Negligence Elements

Torts BINTRODUCTION

The tort of negligence is a tort that has developed like all other torts from an action on the case. Today the tort is in a category of its own, unlike other common law torts it is largely controlled by legislation. The regulation of the tort came about due to a massive insurance crisis which precipitated changes to the Wrongs Act 1958 (“WA”).

Meaning of “Negligence”

The ordinary meaning of the word “negligence” is carelessness.

Carelessness is not necessarily required for an action to exist, for example sometime there exists a duty for the D not to cause and economic loss, the D may be very careful in causing a particular loss and may therefore be liable even though no “carelessness” existed.

General Elements of Negligence

While there are general principles and elements of Negligence, there is variation in specific cases as discussed later.

1. D owes P a DoC ( no DoC = no liability )a. Salient features approach per Sulivan v Moodyb. Particular Duty Situations

i. Mental harmii. Negligent statements causing pure economic lossiii. Negligent acts causing pure economic lossiv. Omissions – Duty of affirmative action

c. RF, Proximity and Policy all taken into consideration2. Breach of DoC ( BoD required for liability)

a. Risk was RFb. Risk was not insignificantc. Reasonable action must be taken

3. Causationa. The D action caused the damage.b. ‘But for’ test + commonsense used

4. Remoteness a. Kind of harm must be RFb. Thin skull rule applied to abnormal susceptibility cases

Defenses1. Contributory Negligence2. Illegality3. Volenti non fit injura – voluntary assumption of risk4. Volunteers, good Samaritans

Remedies1. Damages

a. Pecuniary b. Non – Pecuniary

2. Limitation of damages by statute

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Elements of Negligence

Element 1 – DUTY OF CARE

The General Principles of DoC fall into three major categories, theses are areas where the law is settled as to whether a duty exists, law is settled as to a whether duty does not exist and no settled law on whether a duty exists. The third category will be the one where the most controversy exists and the subject of the cases discussed. Since negligence requires real damage it is not actionable per se.

Determining the status, with regards to a DoC, of a factual situation.

1. Law is settled that a DoC exists.a. EG: Driver owes other road users a DoC. This includes passengers, drivers and pedestrians.b. EG: Doctor owes a Patient a DoC

2. Law is settled that a DoC does not exist.a. Barristers and Solicitors do not owe a DoC for work done in court.

3. No settled law as to DoC. a. Here a test is required to determine whether a DoC exists.b. Test will only be applied if the situation does not fall into one of two situations:

i. Specific duty situationii. Specific no duty situation

Test for Duty of Care – If specific duty/no-duty situation cannot be used

Today the test for a D.o.C is based on the ruling in Sullivan v Moody 2001. There is no specific test rather a general Salient Features Approach is taken.

Salient Features Approach – Catch all approach.

This approach takes into account the following factors when determining of a Duty exists:

Reasonable Foreseeability o The reasonable person must have foreseen a real, rather than fanciful or far-fetched,

possibility of injury. - Sulivan v Moody1

o However, the precise chain of events leading to P’s injury does not have to be foreseeable - Chapman v Hearse

Proximity Arguments Features of past cases

o Illegalityo Floodgates argumentso Conflict of Duties

General policy considerations.

The court in Moody held that both principle and policy should be taken into account when establishing a duty, although some concern was raised about policy affecting the rights of plaintiffs.

1 Father suspected of sexually abusing his children. Doctors, psychologists etc produced a report which indicated that the children may have been abused. Father sued the practitioners in negligence saying that they had caused him psychiatric disorder.

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Historical development of the D.o.C

In Jaensch v Coffey 1984, Dean J noted that the common law negligence was first expounded in the case of Donoghue v Stevenson.2

Donoghue v Stevenson3 Established negligence as a separate tort. Established that the P must show that the D owed a DoC. Set out some guidelines as to the establishment of new DoC situations. Established the need for reasonable foreseeability.

2 Torts Cases and Commentary Luntz and Hambley 5th ed pp.1293 FACTS: P bought a ginger beer with a partially decomposed snail in it. P suffered gastroenteritis and psychiatric disorder.

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Reasonable Foreseeability (“RF”)

Reasonable Foreseeability today:

• The reasonable person must have foreseen a real, rather than fanciful or far-fetched, possibility of injury

• However, the precise chain of events leading to P’s injury does not have to be foreseeable

Historical Development and Cases

RF is the one fixed element in establishing a DoC, over the years it has been watered down and now satisfaction of RF is relatively easy although not guaranteed. The doctrine is used to remove cases where a DoC clearly does not exists, but does little to assist in determining cases where there is no clear position.

Donoghue v Stevenson – The seminal case establishing RF as a requirement for a DoC.

Lord Aiken said in D v S :

“You must take reasonable care to avoid acts that you can reasonably foresee might injure your neighbour”

The question is who is your neighbor?.

Lord Aiken continues:“Your neighbours are those people so closely and directly affected by your act that you ought reasonably to have them in mind when deciding whether to perform that act”

Catersons v Commissioner for Taxation4 - Reduction of the standard of foreseeability to “not unlikely”.

The Court of Appeals held that the level of stringency was “likely to injure” as per Lord Aiken.

The HC overturned the ruling and as per Barwick CJ preferred the lower level of stringency of “not unlikely” this is “because …it excludes possibilities which are theoretical or unreal in all the circumstances”.

The consequences of the easy fulfilment of the test meant that additional requirements became attached to it. Although the tests threshold is low not every case will satisfy the RF requirement.

Sulivan v Moody5 - The tests is watered down further to “real and not far fetched possibility”.

In this case the court discusses reasons for the RF test as opposed to simply allowing every callous act to give rise to a duty the reason is two fold:

1. If every careless act would give rise to a DoC then “the law would subject citizens to an intolerable burden of potential liability”.

4 P boarded an express train in order to assist a passenger in removing baggage. The train started moving without warning before the passenger had time to disembark, the passengers 14 year old son was on the platform some 64kms away from home. The P jumped from the train and was injured in doing so. A jury found a verdict in favor of the plaintiff. 5 Father suspected of sexually abusing his children. Doctors, psychologists etc produced a report which indicated that the children may have been abused. Father sued the practitioners in negligence saying that they had caused him psychiatric disorder.

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2. “The tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance between obligations, duties and freedoms.

Chapman v Hearse6 - Events need not be precisely foreseeable rather events of the same general character need to be RF.

HC Held that events need not be specifically foreseeable; the precise chain need not be predictable or likely. The event needs to be of the same general character which the reasonable man can reasonably foreseeable.

“It is …sufficient …to ask whether a consequence of the same general character as that which followed was RF, as one not unlikely to follow a collision” .

Pailsgraf v Long Island Railway Co.7 (NY Decision) – Limits on chain of events.

Here the court held that the chain of events leading up to the scales falling on the P was not reasonably foreseeable by D, the case failed on the RF requirement.

Here the court has held that the remoteness of the damage from the act was to great, meaning that according to the test laid down in Chapman v Hearse the events where not even in general character which should have been RF. There fore no DoC can exist.

Bourhill v Young 1943 (English Decision)8 - Unforeseeable plaintiff.

Lord Macmillan: “there was [not] any reasonable likelihood of her being affected by the cyclists careless driving” –CB p.175

Vulnerable plaintiffs:

It must be reasonably foreseeable that:

• the plaintiff specifically; or

• a class of people, of which the plaintiff is a member might be injured.

Statistically Abnormal Plaintiffs:

Levi v Colgate9 - Abnormal condition did NOT give rise to a D.o.C

P and allergy sufferer used salts produced by D.D had an allergic reaction.P said there should have been precautions taken.Court held that people of abnormal susceptibility to certain conditions where not owed a special D.o.C.

6 Chapman while driving his car negligently collided with a vehicle in front of him. He was thrown from the vehicle and a passing doctor stopped to render assistance. Hearse, who was driving on the road which was wet ( and it was night ) hit the doctor, the doctors estate successfully sued Hearse. Hearse then sued Chapman for partial compensation. 7 An employee of LIR Co. was assisting a passenger board a train, the employee negligently dislodged a package which contained fireworks. The package fell and exploded causing a large scales of the other side of the platform to fall on P.8 P heard but did not see a collision between a motor cyclist and a car. When P arrived the body of the motorcyclist had been removed. P’s action failed because it was not RF.9 See notes.

