THE LAW OF TORTS

THE LAW OF TORTSTHE LAW OF TORTS

Action on the Case Action on the Case for Indirect Injuriesfor Indirect Injuries

INDIRECT INDIRECT INTENTIONAL INTENTIONAL

INJURIESINJURIES• ACTION ON THE CASEACTION ON THE CASE FOR PHYSICAL INJURIES FOR PHYSICAL INJURIES OR NERVOUS SHOCKOR NERVOUS SHOCK

•ACTION ON THE CASE ACTION ON THE CASE REFERS TO ACTIONS REFERS TO ACTIONS BASED ON INJURIES THAT BASED ON INJURIES THAT ARE CAUSED INDIRECTLY ARE CAUSED INDIRECTLY OR CONSEQUENTIALLYOR CONSEQUENTIALLY

INDIRECT INTENTIONAL INDIRECT INTENTIONAL INJURIES: CASE LAWINJURIES: CASE LAW

• Bird v Holbrook Bird v Holbrook (trap set (trap set in garden)in garden)–D is liable in an action on D is liable in an action on the case for damages for the case for damages for intentional acts which are intentional acts which are meant to cause damage to meant to cause damage to P and which in fact cause P and which in fact cause damage (to P)damage (to P)

THE INTENTIONAL THE INTENTIONAL ACTACT

• The intentional may be The intentional may be deliberate and deliberate and preconceived(preconceived(Bird v Holbrook )Bird v Holbrook )

• It may also be inferred or It may also be inferred or implied; the test for the implied; the test for the inference is objectiveinference is objective

• Wilkinson v DowntonWilkinson v Downton• Janvier v SweeneyJanvier v Sweeney

Action on the Case for Action on the Case for Indirect Intentional Harm: Indirect Intentional Harm:

ElementsElements• D is liable in an action on the case for D is liable in an action on the case for

damages for damages for intentional acts intentional acts which which are are meant to cause damage meant to cause damage to P and which to P and which in in fact cause damage fact cause damage to Pto P

• The elements of this tort:The elements of this tort:– The act must be intentionalThe act must be intentional– It must be one calculated to cause It must be one calculated to cause

harm/damageharm/damage– It must in fact cause harm/actual damageIt must in fact cause harm/actual damage

• Where D intends no harm from his act Where D intends no harm from his act but the harm caused is one that is but the harm caused is one that is reasonably foreseeable, D’s intention to reasonably foreseeable, D’s intention to cause the resulting harm can be cause the resulting harm can be imputed/impliedimputed/implied

Nationwide News Pty Ltd v Naidu [2007] NSWCA 377

• Facts: Nationwide News’ Fire and Safety Officer Facts: Nationwide News’ Fire and Safety Officer subjected the plaintiff to humiliating and subjected the plaintiff to humiliating and harassing treatment. The plaintiff suffered harassing treatment. The plaintiff suffered psychiatric injury in the form of Post Traumatic psychiatric injury in the form of Post Traumatic Stress DStress D

• Held: P successful. Spigelman CJ considered the intention required to establish a tort:

• “Calculated” can mean:– Subjective, actual, conscious desire to bring about the specific

result; or– What is likely, perhaps overwhelmingly likely to occur

considered objectively– However the subjective intention is unlikely to be required

because of the “imputed intention” in Wilkinson v Downton. – It may be enough to satisfy a test of “substantial certainty”– ‘Reckless indifference” will satisfy the intention

• While there is no finding that the superior in this case actually intended to inflict the psychiatric damage, the nature and scale of his conduct was such as to constitute a recognised psychiatric injury as a natural and probable consequence of that course of conduct.

Carrier v Bonham [2002]Carrier v Bonham [2002]

• A mentally ill D stepped in front of a bus A mentally ill D stepped in front of a bus in a deliberate effort to commit suicide. in a deliberate effort to commit suicide. Issue was whether D could be held liable Issue was whether D could be held liable for an ‘act calculated to cause harm’for an ‘act calculated to cause harm’

• Held: the concept imported a purely Held: the concept imported a purely objective testobjective test

• See See Carter v WalkerCarter v Walker. P claimed suffered . P claimed suffered shock when his mother called to inform shock when his mother called to inform him of an assault on her and his brother. him of an assault on her and his brother. He hurried to scene. He subsequently He hurried to scene. He subsequently brought action under brought action under Wilkinson v Wilkinson v Downtown . Downtown . Action failedAction failed. .

