants of the Club could have (let alone reasonably should have) been
able to observe how much the appellant drank during the morning. That is,
as we say, unsurprising when it is recalled how many patrons attended the
Club. About 100 or 120 had attended breakfast. Some of those patrons
stayed at, and no doubt others came to, the clubhouse and the ground to
attend the several football games to be played that day. There was,
therefore, a large and shifting population to observe. If it is said that the
Club owed the appellant a duty to monitor and moderate the amount that
she drank, it owed all its patrons such a duty...
69.Next, what level of intoxication is said to be relevant? Does it mean not
lawfully able to drive a motor car? Some drivers may not drive a motor car
if they have had any alcohol. Other drivers may be unfit to drive after very
few glasses of alcohol. Does "intoxicated" mean, as the primary judge held,
"loss of self-control or judgment which is more than of minor degree"[16]? If
that is so, many drinkers will arrive at that point after very little alcohol.
70.All of these questions would have to be answered in deciding what duty of
care was owed. None can be answered in isolation. All would require
consideration of the purpose for which it is said that the duty alleged is to
be imposed.

Callinan J:
131 I am also of the opinion that in general - there may be some

exceptional cases - vendors of products containing alcohol will not
be liable in tort for the consequences of the voluntary excessive
consumption of those products by the persons to whom the former
have sold them. The risk begins when the first drink is taken and
progressively increases with each further one. Everyone knows at
the outset that if the consumption continues, a stage will be
reached at which judgment and capacity to care for oneself will be
impaired, and even ultimately destroyed entirely for at least a
period.
PURE ECONOMIC LOSS

What is pure economic loss?
Indeterminacy
Liability of the defendant to an indeterminate
class, for an indeterminate time, and in an
indeterminate amount Ultramares Corp v
Douche (1931) 174 NE 441
Pure economic loss

2 types:
Negligent statements leading to pure
economic loss
Negligent acts leading to pure economic
loss, and
1. Negligent Misstatement
Causing Economic Loss
Early on: no liability.
Pulsey v Freeman (1789); Norton v Asburton
[1914] AC 932
Why?
Words are more volatile than deeds. They travel fast
and far afield. They are used without being expended
and take effect in combination with innumerable facts
and other words. Yet they are dangerous and can cause
vast financial damage.. Damage by negligent acts to
persons or property on the other hand is more visible
and obvious; its limits are more easily defined. (per
Lord Pearce in Hedley Byrne & Co v Heller [1964] AC
465 at 534.
Hedley Byrne & Co v Heller

Facts
How could DOC arise? Special
Relationship
If someone possessed of a special skill undertakes
quite irrespective of contract to apply that skill for
the assistance of another person who relies on such
skill, a duty of care will arise (per Lord Morris)
Mutual Life & Citizens Assurance v Evatt

[1971] AC 793
Shaddock & Associates Pty Ltd v

Parramatta CC (1981) 150 CLR 225
Held
Whenever a person gives information or advice to
another upon a serious matter in circumstances where
the speaker realises, or ought to realise, that he is being
trusted to give the best of his information or advice as a
basis for action on the part of the other party and it is
reasonable in the circumstances for the other party to act
on that information or advice, the speaker comes under a
duty to exercise reasonable care in the provision of the
information or advice he chooses to give.
THE ISSUE OF SKILL

With all respect I find it difficult to see why in
principle the duty should be limited to persons whose
business or profession includes giving the sort of
advice or information sought and to persons claiming
to have the same skill and competence as those
carrying on such a business or profession, and why it
should not extend to persons who, on a serious
occasion, give considered advice or information
concerning a business or professional transaction.
(Gibbs J in Shaddock)
Later Clarifications
Butcher v Lachlan Elder Realty (2004) 218
CLR 592
The mere fact that a person had engaged in
the conduct of supplying a document
containing misleading information did not mean
that that person had engaged in misleading
conduct: it was crucial to examine the role of
the person in question (Gleeson CJ, Hayne and
Heydon JJ)
Tepko Pty Ltd v Water Board (2001) 206

CLR 1
Factors the court will look at

Nature of relationship
Special skill (either actually possessing
it or holding oneself to possess it)
Nature of subject matter
Reliance- reasonable reliance creates
DOC, actual reliance establishes breach
Context of interchange: professional?
Social? Information requested?
2. Negligent Act causing pure

economic loss
Originally- no common law DOC:
Leigh & Sullivan v Aliakmon Shipping
Co Ltd [1986] AC 785
Why?
What is pure economic loss caused
by negligent act?
Indeterminacy
Perre v Apand (1999) 198 CLR 180
THE CALTEX PRINCIPLE:

Caltex Oil (Aust) Pty Ltd v The Dredge
Willemstadt (1976) 136 CLR 529
Facts
THE CALTEX PRINCIPLE:

Caltex Oil (Aust) Pty Ltd v The Dredge
Willemstadt (1976) 136 CLR 529
Held- Mason J
Liability arises when: A defendant can
reasonably foresee that a specific
individual as distinct from a general
class of persons will suffer financial
loss This approach eliminates the
prospect that there will come into
existence liability to an indeterminate
class of persons. (at 593)
Australia beyond Caltex