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The situation will be different if the D knows the plaintiff has a certain ailment.

Haley v London Electricity Board – Abnormal condition DID give rise to a D.o.C

P fell into a trench. P was blind.D took reasonable steps to stop a seeing person from falling into trench.Court held a D.o.C did exist, and that the D had to ensure a blind person could know that a trench existed.

The tension between the two cases can be resolved in one of two ways:1. The state of knowledge has been advanced. Little was known at the time about allergies, and today

the case may be decided differently, but at the time issues to do with blindness where apparent. 2. The courts may be aware of diversity in society.

Sullivan v Moody 2001- Established that even though RF was made out a D.oC could not be established.

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Proximity

Jaensch v Coffey – Proximity approach posited.

The proximity approach is established, and although not the law today it may be useful in establishing a D.o.C.

Proximity is defined as a relationship of nearness of closeness. There are three categories of proximity and they are:

• Physical – Time and Space

• Circumstantial – Employer / employee

• Causal – Coincidental

Home Office v Dawson Yacht Co. (England) – Proximity shown to help create a duty where RF could not be made out.

Group of juvenile offenders where taken on an excursion to the Yacht club. The offenders made their way to the jetty and stole a yacht.

If RF was the only test then, a D.o.C could not exists, however the proximity approach helped solve the problem here and a D.o.C was established.

Gala v Preston – Proximity approach shown not to create a Duty where one clearly exists.

Youths crashed a car. D was the insurer of the car. In this case proximity was made out but there was no D.o.C. This lead to the demise of the proximity approach and later, the adopting of the salient features approach used today.

Criticisms of the proximity requirement:

• “Proximity” is too vague a concept to be useful in determining whether a duty of care exists

• Proximity is not present in every case in which a duty of care is found; nor is it absent in every case in which a duty of care is not found

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No Duty Situations – Policy considerations

Barristers cannot be held liable for work done in court.

• It applies to work done in court, whether by a barrister or a solicitor

• It does not apply to work done out of court, unless that work can fairly be said to affect the way a case will be conducted in court

Giannnarelli v Wraith

Immunity upheld.

Reasoning: 1. Liability would interfere with responsibility to the court.2. It would provide losing parties with a way of impugning judicial decisions which go against them.

D’Orta-Ekenaike, per Gleeson CJ, Gummow, Hayne & Heydon JJ

• The immunity is based on the need for finality in the judicial system

• The test in Giannarelli should be upheld

Dissenter (Kirby)

The immunity should be overturned because:• it has not proved necessary in other jurisdictions;• it treats lawyers differently from other professionals; and• most lawyers carry on private practice (cf discharging a governmental function)

Armed Forces

• No duty of care is owed during operations against the enemy in wartime

• However, a duty of care is owed with regard to other activities, even in times of war

Parents

• A parent owes her child a duty of care regarding any positive act she performs.

• However, the duty does not extend to omissions, even if the failure to act leads to the child sustaining injury.

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Element 2 - Breach of Duty

BREACH OF DUTY

The task of determining whether a duty of care has been breached involves a comparison of the defendant’s conduct with the ‘standard of care’ required by the duty. Whenever the defendant’s conduct falls below the required standard of care, the duty is seen to be breached. Conversely, when the defendant’s conduct meets or exceeds the standard imposed by law, no liability arises under the tort of negligence, irrespective of the existence of harm caused to the plaintiff. Thus, in deciding whether a duty of care has been breached, it is first necessary to ascertain the content of the duty (assuming, of course, the existence of a duty of care has already been established: see Section 1 above).

Breach of Duty is determined by ascertaining whether the D has fallen short of the SOC ( Standard of Care). If the standard is not met or exceeded then a breach has occurred.

The amount of damage done is not relevant only whether the SOC has not been met.

(a) Significance of past factual decisions

Legal Test / Factual Situation

Standard of Care is Legal test.

What a reasonable person would do in a particular fact situation is a question of fact not law.

Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 (CB 279)

Distinction between factual situation and legal precedent.

(b) What is negligent conduct?

Blyth v Birmingham Waterworks Co (1856) 11 Ex 781; 156 ER 1047 (CB 213)

Test for Breach

Wrongs Act s48(1) – Three elements which are required for a breach to have occurred

D is not negligent in failing to take precautions against a risk of harm unless:1. the risk was foreseeable (that is, it is a risk of which D knew or ought to have known);2. the risk was not insignificant; and3. in the circumstances, a reasonable person in D's position would have taken those precautions

Element 1 –the risk was foreseeable (that is, it is a risk of which D knew or ought to have known) (Reflection of old CL position)

Wyong Shire Council v Shirt (1980) 54 ALJR 283 (CB 218)

Mason J: The D will not have breached the duty of care unless it was RF that their actions would injure the P or a class of P’s of which the P belonged.

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Degree or likelihood of risk is CL based. CL Test for degree: not farfetched or fanciful.

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The RF test is general when talking about Duty. With reference to breach a specific question is asked. The test in duty is broad, the test for breach is narrow.

The question to ask for RF: Did the D take precautions to guard against the specific risk?.

EG: Manufacturers of products owe a DoC to the consumer, i.e is it is RF that any careless could cause harm to the consumer of the product. (Answer is usually yes). At the breach stage the focus is what specifically when wrong.

Element 2 – the risk was not insignificant (Not part of the CL)

Wrongs Act, s 48 (3)

For the purposes of sub-section (1) (b) (the risk was not insignificant):1. insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and2. risks that are not insignificant are all risks other than insignificant risks and include, but are not

limited to, significant risks

Point 1 Does not add anything new due to the element 1 test.

Point 2 The defendant’s conduct is judged according to the standard of care that a person of ordinary prudence would exercise in the circumstances

Farfetched or Fanciful -------------- Insignificant --------------------------------------------------- Significant

Not insignificant must lie between insignificant and significant. Commonsense must be used.

Element 3 - in the circumstances, a reasonable person in D's position would have taken those precautions. (Reflects the previous CL position).

Three aspects to look at:

1. Defining the reasonable person

2. What risks are foreseeable

3. Calculus of the standard

Test is objective according to the CL.

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(c) The ‘reasonable person’

The required standard of care (reasonable care) is determined by reference to the standard of the ‘reasonable person’. What qualities of the actual defendant are taken into account in determining what the ‘reasonable person’ would or would not have done in the particular circumstances of the case?

(i) Should the standard be subjective or objective?

The defendant’s conduct is judged according to the standard of care that a person of ordinary prudence would exercise in the circumstances - Vaughan v Menlove (1837) 3 Bing (NC) 468; 132 ER 490 (referred CB 252)

The test requires that the reasonable person be in the D’s position. Therefore to what extent are the D’s characteristics ascribed to the reasonable person.

CL position is to ascribe some circumstances and not others. In all cases there will be disadvantage to one party. There can be no “fair” outcome.

Why?: There are strong arguments both ways. Learner driver eg.

Should the defendant’s characteristics be considered?

• Yes: we cannot assess what could reasonably be expected of the defendant without considering her characteristics

• No: fairness requires that everyone be held to a common standard

(ii) Minority

• No blanket rule preventing a child from being sued in negligence.

McHale v Watson (1966) 115 CLR 199 (CB 252)

FACTS: D is 12. D was throwing a steel rod wooden post, the rod deflected off the post and hit P.

The majority held that where the D is under 18 age is taken into account, a reasonable person of whatever age the child is, is used.

• Should the particular child’s foresight and experience be taken into account? (No majority)

– Kitto J: no

– Owen J: yes

(iii) Disability

• No HC decision. The position is unclear.

• It will not matter because the person will be liable for undertaking the activity in the first place

• Eg: Blind person driving a car etc.

• This will not be the case when the P had no choice.