THE SCOPE OF THE THE SCOPE OF THE RULERULE

• The rule does not cover The rule does not cover ‘pure’ mental stress or mere ‘pure’ mental stress or mere fright fright

• The act must be reasonably The act must be reasonably capable of causing mental capable of causing mental distress to a normal* distress to a normal* person:person:– Bunyan Bunyan vv Jordan Jordan– Stevenson Stevenson vv Basham Basham

The CLA and Intentional The CLA and Intentional TortsTorts

• S3B:(1) The provisions of this Act do not apply S3B:(1) The provisions of this Act do not apply to to or or in respect of in respect of civil liability (and civil liability (and awards of of damages in those proceedings) as follows:damages in those proceedings) as follows:

• (a) civil liability of a person in respect of an (a) civil liability of a person in respect of an intentional act that is done by the person with intentional act that is done by the person with intent to cause intent to cause injury or death or that is sexual or death or that is sexual assault or other sexual misconduct committed assault or other sexual misconduct committed by the person-the whole Act except: by the person-the whole Act except:

• ……• (ii) Part 7 (Self-defence and recovery by (ii) Part 7 (Self-defence and recovery by

criminals) in respect of civil liability in respect criminals) in respect of civil liability in respect of an intentional act that is done with intent to of an intentional act that is done with intent to cause cause injury or death, and or death, and

The Exclusion of The Exclusion of Intentional torts from the Intentional torts from the

CLACLA• New South Wales v IbbetNew South Wales v Ibbet: Assault and trespass to : Assault and trespass to

land: The restrictions on the award of exemplary land: The restrictions on the award of exemplary and aggravated damages under the CLA held not and aggravated damages under the CLA held not to applyto apply

• Honda v NSW [2005]: Honda v NSW [2005]: wrongful arrest, malicious wrongful arrest, malicious prosecution and false imprisonment by a police prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injurybodily injury. Held injury not limited to bodily injury

• Zorom Enterprise v ZabowZorom Enterprise v Zabow: P suffered head injuries : P suffered head injuries as a result of an attack by a security guard as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person only excluded only the intentional acts of the person who actually committed torts and not the D who was who actually committed torts and not the D who was only vicariously liable. Argument was rejected only vicariously liable. Argument was rejected

s3B: ‘In respect of ….’s3B: ‘In respect of ….’

• NSW v Bujdoso [2007]NSW v Bujdoso [2007]• P was attacked by inmates while in prison. He P was attacked by inmates while in prison. He

brought an action the D for their negligence. brought an action the D for their negligence. Since the conduct of the inmates was intentional, Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the to exclude the restrictions of the CLA in the award of damages. award of damages.

• The argument centred on the phrase ‘in respect The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and of’ P argued that in respect of was broad and means that D’s liability arose in respect of the means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of The court rejected the argument. In respect of interpreted to refer to the person who did the interpreted to refer to the person who did the act and the person whose negligence led to the act and the person whose negligence led to the doing of the act. doing of the act.

SELF DEFENCE-TRESPASS SELF DEFENCE-TRESPASS & CLA 2002& CLA 2002

• s.3B(1)(a) Civil Liability Act s.3B(1)(a) Civil Liability Act (“CLA”) (“CLA”) i.e. CLA does not apply to “intentional i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act.torts”, except Part 7 of the Act.

• s.52 (2) CLA s.52 (2) CLA subjective/objective test subjective/objective test i.e. i.e. subjective ("…believes…" & "…perceives…")/ objective subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test.("…reasonable response…") test.

• s.53(1)(a) & (b) CLA s.53(1)(a) & (b) CLA i.e. “and” = two i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act defined in the Act so s.34 of the Interpretation Act 1987.1987.

• s.54(1) & (2) CLA s.54(1) & (2) CLA i.e. "Serious offence" i.e. "Serious offence" and "offence" are criminal terms so reference should be and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions made to the criminal law to confirm whether P's actions are covered by the provisions. are covered by the provisions.