Indeterminacy: Johns Period Furniture v
Commonwealth Savings Bank (1980) SASR 224
Christopher v Motor Vessel Fiji Gas [1993] Aust Tort
Reports 81-202
Johnson Tiles v Esso Australia [2003] Aust Tort
Reports 81-962
1.Reasonable foreseeability of injury;
2. Whether there is a relationship of proximity; and
3. Identification and consideration of competing
salient features for and against the finding of a
DOC
Wrap-Up
(a) Products Liability
(b) Defective Structures
(c) Professional opinions - done
(d) Nervous Shock- done
(e) Council and Public Authorities- done
(f) Commercial Premises
(g) Hotelier/Publican to Intoxicated Patron
(h)
(i) Pure Economic Loss
TORTS
Breach of Duty
Clary Castrission
clary@40k.com.au
Roadmap
S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v
Ferreira [2005]
Res Ipsa Loquitur
Professional Negligence
Duty of Care
S 5B:(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), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the persons
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.
Breach of Duty
Standard of Care
What standard of care is owed? (Q of law)
Was risk of injury to the P Reasonably foreseeable?
Standard of care owed by the reasonable person in the
circumstances
What would the reasonable person do in the Ds position
Duty breached
Did the Ds actions fail to meet that standard?
Probability of risk
Magnitude of harm
IF SO
Was the response of the d to this reasonable?
Calculus of negligence (from s5B), where relevant,
consider
Reasonability of precautions
Social utility
Any relevant professional or statutory standards
Breach of Duty from Shirt

If reasonable person in defendants position would have
foreseen risk to the P, then:
... it is then for the tribunal of fact to determine what a
reasonable man would do by way of response to the risk.
The perception of the reasonable mans response calls for
a consideration of the magnitude of the risk and the
degree of the probability of its occurrence, along with the
expense, difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities which the
defendant may have. It is only when these matters are
balanced out that the tribunal of fact can confidently
assert what is the standard of response to be ascribed to
the reasonable man placed in the defendants position.
Applied in Roads and Traffic Authority of NSW v
Refrigerated Roadways Pty Limited [2009] NSWCA
263 (22 September 2009)
RTA v Dederer, Gummow J at [69]:

What Shirt requires is a contextual
and balanced assessment of the
reasonable response to a foreseeable
risk.
Comparing DUTY to BREACH

Mason J in Wyong v Shirt at 47-48
Wagon Mound (No. 2) per Lord Reid
A reasonable man would only neglect
such a risk if he had some valid reason
for doing so, eg, that it would involve
considerable expense to eliminate the
risk. He would weigh the risk against the
difficulty of eliminating it ...
Test for breach

1. Was the risk of injury to P reasonably foreseeable?
DUTY
RTA v Dederer (2007) 238 ALR 761
It is only through the correct identification of the risk that
one can assess what a reasonable response to that risk would
be (Gummow J at [59])
2. If so, was the response of the defendant to this risk

reasonable? BREACH
What would the reasonable person, in the
defendants position (with the knowledge that
they either had or ought to have had) have done
in the circumstances out of which the harm arose?
Did the D meet the requisite standard of care?
IF NOT, there has been a breach of duty
Was risk reasonably

foreseeable?
(s5B(1)(a))
Romeo v Conservation Commission

(NT) (1998) 192 CLR 431
It is quite wrong to read past authority as
requiring that any reasonably foreseeable
risk, however remote, must in every case
be guarded against (Kirby J at 480)
Check to see if:

Risk is not far-fetched or fanciful (or
insignificant, under s5B)
Risk not far-fetched or

fanciful
The Wagon Mound (No. 2) [1967] 1
AC 617
Wyong SC v Shirt (1980) 146 CLR 40
Chapman v Hearse (1961) 106 CLR
112
Calculus of Negligence under

5B(2)
Probability of harm occurring if care
not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility
Breach of Duty Likelihood of

Injury
Section 5B(2)(a) the probability that
the harm would occur if care were
not taken
Bolton v Stone [1951] AC 850
RTA v Dederer (2007) 238 ALR 761
Breach of Duty Seriousness

of Harm
Section 5B(2)(b) the likely
seriousness of the harm
Adelaide Chemical & Fertilizer Co. v
Carlyle (1940) 64 CLR 514
Paris v Stepney Borough Council
[1951] AC 367
Breach of Duty Cost of

Avoiding Harm
Section 5B(2)(c) the burden of taking
precautions to avoid the risk of harm
Caledonian Collieries Ltd v Speirs
(1957) 97 CLR 202
Breach of Duty Social Utility

of the Act of the Defendant
Section 5B(2)(d) the social utility of the
activity that creates the risk of harm.
Watt v Hertfordshire County Council
It is one thing to take risks when driving
for some commercial purpose with no
emergency, but quite another to take
risks for life and limb. (Lord Denning
How Duty and Breach work

together s.5B(1) & (2)
Waverley Council v Ferreira [2005]
NSWCA 418
Facts
Issue 1: The Fence and the

undergrowth
S5B(1)
Risk of harm foreseeable?
Risk of harm significant?
In circumstances, would reasonable
person have taken precautions?
s.5B(1)(a) - Waverley Council v

Ferreira
Foreseeability of harm
34 The initial element to be determined under s5B(1)
is whether the risk was foreseeable. As s5B(1)(a)
makes plain, that involves inquiring whether the risk in
question is one of which the defendant knew or ought
to have known. The relevant risk in relation to the
removal of the fence and undergrowth was the risk
that children might use the fence and undergrowth to
facilitate their access to the roof and, when on the
roof, might fall to the ground.
Doubleday v Kelly [2005] NSWCA 151
The actual events as they happened are not the
circumstances to which consideration of foreseeability
of risk of injury is applied; what is to be considered is
foresight in more general terms of risk of injury. per
Bryson JA
s.5B(1)(a) - Waverley Council v

Ferreira
Ipp JA (Spigelman CJ & Tobias JA agreeing)
43 In my opinion, the relevant risk of injury
was that a child such as Martin might fall to
the ground once he had climbed on to the
roof. In my opinion, that was a foreseeable
risk in terms of s 5B(1)(a). It was a risk of
which the Council knew or ought to have
known. It is immaterial that the Council might
not have been able to foresee the precise
mechanism that caused Martin to fall.
s5B(2) in Ferreira
s5B(2)
Probability of harm if care not taken
Likely seriousness of harm
Burden of taking precautions to avoid
risk
Social utility of activity which creates
risk
s.5B(2) - Waverley Council v

