As a duty of care is established between [P] and [D] it is necessary to examine whether [D] [Element 4]: Policy Issues

breached that duty.

PROBLEM MATRIX [Test 2]: Novel or Special Duty Category Despite showing that [D] may owe [P] a duty of care, control mechanisms may limit this
duty. These issues include: Sullivan v Moody
As the relationship between [P] and [D] is not an established category, it is necessary to
establish that [D] owed [P] a duty of care in relation to the circumstances in which [P] was i) Indeterminacy: recovery will risk creating an indeterminate liability to an
W HO? W HA T WHE RE ? HOW T O WHAT IS W HO ANY WHAT CAN P injured. [He/she] must show that the facts giving rise to the injury fall within a special duty indeterminate number of people.
ii) Disproportion: may impose an unreasonable or disproportionate burden of [D].
HAPPE NE D & GE T A NEE DED HAS T O DE FENCES GET IF
? WHE N
REMEDY? T O BE PROVE ? SUCCESSFULL category.
PROVE N? WHAT ? ?

WHO W HA T
P’s
INTE REST
D’s
CONDUCT
DIRECT?
P’S
DAMAGE?
CAUSE
OF
Category: Nervous Shock iii)Disincentive: litigation may operate as a disincentive to rehabilitation.
I NDIRECT?
INTE NT ION
ACTIO
N
Primary Victims: As [P] has also suffered a physical injury, consequential nervous shock iv) Coherency of the Law: (Hancock v Wallace- police must inform)
AL?
NEGL IGENT is also recoverable: Donoghue v Stevenson.
?
Tentative Conclusion
PART IES FACT S J URISDIC CAUSE OF E LE ME NT ONUS DE FENCES RE MEDIES
TION ACTION S OF As [P] is a primary victim [he/she] does not have to establish that the psychiatric injury
& PROOF
suffered was foreseeable in a person of normal fortitude. Based on [APPLY], it would be [likely/unlikely] that [D] owed [P] a duty of care. As
T IME
L IMITAT I
such, it [is/isn’t] necessary to determine whether [D] has breached [his/her] duty.
ON
Secondary Victims: As a [P] is a secondary victim, [D] does not owe [him/her] a duty to
take care not to cause pure mental harm unless [D] ought to have foreseen that a person of Pure Nervous Shock: Hancock v Wallace – father was a secondary hearsay victim, not at
normal fortitude might have suffered a recognised psychiatric injury if reasonable care was accident, not at aftermath, but told over phone that person decapitated may have been his
not taken. son; Pl recovered because of extremely close relationship with victim.
1. NEGLIGENCE TEMPLATE
To show that a duty of care existed, [P] must show that: Category: Illegality
A cause of action in negligence = when a person/property is injured by the failure of
The mere fact that P was acting illegally at the time is not a total defence (Henwood v
another to take reasonable care to prevent foreseeable harm.
[Element 1]: As a result of the actions of [D], [P] has suffered a recognised psychiatric Municipal Tramways Trust – Boy on tram decapitated)
injury in the form of [APPLY]. Joint Illegal Enterprise: Must look at the nature of the circumstances. Was there
Elements in Negligence:
proximity except for the illegal relationship (Gala v Preston – Playing Pool/ran out of
(1) Tortious cause of action (tort committed)
[Element 2]: [P’s] recognised psychiatric injury was the result of the sudden shock of money/stolen car/accident); merely being involved in illegality does not automatically
(2) Causation
[seeing/hearing] that [APPLY], rather than mere grief or emotional exhaustion: Jaensch v negate the existence of D.o.C. – have to examine the relationship (Proximity) btw parties.
(3) Remoteness
Coffey. - ‘A duty of care arises out of the relationship of particular persons, one to another. An
(4) No breach of duty to mitigate
illegal activity adds a factor to the relationship which may either extinguish or modify the
[Element 3]: [P’s] psychiatric injury must have been reasonably foreseeable to [D] at the duty of care otherwise owed.’ (Italiano v Barbaro – Scam)
[P] has a possible cause of action in negligence against [D]. To be successful, [P] must
prove on the balance of probabilities (Barnett v Chelsea & Kensington Hospital time: McLoughlin v O’Brian. [P] does not have to have normal fortitude as long as the
impact would be the same for a person of normal fortitude: Tame v New South Wales Category: Nonfeasance –failure to act
Management Committee) that:
Two types: 1. Failure to do something in the course of a positive act (e.g. failure to apply
To establish reasonable foreseeability the following factors affecting [P] must be taken brakes while driving. 2. Mere failure to take a positive action (e.g. to not jump into a fast
1) [He/she] was owed a duty of care by [D];
into consideration: moving river to rescue someone)
2) The duty of care was breached by [D];
3) P suffered a loss
The general rule is that [D] does not have a duty to take positive action for the safety of
4) D’s breach of duty actually caused the loss P suffered (Causation) 1) Close relationship of [P] with original victim: extends to anyone who is [P]: Stovin v Wise unless there is a:
5) Type of loss was reasonably foreseeable- was not too remote, a consequence of D’s bound by a relationship of love and affection. Certain classes (parents/spouses) are
conduct (Remoteness) presumed to have this relationship: Alcock v Chief of South Yorkshire Police; or 1) Pre-existing protective relationship between [P] and [D] imposes a
6) No part of the loss was caused by any failure of P to mitigate losses suffered Annett v Australian Stations; mom called work. positive duty to act:

[D] must then raise defences such as volenti, contributory negligence or joint illegal
2) Direct Sensory Perception/Aftermath: i) Teacher/student: Richards v Victoria: must take
activity. (i) Hearing is sufficient: Hancock v Wallace: was not at reasonable steps to protect students; Geyer v Downs: once school
accident, not at hospital, told over the phone. grounds opened, duty of care arises; St Mark’s Orthodox Coptic
As the accident occurred on [DATE] [P] is within the 3 year statutory time limit for College v Abraham: student fell from balcony; school open = duty
(ii) Seeing: Alcock: it is insufficient to see it on TV if
[his/her] claim: LAA ss10-11.
DUTY OF CARE individuals cannot be identified, it is limited to those actually present. ii) Prisoner/prison authority: L v Commonwealth: must
separate violent offenders from those on remand.
(iii) Aftermath: Jaensch v Coffey: only saw victim go into
[P] must show that it is reasonably foreseeable that the possibility of careless conduct of
operating room; Spence v Percy: aftermath limited by time; death of iii) Occupier/visitor: Romeo v NT Conservation Commission
any kind on the part of [D] may result in damage of any kind to [P’s] [person/property]:
Donoghue v Stevenson. [NOTE: if statutory go directly to Statutory Authorities].
victim after 3yr coma is too far removed in time; Alcock v CCSYP:
identification at morgue is not close enough.
iv) Employer/employee: Paris v Stepney Borough

[Test 1]: Established Category 3) Antecedent Relationship: between [P] and [D]. Annett v Australian 2) Duty to prevent 3rd party causing harm to [P]:
The relationship between [P] and [D] falls within the established category of
[CATEGORY: CASE].
Stations: phone call established relationship. Duty owed due to the ordinary i) Child/parent: Smith v Leurs: a duty to prevent child from
principles of negligence, closeness of relationship between D and P combined with causing injury to others; Curmi v McLennan: parent liable because gun
Categories: D’s control and risk to son. was readily available to child;
Road users: Broadhill v Young.
Driver/passenger: Cook v Cook. 4) Sudden Shock: cannot be accumulated over time: Annetts. ii) Guests/hotel: Chordas v Bryant: a duty of care owed to
Doctor/patient: Rodgers v Whitaker.
Employer/employee: Smith v Charles Baker & Co.
5) Gruesome Factor: nature of the injuries: Hancock v Wallace. protect patrons; Wormald v Robertson: hotel liable because offender
had been complained about, but hotel did nothing until he assaulted
Occupier/invitee: Heaven v Pender. 6) Control: degree of control exercised by [D] over safety of victim: Gifford v another guest.
Manufacturer/consumer: Donoghue v Stevenson Patrick stevedores

1

3) Statute may impose a duty to act: Where an Act creates an obligation
and provides enforcement in a specified manner, as a general rule, performance
can’t be enforced in any other way: Bishop of Rochester v Bridges.
Tentative Conclusion
As the relationship between [P] and [D] is that of a [APPLY], it would be [likely that [D]
owed [P] a duty of care. As such, it is necessary to determine whether [D] has breached
their duty.
Category: Statutory Authorities
For [P] to succeed in a claim against [D], the court must decide that [D] is under a
common law duty to exercise statutory power and when exercising power they are under a
duty to take reasonable care: Anns v London Borough of Merton.
[Key Principles: Anns v London Borough of Merton
1) If SA exceeds power and thereby causes damage, it will be liable
2) If it has a duty to act and its failure to act causes damage, it will be liable
3) If SA has no statutory obligation to act, it is not liable for any failure to act
except when by its conduct it places itself in such a position.
4) Where it exercises powers in respect of operational functions, it will be liable]
[Element 1]: Legislative Intent [P] must show that the Act establishing the [statutory
authority] intended for it to be liable for [APPLY]. If given power – discretionary, if given
duty – mandatory.
[Element 2]: Did the authority have a CL duty to exercise statutory power?
As [P] claims that the [Statutory Authority] owed [him/her] a duty of care the courts will
examine the following salient factors: Crimmins v Stevedoring [NOTE: a ‘no’ answer to
any factor will result in no duty arising] or Graham Barclay Oysters
1) Reasonable Foreseeability: that their act or omission might result in injury to [P]
2) Class of People: did the authority have the power to protect the interest of a
specified class of people including the [P] rather than the public at large.
3) Vulnerability: [P] was especially vulnerable and could not reasonably be expected
to adequately safeguard himself or interests
4) Knowledge: knew or ought to have known of an existing risk of harm to a specific
class of people
5) Impose Liability: would the imposition of a duty of care impose liability with
respect to the [D’s] exercise of “core policy making” or “quasi-legislative”
functions? If yes, no duty.
6) Other Issues:
(a) Control: was the authority in a position of control: Graham Barclay
Oysters v Ryan 2002: Held that the council did not have enough control
over the manufacturing of oysters to establish a private duty of care to
the plaintiffs who contaminated HAV by eating oyster manufactured in
a lake which was under council supervision. It was a policy decision in
determining the nature of regulation of the oyster industry and
therefore not reviewable.
(a) Resources: the ability of the SA to afford to undertake
measures.
(b) Supervening Policy Reasons: e.g. indeterminacy
(a) Pyrenees Council v Day 1998: Council failed
to follow up an order directing tenant to repair fireplace; fire broke out and
damaged neighbouring property; held council owed a duty to neighbours
because:
i) Council had specific
knowledge
ii) Council had power to
prevent it
iii) P was vulnerable, so
power to prevent amounted to a duty
CASE DETAILS:
Sutherland S.C v Heyman: Facts: Council inspected P’s buildings (but not footings) &
approved. Cracks later appeared & P sued Held: Council was found negligent, but not
liable as there was no general duty was owed to exercise its powers. However if Councils
actions gave rise to reliance then a duty arises. Mason J spoke of general reliance. Mason
J also spoke of when it is policy the courts cannot intervene (ie: budgetary allocation,
social/political factors/restraints, but can when it is operational/discretionary.