• In the case of no choice (uncontrolled fainting) most likely will be taken into account.

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(iv) Mental Incapacity

Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56 (CB 256)

FACTS: Person thought they where being chased and ran down P. Court said it would be unfair not to award damages just because the person was injured by someone with a mental illness rather than a regular person.

Mental illnesses are not taken into account. No defense of mental illness.

If P knows about the mental illness then the D may be able to have it taken into account

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***There is a tension between Adamson and McHale. The difference illustrates the problems in balancing fairness to both parties

(v) Inexperience / Modified Duty [Consensual Relationships]

Generally not taken into account.

A trainee doctor and an experienced doctor are held to the same standard.

However, is there an exception for consensual relationships. Standard of care – Learner Drivers

Cook v Cook (1986) 68 ALR 353 (CB 268)

FACTS: P knew D did not have a driver’s license, P insists that D drive the car. P smashes D’s car. D was driving dangerously.

Normal standard: that of a careful and experienced driver

Vis-à-vis their instructor, a learner driver owes a lesser standard of care (reasonable inexperienced driver)

However, vis-à-vis third parties, the normal standard applies to learner drivers

The reasoning is that an instructor chooses to train the driver.

(vi) Special Skills – Higher standard of care.

• Those with special skills must meet the standard expected of a reasonable person with those skills

• If one represents oneself as having a certain skill set then they will be held to that standard.

Wrongs Act s58 – Where a D holds themselves out to have a skill they will be taken to have that skills of reasonable person of that type.

Philips v Williams Whiteley Ltd [1938] 1 All ER 566 (referred CB 272)

FACTS: P went to jeweler to have ears pierced. The jeweler did not take the precautions necessary to stop an infection. Jeweler was not required to take the reasonable care of a doctor rather that of a reasonable jeweler.

The skill level required is determined by:

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the claim of the D

The actions/activities carried on ( someone performing surgery holds themselves out to be a surgeon)

Time is relevant in that a reasonable person is not endowed with hind sight.

(vii) At what time should the standard be determined?

Roe v Minister of Health [1954] 2 QB 66 (CB 240)

FACTS: Anesthetic caused P to become paralyzed. The glass viles of the anesthetic were put in phenol solution to stop them becoming infected. Phenol leaked through small cracks in the glass not visible to the human eye. P said a dye should have been placed in the phenol to show and contamination. Court said that no breach occurred because at the time it was not known that cracks so small would allow phenol to pass.

(d) Foreseeable (what risks are reasonably foreseeable?) and not insignificant


(e) Calculus of Standard

Wrongs Act, s 48 (2) – Not exhaustive

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following:

a) the probability that the harm would occur if care was not taken;

b) the likely seriousness of the harm;

c) the burden of taking precautions to avoid the risk of harm; and

d) the social utility of the activity that creates the risk of harm

In determining the standard a and b are compared taking into account 3 and 4.

What does the ‘reasonable person’ do in light of a foreseeable and not insignificant risk?


(i) Probability of Harm

Bolton v Stone [1951] AC 850 (CB 224)

Facts: P injured after being hit by a cricket ball which left the cricket ground. Court said that the risk was so negligible that a reas. person would not need to take precautions because the cost was prohibitive and the only other option was to shut down the ground which was also to serious a consequence.

Seriousness of the harm is compared to the risk of harm

• The greater the risk, the greater the care that must be taken

• However, even if the risk is very small, one still needs to consider how easy and cheap any precautions would be

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Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 (CB 221)

Facts: P fell off of a cliff because she thought it was path.

Maj. HC: A reas. person would not erect a fence. The high cost of building a fence compared with the low risk of someone falling off did not require that a fence be built.

Mc Hew ( Dissent): The risk was low but the consequences where very serious. Also precautions need only be taken in this spot not all along the path, and this cost was not prohibitively expensive.

(ii) Likely Seriousness of Consequences

• The graver the consequences if the risk eventuates, the higher the standard of care required

• The defendant’s knowledge may be relevant to assessing the gravity of those consequences

Paris v Stepney Borough Council [1951] AC 367 (CB 227)

Facts: P lost sight in one eye during the war. Worked as a mechanic for D, it was not uncommon for dust to fall. One day rust fell causing him to go blind in the other eye. P sued saying that D should have provided goggles.

Risk calculus varies between employees. ( In this case goggles need to be provided due to high risk.)

(iii) Practicality of Avoiding Risk

• The higher the cost of eliminating the risk, the less likely it is that a reasonable person would take precautions

• However, in extreme cases, if precautions are impractical the defendant may be required to cease the activity in question

Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202, 221-5 (CB 230)

Facts: Tram ran out of control and hit a car. P sued D saying that D should have installed a catchpoint ( which derails the tram).

D said that:

a) Derailment may harm people on board.

b) All level crossings would require catchpoints making financially not viable.

HC majority disagreed with D saying that gravity was serious ( in this case P’s husband died) and said that installing catchpoints at this crossing would not be prohibitively expensive and that it was necessary to install catchpoints at all crossings.

**Conflict between Paris and Caledonian, but he tension is an issue of fact.

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The most stringent precaution is to stop an activity completely. Courts will be very reluctant to take the most stringent option but in extreme cases the court will conclude that a reas. person would cease the activity entirely.

(iv) Social Utility of Defendant’s Activity

Applies to:

- blood banks

- drivers of emergency vehicles

- NOT: profit related, assisting friends etc.

• The greater the benefit to other people of the defendant’s activity, the less likely it is that a reasonable person would take precautions which interfered with that activity

• E.g. a different standard of care applies to emergency vehicles than to ordinary vehicles

Watt v Hertfordshire County Council [1954] 1 WLR 835 (CB 238)

Facts: Woman trapped under a vehicle. Clear that she was seriously injured possibly dying. Jack was taken by the fire truck on vehicle not designed to take it. The jack dislodged and hit P.

The HC said if it was a commercial activity being undertaken then a breach would have occurred. However in this case a woman life was at stake and a reas. person would take the risk.

Scope: The SoC is lowered in certain circumstances at certain times. The risk taken must be commensurate with goal.

Factors outside WA 42(2):

(v) Common Practice

PPO ( peer professional opinion) is given weight by the courts. The mere fact that the D conformed to a common practice is not enough to show that D was not negligent – Mercer. The mere fact that D departed form a common practice is also not enough to show negligence.

EG: In Philips common practice was used to show that the jeweler was not negligent.

Common practice: general

Wrongs Act, s 59 (1) – Deals with professionals only (defining a professional is difficult and whether trades are included is an issue)

A professional is not negligent in providing a professional service if it is established that s/he acted in a manner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice

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The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section


PPO does not have to be universally accepted.

Wrongs Act, s 60

s 59 does not apply to a liability arising in connection with the giving of (or the failure to give) a warning or other information in respect of a risk or other matter to a person if the giving of the warning or information is associated with the provision by a professional of a professional service

Medical professionals:

Need to distinguish between:

• diagnosis and treatment; and

• the provision of advice or information

Wrongs Act, s 50

A defendant who owes a duty of care to the plaintiff to give a warning or other information to the plaintiff in respect of a risk or other matter, satisfies that duty of care if the defendant takes reasonable care in giving that warning or other information

Relevance of PPO in provision of information or advice (not covered in s60):

F v R, per King CJ ( adopted by the HC in Rogers v Whitaker)

• PPO did not apply

• Up to the court to decide whether the legal standard was met.

With regard to the provision of medical advice and information, the ultimate question is not whether the defendant complied with the practices of her profession, but whether she conformed to the standard of care demanded by the law

What information a reasonable doctor would disclose depends upon:

1. If details could not be understood by a lay person then it does not need to be disclosed.

2. More significant treatment requires greater disclosure

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3. Whether the patient asks questions

4. Patient reactions need to be considered ( stress or anxiety)

5. General circumstances.

• The nature of the matter to be disclosed

• The nature of the treatment

• The patient’s desire for information

• The patient’s temperament and health

Expert testimony is relevant but not decisive.