Ferreira
51 Section 5B(2) provides a framework for deciding what

precautions the reasonable person would have taken to
avoid the harm and involves weighing the factors set out in
ss5B(2)(a) and (b) against those in ss5B(2)(c) and (d)
(subject, of course, to each being applicable in the
particular circumstances of the case).
52 In my opinion, the probability as to whether a

reasonable person would have taken precautions against a
risk of harm (referred to in s5B(2)(b)) must be considered
objectively by reference to the particular circumstances of
the case (and the state of mind of the defendant is not
relevant to this inquiry).
So would reasonable council

remove the fence and
undergrowth?
53 ... s5B(2)(a) requires consideration to be given to

the objective probability of harm occurring if care
were not taken. In my view, there was a reasonable
possibility of harm occurring if the fence and
undergrowth were not removed and children were
not prevented from using the fence or the
undergrowth as a stepping stone to gain access to
the roof. By s5B(2)(a), this possibility must be taken
into account.
54 The likely seriousness of the harm, should the risk
materialise, was severe injury or death (s 5B(2)(b))
(that is, in consequence of falling from the roof to the
ground).

Ferreira
55 Garling DCJ found that the fence served
no practical purpose and in my view he did
not thereby err. There was a gate in the
fence and the gate had no lock. It would not
have been difficult to climb over the fence.
There is nothing to suggest that there was a
reason to retain the undergrowth. Both the
fence and the undergrowth served no
apparent utilitarian or aesthetic purpose
and the burden of removing them would
have been small (s 5B(2)(c)).

Ferreira
56 I have already mentioned that s5B(2)
(d) (the social utility of the activity that
creates the risk of harm) is not relevant in
this case.
57 Weighing the factors set out in ss5B(2)
(a) and (b) against those in s5B(2)(c), I
conclude that a reasonable Council would
have taken the precautions of removing
the fence and the undergrowth and
Garling DCJ did not err in so holding.
So what about the grille?

Did the council breach its duty by not
putting a grille on the skylight?
- IN SOLVING THESE PROBLEMS:
1. Find out if risk or harm was foreseeable
(question of law) under 5B(1)
2. THEN, balance up the cost of the
precautions (under s5B(2)- as directed by
5B(1)(c)
Council of the City of Greater Taree

v Wells [2010] NSWCA 147 (1 July
2010)
Facts
KIRBY J in Romeo v Conservation
Commission (young woman fell 6.5m off
cliff)
It is one thing to hold that a person owes a
duty of care of some kind to another. But
the critical question is commonly the
measure or scope of that duty. The failure
to distinguish these concepts can only lead
to confusion.
Council of the City of Greater Taree

v Wells [2010] NSWCA 147 (1 July
2010)
Quoted McColl JA in RTA v Refrigerated Roadways Pty Ltd [2009]
NSWCA 263
5B is not a self-contained statement of the

circumstances in which a liability for negligence will
arise. Rather, subsection 1 sets out three preconditions
that must co-exist before a liability in negligence
arises, when the type of negligence alleged is failure to
take precautions against a risk of harm arising.
Subsection 2 provides a non-exhaustive list of factors
the court is required to take into account in deciding
whether the third of those preconditions exists.
Section 5B presupposes the existence of the law of
negligence, and operates against its background.
Res Ipsa Loquitur

Elements:
Accident must raise presumption of negligence
Examples: Chaproniere v Mason (1905) 21 TLR 644,
Mahon v Osborne [1939] 2 KB 14
Thing must be under Ds control

Actual cause of accident must not be known
Barkway v South Wales Transport [1950] AC 185
Nominal Defendant v Haslbauer (1967) 117 CLR 448
Effect
Wrapping up Breach of Duty

Standard of Care
Standard of care owed by the reasonable person in the
circumstances
What would the reasonable person do in the Ds position
Duty breached
Did the Ds actions fail to meet that standard?
Degree of risk
Magnitude of harm
IF SO
Was the response of the d to this reasonable?
Calculus of negligence (from s5B) AND where relevant,
consider
Social utility
Any relevant professional or statutory standards
Special Breach of Duty

Provisions under the Act
Professional Negligence (standard of
care)
Professional negligence
Sections 5O & 5P
Peer professional opinion (or Bolam) test for
determining the appropriate standard of care
Bolam v Friern Hospital Management Committee
[1957] 2 All ER 118
Sidaway v Governors of Bethlehem Royal Hospital
[1985] UKHL1
The Bolam principle may be formulated as a rule
that a doctor is not negligent if he acts in
accordance with a practice accepted at the time as
proper by a responsible body of medical opinion
even though other doctors adopt a different
practice. In short, the law imposes the duty of
care: but the standard of care is a matter of
medical judgment. (Lord Scarman at 881)
F v R (1983) 33 SASR 189: per King CJ at 194

The ultimate question is not whether the defendants conduct
accords with the practices of his profession or some part of it, but
whether it conforms to the standard of reasonable care developed
by the law.
Rogers v Whitaker (1992) 175 CLR 479

Facts
Relevance of professional opinion v
conclusiveness
Professional negligence
5O Standard of care for professionals
(1) A person practising a profession ( "a professional" )
does not incur a liability in negligence arising from
the provision of a professional service if it is
established that the professional acted in a manner
that (at the time the service was provided) was
widely accepted in Australia by peer professional
opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied
on for the purposes of this section if the court
considers that the opinion is irrational
(3) The fact that there are differing peer professional
opinions widely accepted in Australia concerning a
matter does not prevent any one or more (or all) of
those opinions being relied on for the purposes of
this section.
(4) Peer professional opinion does not have to be
universally accepted to be considered widely
accepted.
2nd Reading Speech, Hansard

23 October 2002.
Dobler v Kenneth Halverson

and Ors; [2007] NSWCA 335
Facts
Trial
At Court of Appeal
s5P- Failure to warn of risks