Parramatta C.C v Lutz: Held: Adopted the ‘general reliance’ approach. The Council
owed a DOC because it had adopted a general practice of demolishing known derelict
buildings thus P entitled to assume council would promptly demolish building.
Pyrenee Shires Council v Day: Council failed to follow up an order directing tenant to
repair fireplace; fire broke out and damaged neighbouring property; held Council owed
duty to neighbours because: (i) Council had specific knowledge; (ii) power to prevent it;
(iii) P was vulnerable; so power to prevent amounted to a duty. Kirby applied Caparo test:
(i) Reasonable Foreseeability; (ii) Proximity; (iii) Fair, Just and Reasonable. Brennan
applied Legislative Intent test: was right to private recovery intended.
Perre v Apand P/L: P may recover if: (i) particular class of people at risk; (ii) the class is
vulnerable because unable to protect itself; (iii) it was only a minor variation on the rule
that physical damage was necessary to found an action.
Ryan v Great Lakes Council: No absolute duty owed by SA; Council ought to have
known the possible damage that would result from omission but failed to take reasonable
steps to prevent the damage. This case showed the importance of foreseeability.
Crimmins v Stevedoring: Facts: were Stevedores under D of C to warn workers of
asbestos. Held: no legislative intention that they were liable. Messy case need (i) Rf that
failure to exercise stat. Power would cause P’s injuries (ii) did it cause them to have to
warn a specific class (iii) was P vulnerable (iv) was there knowledge of possible harm to P.
AND DO NOT NEED (i) would such a duty impose liability in rewlation to core policy
making (ii) would it open flood gates
Critiacal factor – P’s vulnerability when compared with the D’s knowledge of the risk &
its powers to control or minimise that risk.
Brodie v Singleton Shire Council: "on occasions, the powers vested by statute in a public
authority may give it such a significant and special measure of control over the safety of
the person or property of citizens as to impose upon the authority a duty of care
Tentative Conclusion
The relevant salient factors, and in particular [APPLY], indicate that [D] [would/would
not] owe [P] a duty of care. As such, it [would/would not] be necessary to determine
whether [D] was under a common law duty to take reasonable care when exercising its
power.
[Element 3]: When exercising power did authority have a CL duty to exercise
reasonable care?
As it would appear that the Statutory Authority [was/was not] undertaking operational acts
they will give rise to liability to exercise reasonable care: Sutherland Council v Heyman
(no duty exists when making policy decisions, but duty exists in administrative and
operational matters. The level at where the decision is made determines if it is
policy/operational. Policy involves finance, social and political decisions. Is the decision
maker executive or subordinate?)
Tentative Conclusion
As [P] [was/was not] undertaking operational acts in relation to [APPLY] it would be
[likely/unlikely] that it was under a duty to take reasonable care.
[Element 4]: Duty of Land Managers
Duty arises when:
(1) Foreseeable Damage: (Nagle) is hidden rocks in lake; dove in
(2) Use Encouraged: (Nagle, Wilmot)
(3) Danger Not Obvious (Romeo) (Soper v GCCC – fall on wet
grass)
• Depending on obvious to who, P’s personal characteristics (see Ghantous: P
tripped on un-level footpath. HCA held not liable as ordinary people in broad
daylight should know (obvious).
(4) Administrative, not policy, decision: (Sutherland)
CASE DETAILS:
Nagle v Rottnest Island Authority: Pl injured when diving into rock pool. Because D
advertised, provided facilities and encouraged people to swim in rock pools, D brought
itself into a relationship of proximity with visitors and thus had a duty of care to protect
visitors from foreseeable risks – D should have erected warning signs.
Wilmot v South Australia: Pl injured when bike riding in nature reserve; distinguishable
from Nagle because D did not invite visitors to use the land and decision to leave land
open was made at a high level.
Romeo v NT Conservation Commission: Pl fell down cliff, sued for not having erected
warning signs or fence. Majority = duty owed, but not breached; reasonable care should
be assessed with reference to nature of land, extent of use and character of people (plaintiff
was drunk) who enter. Duty should only change when the authorities own conduct creates
a risk of injury or some special relationship arises.
Vairy v Wyong Shire Council 2005: P dived into shallow water, rare tidal occurance, hit
head, quadrepegic. Council found not to be liable. Shirt calculas: magnitide of risk against
the likelihood of happening, saw council not being under duty to erect sign.
Tentative Conclusion
As it would appear that [D] [APPLY] it [would/would not] owe [P] a duty of care. As
such, it [is/is not] necessary to determine whether they have breached that duty.
Category: Other Novel Category
Based on the facts provided, it would appear that the possible negligence by [D] does not
fall within an established or special duty category. As such, for [P] to have a claim against
[D] in a novel situation [he/she] must show: Sullivan v Moody
1) [He/she] was a member of a class of persons likely to be injured by [D’s]
conduct; and,
2) The law should allow for the incremental increase in duty of care situations to
the circumstances experienced by [P];
(a) Identify type of harm;
(b) Characteristics of the conduct;
(c) Nature of the relationship;
(d) Compare to previous decisions.
(e) Policy decisions.
In this case, [P] was [APPLY].
CASE DETAILS:
Pure Economic Loss: The Dredge Willemstad – Pipeline belonging to primary victim
ruptured, Pl normally used the pipeline and recovered costs for alternate means of delivery
even though Pl had not suffered physical property damage; Pl recovered because D had
peculiar knowledge that Pl in particular would suffer economic loss, not merely a class of
persons.
Pure Nervous Shock: Hancock v Wallace – father was a secondary hearsay victim, not at
accident, not at aftermath, but told over phone that person decapitated may have been his
son; Pl recovered because of extremely close relationship with victim.
2
Tentative Conclusion
As it would appear that [APPLY] it would be [likely/unlikely] that [D] would owe [P] a
duty of care.
BREACH OF DUTY
[D] would be considered to have breached [his/her] duty to [P] if [his/her] conduct fell
below that expected of a reasonable [APPLY] in the same position: Blyth v Birmingham
Water Co.
[Element 1]: Standard of care owed and subjective elements which may modify the
standard: REASONABLE PERSON TEST considers the following:
(1) Mental State: insanity is not a civil defence. D was insane, but judged
on the bases of an ordinary sane person (D’s insurer paid so he was effectively not
penalised for insanity; feared co-workers): Adamson v Motor Insurance Trust.
(2) Age: where there is a minor, his conduct should be judged based on his
ability to foresee (What is the standard of a reasonable 12yr old?): McHale v
Watson. But a minor who engages in dangerous adult activities must conform to the
standard of a reasonably prudent adult, eg driving car.
(3) Skill –
(a) Philips v William Whitely: [D] must exercise the level of skill they claim to
have. (First year lawyer or reasonable lawyer)
(b) Stokes v Guest, Keen & Nettlefolds: [D] will be judged according to a
higher degree of skill when he actually possesses that skill level.
(c) Rogers v Whitaker: A doctor must give warnings of risk if a patient
attaches significance to it (1/14000 chance of damage to eye).
(d) Bolam v Frierm Barnet Hospital: doctor is not negligent if he acts in
accordance with a practice accepted at that time as proper by a reasonable
body of medical opinion, even though other doctors adopt a different
practice. PERSUASIVE ONLY
(4) [P’s] peculiar knowledge and consensual relationship with [D]: the
standard of care changes with the relationship between [P] and [D].
• Relationship is modified by P’s knowledge: Cook v Cook: normally, personal
skill is irrelevant, but P knew that D was learning to drive, so D’s standard
was that of a reasonable learner. Also applies to drink drivers, depends on
what they know you drank – see ‘volenti’.
[Element 2]: Breach of Standard of Care
[D] will have breached the standard of care if a reasonable person in [his/her] position
would have reasonably foreseen that their conduct involved risk of injury to [P] or a class
of persons including [P] and whether [D’s] response to the risk was reasonable: Wyong
Shire Council v Shirt.
A foreseeable risk is one which is not farfetched or fanciful: Wagon Mound (No. 2).
In this case, it would be reasonable to suggest that [P] would be at risk of harm as a result
of [D] [APPLY]
While a reasonable response in this case would be [APPLY] whether this was reasonable
in the circumstances will depend upon balancing the magnitude of risk against the burden
of taking precautions: Wyong Shire Council v Shirt.
CALCULUS OF NEGLECT
[Test 1]: Magnitude of Risk:
(1) Probability of Harm: [D] need only guard against
reasonable probabilities, not fantastic probabilities: Bolton v Stone.
The risk of injury must have been foreseeable, not far-fetched or fanciful: Wagon
Mound (No 2). (now over-turned by statutory provision, section ??? PUT IN
EDWINA)
Standard of care expected of a reasonable man requires him to take into account the
possibility of inadvertent and negligent conduct by others: McLean v Tedman.
[APPLY]
(2) Seriousness of Harm: the more serious the potential
consequences, the more precautions must be taken: Paris v Stepney Borough
Council: an employer must take more precautions for an employee with one eye
than others with two eyes, if there is a risk to the eyes.
Burnie Port Authority v General Jones: in some cases the risk will be so high
because of vulnerability, that the standard of care will amount to a virtual guarantee
of safety, giving rise to a non-delegable duty to take reasonable care (often an issue
with sub-contractors). Risk is to be assessed at the time of incident.[APPLY]
[Test 2]: Burden of Taking Precautions:
The onus is on [P] to show there were reasonable measures available to [D] to limit the
risk to [him/her]. If shown, onus shifts to [D] to show that they were
unreasonable/impractical in the circumstances: Romeo v NTCC.
(1) Cost of Precaution: as a % of the whole operation, is
relevant: Wyong Shire Council v Shirt – waterskiing signs, yes. Bolton v Stone –
cricket fence, no.
(2) Ease of Precaution: if [D] has later provided for this risk
(i.e. after injury occurred) then shows the ease of taking precautions Calledonian
Collieries v Spiers (train track)
[Test 3]: Social Utility:
If present it overrides failure to take precautions. Court must balance the risk against the
end to be achieved.
Watt v Herfordshire SC: standard of care modified by utility of task undertaken (saving
lives justifies considerable risk).
Patterson v McGinlay: utility does not extinguish the standard of care, just modifies it.
[Test 4]: Customary or Statutory Standards
The fact that [P] was not adhering to the standards of careful conduct doesn’t mean
[he/she] is acting unreasonably, e.g. traffic rules.
Doesn’t matter what common practice in trade/industry is (except doctors - Bolam):
Mercer v Comm’r Road Transport. Once risk known of, must implement precautions:
Thompson v Smiths Shiprepairs.
Statutory standards (not action for breach of stat duty) are evidence of negligence just
highly persuasive: Tucker v McCann.
Tentative Conclusion: It would appear that [D] [has/has not] breached the duty of care by
[APPLY]. If this is correct, it is necessary to determine whether [P] has suffered damage
that was caused by [D] and that damage was not too remote.
DAMAGE
While [P] has suffered damage in the form of [APPLY], it is necessary to determine
whether on the balance of probabilities [D] has in fact caused [his/her] damage: Barnett v
Chelsea & Kensington Hospital Management Committee.
