LLB102 - Torts

Negligence

1. Duty of care 2. Breach of duty 3. Damage

Manufacturers & consumer

Reasonably foreseeable that goods will be used; Donoghue v Stevenson; prevent product causing injury or loss to consumer (mean't to be in the form as is; no potential for examination; absence of reasonable care =damage)

Occupier & Entrant

Duty to persons entering the premises; Strong v Woolworths; reasonable care to avoid foreseeable risks of injury arising from the state of the premises and behaviour of others and activities on the premises (does not extend to criminal acts)

Employers & Employees

Duty of care to employees; Smith v Charles Bakers & Sons; reasonable care not to expose employees to unnecessary or foreseeable risks including creating a safe system of work, proper plans and equipment, competent supervisory staff.

Road users & other road users

DOC to other road users, persons or property adjoining including driving instructors, cyclists etc; Imbree v McNeilly; proper care not to cause injury to other road users through the avoidance of excessive speed, look-out and obeying of rules

School Authorities & students

School authorities owe duty of care to students; Commonwealth v Introvigne; Reasonable care to protect against foreseeable risks of injury as a reasonable parent, extending beyond school hours and premises

Medical Professionals & Clients

Duty of care to patients; Rodgers v Whitaker; reasonable care and skill in advice and treatment, including the examination, treatment and provision of information regarding material risks

Legal professionals & clients

Solicitors owe a duty of care; Heydon v NRMA; reasonable and due care and diligence in terms of the retainer

NDD School Authorities & Students

Students are Vulnerable NSW v Lepore

NDD Hospitals & patients

Care, supervision and control of patients in special need of care; Kondis v STA, Ellis v Wallsend

NDD Occupiers & Entrants

Owe NDD to licensees who are affected by activities on premises and assumes this NDD by inviting onto premises; Kondis v STA, Burnie Port Authority

NDD Employer & Employees

Ensure reasonable care is taken of its employees
The scope must be the responsibility of the employer thus cannot appoint another to the responsibility; Kondis

Employer & Employee EXCEPTION

May avoid liability if, with the parties' mutual consent, there has been a delegation of a whole aspect of NDD and that employee, who is qualified, is injured; Witham

Vicarious Liability

1. Tortfeasor must be an employee
2. Employee must have committed a tort
3. In the course of employment
Hollis v Vabu

Employee Multi Facet Test

Control
Remuneration
Provision and maintenance of equipment
Exclusivity
Hours of Work
Provision of Holidays
Deduction of income tax
Right to delegate work
Hollis v Vabu

In the Course of Employment

Question of Fact; NSW v Lepore
Includes tasks reasonably incidental to the performance of the employee's duties

Express Prohibition

An act carried out in the wrong way but still remains in the course of employment as it is just a wrongful mode of doing what an employee is authorised to do
Bugge v Brown; Rose v Plenty

Frolic

An employee does something that is in furtherance of their own interest; Storey v Ashton

Intentional Tort

Within the course of employment if it is an act that the employee was employed to carry out; NSW v Lepore

Pure Psychiatric Injury

Only harm the plaintiff has suffered

Consequential Psychiatric Injury

Suffered as a consequence of physical injury; Nader

PPI Multifactorial Approach

Sullivan v Moody
1. Recognised Psych injury
2. Reasonable Foreseeability - Normal fortitude, Direct Perception, Sudden Shock
3. Other Factors (Relationships, Control & Vulnerability, Coherency, Indeterminate Liability

Recognised Psych Injury

Not merely grief, anxiety or sorrow unless it manifests itself in a diagnosed psychiatric injury; Tame, Annetts

Reasonable Foreseeability

Was it reasonably foreseeable that they (individual/member of a class) could suffer; Gifford

Normal Fortitude

Not reasonably foreseeable unless an ordinary person of normal fortitude would have suffered. May still be able to recover if the defendant knows of the special position; Eggshell skull rule; Tame

Direct Perception

Suffers PPI as a result of harm occasioned to someone else - perception of incident or immediate aftermath; Gifford

Sudden Shock

Induced suddenly or by shock; Annetts (4 months), Tame

Plaintiff & Victim Relationship

Does not mean that plaintiff must be related to victim; Gifford

Plaintiff & Defendant relationship

Relationship between employer & employee; Annetts

Control & Vulnerability

Defendants control over risk and the plaintiff's ability to prevent harm; Gifford

Coherency

Consistency with legislation; Gifford; Annetts; Koehler; Tame; Sullivan

Indeterminate Liability

Opening the flood gates; Sullivan v Moody

Pure Economic Loss

loss that is not consequential upon physcial damage; Marsh v Baxter

Ascertained class test

D has knowledge of plaintiff individually and not merely as a member of an unascertained class; Gibbs & Mason (Caltex)
Issues arise with applying this to Fiji Gas - Plaintiff was not known to the D as individuals only as members of an unascertained class and thus it would seem strange if, by prior social contact ashore, those responsible came to know the appellants as members of the crew

Five Salient Features

Stephen J
1. Knowledge of likelihood of economic loss
2. Knowledge of existence and use
3. Infliction of damage to property of a 3rd party
4. Nature of detriment
5. Nature of claim (should mitigate first)

Physical Propinquity Test

Physical effect on the person or property of the plaintiff
Jacobs J: "persons or property was in such physical propinquity to the place where the acts... had its physical effect, that a physical effect on the person or property of the plaintiff was foreseeable as a result."