This Division does not apply to
liability arising in connection with the
giving of (or the failure to give) a
warning, advice or other information
in respect of the risk of death of or
injury to a person associated with the
provision by a professional of a
professional service.
Wrapping up negligence thus

far- DOC
Established category OR
Reasonable Foreseeability:
Would the reasonable person in the Ds position have foreseen that there
was a real risk that carelessness on his/her behalf could cause loss/harm
to people in the Ps position?
not far-fetched or fanciful Shirt
s5B(1) not insignificant:
using s15AA Acts Interpretation Act
para 7.15 of the Ipp Report states that the phrase not
insignificant is intended to indicate a risk that is of a higher
probability than is indicated by the phrase not far-fetched or
fanciful but is not intended to be a synonym for significant.
If risk is obvious, there is no DOC: s5G
Was P one of these people?
Vulnerability
Was D in a position of power and knew this?
Was P in a position of powerlessness?
DOC (continued)
Special categories
Mental Harm (different): s32 explains
DUTY: person of normal fortitude might, in
the circumstances, suffer recognized
psychiatric illness if reasonable care not
taken.
Local authorities: s42- affects DOC AND
BREACH
Good Samaritans: ss56-57, and volunteers
Breach of Duty- the Test

Standard of Care
Standard of care owed by the reasonable person in
the circumstances
Professionals acting in line with professional
opinion: s5O and 5P
What would the reasonable person do in the Ds
position
Duty breached
Did the Ds actions fail to meet that standard? (Question
of fact)
(Shirt and 5B)
Degree of risk
Magnitude of harm
Special case: public authorities: s43, roads s45
IF SO
Was the response of the d to this
reasonable?
Calculus of negligence (from s5B)
AND where relevant, consider
Social utility
Res Ipsa Loquitur (evidentiary rule that
could help when there is no other
explanation for the accident)
Roadmap
S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v
Ferreira [2005]
Res Ipsa Loquitur
Professional Negligence
TORTS
Causation
[1] GENERAL:CAUSATION
Duty of Care
breach
causation
damage
= Negligence
There must be a causal link between Ds

breach of duty and damage to P or Ps propert
CAUSATION: THE ELEMENTS

Causation involves two fundamental
questions:
the factual question whether Ds act in
fact caused Ps damage: causation-infact
Whether, and to what extent D should
be held responsible for the
consequences of his conduct: legal
causation
CLA s5D
(1) A determination that negligence caused
particular harm comprises the following
elements:
(a) that the negligence was a necessary condition of
the occurrence of the harm ( "factual causation" ), and
(b) that it is appropriate for the scope of the negligent
persons liability to extend to the harm so caused
(scope of liability" ).
(4) For the purpose of determining the scope of

liability, the court is to consider (amongst other
relevant things) whether or not and why
responsibility for the harm should be imposed on
the negligent party.
CAUSATION-IN-FACT
Causation in fact relates to the factor(s)
or conditions which were causally
relevant in producing the consequences
Whether a particular condition is
sufficient to be causally relevant depends
on whether it was a necessary condition
for the occurrence of the damage
The necessary condition: causa sine qua
non
CAUSATION
To be successful in a claim for a
remedy, P needs to prove that the
loss for which he/she seeks
compensation was caused in fact by
the Ds wrongful act
Traditionally, the test whether Ds
wrongful act did in fact cause the
loss is the but for test
THE ELEMENTS OF CAUSATION
Causation
Factual
(Causation in fact)
Legal
LEGAL CAUSATION
Factual causation in itself is not
necessarily sufficient as a basis for Ds
liability
To be liable, Ds conduct must be the
proximate cause of Ps injury
Ps harm must not be too remote from Ds
conduct
REMOTENESS
The law cannot take account off
everything that follows a wrongful act; it
regards some matters as outside the
scope of its selection. In the varied
wave of affairs, the law must abstract
some consequences as relevant, not
perhaps on grounds of pure logic but
simply for practical reasons Per Lord
Wright Liebosch Dredger v SS Edison
[1933] AC 449
INTERVENING ACT
An intervening act breaks the chain of causation and
may relieve D of liability. To be sufficient to break the
chain, it must either be a:
human action that is properly to be regarded as
voluntary or a causally independent event the
conjunction of which with the wrongful act in or
omission is by ordinary standards so extremely
unlikely as to be turned a coincidence ( Smith J
Haber v Walker [1963] VR 339
INTERVENING ACT 2
A foreseeable intervening act does not break the
chain of causation
Chapman v Hearse
Negligent medical treatment subsequent to negligent

injury would not necessarily remove liability for D1
unless the subsequent injury was inexcusably bad,
so obviously unnecessary or improper that it fell
outside the bounds of reputable medical practice
(Mahony v J Kruschich Demolitions)
LAW OF TORTS
Defences to Negligence
DEFENCES TO ACTIONS IN
NEGLIGENCE
COMMON LAW
Contributory negligence
Voluntary assumption of risk, volenti non fit injuria
Illegality
CIVIL LIABILITY ACT
Pt 1A - ss5F to I: Assumption of Risk
- ss5R to T: Contributory Negligence
Pt 5- Public Authorities
Pt 6 Intoxication
Pt 7 Self-Defence & Recovery by Criminals
Contributory Negligence
Earlier approaches in Common Law:
The complete defence (Williams v Commissioner
for Road Transport (1933) 50 CLR 258)
Butterfield v Forrester (1809) 11 East 60
- The last opportunity rule

The development of apportionment
legislation
Contributory Negligence at Common Law:

The nature of the Ps conduct
D must prove:
1.The P was at fault or negligent
-
Children: Doubleday v Kelly [2005] NSWCA 151

Intoxication: Joselyn v Berryman
2.The fault or negligence contributed to the injury

or loss suffered by P (causation)
3.The damage was a reasonably foreseeable
consequence of the Ps fault or negligence
1. FAULT
Joslyn v Berryman; Wentworth Shire Council v Berryman
[2003] HCA 34 (18 June 2003)
Facts
Joslyn v Berryman
Trial Boyd-Boland ADCJ found for Mr Berrymen but reduced damages
by 25% for contributory negligence.
NSWCA - Priestley JA, Meagher JA and Ipp AJA upheld