Rogers v Whitaker (1992) 109 ALR 625 (CB 259)

• When providing information or advice, doctors must disclose all “material” risks

• A risk is material if:

– a reasonable person in the plaintiff’s position would be likely to attach significance to it; or

– the doctor knows, or ought to know, that this particular patient would be likely to attach significance to it

If information would be detrimental to a patients health it need not be disclosed.

(vi) Legislative Standards – Miscellaneous provisions

• Failure to comply with a legislative standard is not conclusive evidence of a breach

• However, it is relevant evidence

Wrongs Act, s 49

• The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which D may be responsible

• The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done

• The subsequent taking of action that would (had the action being taken earlier) have avoided a risk of harm does not of itself:

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– give rise to or affect liability in respect of the risk, or

– constitute an admission of liability in connection with the risk

Wrongs Act, s 14 G (2)

In determining whether the plaintiff has established a breach of the duty of care owed by the defendant, the court must consider (among other things):

• whether the plaintiff was intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication; and

• whether the plaintiff was engaged in an illegal activity

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PROOF – CAUSATION

Reference: CB chap 3

Proof

The onus is on the plaintiff to prove that, on the balance of probabilities, the defendant’s negligence caused his or her injuries. Proof by inference is acceptable proof.

Wrongs Act 1958 (Vic) s52 - In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.

WA s52 – Essentially saying:

• Burden of proof on the P.

• Standard of Proof = Balance of Probabilities

Proof by Inference

• Findings of primary facts: facts which are directly proven

• Inferences from primary facts: inferences drawn from the facts which are proven – Causation will always be an inference.

Holloway v McFeeters (1956) 94 CLR 470 (CB 284)

- Inferences must meet the standard of proof.

Res ipsa loquitur – The thing speaks for itself.

Prima facie case of negligence is made out on proof of ‘the thing itself’.

Evidentiary onus, not onus of proof.

• In certain circumstances, the mere fact that an accident occurred may justify the inference that it was caused by negligence on the part of the defendant.

• Res ipsa is designed to assist P with the burden of proof.

• If res ipsa is made out then duty and breach need not be made out.

• When it is know how the accident happened res ipsa does not apply.

EG: Walking past a warehouse and a barrel hits you on the head. Inference is that D is negligent.

When does res ipsa loquitur apply?

1. The accident was of a type which is unlikely to occur without someone being negligent

a. It must be possible for an ordinary person to determine whether the accident would not normally occur if reasonable care was taken ( i.e if expert evidence is required then res ipsa cannot be used)

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b. It is enough if negligence is the most likely cause of accidents of that type ( negligence needed not be the only likely cause)

2. The accident was such that it is the defendant who is likely to have been negligent; and

Test ( Per Mummery and Schellenberg) :

a. Did the defendant have exclusive control over the object or events which caused the accident?

Schellenberg per Kirby: Employee’s held to have exclusive control. Gleeson expressed doubt over this proposition.

b. It is not enough if someone else is just as likely as the defendant to have been responsible ( if 2 parties are equally likely then res ipsa will not apply)

3. The specific cause of the accident has not been established

a. Matter of characterisation of the act is important.

Exceptions and Qualifications

Even if res is made out, it simply permits does not obligate the court to make an inference of breach.

Res is an evidentiary doctrine not a judicial one and therefore not binding on the court per Mummery.

Difficulties with characterization of actions

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 (CB 288)

Facts : P employed to use a gas operated grinder. The hose became uncoupled and hit him in the back. P sued his employer.

1. Kirby J: this is not an accident of a type which is unlikely to occur without someone being negligent

2. Gleeson CJ & McHugh J: the cause of the accident is known (and the plaintiff has not shown it was a result of negligence by the defendant)

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Element 3 - CAUSATION

CAUSATION IN FACT

Current Causation Test

March v Stramare (1991) 65 ALJR 335 (CB 298)

1. The “but for” test has an important role to play, but is not the exclusive test of factual causation

2. Commonsense, as well as value judgments and policy considerations, are also relevant

Relevant Legislation, Cases and Useful Tests

Wrongs Act 1958 (Vic) s 51(1) - A determination that negligence caused particular harm comprises the following elements:

• D’s negligence was a necessary condition of the occurrence of the harm; and ( Factual Cau.)

• it is appropriate for the scope of D’s liability to extend to that harm ( Scope of Liability)

• Causation is a matter of fact not law.

• Causation is a commonsense matter not a philosophical or scientific thing.

• Causation is used to assign responsibility.

‘But for’ test - Factual Causation

Did the defendant’s negligence in fact cause the plaintiff’s injury? – Causation question requires the following test:

1. Would the plaintiff’s injury not have occurred but for the defendant’s breach of duty?

2. The defendant’s breach of duty does not have to be only cause of the plaintiff’s loss.

WA s51(3) - If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.

Rules out reasonable person test.

Subjective test

Surrounding circumstances taken into account

In practice causation is relevant in medical negligence cases

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WA s51(3) - In determining … whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider … whether or not and why responsibility for the harm should be imposed on the negligent party.

Makes it clear that but for test is not only test to be used

Court must consider ‘whether and why’ responsibility should be placed on D

Problems with ‘but for’ test

1. Too broad: not all necessary conditions of an event are legally relevant ( but for P being born)

2. Too narrow: e.g. “multiple sufficient causes”

Multiples Sufficient Causes

Eg: Driver hit by car and has a stroke at the same time.

Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428Haber v Walker [1963] VR 339 (CB 305)

Increased Risk as a Cause

Where the exact cause of P’s injury cannot be known, is it enough if D’s breach of duty increased the risk of the injury occurring?

EG: Asbestos exposure on multiple occasions only on e of which is due to the D. It is unknown which exposure caused the disease only that the risk was increased.

McGhee v National Coal Board [1972] 3 All ER 1008 (CB 311)

Facts: P contracts dermatitis due to being exposed to brick dust in the course of employment.

- Clear that a D.o.C exists.

- Breach consisted of not providing showers for employees to use after work.

- It needs to be shown that the dermatitis was caused due to the dust on the P during the drive home.

- Risk was shown to have increased.

- HOL held that increased risk was enough to make out causation.

Chappel v Hart (1998) 72 ALJR 1344 especially Kirby J 1367-8

Facts: D is a specialist ENT. Failed to warn P that operation could harm her voice. Voice was impaired.

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- D argued that it was necessary operation and it would make no difference to the P.

- P said if info was provided, P would seek out best possible surgeon.

- Majority held that causation was made out.

In medical negligence cases, if P shows that

D breached the duty of care,

this increased the risk that P would suffer an injury, and

P did in fact suffer that injury,

then a prima facie case of causation is established. It is then up to D to disprove causation.

Gaudron & Kirby JJ: increased risk suffices to establish causation in this case, support for McGee

Gummow J: the “but for” test is satisfied

McHugh & Hayne JJ (dissenting): increased risk is not relevant in this case

Majority: No approval or disapproval for the increased risk argument in general.

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

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Causation in Law

NOVUS ACTUS INTERVENIENS – A new act intervening.


A determination that negligence caused particular harm comprises the following elements:

• D’s negligence was a necessary condition of the occurrence of the harm; and

• it is appropriate for the scope of D’s liability to extend to that harm


For the purpose of determining the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party

When will an intervening act break the chain of causation?

• The Oropesa, per Lord Wright: when the intervening act is unwarrantable … disturbs the sequence of events… can be described as unreasonable or extraneous

• March v Stramare, per Mason CJ: when there are reasons in common sense, logic or policy for refusing to regard the defendant’s negligence as a cause of the plaintiff’s loss

Two approaches to intervening acts

• The foreseeability approach

• The approach in Haber v Walker

Haber v Walker, per Smith J

An intervening act will break the chain of causation if it is either:

• a voluntary human action; or

• a causally independent event, the conjunction of which with the defendant’s negligent act is so unlikely as to be termed a coincidence

When is a human act regarded as voluntary?