CAUSATION
[P] must show that [his/her] injuries would not have been suffered but for [D’s]
negligence: Barnett v Chelsea & Kensington Hospital Management Committee. [P] should
be aware that the court will examine the issue of causation in a practical, common sense
way, imbued with policy considerations: March v Stramare.
In this case, [P] will argue that but for [APPLY FACTS: CASE] he would not have
suffered [his/her] injuries.
CASE DETAILS:
1) Merely causing [P] to be to be at the scene of the accident is insufficient to establish
a causal connection, unless it materially increases the risk of injury:
March v Stramare: where [D] negligently parked a truck in the middle of the road, which
[P] crashed into.
McKiernan v Manhire: where [P] tripped in the hospital while recovering from her
primary injury suffered as a result of [D’s] negligent act, held that tripping could’ve
occurred anywhere, it was not caused by being at the hospital. Was the subsequent even a
completely new act not related to the initial injury. Gets damage from initial injury but not
subsequent.
Pyne v Wilkenfield: where [P] was wearing a neck brace from her primary injury suffered
as a result of [D’s] negligent act, which caused her to trip and suffer further injury. Held
that [D’s] negligent act was the reason for wearing the neck brace, therefore able to
recover for the subsequent event as well. So where the initial injury contributed to the
second injury – use this case.
Queensland v Keeys: where an officer suffered psychiatric injury after being struck by a
bullet, held that by failing to warn him of the threat made against the unit, the
commissioner had materially increased the risk of serious injury, because had the officer
known, he would have taken precautionary measures.
2) Where there are alternative causes, for [P] to discharge the onus of proof, [he/she]
must show one of the causes is more probably the cause:
The court may find one explanation is more probable than any others: TNT Management v
Brooks: where two trucks crashed and the wife of a killed driver sued, held that it was
more probable that the other truck was on the wrong side of the road.
If there are multiple explanations, but all involve negligence by [D], then [P] must
succeed, whichever explanation is chose: GIO v Best: where three possible causes where
identified, all supposing [D] was negligent while driving
If there are multiple explanations, the court will not speculate as to the cause in the
absence of evidence which shows one cause is more probable than the others: West v
Government Insurance Office: where [P], who was injured by [D’s] negligent driving,
suffered amnesia and the other passengers evidence was inconclusive as to the cause.
[NOTE]: Where [D] pleads novus actus interveniens:
[D] will argue that the [APPLY] is an intervening act that breaks the chain of causation
(even if the BUT FOR test is satisfied)
However, [P] will argue that as the [subsequent injury] to [P] is a predictable consequence
of [D’s] negligence [and was likely to occur even without the intervening act], the defence
cannot be relied upon to protect [D] from the subsequent injury: Adelaide Chemical v
Carlyle. [NOTE: unless medical treatment was inexcusably bad: Mahoneyv Kruschich]
[In this case, the chain of causation will be broken if [APPLY FACTS TO BELOW:
CASE]
1) Subsequent intentional act of a 3rd party:
Curmi v McLennan: where the intentional act of firing a gun was not found to break the
causal connection, because it was a predictable consequence of leaving the gun unattended
and there was also a breach of duty not to expose other children to the risk.
Yates v Jones: Addiction is caused by a NAI from the intentional actions of the drug pusher
& the addict to consume heroin. The addiction wasn’t caused by the original accident
caused by D’s neg.
Havenaar v Havenaar: Voluntary consumption of alcohol broke the causal chain between
D & alcoholism. However if alcohol was considered the only method to relieve the pain
then it isn’t a NAI.
2) Subsequent negligent conduct of a 3rd party unless the third party’s negligence was
reasonably foreseeable:
Chapman v Hearse: where a doctor attending to a car accident victim was struck by a car
driven negligently by a third party, held that is reasonably foreseeable that a volunteer will
be injured by another’s negligence during a rescue.
Mahoney v J Kruschich P/L: A worker received negligent medical treatment for a injury
suffered at work due to the employer’s negligence, which resulted in further
complications, held the employer was liable for the further complications because it is
3
predictable that negligent medical treatment will be given. Negligent medical treatment is
only an intervening act if it is inexcusably bad (gross). = gross negligence
Bennet v Minister for Community of Welfare: where [D] failed his duty to seek legal
advice for [P] who was injured in a state ward, and subsequent to his release [P] received
incorrect and negligent legal advice about his right to compensation for his injury from a
third party, held that the third party’s negligent advice was not an intervening cause,
because the reason it had to be sought in the first place was because of [D’s] original
negligence.
3) If there is free, informed and voluntary subsequent conduct by [P], which results
in his further injury, the chain will be broken:
Yates v Jones: where [P] who was recovering in hospital became addicted to drugs and
sued for the addiction as a result of being in hospital, but addiction was not from
medication, rather from illicit drugs bought from a dealer, held that [P’s] free choice broke
the causal connection.
Havenaar v Havenaar: where [P] became an alcoholic after an accident and sued for it, he
claimed it was to relieve pain, held that voluntary consumption of alcohol breaks the
causal connection, unless there is no other way to relieve pain.
[NOTE]: Requirement for positive evidence (the onus of proving causation rests very
firmly on [P])
Quigley v C’th: If its improbable that the [P] would have used the safety feature that [D]
was negligent in failing to provide, then there is no causation. [P] must prove he would
have used the feature had [D] provided it
McLean v Tedman: If [P] proves there is causation then [D] must disprove it. [D] bares
the evidentiary onus of showing that the suggested system of work wasn’t reasonable
practicable because [P] would not have used it even if it was provided & he wouldn’t be
able to enforce compliance.
Tentative Conclusion
It would be likely that [P] would establish that [his/her] injuries were caused by [D]. If
this is correct, it is necessary to determine whether [P’s] injuries were not too remote.
REMOTENESS
In order to recover, [P] must show the damage suffered is not too remote in law.
The [damage] suffered by [P] must have been of such kind that the reasonable man should
have foreseen: Wagon Mound No 1. In this case, [P’s] [damage] would be reasonably
foreseeable as it is not far fetched or fanciful that [he/she] would suffer [damage] as a
result of [D’s] actions: Wagon Mound No 2.
Provided that the type of harm is foreseeable, the extent of harm and the precise manner in
which it occurred is irrelevant: Hughes v Lord Advocate.
[Test 1] – Is the damage of such a kind that the reasonable man should have foreseen:
Wagon Mound No 1. Must consider two issues:
1. Kind of damage suffered: defining it narrowly or widely impacts on the
foreseeability of it, the more qualifications on kind of harm, the harder it is to
foresee. Provided the type of harm is foreseeable, the extent of that harm and the
precise manner in which it occurred is irrelevant: Hughes v Lord Advocate; and
2. If it was reasonably foreseeable: a risk is reasonably foreseeable if it would occur
to the mind of a reasonable man in D’s position and he would not brush it aside as
far-fetched or fanciful: Wagon Mound No 2.
Egg Shell Skull Rule: If [P] has shown that the damage is reasonably foreseeable, then
[D] is liable for any consequential damage which results because of [P’s] peculiarities:
Smith v Leech Brain. The tortfeasor takes his victim as he finds him. Does not apply to
psychiatric illness in Aus (Rowe v McCartney)
CASE DETAILS:
Tremain v Pike Facts: Employee got a rare disease from rat wee, sued for not controlling
plague Held: Disease contracted from rat bite or food poisoning would be Reasonably
Foreseeable; but disease contracted from rat wee isn’t Reasonably Foreseeable.
Nader v UTA Facts: Boy fell off bus, minor injuries; developed a psychological disorder
partly due to overprotective parents Held: Parents reacting that way is Reasonably
Foreseeable & his condition is attributable to their reaction; thus its Reasonably
Foreseeable
Richards v State of Victoria: Teacher failed to stop schoolyard fight, boy knocked on head
resulting in paralysis because of a pre-existing physical condition, D liable for paralysis.
Stephenson v Waite Tileman Ltd: P developed ‘compensation neurosis’ as a result of injury
because of a pre-existing psychiatric condition – vulnerable personality.
Rowe v McCartney Pl was driver in crash where passenger was paralysed; Pl suffered guilt
neurosis. Court held Pl couldn’t recover for mental illness as it resulted from her own
actions (Policy considerations) Dissenting judgment reasoned that Pl would have
recovered damages if she took action for Nervous Shock rather than guilt neurosis.
Tentative Conclusion
As [P’s] damage [would/would not] be reasonably foreseeable it would be [likely/unlikely]
that the damage would be considered not too remote. If this is correct, it is necessary to
determine whether [P] has any defences available.
DEFENCES
Having found that P’s injuries were the result of D’s negligence and that they were not too
remote it is necessary to determine whether a reduction of damages would be allowed to
reflect the % of blame apportioned to P or whether D can rely on the defense (Law Reform
Act 1951 Qld).
Contributory Negligence: Where P’s own negligent conduct has contributed to the injury
suffered D can argue that P didn’t take reasonable steps to protect himself from the injury
(Davies v Swan Motor Company – Garbo on back/Hit by bus/explicit instructions). P’s
negligence need only contribute to the harm not the accident (Froom v Butcher – Not
using the Seat Belt/25%) no seat belt/Statutory automatic 15%. Negligence on P must have
contributed to the injury (Jones v Livox Quarries – lunch truck/on back of pickup)
Last Opportunity Rule: If the D had the last chance to avoid the accident then the P
would succeed (Davies v Mann – Road/Donkey hit) All or nothing concept. Will also will
be relevant if P had the last chance to avoid the accident, then D may succeed (March v
Stramare – fruit truck/drunk driver) Onus is on D to prove that P fell short of the standard
(Davies v Swan Motor Company)
Agony of the Moment/Sudden Emergency: There is a balance btw the degree of
inconvenience and the risk taken to escape it (Caterson v Comm’r for Railways – child on
platform/father jumps); If you create the danger then you can’t criticize the response of
someone else to the danger (Shelley v Szelley – Blown Tire/Goofy Face).
Employer/Employee cases: If the employer provides an unsafe system of work, the court
will take this into account (McLean v Tedman – Garbage Men); Inattention due to
familiarity, repetition, and preoccupation is not contributory negligence (Comm’r of Rlwys
v Ruprecht – Manager/Lost legs; Did P believe that what he did was required of him?
Irrelevant whether he knew or ought to have known (Comm’r for Rlwys v Halley –
trainee/shunting yard); Duty to take care of yourself and not rely on everyone obeying
laws (Sibley v Kais – pulling out/hit)
IN SUM: 1. P was at fault/negligent 2. Causation/ causal link btw P nglt conduct & P’s
Damage
3. P’s injury must be within the area of risk created by P’s negligence
Volenti (Voluntary Assumption of Risk) A volunteer cannot complain of injury
Onus is on D to Show that P: (Roggenkamp v Bennett – P& D on Drunk bing/Driving)
1. Perceived the existence of danger 2. Fully appreciated that danger, & 3. Voluntarily
accepted the risk of that danger.
____________________________________________________________
• When P is aware of risk and consents to risk a Volenti claim by the D will
succeed (Smith v Baker & Sons – crane rock/injury; ICI v Shatwell – 2
bros./quarry/blew themselves up)
• Can accept the inherent risk of activity but not of negligently performed duties
outside scope of activity (Roots v Skelton – waterskier/negligent driver; Raniery v
Raniery – inexperienced driver)
• Consent must be real, free and voluntary to legal risk as well as physical risk
(Nettleship v Weston – learner/driver); Not sufficient that P ought to know of risk,
must prove actual knowledge (Scanlon v American Cigarette Co – lung cancer).