Mr Berryman's appeal by holding that he was not guilty of any
contributory negligence at all. The leading judgment was given by
Meagher JA with whom the other members of the Court agreed.
"His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff.
The only action of his which could possibly have amounted to contributory negligence
was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as
they stood at the time of handing over control of the car, (not as they were in the previous 24
hours), a task which his Honour did not really undertake. One must also, if one concludes that at
the time of handing over Mr Berryman was too drunk to appreciate what was happening, a
situation as to which there is no evidence in the present case, judge the question of contributory
negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable
judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and
Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no
evidence that either of them were drunk at the time, and certainly no evidence that at the time
Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed,
quite to the contrary. Of the people who were present who gave evidence, all said that Miss
Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance
to overrule a trial judge's finding on apportionment (Podrebersek v Australian Iron and Steel Pty
Ltd), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I
would be in favour of reducing it from 25% to 0%."
Joslyn v Berryman
HC McHugh, Gummow, Callinan, Kirby
& Hayne JJ allowed the appeal (ie.
Overturned the decision of the NSWCA)
Besides criticism of the NSWCA for not
referring to s.74 MAA 1988 (ie. contrib neg shall be
made unless found not to have contributed), Gummow and
Callinan JJ found the NSWCA erred in
fact.
Joslyn v Berryman
Gummow & Callinan JJ
A person in the position of Mr Berryman ought to have known, and
in fact would have known (if he had not precluded himself from
knowing by his own conduct) that Ms Joslyn's capacity must have
been impaired, and probably grossly so, by the amount of alcohol
she had drunk, not only during the immediately preceding evening,
but also on the night before that. Furthermore Mr Berryman either
knew, or ought to have known that the effects of two consecutive
evenings of immoderate consumption would have had a
compounding effect of tiredness and reduced attentiveness upon
both of them... Factually the Court of Appeal erred in not finding
that Mr Berryman's and Ms Joslyn's faculties, and accordingly
their capacities to observe, react, assimilate, and deal with
information and to drive a motor vehicle must have been seriously
impaired by the consumption of alcohol.
Motor Accidents Compensation Act

1999 s 138
A finding of contributory negligence must
be made in the following cases:
where the injured person or deceased person
has been convicted of an alcohol or other drugrelated offence in relation to the motor
accident
Where the drivers ability to control vehicle was
impaired by alcohol and the P as an adult voluntary
passenger was/ought to have been aware of this
Where the injured party was not wearing set
belt/protective helmet, and was required by law to wear
such belt/helmet
Civil Liability Act 2002

s5S a court may determine a reduction of
100% if it is just and equitable to do so
: compare Wynbergen v- Hoyts Corp (1997) 149 ALR
25
s5T a court may reduce a claim for damages

under the Compensation to Relatives Act 1897
for contributory negligence of the deceased
S50(4) a presumption of contributory
negligence of 25% if the plaintiff was intoxicated
at the time of injury
2. CAUSATION
Question of fact- was the damage suffered
by the P caused by the Ds failure to act?
- Using a bus as an example- did P run in front of it? Not
use the hand rails?
- Monie v Commonwealth [2007] NSWCA 230
3. REASONABLY FORESEEABLE
Type of injury must be reasonably
foreseeable in the circumstances.
- Gent-Diver v Neville [1953] St R Qd 1
Contributory Negligence of Rescuers

Azzopardi v Constable; Azzopardi v Thompson [2006]
NSWCA 319
The NSW Court of Appeal has found that two rescuers
hit by a motor vehicle contributed to their injury by not
taking due care when assisting another motorist. The
two rescuers were dressed in dark clothing, neglected to
turn on their vehicles' hazard lights and were not alert to
oncoming traffic. Hodgson JA and McColl JA both
reduced the damages payable to the rescuers from 75%
to 50%. Ipp JA dissented, finding that the rescuers
ought to have been more careful when in a position
of such obvious danger, and would have reduced the
damages to 25%.
The Substance of Apportionment

Legislation
- Courts directed to reduce damages recoverable to
what it thinks to be just and equitable.
Law Reform (Miscellaneous) Act 1965 (NSW) s9
(1) Where any person suffers damage as the
result partly of his/her own fault and partly of the
fault of any other persons,
(a) a claim in respect of that damage shall not
be defeated by reason of the fault of the person
suffering the damage, and
(b) the damages recoverable in respect thereof
shall be reduced to such extent as the court
thinks just and equitable having regard to the
claimants share in the responsibility for the
damage
What is Just and Equitable?

Pennington v Norris (1956) 96 CLR 10
By culpability we do not mean moral
blameworthiness but degree of departure
from the standard care of the reasonable
man. (at 16)
Reasonableness must be judged in light of
all the circumstances: Joslyn v Berryman
- Wynbergen -v- Hoyts Corporation P/L
(1997)
Contributory Negligence under the

Civil Liability Act
s5R (standard of CN- same as
negligence)
s5S (CN can defeat a claim)
- In determining the extent of a reduction in
damages by reason of CN, a court may
determine a reduction of 100% if the court
thinks it just and equitable to do so, with
the result that the claim is defeated.
Wrapping up Contributory
Negligence
At common law: D must prove
1. The P was at fault or negligent
2. The fault or negligence contributed to the injury
or loss suffered by P (causation)
3. The damage was a reasonably foreseeable
consequence of the Ps fault or negligence
Statutory Apportionment
Voluntary Assumption of Risk

Volenti Non Fit Injuria
Rootes v Shelton (1967) 116 CLR 383
The elements
P must have full knowledge of the risk
P must have voluntarily accepted the physical and
legal risk
Hard to prove
Volenti v Contributory Negligence