Fortuna Seafoods Current class position

HCA has allowed recovery, where class are restricted or vulnerable whether or not they're individually recognised at the time of the breach
", cannot be identified with complete accuracy"

Ascertainable Class Test

D Knew of had means of knowing that the plaintiff's were members of an ascertainable class of vulnerable persons unable to protect themselves from harm
1. Ascertainable class
2. D knew or had means of knowing
3. Vulnerability

Relational Loss

A person suffers relational economic loss when their pure economic loss is caused by damage to the property of a third party; Caltex

Neighbour Principle

Donoghue v Stevenson

Negligence

Tame v NSW

Tame v NSW case

Accident wasn't plaintiffs fault - developed psychiatric injury from stressing about mistake

Manufacturer & Consumer

Donoghue v Stevenson

Occupier & Entrant

Strong v Woolworths

Employers & Employees

Smith v Charles Baker & Sons

Smith v Charles Baker & Sons case

Stone negligently slung over workman's head and was injured

Road Users & Other Road Users

Imbree v McNeilly

School Authorities & Students

Commonwealth v Introvigne

Commonwealth v Introvigne Case

Lack of supervision - plaintiff swung on flag pole and was harmed

Professionals & Clients

Rodgers v Whitaker

School Authorities & Students NDD

NSW v Lepore

NSW v Lepore Case

Sexual assault of plaintiff whilst at school

Hospitals & Patients NDD

Kondis v STA; Ellis v Wallsend District Hospital

Kondis v STA Case

Employer injured after crane fell on him operated by Independent Contractor

Employer & Employees NDD

Kondis v STA

Occupiers & Entrants NDD

Kondis v STA

Employer & Employees NDD Exception

Witham v Shire of Bright

Vicarious Liability

Hollis v Vabu

Independent Contractor

Hollis v Vabu

In the course of Employment

NSW v Lepore

Express Prohibition

Bugge v Brown; Rose v Plenty

Bugge v Brown Case

Cooking case
"effect of disobeying instructions is to make an action so remote that he's a stranger to his actual job"

Rose v Plenty

Milkman prohibited from having children help on deliveries but he did and child was injured

Frolic

Storey v Ashton

Intentional Tort

Deatons Pty v Flew; NSW v Lepore

Multifactorial approach

Sullivan v Moody

Recognised Psychiatric Injury - not mere grief

Tame v NSW; Annetts v Australian Stations

Annetts v Australian Stations Case

Boy died when unsupervised at work on farm - Parents suffered sudden shock

Reasonable Foreseeability

Gifford v Strang

Gifford v Strang Case

Father in accident and the news of his death caused children to suffer sudden shock

Normal Fortitude

Tame v NSW

Direct Perception

Gifford v Strang

Sudden Shock

Annetts v Australian Stations (4 Months)

Relationship between Plaintiff & Victim

Gifford v Strang

Relationship between Plaintiff and Defendant

Annetts v Australian Stations

Control & Vulnerability

Gifford; Annetts

Coherency

Annetts; Gifford; Koehler; Tame; Sullivan

Indeterminate Liability

Sullivan v Moody

Caltex Oil v The Dredge "Willemstad" Case

damaged pipeline while dredging even though it was aware of the existence of the pipeline. This was used (but not owned) by the plaintiff and thus suffered economic loss

Ascertained Class Test

Gibbs & Mason JJ

Five Salient Features

Stephen J

Physical Propinquity Test

Jacobs J

Ascertained Class and social settings

Pincus Ja & Thomas J - Fiji Gas

Christopher v Fiji Gas Case

Crewmembers of a fishing vessel damaged in collision with defendants vessel, suffered PEL while vessel was being repaired

Fortuna Seafoods v the ship "Eternal Wind'

Fortuna Fishing's vessel and Ganta Shipping's bulk carrier collided

Ascertainable Class Test

Fortuna Seafoods

Defendant's Knowledge; Control; Indeterminate Liability

Fortuna Factors

Standard of Care

Imbree v McNeilly

Child D

McHale v Watson

Mentally Disabled D

Carrier v Bonham

Defendant that lacks knowledge and skill

Roe v Minister of Health

Physically Disabled D

Roberts v Ramsbottom

Child treated as adult exception

Tucker v Tucker

Knowledge and skill of the defendant

Rodgers v Whitaker

Inexperienced D

Imbree v McNeilly

Intoxicated D

Joslyn v BerryMan

Knowledge and skill of Pl

Bus v Sydney County Council

Child Pl

Doubleday v Kelly

Intoxicated Pl

CLA s 46(1)(c)

Breach of Standard of Care

Wyong Shire Council v Shirt; CLA s9(1)