• When the actor has exercised a free choice; and

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• When that choice is not made under substantial pressure created by the defendant’s negligence

(Haber v Walker, per Smith J)

March v Stramare Pty Ltd, per Mason CJ

A voluntary human action will not break the chain of causation if the defendant was under a duty not to expose the plaintiff to the risk of injury arising from voluntary human conduct

Natural events

The chain of causation will be broken only if:

• the natural event is causally independent of the defendant’s negligence; and

• the conjunction of this event with the defendant’s negligence is so unlikely as to be considered a coincidence

Negligent intervening acts – medical treatment

• Negligence by a third party may break the chain of causation

• However, the act must be “grossly negligent” or “inexcusably bad”: Mahony

• Negligence by the plaintiff may be treated differently

Loss of a chance


• cases where the defendant’s breach of duty causes harm to the plaintiff; and

• cases where the defendant’s breach of duty deprives the plaintiff of a chance to recover from an existing harm

The Oropesa [1943] P 32Haber v Walker [1963] VR 339 (CB 326)Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 (CB 340)March v Stramare Pty Ltd (1991) 65 ALJR 335 (CB 331)

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Element 4 - REMOTENESS OF DAMAGE

(a) Damage as gist of the tort

Loss of a chance


• cases where the defendant’s breach of duty causes harm to the plaintiff; and

• cases where the defendant’s breach of duty deprives the plaintiff of a chance to recover from an existing harm

Can loss of a chance be damage?Chappel v Hart (1998) 195 CLR 232 (CB 344)

(b) Remoteness Test: Reasonable Foreseeability of the Same Kind of Harm

Wrongs Act 1958 (Vic) s 51(1)(b) & (4)

• The defendant is not liable for any consequences of her negligence which are too “remote”.

This deals with cases where there is an unusual or unexpected harm, or unusual consequential harm.

• The test of remoteness: was it reasonably foreseeable that the kind of injury suffered by the plaintiff might result from the defendant’s negligence?

Key Q: Is the D responsible for some or all of the loss of the P where the loss has taken on an unusual form.

Tests of Foreseeability

Duty stage: is it reasonably foreseeable that carelessness by D might harm P?

Breach stage: is it reasonably foreseeable that D’s failure to take a specific precaution might harm P?

Remoteness stage: is it reasonably foreseeable that D’s failure to take that precaution might cause harm of the kind actually sustained by P10?

The reason for the remoteness test is to limit the D’s liablilty for harm that is not foreseeable.

10 The Wagonmound No 1 (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Pty Ltd) [1961] 1 AC 388 (CB 352)

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The Wagonmound No 1 (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Pty Ltd) [1961] 1 AC 388 (CB 352)

Facts: Fire in Sydney harbour. D’s ship being loaded with oil in Sydney, in the process of transfer they negligently allowed oil to slip into the harbour. Oil leaks into P’s wharf. It remains there for several days. The P then caries out welding operation on the wharf and the oil is set alight, the damage does significant damage. P knew about the oil and they got advice saying it was ok. The only reason the oil ignited was because the welding sparks hit cottonwool which acted as a wick thus causing the fire.

DoC made out.

BoD made out.

Causation made out.

PC held that D was not liable because the damage was too remote.

It was RF that damage could be caused but not damage by fire, it took a huge coincidence for that to happen.

Wagon mound test: Is the kind of damage RF?. (Finding of fact)

(c) Meaning of ‘reasonable foreseeability’

The Wagonmound No 2 (Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd) [1967] 1 AC 617 (CB 358)

Principle: The risk must be not far fetched or fanciful.

Facts: The same as WM1, except the P in this case is the owner of a ship damaged in the fire. In this case the court held that the damage by fire was an RF risk. Therefore remoteness is made out in WM2.

What must be foreseeable?

• Required:

The kind of injury sustained

• Not required:

The exact extent (or precise nature) of the injury suffered

Hughes v Lord Advocate (1963) AC 837 (CB 364)

The precise chain of events / or way in which the injury came about leading up to the accident

Facts: Maintenance workers where accessing underground pipes through an open manhole. They took a break leaving the manhole unattended, however a tent was erected to stop people falling in. Some

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children decided to explore tent and knock over a lamp, outside the tent. Kerosene from the lamp vaporised and caused an explosion and that caused the child to fall into the hole and suffer sever burns.

The trial judge held that it was RF that a child would play with the lamp. But the explosion was not RF. The extent of the injuries was not RF and nor was the precise chain of events.

HOL held the P satisfied the remoteness principle. The kind of damage suffered was personal injury caused by fire, which the trial judge found RF. Therefore since the kind of damage was RF, remotenss is made out. The severity and precise chain of events are not required to satisfy remoteness.

Mount Isa Mines v Pusey (1971) 125 CLR 383 (referred CB 378)

Facts: P was employed by D. Two of P’s employees negligently caused an electrical explosion, one of the employees was seriously injured. The P was not injured but gave them first aid. Latter her learns one of them dies in hospital. Sometime later the P develops a rare form of mental illness. The P sues the D saying the D is vicariously liable for the other employees negligence.

D argued that the type of metal illness was extremely rare and therefore not RF, in other words too remote. The HC rejected this argument, it’s not necessary that the particular mental illness be RF. All that is required is that it is RF that the P could develop some type of mental illness, not the specific type.

The characterization of the injury is very important. If it was characterized by the court as the specific type of mental injury, where the court characterized the injury as a general mental illness.

(d) Meaning of ‘Same Kind of Damage’

• Wagon Mound cases: property damage caused by fire

• Hughes: personal injury caused by fire

• Mount Isa Mines: mental disturbance

• Tremain v Pike: personal injury caused by a particular disease

• Doughty: personal injury caused by a certain kind of eruption

Tremain v Pike [1969] 3 All ER 1303 – Tension with Mount Isa.

Facts: P worked on D’s farm. While working on the farm, contracted a rare disease that was carried by rats. He sued the D for not keeping the rap population under control on the farm, he said that amounted to a breach and the failure to keep the population under control caused the disease.

The disease was very rare. While some types of injury resulting from rats where RF this particular type was not RF. They said that this disease was an entirely different type of injury normally caused by rats.

Doughty v Turner [1964] 1 QB 518 (CB 364) – Tension with Hughes.

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Facts: P was injured at work when an asbestos cover fell into a hot cauldron of liquid. The asbestos cover reacted to cause an eruption which burned the P. This never happened before and it was not known that the asbestos cover would react the same way.

P argued that it was RF that if the cover fell into liquid the liquid would splash and he would be injured because the liquid was corrosive. He argued that the type of injury was a kind of splashing related injury.

The court of appeal held the injury was not RF because it was unknown that such an explosion could occur.

Reconciling the cases

• Possibility of unstated policy considerations – although does not help with

• The general, but not exact, manner in which the injury occurred must be foreseeable: Nader, per McHugh JA -Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 (CB 368 and 377).

Exam

Property damage by fire is one kind of damage

Property damage by fouling of oil is a different kind of damage

Personal injury by fire is a relevant type of damage

Metal illness of any form is one kind of damage

(d) The ‘Thin Skull Rule’ – Extent of Harm Need Not be Reasonably Foreseeable

The “thin skull” rule

If the defendant negligently injures the plaintiff, the defendant cannot complain that the plaintiff suffered more harm than a normal person would because the plaintiff had some special susceptibility to injury

When does the “thin skull” rule apply?

1. When the plaintiff suffers from a pre-existing susceptibility to injury or;

2. When the defendant’s negligence creates an abnormal sensitivity to further injury

Case 1 - When the plaintiff suffers from a pre-existing susceptibility to injury

Smith v Leech Brain & Co Ltd [1962] 2 QB 405 (referred CB 368)

Facts: P’s husband during the course of employment suffers a burn to his lip and develops cancer at the site of the burn. P dies. P’s widow sues the employer.

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Trial judge found a breach had occurred which caused the burn. The risk was foreseeable and remoteness was therefore made out for the burn. However the site where the P suffered the burn was pre-malignant and therefore cancer was contracted. Damages where awarded for the burn but not the cancer and resultant death.