Sports/Spectators: Must take reasonable care for safety of all specatators, but if P goes
outside that reasonable care then Volenti can be used (Australian Racing Drivers Club v
Metcalf )
Rescue Cases: It is RF that a person will come to the rescue; Volenti cannot be used
against a rescuer bc they haven’t volunteered to accept the legal risk of injury. Moral
obligation means they are not free to choose (Haynes v G Harwood & Son).
Exclusion/Disclaimer Clauses: Objective test of determining whether it is a contract case
(objective) or a torts case involving a subjective question of what P actually knew and
consented to (Macleay v Moor – Wobbley’s World/Rides; Birch v Thomas – Octopus
Ride)
Damages/Remedies
Might be affected by whether P mitigated their loss (Apportionment of Fault Law Reform
Act).
a) Compensatory Damages for actual damage suffered
b) Exemplary Damages to punish D if shows a conscious disregard for P’s rights
c) Aggravated Damages for hurt feelings, indignity humiliation etc.
NOTE:
If [D] is an employee, or contractor look also at vicarious liability and non-delegable
duties.
TRESPASS TO THE PERSON
Trespass to the person is the wrongful, direct and intentional interference with [P’s]
physical integrity: McHale v Watson.
BATTERY TEMPLATE
[D] will be liable for battery if [P] can show direct, intentional, reckless or negligent
touching of [his/her] person by [D] without consent or lawful justification: Innes v
Wylie (doorway obstruction not positive/voluntary) Protected interest = P’s physical
integrity
Battery is actionable per se, as such [P] does not need to show damage and need only
show the fact of trespass.
Onus: P must prove direct interference. Once [P] has discharged the proof of direct
interference.
The onus then shifts to [D] to raise a defence. If there is actual harm to [P] then remedies
include compensatory, aggravated or exemplary damages. An injunction is also obtainable
if the battery is feared as being on going.
[ELEMENTS]: Direct, Intentional, Reckless or Negligent:
[D], by [facts of act] has made contact with [P]: Innes v Wylie. While the contact was a
direct result of [D’s] act, [D] does not have to come into actual contact with [P]: Scott v
Shepherd (fireworks) Direct = impact followed so closely it is considered part of the act:
Reynolds v Clarke (thrown log/hit head)
[D’s] act, which led to the contact, came about through
[intention/recklessness/negligence], and it is irrelevant that [D] did not mean to hurt [P].
McNamara v Duncan. Hostility is not a requirement, however, hostility can make an
otherwise permitted contact a battery.
Fault

4
No liability unless D intended impact or cause negligently (Cole v Turner). Knowledge of
P (asleep) or D (Law v Visser – drove over D thought was object) not a requirement.
Irrelevant if D didn’t intend to hurt P (Duncan v Macnamera – AFL). Hostility is not a
requirement, however it can make otherwise permitted contact a battery (Rixon v Star
City). D’s motive to commit act, however beneficial, does not affect its trespassory
character (Murray v McMurchy – extra surgical procedure).
Physical Interference
Must be active, not passive (Innes v Wylie). Unwanted contact not necessarily battery.
Must be offensive outside accepted usages & accidental contact of daily life (Collins v
Wilcock). Contact need not be forceable (Forde v Skinner – Cutting hair, R v Cotesworth –
spitting in face, Kaye v Robertson – Accepted possibility of flashlight).
Additional elements that may be required based on facts:
 Every surgical procedure is an assault, unless it is authorised (consented to by [P]),
justified or excused by law: Marion’s Case
 Consent may also be implied by conduct: All physical contact is battery unless it is
conduct impliedly expected in everyday life, e.g. jostling on buses, crowds etc. The
conduct must be offensive outside the accepted usages and accidental contacts of
daily life: Collins v Wilcock
 The [D’s] motive to commit the act however beneficent does not affect its
trespassory character’: Murray v McMurchy:
 [D] can’t rely on [P] consenting to contact if contacts [P], causing injury, in a
manner outside the rules of game: McNamara v Duncan (AFL)
 Even if there is consent to some contact outside the rules of the game; consent
doesn’t extend to contact that [D] knew or ought to have known would have caused
injury to [P]: Giumelli v Johnston (AFL)
 Accidental poke in eye in NRL not battery: Hilton v Wallace
 A touch to gain attention is acceptable, a physical restraint is not: Rawlings v Till
Onus of Proof
Freeman v Home (UK): absence of consent is an element or tort, so [P] must prove he did
not consent to the contact. Traditional view of Court
Marions Case: McHugh J; Consent is a defence to battery; [D] has the BOP to prove [P’s]
consent
ELEMENT: Defences: (Choose one option)
1. [D] [can/can not] show that [P] consented to the contact by [apply facts]
Collins v Wilcock, and as such [D] [has a/ has no] defence: McNamara v Duncan.
2. In playing contact sport, a certain amount of contact is consented to, but
something intentional and outside the rules, will constitute battery: Giumelli v
Johnston. The question then becomes was [apply facts] consented to? From the facts
of the case this [was/was not] consented to and as such [D] [does/does] not have a
defence.
3. [D’s] contact [was/was not] in self-defence Fontin v Katapodis, and [was/was
not] also proportional to the threat from [P]. As such [D] [does/does] not have a
defence.
4. [D’s] contact [was/was not] provoked and as such he [does/does] not have a
defence: Fontin v Katapodis. However, provocation is not available to reduce
compensatory damages, but is available to reduce exemplary damages.
5. [D’s] contact with [P] was required by medical necessity, and while every
surgical procedure is battery unless it is authorised, necessity excuses this: Marion’s
Case. However, defence does not apply where the patient has given a certificate of
refusal. As such [D] [does/does] not have a defence.
ELEMENT: Remedies (Choose elements required and join with facts)
 If the threat is conditional, it is not assault if the accompanying condition renders
OPTIONS: the threat harmless: Tuber Ville v Savage.
1. If there fear of ongoing battery, [P] can seek an injunction.  If the condition requires a police officer to stop in performing a lawful duty, then it
is assault because [P the police officer] is lawfully entitled to do what the condition
2. As there were no actual damages, [P] can expect to receive nominal prohibits: Police v Greaves.
damages.
3. For suffering actual damage = compensatory damages are available. Future Time:
If the threat is a suggestion of assault at a future time, and there is no way for [P] to
4. As well as aggravated damages where there is loss of dignity or escape because [he/she] is at the mercy of [D] until the threat can be carried out, then the
humiliation Watts v Leitch. threat will amount to assault: Zanker v Vartzokas.
5. In some cases exemplary are awarded for unconscionable conduct which
requires punishment. [Element 2]: Intention
The necessary intention to establish an assault by [D] is an intention to cause apprehension
6. It should be noted that provocation can reduce damages, Fontin v in [P] that physical contact is about to occur: (Rixon v Star City- Casino worker did not
Katapodis, also the presence of hostility may affect the amount of damages display intent to harm) [P’s] reckless or negligent conduct may satisfy this.
awarded.
CASES DETAILS: [Element 3]: Ability and Apprehension of battery:
[Ds] [apply facts] fulfils the requirement of an actual or apparent present ability to carry
 Innes v Wylie: Police in doorway no physical contact: no battery out the threat: Brady v Schatzel (P knew D owned a gun)
 Marion’s case - Parent consent to sterilisation of retarded daughter. Court
Words Alone Clause: (use if required)
asked who has right to consent to sterilisation? The Court answered it by
finding the sterilisation was non-consensual as Pl did not consent to the • Even as [D’s] threat is purely verbal, it [does/does not] constitute assault as
contact herself. The onus is on D to prove Pl consented to contact. Test: Did the words [did/did not] cause fear of immediate violence in [P]: Barton v
the physical contact go beyond acceptable standards of conduct? Armstrong. (threat from telephone)
 McNamara v Duncan: (1979) – footballer case
• [P] must be aware of the assault by [D] as this is the very gist of the action.
Some examples of battery: [P] need not be afraid, but merely fear in knowledge and expectation that
 Punching another the action threatened will take place. As such we apply a subjective test as
 Shining a light in someone’s eyes to what [P] feels. As [P] is apprehensive, evidenced by [apply facts], this is


Spraying water on another
Using a weapon/implement to strike another e.g. stick, shooting a bullet,
sufficient, a lack of intent by [D] to carry out the threat is irrelevant: Hall v
Fonceca.
 An unwelcome kiss
 Snatching a book off another [ELEMENT 4]: Defences: (Choose one option)
 Doctor giving treatment without consent 1. [D] [can/can not] show that [P] consented to the assault by [apply facts], and as
such [D] [has a/ has no] defence: McNamara v Duncan.
 Using a 3rd party’s body to touch another 2. [D’s] conduct [was/was not] in self-defence McClelland v Symonss, and [was/was
not] also proportional to the threat from [P]: Fontin v Katapodis. As such [D]
ASSAULT TEMPLATE [does/does] not have a defence.
3. [D’s] conduct [was/was not] in self-defence of others Howard v Wing, and
[D] is liable for assault if [his/her] intentional or negligent act or threat directly places in [was/was not] also proportional to the threat from [P]. As such [D] [does/does] not
[P] a reasonable apprehension of an imminent physical interference to [his/her] person, or
4.
have a defence.
Note: Mistake is not a defence.
the person of someone under [his/her] control, without lawful justification.
5. Other defences open to [D] are emergency and inevitable accident and need to be
Onus: [P] need only prove direct threat to his/her person caused by [D’s] act, the burden applied as required.
then shifts to the [D] to show that the act was involuntary or they were not at fault (neither
intentional, reckless or negligent) [ELEMENT 5]: The Remedies (Choose elements required and join with facts)
OPTIONS:
1. If there fear of ongoing assault, [P] can seek an injunction.
[Element 1]: Direct threat: Select either verbal, conduct or combine 2. As there were no actual damages, [P] can expect to receive nominal damages.
Verbal: 3. For suffering actual damage, compensatory damages are available.
[D], by [apply facts] issued a threat to [P]. [D’s] means to carry the threat into actions 4. As well as aggravated or exemplary damages for any outrage to [P’s] feelings.
merely have to be apparent in [P’s] eyes: Stephens v Myers. 5. It should be noted that provocation can reduce damages, Fontin v Katapodis.
Conduct: FALSE IMPRISONMENT TEMPLATE
[D] behaved in a threatening manner by [apply facts]. [D’s] means to carry the threat into
Wrongful total restraint of P’s freedom of mobility directly caused by D’s intentional,
actions merely have to be apparent in the [P’s] eyes: Stephens v Myers.
reckless or negligent act without D’s legal justification. False imprisonment is actionable
SPECIAL CASES: (Apply if necessary) per se and as such [P] does not need to show damage only trespass: (Williams v Milotin)
Conditional threat:
5
Onus: then shifts to [D] to prove it was neither intentional nor negligent. [P] can seek an
injunction or damages if [D] is liable. Onus is on P to prove direct interference
(deprivation of liberty).