Ipp Committee Report (2002):at 8.23
Since the introduction of the defence of contributory
negligence, the defence of voluntary assumption of risk
has become more or less defunct. This is because any
conduct that could amount to voluntary assumption of
risk would also amount to contributory negligence .
Courts prefer the defence of contributory negligence
because it enables them to apportion damages
- Difference: CN requires degree of fault, volenti doesnt
Full Knowledge of Risk

Subjective test: very difficult for the D to
prove as mere knowledge alone does not
imply consent.
Canterbury Municipal Council v Taylor
[2000] NSWCA 24
Voluntary acceptance of risk
2 elements:
The P must have voluntarily accepted that
there was a:
1.Physical risk (through injury), and
2.A risk that reasonable care would not be
taken by the D (legal risk)
- Imperial Chemical Industries Ltd v Shatwell
[1965] AC 656

To say that the P voluntarily assumed the
risk of colliding with an obstruction in the
water is one thing. To say that the D
would carelessly fail to warn him of the
presence of such an obstruction or would
fail to exercise due care in steering the
launch of which he had control is a very
different proposition (at 395)
Voluntary Assumption of Risk

Scanlon v American Cigarette Company
Overseas Pty Ltd (No 3) [1987] VR 289
If it is to be the case that the smoking of the said
cigarettes involved risk of injury as alleged the P
knew or ought to have known that the smoking of the
said cigarettes involved such risk and the P accepted,
consented to and voluntarily assumed the same
(extract from Ds statement of defence)
VAR in the Work Place

Smith v Baker & Sons P
The defence is not constituted by knowledge of the
danger and acquiescence, but by an agreement to
run the risk and to waive your rights to compensation

Assumption of Risk (Part 1A, Division 4)
- Does not replace the common law, rather:
a)Rebuttable presumption that a P was aware
of a risk of harm if that risk is an obvious
risk: s5G
b)No duty to warn of obvious risk, unless P
requests info about the risk, warning is
required by law: s5H
c)Excludes liability for materialisation of an
inherent risk: s5I Wyong Shire Council v Vairy [2004]
NSWCA 247
Sport and Recreational

Activities
By engaging in a sport or pastime the
participants may be held to have accepted
the risk which are inherent in the sport:
Agar v Hyde (2000) 201 CLR 383
Inherent risk only those which are
naturally incidental to the game being
played and any extraordinary, although
foreseeable, risks incidental to that sport.
Recreational Activities (Part 1A, Division 5)

s5K- definitions
In this Division: "dangerous recreational activity" means a
recreational activity that involves a significant risk of physical
harm. "obvious risk" has the same meaning as it has in Division 4.
"recreational activity" includes:
(a)any sport (whether or not the sport is an organised activity), and
(b)any pursuit or activity engaged in for enjoyment, relaxation or
leisure, and
(c)any pursuit or activity engaged in at a place (such as a beach,
park or other public open space) where people ordinarily engage
in sport or in any pursuit or activity for enjoyment, relaxation or
leisure.
Recreational Activities (Part 1A, Division 5)

S5L- no liability for harm suffered materialisation of
obvious risks of dangerous recreational activities
s5M- no duty of care for recreational activity where
there is a risk warning
Swain v Waverley Municipal Council (2005)

How the HC may view recreational activity
MR MENZIES QC:It is the Civil Liability Act 2002 and it Division 5
Recreational Activities---
GUMMOW J: What does it say? What is the critical provision?

MR MENZIES QC: Well, 5J applies only in respect of liability in negligence for harm
to a person (the plaintiff) resulting from a recreational activity engaged in by the
plaintiff.
Recreational activity is divided into two kinds. There is;
dangerous recreational activity means a recreational activity that involves a

significant risk of physical harm.
That is in the definition section 5K, and:
recreational activity includes:

(a) any sport . . .
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach . . .
5L No liability for harm suffered from obvious risks of dangerous recreational

activities . . .
5M No duty of care for recreational activity where risk warning
so that liability would seem to be excluded if a risk warning is put up, assuming this is
a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this
might well be regarded as a dangerous recreational activity, you do not even have to
put a sign up, that is the end of it.
Swain Insight to how the HC may

view recreational activity
KIRBY J: It does not sound as though this is
categorised. That is paragliding and things of that kind, I
would have thought, because they say, such as on a
beach in the definition of recreational activity.
MR MENZIES QC: True.
GLEESON CJ: What about recreational activities that
are dangerous for some people, like people who cannot
swim, and not dangerous for others?
MR MENZIES QC: I have no doubt that at some point
that is going to entertain your Honours.
GUMMOW J: Here we are again, more imperfect law
reform.
Wrapping up VAR
VAR is tough to for the D to prove as D
would have to prove:
a)P had full knowledge of the risk and
b)Voluntarily accepted the physical and legal
risk.
Illegality
Who has been acting illegally?
- The P?
- The D?
- Both?- Joint Illegal Enterprise
- D may be able to be absolved from
negligence liability
Joint Illegal Enterprise

D must prove:
1.They and the P were jointly engaged in an
illegal activity, and
2.There was a connection between the
illegal activity and the negligent conduct
Jackson v Harrison (1978) 138 CLR 438
- The conduct within the illegal enterprise must be
connected to the alleged negligence
Plaintiff Illegal Activity

At common law:
- Just because the P was engaged in
criminal conduct at time of injury doesnt
necessarily prevent duty from being owed:
Hackshaw v Shaw (1984) CLR 614

Illegality
S54 criminals not to be awarded
damages if:
(a) on the balance of probabilities, the
conduct constitutes a serious offence,
and
(b) that conduct contributed materially to
the risk of death, injury or damage.
TORTS LECTURE 11
NUISANCE
WHAT IS NUISANCE?
An unreasonable conduct that materially
interferes with the ordinary comfort of
human existence
THE TWO SIDES OF NUISANCE
NUISANCE
PRIVATE
PUBLIC NUISANCE
Private Nuisance- The Roadmap

1. Establishment
(a) Unlawful interference with someones interest in land
(b) Balance of rights
(c) Intangible interference
2. Who can sue?