NEGLIGENCENEGLIGENCE

INTRODUCTIONINTRODUCTION

NEGLIGENCE AND FAULT NEGLIGENCE AND FAULT IN TORTSIN TORTS

NEGLIGENCENEGLIGENCE

TRESPASSTRESPASSNEGLIGENCENEGLIGENCE

the actionthe actionCARELESSCARELESS

FAULTFAULT

INTENTIONINTENTION

Donoghue v. StevensonDonoghue v. Stevenson

• Ginger beer-decomposing snail-P has shock-Ginger beer-decomposing snail-P has shock-gastroenteritisgastroenteritis

• No privity of contract between P and D. Issue No privity of contract between P and D. Issue was whether D owed P a dutywas whether D owed P a duty

• Dicta of Lord AtkinDicta of Lord Atkin• You must take reasonable care to avoid acts You must take reasonable care to avoid acts

or omissions which you can reasonably or omissions which you can reasonably foresee would be likely to injure your foresee would be likely to injure your neighbour. Who then in law is my neighbour. Who then in law is my neighbour? The answer seems to be persons neighbour? The answer seems to be persons who are closely and directly affected by my who are closely and directly affected by my act that I ought reasonably to have them in act that I ought reasonably to have them in mind to the acts or omissionsmind to the acts or omissions

Negligence: The ElementsNegligence: The Elements

Duty of care

Breach

Damage

Negligence

NEGLIGENCENEGLIGENCE

• Grant v Australian Knitting Mills Grant v Australian Knitting Mills (1936)(1936)• The application of the rule in The application of the rule in D v SD v S

•a manufacturer of products, which he sells a manufacturer of products, which he sells in such a form as to show that he intends in such a form as to show that he intends them to reach the ultimate consumer in them to reach the ultimate consumer in the form in which they left him with no the form in which they left him with no reasonable possibility of intermediate reasonable possibility of intermediate examination, and with the knowledge that examination, and with the knowledge that the absence of the absence of reasonable care reasonable care in the in the preparation or putting up of the products preparation or putting up of the products will result in an injury to the consumerwill result in an injury to the consumer’’s s life or property, life or property, owes a dutyowes a duty to the to the consumer consumer to take that reasonable careto take that reasonable care

• whenever one person is by circumstances whenever one person is by circumstances placed in such a position with regard to placed in such a position with regard to another, that every one of ordinary sense another, that every one of ordinary sense who did think would at once recognise who did think would at once recognise that if he did not use ordinary care and that if he did not use ordinary care and skill in his own conduct with regard to skill in his own conduct with regard to those circumstances he would cause those circumstances he would cause danger or injury to the pdanger or injury to the peerson or property rson or property of the other (person) of the other (person) a duty arises to use a duty arises to use ordinary careordinary care and skill to avoid such and skill to avoid such danger.danger.

NEGLIGENCE: THE DUTY NEGLIGENCE: THE DUTY OF CAREOF CARE

Negligence: (Duty of Care)Negligence: (Duty of Care)

•The Duty of care is the obligation The Duty of care is the obligation to avoid acts or omissions which to avoid acts or omissions which are reasonably foreseeable to are reasonably foreseeable to cause damage to another.cause damage to another.

•When does one owe a duty of care?When does one owe a duty of care?– Whenever one is engaged in an act Whenever one is engaged in an act

which he or she can reasonably foresee which he or she can reasonably foresee would be likely to injure another person, would be likely to injure another person, one owes a duty of care to that other one owes a duty of care to that other personperson

General Principles: The CLAGeneral Principles: The CLA

• S 5B:(1) A person is not negligent in failing to take S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless:precautions against a risk of harm unless:– (a) the risk was foreseeable (that is, it is a risk of which the (a) the risk was foreseeable (that is, it is a risk of which the person knewperson knew or or

ought to have known), andought to have known), and– (b) the risk was not (b) the risk was not insignificantinsignificant, and, and– (c) in the circumstances, a reasonable person in the person(c) in the circumstances, a reasonable person in the person ’’s position s position

would have taken those precautions.would have taken those precautions.

• (2) In determining whether a reasonable person would (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant is to consider the following (amongst other relevant things):things):– (a) the probability that the harm would occur if care were not taken,(a) the probability that the harm would occur if care were not taken,– (b) the likely seriousness of the harm,(b) the likely seriousness of the harm,– (c) the burden of taking precautions to avoid the risk of 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.(d) the social utility of the activity that creates the risk of harm.

What is Reasonable What is Reasonable Foreseeability?Foreseeability?