ELEMENT 1: RESTRAINT
Test 1: Actual restraint: (Choose either physical or psychological)
Physical:
 In this instance, [P] is [apply facts]. [P’s] actual restraint is more than mere
obstruction of movement in a particular direction, as [P] is confined within
boundaries set by D: Bird v Jones.
 [P’s] knowledge of this restraint is not necessary: Meering v Graham-White
Aviation. As personal freedom is so important it should be actionable per se even
without knowledge: Murray v Minister of Defence
Psychological:
 In this instance, [P] is [apply facts]. [P] feels there is no alternative but to submit to
[D’s] restraint.
 Coercion (Symes v Mahon) along with fear of public humiliation (Myer Stores v
Soo), is sufficient for psychological restraint.
Test 2: Reasonable means of escape: (Use whole clause)
 [P] has no reasonable means of escape without risk of risk of injury (Burton v
Davies) or serious inconvenience (R v Macquarie), as [he/she] was [use facts].
ELEMENT 2: DEFENCES
Test 1: Did P give consent: (Choose one option)
1. The argument that [P] gave consent through the course of their employment
is conditional on what was agreed to fall within the course of employment: Herd v
Weardale. [P’s] [apply facts] [does/does not] fall within what was agreed, and as
such she [has/has not] consented and [D] [is/is not] liable.
2. The argument that by entering into a contract [P] consented to [D] imposing
reasonable conditions of restraint, regardless of [P] knowing, is unlikely to carry
weight today because the sanctity of contract doesn’t prevail over principles of
liberty & freedom: Balmain New Ferry v Robertson:
a. If you revoke consent, you need to do it in a reasonable way. Ie
you can’t do it mid way of an airline flight.
3. The argument by [D] that there was legal justification is supported by
statutory authorisation that says [apply facts], and as such [D] is not liable for false
imprisonment. (Persons who are authorized to detain individuals include hospital
staff, parents, schoolteachers etc)
4. [D’s] claim that there was actually reasonable means of escape [is/is] not
supported by the [apply facts] and as such, [D] [is/is not] liable for false
imprisonment.
5. [D’s] claim that it was unintentional or without negligence does not cover
mistake as to the right to imprison P, Cowell v Corrective Services Commission and
as such is not a defence.
ELEMENT 3: REMEDIES (Chose elements required and join together with facts)
OPTIONS:
1. As the tort is ongoing, [P] can seek an injunction.
2.
Where there is no damage = nominal damages.
3. For suffering the loss of freedom = compensatory damages are available.
4. As well as aggravated damages where there is loss of dignity or humiliation
Watts v Leitch.
5. In some cases exemplary are awarded for unconscionable conduct which requires
punishment (exemplary b/c court is making an example of the D)
6. It should be noted that an apology reduces damages: Walter v Alltools
CASE DETAILS:
 Bird v Jones: (failed because barrier on bridge was a mere obstruction, not
total rest)
 Burton v Davies: dangerous to jump from a moving car, not reasonable
escape.
 Herd v Weardale: Coal miners: if [P] consented to it through the course of his
employment, he cannot claim FI; the question arises, what did the parties
agree was within the course of employment.
 Meering v Graham-White Aviation: [P] asked to wait in room for an
interview, but real purpose was not said. A guard was outside the closed door
and intended to stop him if he attempted to leave; held to be F.I
 Myer Stores v Soo: Soo mistaken for a shoplifter and surrounded by security
guards who ‘requested’ that Soo accompany them to the office for an
interview; when Soo attempted to protest, guards insisted; held that it was
total restraint because Soo couldn’t refuse for fear of public embarrassment.
 R v Macquarie: – having to swim to escape is seriously inconvenient.
 Symes v Mahon: – although not physically restrained, the will of [P] was
subverted by [D’s] psychological pressure; [P’s] submission to go to Adelaide
was not free and voluntary.
2. TRESPASS TO LAND TEMPLATE [IF INDIRECT GO TO NUISANCE]
[P] may have a cause of action against [D] for trespass to land if [D’s] intentional,
reckless or negligent act directly interferes with [P’s] exclusive possession of land
without consent or lawful justification.
As trespass actionable per se [P] does not need to prove damage, just direct interference.
[D] must disprove fault. The remedies open to [P] are damages and or an injunction.
Onus: On P to show direct interference. Shifts to D to disprove fault. Protected interest =
Right to exclusive possession.
ELEMENT 1: Voluntary
[D’s] act of [apply facts] was an [intentional/voluntary/negligent] act: Public Transport
NSW v Perry.
• Voluntary – it is no trespass if you were pushed onto the land: Smith v Stone
• Involuntary – A person who had an epileptic fit and fell off a railway platform onto
the train lines was held not to have trespassed on the lines: Public Transport
Commission of NSW v Perry
ELEMENT 2: Direct Interference: (If not direct go to nuisance)
[Test 1]: Direct Interference: (Add items below if needed for direct)
• Not limited to entry by a person – can be projecting things over or in land: Davis v
Bennison
• Includes failure or refusal to leave the land.
•
Continues until rectified.
• D held liable for pushing dirt on the P’s land with a bulldozer: Watson v Cowen
• D held liable in trespass for releasing cattle onto the P’s land: Yakamia Dairy Pty
Ltd v Wood
• [D] may commit trespass by directly causing some object (parked car) to make
contact with the land unpermitted by [P]:Mayfair v Pears
• An advertising sign: Kelsen v Imperial Tobacco Co Ltd:
• Piping: Lawlor v Johnston:
• Tree branches: Gazzard v Hutchesson:
[Test 2]: Actual interference:
• As long as it might interfere with what you might want to do, does not matter
whether it actually does interfere with use/enjoyment: LJP Investments v Howard
Chia
• Mere apprehension of interference is sufficient: Graham v KD Morris
ELEMENT 3 Act done in respect of use and enjoyment of land:
[Test 2]: How far does land extend:
i) Legal Maxim: ‘rights in the soil extend to heaven and to hell’
ii) Rights in land only extend to what is reasonably necessary for the
enjoyment of the land. Therefore, a single flight over land ≠ trespass:
Baron Bernstein v Skyviews.
iii) What happens if there are frequent flights over land: Damage by
Aircraft Act 1952 (NSW): no action lies in trespass or nuisance, having
regard to wind, weather and all the circumstances of the case, provided
they don’t breach the rules of the aviation authority.
iv) Mining Acts: Latin maxim does not apply, because there is no private
ownership over the minerals in the land. Rights in minerals are separate
to the fee simple in the land. But note that unless consented to, or
authorized by legislation, extracting minerals, pouring water or other
fluids under the P’s property constitutes trespass.
(1) Bulli Coal Mining Co v Osborne: Tunnelling under P’s land for
the extraction of coal from under
ELEMENT 4: Without Consent: The burden of proof is on [D] to show consent:
Implied Licence
i) An implied licence exists to enter land for the purpose of lawful
communication or arresting the occupier: Halliday v Nevill
ii) This licence exists until it is revoked by the owner of the land – e.g.
by fences, gates, locks, signs: Halliday v Nevill
iii) Person must be bona fide seeking: Bryne v Cinema; Lincoln Hunt
iv) Does not extend to ‘robbers and nosey TV reporters”: Lincoln Hunt;
Rinsale v ABC
Limited License
i) Right to enter limited in scope. Entry unrelated to the right is trespass
of premises: Barker v R (furniture stealing)
ii) Where licence is conditional, & breach the conditions, it becomes
trespass: Konskier v Goodman
6
 Revocation of implied licence
i) Where the license is revoked, and there is subsequent entry, it is
trespass: Plenty v Dillon
ii) License can be withdrawn, and once it is, allow a reasonable time to
leave, and then use reasonable force to eject: Cowell v Rosehill
Racecouse
ELEMENT 5: Who Can Sue? Trespass protects [P’s] actual exclusive possession or
occupation of land, not ownership.
• Do not have to be actual owner of land – as long as you exercise proprietary rights
over the land, as long as act like have possession – exclusive possession , excluded
others: Newington v Windeyer
• Defacto possession is enough. Tenants included: (Rodriguez v Ufton: action v
landlord)
• No need to prove legal or equitable title to the land (Kelsen v Imperial Tobacco)
anyone who in fact has exclusive possession of property is treated as having right to
possession of that property, even if they have wrongfully taken possession of it.
• Interest short of proprietary
o Profit a prende – a right to take - sufficient: Mason v Clarke:
• Right to exclusive possession: Concrete Constructions v BLF
• If there is a dispute between someone in possession as a matter of fact and someone
who has a legal right to exclusive possession, the latter wins: Delaney v TP Smith
Ltd
ELEMENT 6: Defences
1) Lawful arrest/Warrant to enter the house.
2) Abatement of nuisance by self-help: can trespass on land to stop a nuisance in the
case of an emergency: Jones v Williams
3) Statutory authority to enter eg Hen Quotas Act (Qld).
a) However, the statutory authority to trespass must be through clear and
unambiguous language – general language is insufficient: Coco v R
4) Necessity: requires public utility (Winfield v Jolowicz) or to save a life (Sharrin v
Haggerty)
ELEMENT 7: Remedies
Damages:
1) Nominal: don’t need to prove damage. Entitled to nominal damages. Actionable per
se.
2) Compensatory - Where the damage is the natural consequence of the trespass,
compensatory damages are available: Hogan v Wright
3) Exemplary – punish and deter (Lincoln Hunt v Willesee)
4) Injunctions: for continuing and repeating offences, or if it was reasonable to
believe that the offence would be repeated: Konskier v Goodman
5) Self-Help : If entitled to immediate possession, then you are able to use reasonable
force to eject the trespasser. The same applies to a trespassing object or material –
provided you don’t use more than reasonable force (Cowell v Rosehill Racecourse)
CASES
 Davis v Bennison: cat on neighbours garage, took shot neighbour in between
sued for trespass
 Delaney v TP Smith Ltd: P took possession of house under a lease that was
legally ineffective and which did not give him any right to exclusive
possession. D forcibly evicted P. Held that D’s legal right to exclusive
possession overrode the fact of the P’s possession.
 Graham v KD Morris: injunction granted against a crane jib
 Halliday v Nevil: 2 police officers walked up driveway and arrested
disqualified driver held: arrest was lawful b/c of implied license to enter for
lawful communication. Open and unobstructed, no gate or lock, no notice
prohibiting entry.
 LJP Investments v Howard Chia Investments: D carrying out commercial
development and requested scaffolding to go up on neighbours land –
injunction granted restraining them
 Lincoln Hunt : invaded the place with dissatisfied customers with rolling
camera held: trespass
 Newington v Windeye: “the grove” def took down fence and put up low brick
wall with gate giving access to the grove. [P] were not the registered owners
of the grove, but could still maintain action in trespass b/c had engaged in
many acts of ownership over a period of 50 yrs. Employed man to mow lawn
& maintained tress garden & rockeries. On many occasions they told
uninvited visitors that they were trespassing. Held: entitled to sue b/c trespass
protects possession.
 Plenty v Dillon: father expressly revoked consent of the police, summons
could have been sent by post held: trespass, might be different if they were
coming to arrest
 Public Transport Commission of NSW v Perry: A person who had an epileptic
fit and fell off a railway platform onto the train lines was held not to have
trespassed on the lines.
 rd
Smith v Stone – the D did not commit trespass as he was thrown by 3 parties
onto the land.