(a) Proprietary interest
(b) Family members?
3. Who can be sued?

(a) Person who created the nuisance
(b) Others
4. Defences
5. Remedies
Nuisance in context
Nuisance v Negligence
Nuisance v Trespass
1(a) Interference with land

The substantial interference with the plaintiff's use
of his/her land by the unreasonable conduct of the
defendant: Halsey v Esso Petroleum [1961]
Unlawful interference with Ps interest in land

Misfeasance:
St Helens Smelting Co v Tipping (1965)
Bonic v Fieldair (1999)
Nonfeasance:
The tort protects against interferences with

the enjoyment of land
Munro v Southern Dairies [1955]
1(a)
1. Establishment- interference
Inconvenience materially interfering with the

ordinary comfort physically of human existence,
not merely according to dainty modes and habits
of living, but according to plain and sober and
simple notions among the English people.
- Knight Bruce VC in Walter v Selfe

(1851)
1(a)
P Baer Investments Pty Ltd v University of New

South Wales [2007] NSWLEC 128;
Facts
Issues
Whether respondent's trees damaged applicant's sewer pipes.
Whether cost of replacing pipes should be apportioned
Held:
1(a) O'Neill
v Frost [2007] NSWLEC 400;

BC200705292
Facts
Issue:
Whether removal of fallen tree should be ordered.
Whether tree with structural concerns should be removed.
Held: Application granted in part.
1(a)
Vella v Owners of Strata Plan 8670 [2007]

NSWLEC 365; BC200704853
Facts
Applicant applied for removal of trees six years after aware of
damage.
Issue:
Whether trees warranted removal because damaged pavement.
Whether damage should be apportioned because applicant aware of
damage.
Held: Application granted in part.
1(a)
Hunt v Bedford [2007] NSWLEC 130;

BC200701745
Facts
Held: Application dismissed.
1(b) The Balancing of Interests

Sic utere tuo ut alienum non laedas (Use
your own thing so as not to harm that of
another)
1(b) Establishment- balancing

A dweller in towns cannot expect to have as pure air, as free from
smoke, smell, and noise as if he lived in the country, and distant
from other dwellings, and yet an excess of smoke, smell, and
noise may give a cause of action, but in each of such cases it
becomes a question of degree, and the question is in each
case whether it amounts to a nuisance which will give a right of
action.
- Lord Halsbury in Colls v Home & Colonial Stores
[1904]
- Munro v Southern Dairies [1955], Hasley v Esso Petroleum [1961]
1(b)
Gray v State of New South Wales Matter

No 2391/96 (31 July 1997)
The law in this sort of case is tolerably clear. The

law of nuisance, the tort upon which the plaintiffs
sue, is not to protect people, but to protect property
values. That is so because it is an ancient remedy
that has come down through the ages. Thus the
mere fact that one is disturbed by noise or one gets
irritated by prying children or one's privacy is
invaded is not sufficient to make out the tort of
nuisance. The plaintiffs are, however, entitled not
to have the value of their property diminished by the
noisy activities of the defendants (Young J)
1(b)
Gray v State of New South Wales Matter

No 2391/96 (31 July 1997)
"A useful test is perhaps what is reasonable

according to the ordinary usages of
mankind living in society, or more
correctly in a particular society." (per Lord
Wright in Sedleigh-Denfield v. O'Callaghan
(1940) AC, at p 903 )
1(b) How do we balance?

Unreasonable is based on the reasonable
person, and what ordinary give and take
limits are.
Locality: Munro v Southern Dairies
Time, and duration: Wherry v KB Hutcherson
Pty Ltd (1987) NSW
Nature of activities: Thompson-Schwab v
Costaki (1956), McKenzie v Powley (1916)
Availability of alternatives: Cohen v Perth (2000)
Seidler v Luna Park Reserve

Trust (1995) NSW Unreported
Facts
Rollercoaster Hours:
Non-School Holidays
Friday: 5.30pm-10pm
Sat: 10am-7pm
Sun: 11am-7pm
School Holidays
Thurs: 10am-8pm
Fri/Sat: 10am-11pm and Sun: 11am-7pm.
Held
LUNA PARK CASES

Seidler v Luna Park Reserve Trust (1995)
Luna Park Site Amendment Noise Control Act 2005
19A Legal proceedings and other noise abatement action
(1) No criminal proceedings, no civil proceedings (whether at law or in
equity) and no noise abatement action may be taken against any person
with respect to the emission of noise from the Luna Park site.
(2) The emission of noise from the Luna Park site does not constitute a
public or private nuisance.
(3) This section does not apply to or in respect of noise that exceeds the
maximum permissible noise level at the closest residential facade
Street & 7 ors v Luna Park Sydney Pty Ltd & 1

or [2006] NSWSC 230 (6 April 2006)
Psclaim
Ds claim
Held (Brereton J)
THE NATURE OF DS CONDUCT

Ds conduct must be unreasonable.
In general act/conduct which is
reasonably necessary for the normal
user of land would not be considered
unreasonable
Malicious intent
Hollywood Silverfox Farm Ltd v Emmett
2. WHO CAN SUE?