P appealed and succeeded. Held that torfeasors have to take P as they find them. Only kind of injury needs was the burn. Ir does not matter that P’s susceptibility was higher. The court said that it was all one type of injury and it was RF.

Case 2 - When the defendant’s negligence creates an abnormal sensitivity to further injury and P did not have a pre existing susceptibility.

Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 (CB 366)

Facts: P injured at work. His hand was cut and the employer found negligent. He was later admitted to hospital with a swollen hand and was feverish. By the time of the trial he was very sick and scarcely able to look after himself.

P’s expert witness said that the P had contracted an infection and irreversible brain damage had occurred.

D’s expert witness said that the P suffered from compensation neurosis ( due to stress of trial ) made more severe due to the trial.

It was clear that P could recover damages for the cut but not the subsequent injuries. The court indorsed Smith. The court said foreseeable injury is claimable by P. The only relevant injury is first. Provided it can be proved that all other past and future injuries are attributable to D, Court said it is irrelevant which expert is right in both cases the D will be liable.

TSR applies when:

Initial injury be of an RF kind.

Where P is unusually susceptible and consequences are worse

Clearly applies to physical injury

Q when it applies to other cases

Nader: Psychological injury will be allowed

To what type of damage does the rule apply?

• Physical injury: yes (Smith; Stephenson)

• Psychological harm: yes (Nader)

• Property damage: unknown30

• Economic loss: unknown

Nader

Facts: P was 10 years old boy. Boy fell from a bus and suffered minor physical injuries. D was liable and P could recover.

As a result P developed a rare psychological condition. P claimed it was due to fall. D claimed it was due to parents reaction or that the parents argued all the time or that the parents refused treatment to increase compensation.

Majority of the court of appeal held that the boy could recover for the psychological harm. They applied the TSR and said it should extend to any psychological harm even if a susceptibility existed and even if it was due to the parents.

TSK will apply to psychological harm.

It is unknown whether property of economic loss is covered.

Remoteness Test EXAM

1. General test is whether the kind of damage was RF.

2. Cases where there is an abnormal susceptibility the TSR must be considered.

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DEFENCES

(a) Contributory Negligence (“CN”) – Non Complete Defense

Wrongs Act 1958 (Vic) ss 25-26 (CB 385); ss 62-63

S26(1) - If P suffers damage partly as a result of her contributory negligence and partly as a result of D’s negligence:

(a) except as provided in s 63, P’s claim is not defeated by reason of her contributory negligence

(b) the damages recovered from D must be reduced to the extent the court thinks just and equitable, having regard to P’s share in the responsibility for the damage

Exception - Only to be used in rare Circumstance

S63 (Exception to s26(1))- In determining the extent of a reduction in damages by reason of contributory negligence, 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 for damages is defeated.

Contributory negligence is not a complete defense, except where s63 applies. Court will usually apportion responsibility and reduce damages.

Elements of contributory negligence:

1. The plaintiff failed to take reasonable care for her own safety. (Breach of Duty).

2. Her failure to take reasonable care was a cause of (contributed to) her injury. ( Causation).

Element 1- Breach


“The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.”

All elements of breach need to be discussed with reference to P’s negligence.

Wrongs Act, s 62 (2) - Trite addition. Essentially part of the breach requirements.

For that purpose:

1. the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and

2. the matter is to be determined on the basis of what that person knew or ought to have known at the time

Historically the courts have considered slightly different principles, when determining contributory negligence.

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Exceptions / Relevant Considerations

Failure to take reasonable care: some relevant considerations

Sudden emergencies (“the doctrine of alternative danger”)

Courts will consider whether P was placed in a situation of sudden emergency due to D’s negligence. The P could be contributorily negligent but the SOC will be lower.

Caterson v Commissioner for Railways (1973) 128 CLR 99 (CB 397)

P boarded an express train in order to assist a passenger in removing baggage. The train started moving without warning before the passenger had time to disembark, the passengers 14 year old son was on the platform some 64kms away from home. The P jumped from the train and was injured in doing so. A jury found a verdict in favor of the plaintiff.

D had clearly been negligent. Q was whether P was contributorily negligent. P could have pulled the emergency stop. P said that due to the emergency nature of situation if he had time to think he would have pulled cord.

D argued no imminent physical injury. Court held that inconvenience could also be a factor.

Balancing act of risk took to avoid inconvenience with risk of physical injury.

In this case the risk of injury was low while inconvenience risk taken was high.

Anticipating other people’s negligence

The courts view that a reasonable person in the P’s position would guard against other peoples negligence.

EG: Driving to an intersection where driver has a right of way, a reasonable person in the P’s position will check whether other driver will give way. Damages will not be heavily reduced.

Exceptions

Cases where a passenger gets a lift with a drunk driver is an exception, if the passenger knows the driver is drunk – voluntary assumption of risk will be used as a complete defence here.

Cases where passenger ought to know driver was drunk but did not know, is where CN will apply

Insurance Commissioner v Joyce (1948) 77 CLR 39 (CB 417)

Rule: If a passenger accepts a lift with a driver and ought to know a driver was too drunk to drive, then the passenger will be CN if there is an accident.

When ought a passenger know?

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Banovic v Perkovic (1982) 30 SASR 34 (CB 421)

Case where a passenger was injured after a car hit a pole. Passenger sued the driver for negligence. Driver argued CN. Trial judge found both parties where drunk at the time. Driver was not showing observable signs of intoxication.

King CJ: Sought to confine IC v J to cases where there is joint drinking spree. If P drinks so much that they cannot determine how drunk the driver is then they will be CN.

In other cases the P is not required to stay sober to determine. The driver is obligated to stay sober. If the driver indicates that they intend to get drunk then P will be CN.

In this case the P had no reason to think the D would get drunk therefore P was not CN.

This case distinguishes between designated drivers and joint drinking sprees.

It is unclear whether Banovic is still good law due to:

Joslyn v Berryman (2003) 198 ALR 137

P and D had been out drinking the previous night. P was then driving early the next morning the D was a passenger. P noticed D was falling asleep at the wheel .D insisted that P pull over and let D drive. P sues D and D relies on CN. D argues that P should have know that D was drunk and that the vehicle has a defective speedometer and a tendency to roll over.

McHew said the P was CN. He said that a RP would know that by becoming a passenger he was exposing himself to a risk of injury.

Court said that the CN is an objective test. The test in Banovic was wrong in so far as it is a reasonable person that is ought to know. The test is also what a reasonable sober person knows.

The court also said this was joint drinking spree case. In the designated driver scenario if the D gets too drunk to know that the driver is drunk, and the reasonable sober person test applies, then the D will be CN.

Underage plaintiffs

What care are under age children required to take?.

McHale v Watson (1966) 115 CLR 199 (CB 252)

The standard of care required is that of a reasonable child of the same age. – Related to breach.

Kelly v Bega Valley County Council (unreported, 13 Sept 1982, Court of Appeal (NSW) (CB 404)

P ( Kelly) 11 year old boy. Received a severe electric shock when he cam into contact with a high voltage terminal constructed by the D. Jury trial : D was negligent, but P was contributorily negligent.

On appeal the court found it was bound by McHale and therefore the P was found not to be CN. P said that he did not have the knowledge of a reasonable 11 year old. Court said that it could not take that information into account because the test was objective.

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A distinction was made between the Ds state of knowledge and physical and mental handicaps.

TEST: The standard of care required is that of a reasonable child of the same age.

Element 2 – Causation

A P is contributorily negligent if the P’s failure to take reasonable care was a cause of their loss.

Both factual and legal causation must be taken into account.

A distinction is drawn between causing an accident and causing the injury.

Its enough that the P’s CN contributed to either the accident or the injury.

In most cases the P’s CN contributes to either the accident or both.

How can the P’s CN contribute to the injury but not the accident?

Froom v Butcher [1976] QB 286 (CB 387)

P was seriously injured in a head on collision with D. The P did not contribute to the accident. P was not wearing a seatbelt. P was injured much more seriously than he normally would have. At the time in England there was no law requiring a seatbelt to be worn. Not acting illegally.