VICARIOUS LIABILITY & NON DELEGABLE DUTY
General Points for Vicarious liability:
 Vicarious liability is where one person is held liable for a tort committed by
another person.
 It is not an independent course of action.
 The person does not have the actions attributed to them; rather they take
responsibility for the actions.
 Parents are not held liable for the torts of their children unless they employ
them.
 Vicarious liability is always strict liability, but not absolute liability, and must
be distinguished from personal liability.
The injured party must show a meaningful connection between the

employment and the tort.
Why have vicarious liability?
 The desirability of providing a deep pocketed and solvent D.
 The capacity of the employer to absorb the cost of liability as part of the
enterprise – insurance.
 The employer gets the benefit of the employee to advance their own interests
so it is just that they should bear the losses incurred by those in the enterprise.
 It acts as a deterrent to encourage the employer to prevent accidents.
General Points For Vicarious Liability
 Non delegable duty is used to justify the imposition of liability on one person
for the negligence of another to whom the former has entrusted (or delegated)
the performance of some task on their behalf.
 Under the law of negligence, duty cannot be delegated though performance of
the duty can be: Elliot v Bickerstaff.
VICARIOUS LIABILITY NON-DELEGABLE DUTY
• Secondary/derivative claim: not an • Primary claim – an
independent cause of action. independent cause of action
• Applies to all torts • Applies to just the tort of
negligence
•
Strict liability
• Must prove fault – Lepore,
• Nothing that an employer can do to •
Rich v Samin
Not a duty to take reasonable
prevent being subject to vicarious liability. care, but a duty “to see that care is
taken.”
VICARIOUS LIABILITY TEMPLATE
Employers are vicariously liable for the torts of their employees which are committed in
the course of their employment. Even though there may be no fault on the employer
liability arises bc of the special relationship btw employee and employer. Parents are NOT
vicariously liable for the actions of their children (McHale v Watson).
As vicarious liability is strict liability [P] will then be able to recover damages from
[employer].
ELEMENT 1: Commission of a tort: [D] committed the tort of [APPLY] by [APPLY].
ELEMENT 2 : An employer/employee relationship
Contracts of service = employment relationship with an employee: liability created.
Contracts for service = non-employment relationship with an independent contractor:
Therefore not liable. (Look to non-delegable duties).
Though they are liable for the torts of their employees, employers are not liable for torts
committed by independent contractors (Stevens v Brodribb Sawmilling). Important to
distinguish btw Contract of Service (Employee) vs. Contract For Services (Independant
Contractor).
Test 1: Control Test: Factors to Determine whether person was employee, was whether
(a) person was employed to do work for the employer (Hewitt v Bonvin); (b) person
engaged was subject to the control of the employer (Mersey Docks & Harbour Board v
Coggins & Griffith). The Lawful Authority to command is the significant feature rather
than the actual exercise of control through specific commands (Zuijis v Wirth Brothers)
Test 2: Modified Control Test: 3 conditions should exist before a Contract of Service can
apply. 1. Employee must agree to work for employer in return for pay; 2. Employee agrees
to be subject to the employer in matters of what should be done, where, how, means, and
time. 3. Other provisions of the agreement must not be inconsistent with contract of service
(Ready Mix Concrete v Minister for Pensions and National Insurance).
Test 3: Integration and Organization Test: If the employee is sufficiently integrated
into the organisation of the company and that worker’s role is integral to the business
rather than ancillary he would be an employee (Stevenson, Jordon & Harrison v
MacDonald & Evans). Court will ask if the employee is part of the overall business
organisation (Albrighton v Royal Prince Alfred Hospital – Surgeon)
Test 4: Multi-facet test: There is no single test which will always be applicable or
relevant in each case; however Stevens v Brodribb Sawmilling Co Ltd
(Logging/Fellas/Sniggas) re-established control as the main emphasis. The right to control
7
is another major emphasis but a number of factors will be considered in each case (Hollis
v Vabu – bicycle delivery) Factors: 1. Negotiation as to rates of remuneration (pay); 2.
Deductions from courier’s pay is not negotiated; 3. whether work was allocated with
bidding for jobs; 4. whether the employers assumed all responsibility; 5. whether the
employees were providing skilled labour; 6. whether the employer provided items of
equipment and tools of trade, that remained their property. 7. obligation to work
(obligation of service i.e. 9-5). 8. capacity to delegate (sub-contract). 9. wears a uniform.
10. 3 weeks leave.
Well Recognised Categories: Hospital Staff (Roe v Minister of Health); Armed Forces
(Cth v Quince); Public Servants (Oriental Foods v Cth); Borrowed Employees
(MacDonald v Cth); Gratuitous Service (Brooke v Bool)
ELEMENT 3: Was the employee acting in his course of employment?
All acts done within the scope of employment or reasonably incidental to their
employment (Limpus v London General Omnibus – DD Bus racing); Contrary to that
Beard v London General Omnibus – ticketer/driving bus. Also not only will an employer
be liable for actions done in scope and reasonably incidental but also that which is in the
employers interests (Kay v ITW Ltd – forklift)
 Albrighton v RPA: If the employee forms part of the employers business
organisation then they are Vicariously Liable. It is irrelevant in the case of hospitals
that just because they have no control over how the Dr operates. Determine if [P]
saw Dr or hospital.
 Hollis v Vabu: D a parcel and document carrier who employs vehicle and bike
couriers. P pedestrian who was seriously injured by a bike courier who was illegally
riding on the footpath. Held: relationship was employer / employee and endorsed
‘enterprise risk’. HC applied Brodribb factors: little control how tasks carried out;
unskilled with no special qualifications; training discipline and attire directed by
employer, employer supplied some equipment, no negotiation over pay rates;
courier supplied own bike. (Crt said may be different for couriers who supply own
vehicle)
 Stevenson, Jordan, v Macdonald: Contract of service: Man is employed as
part of business & his work is an integral part of business contract for services: His
work, although done for the business, isn’t integrated into it but only accessory to it.
 Stevens v Brodribb Sawmilling: D was sawmilling company who employed
tree feelers to cut the trees and sniggers to drag the trees onto the trucks and drivers
to drive the trucks. D coordinated the three groups but left them alone to operate
their systems. P was a driver who was injured by the negligence of a snigger while
loading the truck. Held: snigger not employee of D, not vicariously liable, as groups
were totally outside D’s control.
Test 1: Unauthorised way of Doing Authorised Things: It is a question of fact whether
conduct is within the course of employment and depends upon the particular
circumstances (Bugge v Brown – Farm hand/old stove/Fire/Liable). Century Insurance
and Northern Ireland Road Transport Board – cigarette break/explosion/Liable.
 Century Insurancev NIRT If employee’s actions (smoking whilst waiting for fuel
tank to fill) are reasonably incidental to the scope of their employment then
employer is Vicariously Liable, even though he wasn’t employed to smoke
cigarettes.
 Bugge v Brown Even if employee performs an authorised act in an unauthorised or
even prohibited manner then the employer is still Vicariously Liable.
 CML v P&C Insurance If an Employee goes against the wished of his employer &
acts with animosity towards a commercial opponent (knocked them) business then
the employer is Vicariously Liable as the employee (salesman) is considered to be
acting in the employer’s interests; trying to sell the employers product
Test 2: Expressed Prohibition: Employer may be liable for acts done in the scope of
employment even if there is an express prohibition against it (CML Assurance v Producers
and Citizens Insurance – Insurance Salesman/Defamation). What is essential is whether
that prohibition limits the scope or merely regulates (Liable for Regulate) the way in
which the employees work is to be carried out (Rose v Plenty – child/milkman; Phoenix
Society v Cavanagh – Bus driver/Drunk)
Test 3: Frolic Doctrine: If an employee takes an opportunity during employment to use
time or resources for personal purposes the employer is not liable (Storey v Ashton –
25Km Detour/Aunt). If it is argued that the employee was on a frolic both the purpose and
extent of the deviation must be considered (Chaplin v Dunstan – break 4 drink/entitled).
Not liable if employee on ‘frolic of their own’
 Chaplin v Dunstan If a driver detours to get a drink & on this way crashes then the
employer is Vicariously Liable as it is a reasonable detour; he is entitled to have a
drink
 Crook v Derbyshire Stone Driver stopped for lunch, involved in fight. Held: that it
was driver own business; once out of the truck the employer not vicariously liable.
 Storey v Ashton A driver backtracking off his route to visit some people is
considered a frolic of his own; there was substantial diversion off route.
 Hilton v Thomas Burton If employees knocked off work early & had drinks, then
they are considered to be on a frolic of their own; employer not Vicariously Liable.
 Harvey v O’Dell: Workers who took an unauthorised lunch break were held to be
acting in the course of employment.
Test 4: Intentional Torts: Where an employee commits an intentional tort during the
apparent course of employment, the employer may be found to be vicariously liable (Lloyd
v Grace, Smith & Co). If the tort is committed in the furtherance of the employer’s interest
and incidental to the work (four corners) there is no question that the employer WILL be
liable (Canterbury Bankstown Rugby League Football Club v Rogers). But if done in the
employees own personal interest the employer will not be vicariously liable (Deatons Pty
Ltd v Flew – barmaid threw glass into face of customer).
 Petterson v Royal Oak Hotel: Barman threw glass – keeping order in the bar, in the
course of employment.
 Deatons v Flew: Barmaid threw glass – private act of retaliatory self defence, not in
the course of employment.
 Canterbury Bankstown Rugby League v Rogers: head high tackle, in the course of
employment.
 Morris v Martin & Sons: Mink coat stolen by servant after sent for cleaning. Held D
liable for as the theft was a wrongful mode of performance of the employee’s duty
of cleaning it. D was liable on the basis of non delegable duty.
NON-DELEGABLE DUTY
If [Employee] not classed as employee is there a non-delegable duty?
For a non-delegable duty to arise there must exist a protective relationship of responsibility
or control on the part of [D] and vulnerability or reliance on the part of [P].
Examples of protective relationships:
• Employer to employees: Kondis v STA
• Hospital to patients: Samios v Repatriation Commission / Ellis v Wallsend District
Hospitals
• Schools to students: Cth v Introvigne
• Occupier in control of premises onto which dangerous substances have been
introduced to a lawful visitor: Burnie Port Authority v General Jones Pty Ltd
Employer to Employees
• Albrighton v RPA Regardless of the minimal control hospital’s have over Dr’s, they
are Vicariously Liable (absolute liability) as they have a duty to the Dr’s take
Reasonable Care.
• Kondis Such duties arise because the person on whom it is imposed has undertaken
the care, supervision or control of the person or property of another or is so placed
in relation to that person or property as to assume a particular responsibility for his
or its safety, in circumstances where the person affected might reasonably expect
that due care will be exercised. A non-delegable duty should be imposed on
employers. It is reasonable they should bear liability for the negligence of his
independent contractors in devising a safe system of work.
Schools to Students
• Cth v Introvigne Sub contractor: negligence broke flagpole & hit kid. Cth as
provider of education had a separate responsibility from merely being vicariously
liable for the teachers or others it appointed to carry out and provide education.