P must have proprietary interest in the affected land to
be able to sue
A sulphurous chimney in a residential area is not nuisance
because it makes householders cough and splutter but
because it prevents them taking their ease in their
gardens. It is for this reason that the plaintiff in an action
for nuisance must show some title to realty.
- Newark, The Boundaries of Nuisance (1949)
Malone v Laskey [1907]
Doesnt include Ps view of property

Victoria Park Racing & Recreation
Grounds v Taylor (1937)
Who Can Sue? The Cases

Oldham v Lawson [1976] VR 654
Khorasandjian v. Bush [1993] Q.B. 727,
Hunter v Canary Wharf
If a P, such as the daughter in Khorsandjian, is

harassed by abusive telephone calls, the gravamen
of the complaint lies in the harassment which is just
as much an abuse, or indeed an invasion of her
privacy, whether she is pestered in this way in her
mothers house, or even in her car with a mobile
phone. In truth, what the CA appears to have been
doing was to exploit the law of private nuisance in
order to create by the back door a tort of harassment
which was only partially effective in that it was
artificially limited to harassment which takes place at
her home. I myself do not think this is a satisfactory
manner in which to develop the law, especially when
the step taken was inconsistent with another decision
in the CA in Malone- LORD GOFF
2(cont) ABNORMAL PLANTIFFS

For sensitive uses of land, interference not
unreasonable unless it would have been
unreasonable to ordinary use of land.
Robinson v Kilvert (1889)
3. WHO MAY BE SUED?

The creators of the nuisance
Fennel v Robson Excavations Pty Ltd (1977)
Hargrave v Goldman (1963)
De Jager v Payneham & Magill Lodges (1984)
Checking In: Private Nuisance

1. Establishment
(a) Unlawful interference with someones interest in land
(b) Balance of rights
(c) Intangible interference
2. Who can sue?

(a) Proprietary interest
(b) Family members?
3. Who can be sued?

(b) Others
4. Defences
5. Remedies
Public Nuisance: The Roadmap

1. Establishment
(a) Act/omission which materially affects collective rights
of the public
2. Who can sue?

(a) The state
(b) A plaintiff who suffers special damage
3. Who can be sued?

(b) Others
4. Defences
5. Remedies
Public Nuisance v Private Nuisance

Whats the difference??
1. INTERFERENCE: QUEUES OBSTRUCTING

PUBLIC HIGHWAYS AND ROADS
Silservice Pty Ltd v Supreme Bread Pty Ltd
Harper v GN Haden & Sons (1933)
THE DEGREE OF INTERFERENCE

It is not every interference however slight
that constitutes an actionable nuisance;
the interference must be substantial and
material York Bros v Commissioner of
main Roads
2. Who can sue?

P may sue in public nuisance only if he/she can
establish special damage above and beyond
that suffered by other members of the affected
public
Walsh v Ervin
Deepcliffe Pty Ltd v City of the Gold Coast
I cannot see that the appellants here can make out a case
that they were denied free uninterrupted access to the
roadway by the conduct of the respondents in imposing the
parking restrictions in question. True, the parking restrictions
were in adjajcent streets, but it cannot be said that access to
and from the roadway was denied or seriously impaired
As the learned trial judge observed, The shorter time limit
did not materially alter the position. The fact that parking
was limited to 1hr duration in portions of two streets near the
restaurant could not in law constitute an actionable nuisance
on he ground that potential customers were prevented from
getting to the restaurant (continuing).
It is difficult to see how the conduct in

question of the respondents constituted a
nuisance all the available parking space
could have been taken by residents and
their visitors at any given point of time.
- per Helman J
PUBLIC BENEFIT AND PUBLIC

NUISANCE
In general public benefit is not a defence
that can defeat Ps objections to Ds
conduct
Where the interference to P is not
substantial, the public benefit argument
may be used to reinforce the justification
to the inconvenience caused to P
Public Nuisance: The Roadmap

1. Establishment
(a) Act/omission which materially affects collective rights
of the public
2. Who can sue?

(a) The state
(b) A plaintiff who suffers special damage
3. Who can be sued?

(b) Others
4. Defences
5. Remedies
4. Defences
Statutory authority
York Bros v Commissioner for Main Roads
(1983)
Consent
5. REMEDIES
Abatement of nuisance
Injunction to prevent the continuation
Damages
Bone v Seale [1975]
Oldham v Lawson (no. 1) [1976]
Challen v McLeod Country Club [2001]
Shelfer v City of London Electric Lighting [1895]
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Weekend School 2 - Negligence and Nuisance

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Weekend School 2 - Negligence and Nuisance

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LAW OF TORTS

Negligence Duty of Care

How will we cover

Duty of Care at common law

Negligence- Duty of Care

Some interesting applications

NEGLIGENCE AND FAULT IN

Intentional or negligent act of D

fault: intentional or negligent act

The law takes no cognisance of

Tame v NSW (2002) 211 CLR 317

Negligence: The Elements

Negligence: The Early Cases

whenever one person is by circumstances

Donoghue v. Stevenson [1932]

The Manufacturers Duty

Baar v Snowy Mountains Hydro-Electric Authority

What did Lord Atkin mean?

Some interesting applications

Duty of Care in General

Where nature of harm is more

WHAT HAPPENS WHEN THE DUTY DOES

What is needed is a conceptual

Question of identity of the plaintiff:

Is the P reasonably foreseeable (as

Reasonable Foreseeability: Established

Koehler -v- Cerebos (Australia) Limited

Needs Something Else

The High Point of Proximity

The Main Features of

Sutherland SC v Heyman (1985)

The Anns 2-Stage Test:

The 3-Stage Caparo Test

Perre v Apand (1999) 198

High Court gets the chance to

Incrementalism is best compromise

Kirby J applying Caparo

Some interesting applications

Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)

Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)

There is no positive legal obligation in the

There may however exist a duty to rescue in

One is only required to use reasonable care

THE DUTY OWED TO

The rescuer is generally protected : torts recognizes the

Rescuers may recover for both physical injuries and nervous

The US fire-fighters Rule does not apply in Australia and the UK

IMPACT OF THE CIVIL LIABILITY ACT ON

Rationale behind the legislation:

Civil Liability Act 2002: Duty of

general duty of care provisions of s.5B;

The Rationale for Reform

The Rationale for Reform

The Approach to Reform:

Some interesting applications

Overview for Tonight

Public Authorities: ss40-46

Claims excluded from

(a) civil liability of a person in respect of an intentional

Duty of Care commentary

Wyong Shire Council v Shirt

Duty of Care in Certain