In most cases the cause of the accident and injury are the same. In this case the accident was solely due to the D’s negligence but the accident was due partly to D’s negligent driving and partly due to P’s failure to wear a seat belt.

Moreover it is the cause of the injury not the accident that is relevant. Moreover the P did not take reasonable care for his own safety and therefore CN was made out.

Consequences of Defense being made out

P’s damages will be reduced (s62) and potentially reduced to 0 (s63). In the vast majority reduction will occur.

2 criteria for reducing liability.

1. Extent to which each party departed from the SOC. - Pennington v Norris (1956) 96 CLR 10 (CB 395)

2. How significant each negligent act was in causing the injury. – Wynbergen v Hoyts Corp 1997

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(b) Volenti non fit injuria (Voluntary Assumption of Risk) – Complete Defense

Wrongs Act 1958 (Vic) ss 53-55

Courts prefer using CN rather than volenti.

Elements of volenti:1. P knew of the facts constituting the danger – Actual knowledge necessary (Scanlon v American

Cigarette Company Overseas Pty Ltd [1987] VR 289 (CB 410)2. P fully appreciated the danger inherent in those facts – Actual knowledge necessary; and3. P voluntarily incurred the risk that this danger would eventuate4. Obvious Risks – WA s53 and s545. Inherent Risks – WA s55

Element 1 and 2

EG: Diving off a cliff. Element 1 : Do they know they are diving off a cliff, do they know that it is shallow water. Element 2: Do they know that diving off a cliff into shallow water is dangerous.

Drunk driver scenario is difficult to make out, it will be easy to show the court that the D did not know the driver was drunk or was too drunk themselves to know.

P does not need to know the exact way in which the D will cause the harm.

The court is willing to infer first two elements in an appropriate case.

Element 3

Element 3a - The plaintiff must have voluntarily accepted the risk which actually caused her injury

P had to accept a risk that did eventuate. It is not enough that they accepted a risk that did not eventuate.

Rootes v Shelton (1967) 116 CLR 383 (CB 423)

P was water skiing and injured when he collided with a stationary boat. He was being towed by a another boat driven by D. He argued D should have taken care not to drive near the boat.

D said that water skinning involves risks that are voluntarily assumed. The court said that volenti applies up to a point , that is risks associated with water skiing such as hitting a submerged object. However the risk of hitting a stationary boat which the driver of the boat should have informed the skier is not voluntarily assumed.

Risks will be characterized fairly broadly, the court will not get into a fine grain analysis.

EG: The accident scenario, accident must be due to risk assumed and not another risk. If someone accepts a lift from a drunk driver but the car crashes due to mechanical problems then the passenger will not be taken to have voluntarily assumed the risk.

Element 3b - The assumption of risk is voluntary only if there was no pressure on the plaintiff to accept the risk

Q: What amounts to a voluntary acceptance of risk?

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A: The assumption of risk is voluntary only if there was no pressure on the plaintiff to accept the risk - ICI (Imperial Chemicals Industries Ltd) v Shatwell [1965] AC 656 (CB 412) and; Dixon J Insurance Commissioner v Joyce (1948) 77 CLR 39 (CB 417)

The assumption of the risk will not be voluntary if the D was acting under pressure caused by the D’s negligence.

EG: P rushes in to rescue someone injured by the D’s negligence.

The defense will be rarely used in an employment context. The courts take the view that social and economic pressures prevent employees from being free to decide whether to accept the risk or not. – ICI

Exception to Employee – Employer

ICI (Imperial Chemicals Industries Ltd) v Shatwell [1965] AC 656 (CB 412)

P and his brother worked for D in a quarry, job involved detonating explosives. P and brother used a procedure prohibited by statute and by employer for being unsafe. P knew all this and knew that another employee had been fired for using the procedure. He did it and he and his brother where injured. He sued D for negligence.

P argued that D was vicariously liable for brothers injury. D argued volenti. The court agreed with vicarious liability, and employer cannot use volenti when being sued by employer. The P was not forced and did so of his own volition. Volenti was made out, D was not held liable.

Obvious Risks

Wrongs Act, s 54 (1) -If a defence of voluntary assumption of risk is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless s/he proves on the balance of probabilities that s/he was not aware of the risk

Element 1 and 2: In the case of obvious risks burden of proof reversed, being on the plaintiff that is.

Element 3: Not affected.

Wrongs Act, s 54 (2) –

Sub-section (1) does not apply to:

a proceeding relating to the provision of, or the failure to provide, a professional service or health service; or

a proceeding in respect of risks associated with work done by one person for another

Why?

The thought is that these are cases where D has superior knowledge to the P. What obvious to theses D’s may not be obvious to P’s.

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What?

S54(1) is ignored in the case of professionals, health care services and employees/contractors.

What counts as an obvious risk ?.


For the purposes of s 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

Reasonable person test.

Objective test.

What would a reasonable person in P’s position have done?.


Obvious risks include risks that are patent or a matter of common knowledge. Includes denotes not limited.


A risk can be obvious even if it has a low probability of occurring.

EG: Russian roulette, low risk but obvious.


A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Physically observable

EG: Sex with HIV infected person, not physically observable.

Prominent and conspicuous

EG: Maybe submerged Rootes v Shelton case.


A risk from a thing (including a living thing) is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk

EG: Risk of falling from a chairlift, risk is due to failure by operator to maintain chairlift. That sort of risk is not obvious, unless there is an obvious risk that the operator would not maintain the chairlift properly.

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Inherent Risks

An inherent risk may or may not be obvious.

Wrongs Act, s 55 – Factual causation cannot be established (or hard to)

D is not liable for harm suffered as a result of the materialisation of an inherent risk

An inherent risk = a risk that cannot be avoided by the exercise of reasonable care

s 55 doesn’t exclude liability in connection with a duty to warn of a risk

WA S55(3) – Exception to s55

This section does not operate to exclude liability in connection with a duty to warn of risk.

D may have a duty to warn P of a risk, they can be liable if they fail to warn.

EG: Rootes v Shelton – Even if D was driving the boat negligently, any negligent will not be regarded as a cause, because it is regarded as a risk that the D could not avoid. The D may have a duty to warn the P. One could be liable to warn of the risk.

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(c) Illegality – Complete Defense (prevents the D from owing a duty of care)

Wrongs Act 1958 (Vic) ss 14G

Not automatically a defence, only sometimes a defence, in those cases where it is a defence it operates to prevent a duty of care arising.

Burden of proof is on D to show that illegality negates the duty.

Two types of cases:

1. Cases where P’s illegal conduct is independent of D’s negligence; and

2. Cases where P and D were jointly engaged in an illegal activity

Case 1: Independent illegal conduct

Is not necessarily a defence: Henwood

Reason: Not all illegality is serious and therefore should not prevent the P from claiming negligence.

Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 (CB 541 and 542)

Facts: P’s illegality consisted of putting head outside the tram. While leaning out, P hit his head on a pole and died. His parents sued the tram operator for negligence. The offered a number of reasons one of which is that the pole was too close to the tram. The D argued that the P’s illegal conduct was the cause. The court held that DoC was owed, the fact that the passenger broke the by law does not prevent a DoC from arising.

Test Proposed:

Where P acts independently illegally and there is a breach of statute or regulation.

Where P breached a statute or regulation, the question is whether that provision was intended to prevent someone in breach of it from suing for negligence: Henwood, per Dixon & McTiernan JJ

Essentially it is question of parliamentary intention. In this case Dixon and McTiernan held that the intention was to “protect them from their own folly”.

What was the purpose behind the statute or regulation, was it to prevent the P from suing in negligence or some other purpose?.

When is illegality a defence?

1. Illegality is sometimes not always a defence

2. Apply Henwood test.

3. If Henwood does not apply look at the seriousness of case. The more serious the more the court will be willing to make out illegality as a defence.