• NSW v Lapore: HC held that non-delegable duties do not impose strict liability. The
P is still required to prove fault.
Hospitals to Patients
• Cassidy v Minister for Health Denning J: Hospitals are Vicariously Liable for
negligence of their staff. Regardless whether it involves a contracts of service or
contract for services.
• Roe v Min for Health Denning J “The reason is because, even if they are not
servants, they are the agents of the hospital to give the treatment. The only
exception is the case of consultants or anaesthetists selected & employed by the
patient himself.”
• Ellis v Wallsend District Hospital: Here the hospital was not liable as the surgeon
had been privately consulted by the patient and the hospital had only lent its
facilities and support staff to the surgeon.
Land Occupiers
• Safeway v Zaluzna: Land occupiers owe a duty to everyone to take Reasonable Care
to prevent foreseeable injury to customers who come onto the land. What is
reasonable will vary with their purpose for coming onto the land.
• Phillis v Daley The DOC is what is foreseeable; Duty to trespassers etc is ↓
• Calin v Greater Union Perhaps a special duty is owed to contractual entrants to
maintain the premises to a standard that is as safe as reasonably possible.
• Burnie Port Auth v General Jones Property owners owe a non-delegable duty to
ensure that persons invited onto their property are protected. Depending on the
magnitude of danger, the standard of Reasonable Care may involve a degree of
diligence so stringent as to amount practical to a guarantee of safety (Welding
contractor started fire and destroyed part of cold storage)
• Rylands v Fletcher A person who for his own purposes brings on his land & keeps
there anything likely to do mischief if it escapes, must keep it at his peril, & if he
does not do so is prima facie answerable for all the damage which is the natural
consequences of its escape. He can excuse himself by showing that the escape was
owing to Pl’s default or perhaps that the escape was the consequence of vis major or
the act of God. Had to be non-natural use of the land. This case has since been
absorbed by the general law of negligence.
Strict Liability
Strict Liability is that you don’t have to prove fault. Just causation, injury and
consequence. The relationship is crucial. It will be characterized by a special dependence
or vulnerability. Has moved away from Rylands v Fletcher. Now use Burnie Port
8
Authority. “Depending on the magnitude of danger the standard of reasonable care
may involve a degree of diligence so stringent as to amount practically to a guarantee
of safety.”
Some Element of Fault Proved: Failure of supervision. The fact that it happens is
evidence in itself
Justifications and Policy Considerations: INCLUDE WITH YOUR ANSWER
In the three protective relationships where a non-delegable duty is clearly established there
are sound policy reasons for the imposition of the duty.
• [D] is a financially responsible person fully aware of its responsibilities
towards the class of persons to which [P] belongs.
• [D] is already vicariously liable for the fault of its own staff.
• [D] will usually have insurance against the vicarious liability.
Tentative Conclusion: - [APPLY AS REQUIRED]
NUISANCE
The unreasonable and substantial interference with the use or enjoyment of land. Damages
require actual damage. Indirect. Right to privacy is not protected in nuisance, or a right to
freedom of view (Victoria Park).
Nuisance & Negligence:
• Negligence – liability is based on the unreasonableness of the conduct causing the
damage; Fault depends on the breach of a duty. Breach judged on reasonableness of
conduct by balancing risks of conduct. Calculus of neglect requires proof of
damage which is caused by D and is reasonably foreseeable.
• Nuisance – liability is based on the unreasonableness of the interference itself;
Fault depends on whether D created the nuisance. Therefore conduct giving rise to
nuisance may be perfectly reasonable, but the resultant interference may be totally
unreasonable. Calculus of nuisance requires proof of damage which is caused by D
and is reasonably foreseeable.
• Claims in both negligence & nuisance require proof the damage was Reasonably
Foreseeable.
Nuisance v Trespass:
• Nuisance’s are indirect interferences, which can be intentional or unintentional,
with use & enjoyment of land.
• Trespass must be a direct interference with land.
• Nuisance requires proof of the unreasonable interference with use & enjoyment.
• Trespass is actionable per se, regardless of whether it impacts on the use &
enjoyment of land
• Nuisance protects against physical injury and interference with use and enjoyment
of land
• Nuisance is intangible invasions (noise, smell, vibrations)
• Trespass is physical intrusions by tangible objects (people, cattle, rubbish etc)
PRIVATE NUISANCE (PRIVATE LAND) TEMPLATE
[P] may have a cause of action against [D] due to the substantial and unreasonable
interference to [P’s] enjoyment and use of [his/her] land as a result of [APPLY].
ELEMENT 1: Locus standii/right to sue:
As [P] [owns/rents/etc.] the land [he/she] has a proprietary (title, lease) or legal interest in
the land and can sue: Oldham v Lawson (wife owned land, husband couldn’t sue
neighbour).
If licensee (not a proprietary right)
• However whilst historically a licensee has not had title to sue, in the UK in
Khoransandjian v Bush a mere licensee was able to sue, but in Aust Hunter v
Canary Wharf overturned this. Then a mere licensee was given locus standii in:
Deasy Investments v Montest – QCA relied on Khorasandjian
• On balance …may have title to sue despite being a mere licensee (Animal
Liberation Inc v Gasser)
ELEMENT 2: Who can be sued:
[D] is capable of being sued as [he/she] is the [apply below].
a) Doesn’t have to be in possession of land: Fennel v Robson Excavation P/L –
expired license.
b) Creator of the nuisance: Fennell v Robson – contractor dug foundations and
caused subsidence.
c) Authoriser of the nuisance: De Jager – Hall owner who hired it out,
neighbours complained.
d) Adopter of the nuisance: Sedleigh-denfield – Drain in land that blocked and
flooded neighbour. The landowner is liable for nuisance only if he ‘continued or
adopted’ the nuisance, which was created by another on his land.
e) Person who knows or ought to be aware of nuisance: However D can’t be
liable if he (1) Didn’t know of the nuisance existence (2) Didn’t ought to know of
it’s existence (3) Didn’t have any reasonable opportunity to repair or remedy the
nuisance. Torette House v Berkman
f) Some element of fault needed on the defendant’s behalf: Torette House P/L v
Berkman – did not know or ought to have known/acted, could not reasonably have
found out, no liability.
ELEMENT 3: A recognised right:
[P’s] recognised right of [apply facts], which the law deems capable of being protected, is
being interfered with by [D’s] actions.
a) the land itself in its natural state
b) property or chattels associated with the land
c) the right to enjoy the land eg. pleasure, comfort, quietude, fresh air,
aesthetics Munro v Sulluvian
d) Right to clean air Cth v Registrar of Title for Vic
e) the right to free access to land: Dollar Sweets P/L v Federated
Confectioners – forcibly prevent, Animal Lib v Gasser – put entrants in fear of
safety.
Freedom from non-physical damage such as noise, offensive sights and smells.
a) Events that are not on [P’s] property, but which can be seen from [P’s]
property Thompson-Schwab v Costaki. (brothel opened up in suburban area,
people said aesthetics were being destroyed held: nuisance)
Privacy is not a legally recognised interest: Victoria Park Racing v Taylor but
aggressive viewing may give rise to an action to protect privacy: Plenty v Dillon
(obiter). Eg. Neighbour spying mirror system.
ELEMENT 4: The interference is substantial and unreasonable in all the
circumstances:
The interference with this right by [D] [is/is not] substantial and unreasonable as [item A
or B].
A. Damage:
Property damage is prima facie evidence of the interference being substantial and
unreasonable: St Helens Smelting v Tipping.
i) Property damage most conclusive evidence if other interference
types as well: Halsey v Esso Petroleum.
ii) Plaintiff doesn’t have to prove that the defendant’s use of their
land is unreasonable, defendant have to prove reasonable: Corbett v Pallas.
iii) If property damage, doesn’t matter if nuisance is temporary or
necessary precautions taken: Harris v Carnegie’s Pty Ltd.
iv) The damage MUST be reasonably foreseeable
B. Calculus of Nuisance:
a) Court balances the right to enjoyment versus the defendant’s desire to
undertake the activity – the rule of give and take: Bamford v Turnley. Judged ‘not
merely according to elegant or dainty modes of living but according to plain and
simple notions among English people’: Walter v Selfe. Factors considered include:
i) Nature of the locale – what may be reasonable in one place may
be unreasonable in another. Interference that would be reasonable in an
industrial area may be unreasonable in a residential area: Munro v Southern
Dairies Ltd: does not matter whether activities benefit the public. Nature of
locale judged at time of interference, so approaching nuisance no defence:
Sturges v Bridgman.
ii) Timing and Duration – Calculus of nuisance = severity of the
nuisance v the time/duration/extent in which it occurs: Halsey v Esso
Petroleum
• Duration – work that is of a temporary nature is generally not
held to be a nuisance: Andreae v Selfridge Co. However, even if it is
temporary, if it at an unreasonable time, then it will be held a nuisance:
Harrison v Southwark & Vauxall Water Co.
• Time – activity within a CBD constitutes a nuisance during
business hours: Wherry v KB Hutcherson. Activity in a residential area
constitutes nuisance after business hours: Seidler v Luna Park Reserve
Trust. But measure against a reasonable trade, not an unduly sensitive
trade/business: Robinson v Kilvert.
iii) Sensitivity of Plaintiff – ‘Eggshell Skull’ rule does not apply,
interference only unreasonable if it would affect a reasonable man: Walter v
Selfe. Can’t be a nuisance if wouldn’t affect an ordinary business: Robinson v
Kilvert. But if it would affect an ordinary person, then the special damage
caused by sensitivity is recoverable: McKinnon Industries Ltd v Walker.
iv) Malice – An interference that would otherwise be reasonable is
rendered unreasonable if it is malicious: Christie v Davey. Malice on the
part of the defendant will outweigh the particular sensitivity of the
plaintiff: Hollywood Silver fox Farm v Emmett
ELEMENT 4: Defences: (select one)
a) [P] approaching the nuisance by [apply facts] is not a defence: Sturges v
Bridgman. It is not a defence to argue [P] approached the nuisance - all you can say
is that the nature of the locality means that the interference is not unreasonable.
9
 b) The benefit to society, claimed to be [apply facts] of [D’s] nuisance is no
defence: Munro v Southern Dairies.
c) The claim of reasonable care by [D] will not exonerate [him/her] from
liability, because the measure is reasonable interference, not reasonable care: Harris
v Carnegie’s.
d) Contributory negligence – unusual sensitivity can be reversed and reduce
damages. (see above)
e) Statutory Authorisation – if there is statutory duty to conduct activity in that
area, then [D] must show interference is an unavoidable consequence: Allen v Gulf
Oil Refinery. Ie: it is a complete defence is they can prove that it could not be
conducted in a way which caused the nuisance.
f) But if duty could have been performed in another way to avoid interference,
the defence does not apply: York Bros v Commissioner for Main Roads.
ELEMENT 4: Remedies (select as needed)
a) Injunction – if there will be a continuance of nuisance (stop notion of
‘cheaper to pay damages than stop’)
b) Damages – usually for past losses, hard to determine for lack of enjoyment of
land, can’t recover for reduction in property value for non-tangible nuisances.
c) Abatement – you can abate the nuisance by self-help (can’t recover cost)
BUT, can’t interfere with, go onto their land. Must give back severed property.