• Reasonable foreseeability presupposes an Reasonable foreseeability presupposes an objective or a reasonable personobjective or a reasonable person’’s standards standard

• The reasonable person is an embodiment of The reasonable person is an embodiment of community values and what the community community values and what the community expects of a responsible citizenexpects of a responsible citizen

• The concept allows us to evaluate DThe concept allows us to evaluate D’’s s conduct not from his or her peculiar conduct not from his or her peculiar position, but from that of a reasonable position, but from that of a reasonable person similarly placedperson similarly placed

• Reasonable foreseeability is a question of Reasonable foreseeability is a question of law law

Reasonable Reasonable Foreseeability: Case LawForeseeability: Case Law

• Nova Mink v. Trans Canada AirlinesNova Mink v. Trans Canada Airlines [1951] [1951] (Air traffic noise causing minks to eat their (Air traffic noise causing minks to eat their young ones-No foreseeability) young ones-No foreseeability)

• United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949

• Palsgraf v. Long Island R.R. Co. (1928) Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-(Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-fireworks explosion causing injury to plaintiff.-No foreseeability)No foreseeability)

• Chapman v. HearseChapman v. Hearse (1961) (Car accident-Dr. (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-stops to help-gets killed by another vehicle-action against D who caused initial accident- action against D who caused initial accident- Foreseeability upheld)Foreseeability upheld)

[5] DUTY CATEGORIES: To [5] DUTY CATEGORIES: To whom is duty owed?whom is duty owed?

• One owes a duty to those One owes a duty to those so closely and directly so closely and directly affectedaffected by his/her conduct that she ought by his/her conduct that she ought reasonably to have them in contemplation as reasonably to have them in contemplation as being so affected when undertaking the conduct being so affected when undertaking the conduct in question.in question.

• Examples:Examples:– Consumers, users of products and structuresConsumers, users of products and structures

»Donoghue v StevensonDonoghue v Stevenson»Grant v Australian Kitting Mills Grant v Australian Kitting Mills »Bryan Bryan v v Maloney Maloney

– Road usersRoad users» Bourhill v YoungBourhill v Young

– Users and purchasers of premises etc.Users and purchasers of premises etc.»Australian Safeway Stores v ZaluznaAustralian Safeway Stores v Zaluzna

DUTY CATEGORIES: To DUTY CATEGORIES: To whom is the Duty Owed?whom is the Duty Owed?

• The unborn child:The unborn child: – There can be no justification for distinguishing between There can be no justification for distinguishing between

the rights… of a newly born infant returning home with the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his view on the back of a motor car being driven by his proud father and of a child proud father and of a child en ventre sa mere en ventre sa mere whose whose mother is being driven by her anxious husband to the mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a hospital on way to the labour ward to deliver such a child ( Per Gillard J in child ( Per Gillard J in Watt v RamaWatt v Rama))

– Lynch v Lynch Lynch v Lynch (1991)(1991)• But see the wrongful life casesBut see the wrongful life cases

– Waller v JamesWaller v James 2002 2002– Harriton v StephensHarriton v Stephens [2002] NSWSC 461

– Edwards v BlomeleyEdwards v Blomeley 2002 2002– www.lawlink.nsw.gov.auwww.lawlink.nsw.gov.au

5.6 RESCUERS 5.6 RESCUERS

• There are two separate issues in rescue:There are two separate issues in rescue:– The The ‘‘dutyduty’’ to rescue to rescue– The duty of care owed to the rescuerThe duty of care owed to the rescuer

• There is no positive legal obligation in the There is no positive legal obligation in the common law to rescuecommon law to rescue– The law does not The law does not ‘‘cast a duty upon a man to go to the cast a duty upon a man to go to the

aid of another who is sin peril or distress, not caused by aid of another who is sin peril or distress, not caused by himhim

• There may however exist a duty to rescue There may however exist a duty to rescue in master servant relationships or boat in master servant relationships or boat owner and guest relationships for instance owner and guest relationships for instance – Horsley v Macleran (The Ogopogo) (1971) 22 DLRHorsley v Macleran (The Ogopogo) (1971) 22 DLR

• One is only required to use reasonable One is only required to use reasonable care and skill ion the rescue care and skill ion the rescue

Unforeseeable PlaintiffsUnforeseeable Plaintiffs

• In general the duty is In general the duty is owed to only the owed to only the foreseeable plaintiff and foreseeable plaintiff and not abnormal Plaintiffs. not abnormal Plaintiffs. – Bourhill v YoungBourhill v Young [1943] AC 92 [1943] AC 92 – Levi v Colgate-Palmolive LtdLevi v Colgate-Palmolive Ltd – Haley v L.E.B.Haley v L.E.B. [1965] AC 778 [1965] AC 778