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Case 2: Joint illegal activity

Two Questions:

1. What is the intention of the relevant statute? (When applicable)

2. Can the standard of care owed in the circumstances be determined only by taking into account the illegal nature of the parties’ activity? - Jackson v Harrison (1978) 138 CLR 438

If answer is yes to question 2 then illegality will be a defence.

EG: Two robbing a bank, D is injured when P blows up a safe carelessly. Illegality is a defence.

Question 2 – Considerations

Gala v Preston (1991) 100 ALR 29 (CB 190)

Facts: Two people steal a car while drunk. They crash, and the passenger sues in negligence.

No statutory intention can be determined here with regards to negligence.

A SoC could not be determined because it would involve taking into account P’s illegal activity and therefore illegality was a defense.

Jackson v Harrison (1978) 138 CLR 438

Facts: D’s license was suspended. P knew D was driving without a valid license.

The majority of the HC held illegality was not a defense. Joint illegality had no effect on the SoC.

Joint Illegal Activities: two relevant considerations – when applying Question 2.

1. The nature and gravity of the offence in question.

2. The closeness of the relationship between the illegal act and the defendant’s negligence

Consideration 2

Italiano v Barbaro (1993) 114 ALR 21 (CB 542)

Facts: P injured in a collision. D and person in other car where involved in a conspiracy to claim compensation. P claimed the accident was genuine and not part of plan.

Court said even if they believed P’s claim, illegality would be a defense. Act of looking for a suitable place to stage the accident is intimately connected with the illegal activity. However driving home is not.

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Miscellaneous Issues

*Illegality negates the DoC. It may seem like BoP is on P but actually it is on D.

*Burden of Proof

Gala v Preston If the P can show a DoC existed ‘but for’ the illegality then BoP is on D.

*Wrongs Act 14G

Relevant to BoD, courts have to consider whether the P was engaged in illegal activity when determining whether there is a breach. ( Completely different from the issue above)

In cases where illegality is not a defence you still need to consider the illegal activity when determining breach.

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(d) Volunteers and Good Samaritans

Wrongs Act 1958 (Vic) ss 31A, 31B, 34-40

Good Samaritans:

Free to render assistance or care to an injured person.

CL, reasonable person test applied. Legislation modified it to:

Not liable for anything done in good faith.

Volunteers:

Volunteers defined as someone who does community work on a volunteer basis.

Volunteers protected provided they act in good faith.

Organization may be liable but not the volunteer.

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(e) Limitation of Actions

Limitation of Actions Act 1958 (Vic) ss 5(1), 5(1A), 5(1AA), 23A and 27D

s5(1) - A negligence action must be brought within 6 years of the cause of action accruing.

s5(1AA) - Personal injury cases: the action must be brought within 3 years of the cause of action accruing

s23(A) – Court has discretion to extend s5(1AA) to extend to 6.

s27D – Maximum total limit of 12 years for all cases from the date of the act which caused the injury.

When does a cause of action accrue?

Cause of action ‘accrues’ from the time all elements are made out. This means until the damage is suffered cause of action does not accrue. In most cases the cause accrues immediately. In the case of diseases the cause may only accrue a substantial amount of time after the breach.

EG: Diseases: Asbestos, P may only develop disease may year later. The cause then only accrues after disease develops.

Limitation of Actions Act S5(1A) – Only diseases or disorders.

- time does not accrue until knowledge of the disease is gained by P and;

- the disease or disorder is caused by some other person.

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(f) Contribution & Indemnity between TortfeasorsCB chap 18

Wrongs Act 1958 (Vic) ss 23B, 24 and 24AI

A defendant’s right of contribution is not actually a defense against the plaintiff’s claim, but rather a claim by a defendant against another co-defendant(s) aimed at apportioning part of the blame (and responsibility for damages) onto other defendants. This right arises under statute law:

Wrongs Act, s23B(1)

Where D is liable in respect of damage suffered by P, D may recover contribution from any other person liable in respect of the same damage

Wrongs Act 1958 (Vic), s24(2)

The amount of contribution D can recover from the other person shall be such as the judge or jury considers just and equitable, given the extent of that person’s responsibility for P’s damage.

Borad discretion.

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Remedies – Confined to personal injury (including physical damage or psychiatric injury)

(a) Damages

Wrongs Act 1958 (Vic), ss 28F-28H, 28LB, 28LE-28LH

Damages for personal injury

• Purpose of remedies: to put the plaintiff, as nearly as possible, in the position she would have been in had the negligent act not been performed

Once and for all rule: once damages have been assessed at trial, that is the end of the matter.

A consequence of the once and for all rule is that most times the court must predict what future losses the P will suffer. There is a margin of error and this cannot be rectified if the P has received a windfall or has suffered further loss.

The damages are a single lump sum including future losses. No yearly weekly payments.

Two Broad Heads of Damage

Pecuniary: financial losses caused by the defendant’s negligence

Non-pecuniary: non-financial losses caused by the defendant’s negligence

Pecuniary Losses - Financial losses suffered by the P as a result of D’s negligence.

Usually the below elements are the major areas of loss

– Loss of earning capacity – the courts need to estimate what income the P would receive from that date of the injury until end of working life. Can be difficult with younger children.

– Medical expenses – only reasonable medical care is compensated for, not best possible treatment

Non – Pecuniary Losses

In most cases 1 and 2 will be claimed.

– Pain and suffering – injured as a result of D’s negligence and pain was suffered it is possible to claim. Only physical not emotional distress.

– Loss of amenities – Emotional distress, frustration etc

– Loss of expectation of life – shortened life expectancy due to D’s negligence ( i.e D causes P to contract cancer etc), this is a relatively small amount, court find it difficult to judge the value of reduced lifespan.

Legislative Limits on Awards of Damages

Recent restrictions on damages for personal injury

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• A cap on damages for non-pecuniary loss (introduced in 2002): ss 28G-H

Cap is limited to: $371,380 on 1 july 2003 and is indexed to CPI.

• A cap on compensation for loss of earnings (introduced in 2002): s 28F

Cap is limited to: 3 x average weekly wage (if one earns more one can only receive this figure)

• A requirement (introduced in 2003) that the plaintiff suffer “significant injury” in order to receive damages for non-pecuniary loss: ss 28LE-LH

WA s28LF – Defines ‘significant injury’: An injury is significant only if the degree of impairment is more than 5% or if the injury consists of the loss of a fetus or the loss of a breast. A psychiatric injuries degree requirement is >10%.

WA s28LB – Damage must be permanent.

See also: M Lombard & M McGarvie, ‘Victoria’s Personal Injury Reforms’ (2003) 77(11) Law Institute Journal 58

(b) Wrongful Death & Survival of Actions

Wrongs Act 1958 (Vic) Part IIIAdministration and Probate Act 1958 (Vic) s 29

Wrongful death – P has died. CL requires the P to bring the action.

Two possible causes of action can be used:

1. Wrongful death action (WA s16 – 22)

Dependants of a person killed by D’s negligence can recover for any financial loss they suffer because of the death

D’s negligence must have caused the deceased’s death

WA s16 – The dependants can only claim if the P would have been able to claim had they been alive.

The dependants must also show that they had suffered financial loss because of the death. How? They must show that they where in fact dependant. (i.e single income household, other members can recover, they cannot recover for grief or distress).

In limited circumstances gratuitous care (eg: Deceased had been looking after a sick parent, if the parent can show free care then the parent can claim) can be claimed.

2. Survival of actions Legislation , Administration and Probate Act 1958 (Vic) s 29

Any cause of action the deceased had at the time of her death is vested in her estate. The compensation recoverable will generally be less for estates that living persons.

If D’s negligence caused the death: can only recover pecuniary losses suffered by the deceased between the injury and the death.

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If D’s negligence is independent of the death: can also recover for non-pecuniary harm suffered by the deceased before her death.

Differences between actions

In wrongful death the dependants bring the action. In survival of action the estate brings the action

The losses suffered under wrongful death are for losses after death. The losses under survival of action are for losses before death.

Administration and Probate Act 1958 (Vic) s 29(5) – Specifically allows action to be brought for both wrongful death and survival of actions.

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Documents

Negligence Elements