(Cutting off a tree branch) Can’t deliberately set-out to destroy object of nuisance:
Lemmon v Webb. Must ask them to abate first, except in emergencies.
PUBLIC NUISANCE (PUBLIC LAND)
A public nuisance is any activity that materially affects the reasonable comfort and
convenience of a class of the public by interfering with a public or common right.
It is actionable in tort by private individuals if they suffer special and particular damage
over and above the rest of the public.
ELEMENT 1: A class of people is affected
The class that [P] belongs to is [apply facts] and is enough to show a representative cross-
section. AG v PYA Quarries.
ELEMENT 2: Locus Standii (ignore A & B and look at C)
a) Attorney-General as protector of the common rights (usually doesn’t get
involved due to practical or political reasons
b) Attorney-General’s fiat (A-G must give permission to a ‘relator action’,
although permission is rarely given because of the above reasons, but if given the
person must give an undertaking as to damages).
c) [P] through [apply facts] [can/can not] show that [he/she] is a private
individual suffering particular or special (different) damage over and above that
suffered by the rest of the community.
i) Special Damage: must distinguish [P] from the rest of the
community. Strong argument if a peculiar kind is suffered (1, 4, 7), weaker
argument if a peculiar degree is suffered (2, 3).
(1) Boyd v Great Northern Rwy Company – doctor held up at crossing
for 20 min. No-one else delayed. Suffered pecuniary loss (time/money)
and peculiar damage.
(2) Ball v Consolidated Rutile – fisherman take action for pollution of
Moreton Bay. Held fishing rights same as the general public’s, nothing
unique in their loss (only extent of), insufficient to support action.
(3) Walsh v Ervin – Path of road blocked, inconvenience and delay for
plaintiff. Even without pecuniary damage this loss is sufficient for
peculiar damage, but only if inconvenience is appreciably greater than
others.
(4) Benjamin v Storr – trucks constantly going past front was blocking
access and light into coffee shop, owner occurred expense of having to light
lanterns. Held public nuisance because peculiar pecuniary damage.
(5) Teamay v Severin – sale of alcohol caused nuisance in aboriginal
community. Held damages too remote. Interference must be clear, a clear link
between interference and damage.
(6) Animal Liberation v Gasser – peculiar damage because patrons
put in fear and frightened away from entering circus because of protesters.
(7) Castle v St Augustine’s Links – guy hit by golf ball on public land.
Personal injury is prima facie evidence of peculiar damage. Can plead nuisance or
negligence. P must establish that there is a nuisance, and causation, then D must
prove a justified excuse.
ELEMENT 3: The interference is unreasonable
[P] must show that the interference is unreasonable and substantial through application
of an [established category or calculus of nuisance].
a) General considerations – Diamond v Pearce:
i) Must be unreasonable and substantial
ii) Calculus of nuisance – degree, duration, timing and public utility
of the activity all relevant. Must still recognise need for give and take. (see
private nuisance for details)
iii) Standard is stricter than private nuisance as more people
affected.
b) Established categories
i) Interference with public amenity – substantial interference with
the use and enjoyment of a public park would constitute a public nuisance.
Interference can’t be a matter of taste.
ii) Interference with travel and access if:
• The defendant in carrying out his business intentionally creates a
crowd: Wagstaff v Eddison Bell Co.
• The business operates in an unconventional manner: Fabbri v
Morris – serving window instead of shop entrance. Not nuisance if just
annoying, but doesn’t block: Silservice v Supreme Bread.
ELEMENT 4: Defences (apply as required)
a) Statutory Authority:
i) York Bros v Commissioner for Main Roads
• The activity authorising the nuisance was created by statute
• There was no reasonable way of carrying out the activity,
according with the statute, without causing the nuisance.
ii) If the nuisance was an inevitable consequence of the undertaking, and it was
not performed negligently, then it is not actionable: Hammersmith Rly v
Bland.
iii) Planning permission from a subordinate planning body does not have the
same effect as a statutory authority – it has no jurisdiction to legalise
nuisance: Hunter v Canary Wharf.
b) Public Utility
i)
Taylor v City of Perth:
• Calculus of nuisance – balance:
(1)
(2)
objective behind the construction
the damage the construction is causing to third
parties.
ELEMENT 5: Remedies
a) Injunction – awarded when there is likely to be a repetition of the wrong:
Clowes v Staffordshire Waterworks, or where there is a prospective nuisance:
Animal Liberation v Gasser.
b) Damages – can only be awarded for a past nuisance
c) Exemplary damages – awarded in circumstances where the conduct of the
defendant is such that it warrants such damages: Walsh v Ervin
• Malice - showed a particular outrageous disregard for public rights: Guppys v
Brooklyn.
Personal Injury
Prima facie Personal Injury will be damage above & beyond that suffered by the rest of the
community. Pl’s injury needn’t have prop rights in land if nuisance occurs
Castle v St Augustines Links Onus of proof (1) Pl must establish nuisance (2) Pl must
establish causation by the D (3) onus shifts & D must demonstrate reasonable excuse
Nature of the Interference
(1) Must be unreasonable & substantial (2) Degree, timing, duration, & public utility is
relevant-a calculus of nuisance- recognising the need for give & take (3) Standard is
stricter than for private nuisance
Dymond v Pearce Subjective test of what is reasonable at the time the nuisance occurred
Examples of Interference with Public Amenity
Kent v Johnson “in my opinion, a substantial deleterious unlawful interference with the
nature & quality of the reserve as a park for one to use & enjoy as such as a member of
the public would constitute nuisance. Injury to the F&F seems to me to be in the same
class of interference as would be the fouling of a public swimming pool”
(1) Damage to skyline is not legally enforceable as it is subjective & Court can’t enforce
good taste. (2) Argument of the F&F failed, as it wouldn’t substantially interference with
public amenity. (3) Also obstructing footpath while constructing building is not a nuisance
& is not an unreasonable interference with travel & access. (4) Also public safety on
highway is not a nuisance. Must expect delay & inconvenience especially with
construction work etc. (5) However if it ↓ use & enjoyment then it can be Public Nuisance
Public utility principle.
Wagstaff window display attracted crowds that obstructed roads & shop access. Held:
Deliberate action to bring crowds t/f actionable. Thus Xmas lights are indeed public nuis
as they deliberately bring crowd
Fabbri v Morris Walk thru ice-cream shop. Held: operating in an unconventional manner
that attracted unreasonable
Silservice v Supreme Bread customers lined up at shop for fresh hot bread H: Not unreas
interference, as it is not the fault of the owner if their business thrives at a specific &
particular time of the day.
CIVIL LIABILITY ACT 2003 [QLD]
Limiting Liability in Negligence
• Establish the criteria for standard of care and breach
• Change Causation
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• Exclude Liability for ‘obvious risks’ and incorporate presumptions of awareness Section 35: Public authorities
• Eliminate proactive duties to warn of obvious risks Section 22: Standard of care for professionals (modifies Bolam test) In deciding whether a public or other authority has a duty or has breached a duty
• Eliminate liability for the materialisation of ‘inherit risks’ 22 (1) A professional does not breach a duty arising from the provision of a professional * The functions required to be exercised by the authority are limited by the financial and
• Exclusions for criminals and the intoxicated service if it is established that the professional acted in a way that (at the time the service other resources that are reasonably available to the authority for the purpose of exercising
was provided) was widely accepted by peer professional opinion by a significant number the functions;
Civil Liability Act 2003 (Qld) of respected practitioners in the field as competent professional practice. * The general allocation of financial or other resources by the authority is not open to
Does not apply where negligence occurred prior to Dec 2002 22 (2) Peer professional opinion cannot be relied on if the opinion is irrational or contrary challenge;
to written law * The functions required to be exercised by the authority are to be decided by reference to
Section 4: Act applies to ‘any civil claim for damages for harm’ 22 (3) the fact that there are differing peer professional opinions widely accepted by a the broad range of its activities (and not merely by reference to the matter to which the
Section 5: Does not apply to injury under Workcover Queensland Act, dust disease or significant number of respected practitioners in the field concerning a matter does not proceeding relates);
tobacco related condition prevent and 1 or more (or all) of the opinions being relied on for the purposes of this * The authority may rely on evidence of its compliance with its general procedures and
section any applicable standards for the exercise of its functions as evidence of the proper exercise
Section 9: Breach, General Principles 22(4) Peer professional does not have to be universally accepted to be considered widely of its functions in the matter to which the proceeding relates.
Identifies breach of duty by reference to (a) foreseeability of risk harm and (b) the accepted.
‘negligence calculus’.
• Sub (1) seeks to ‘raise the bar’ from ‘far fetched or fanciful’ to ‘not insignificant’ 22(5) This section does not apply to liability arising in connection with the giving of (or Section 45 – Criminals
• Sub (2) essentially restates the common law consideration of reasonable person’s
failure to give)a warning, advice or other information, in relation to the risk of harm to a • Liability is excluded if the court is satisfied on the balance of probabilities that the
person, that is associated with the provision by a professional of a professional service. incident occurred when the plaintiff was engaged in conduct that is an indictable
response to risk of harm
offence
ONEROUS RISKS, DANGEROUS ACTIVITIES • Irrelevant whether they were charged or convicted
Section 10: Breach
S. 19: No liability for personal injury suffered from obvious risks in dangerous • Will not apply if the outcome would be harsh or unjust, but minimum 25% off
a) The burden of taking precautions to avoid a risk of harm includes the burden of
recreational activities.
taking precautions to avoid similar risks of harm for which the person may be
Irrelevant if P was aware (or unaware) of the risks Outcome of Reforms
responsible; and
b) The fact that a risk of harm could have been avoided by doing something in a No increase in affordability of insurance – premiums have gone up
CONTRIBUTORY NEGLIGENCE No increase in clarity & certainty of the law - greater fragmentation of the law and confusion
different way does not of itself give rise to or affect liability for the was in which the
S. 24: Contributory negligence can defeat a claim – i.e. CN may reduce an award of Assumptions and premises underlying the reforms are being questioned
thing was done; and
damages by 100%
c) The subsequent taking of action that would (had the action been taken earlier) have
Therefore, S 24 is an alternative to the defence of volenti non fit injura (voluntary LAWYERS REACTIONS
avoided a risk of harm give rise to or affect liability in relation to the risk and des
assumption of risk)
not itself constitute an admission of liability in connection with the risk.
LESSONS FROM THE U.S.A.
PUBLIC AND OTHER AUTHORITIES TORT REFORM IS CYCLICAL
Section 11: Causation
S11(3)(b): Statements by P as to what they would have done in the absence of breach are
S. 35: Clearly allows Public Authorities to make broad policy decisions about • Who’s behind tort reform?
priorities in spending • Politicisation of tort reform – Bush/Cheney v Kerry/Edwards
inadmissible unless they were statements against interest.
S. 36: Actions or omissions much be such no reasonable authority would make them • Calls for Tort reform are not new.
S11(4): The requirement to consider “whether or not and why responsibility for the harm”
S. 37: Restores exemption of road authorities for failure to repair or keep in repair • For over two decades pro-business groups in the USA have mounted a campaign to
should be imposed my introduce a policy consideration that does not currently exist.
unless they have actual knowledge of the particular risk. cultivate a legal system that favours business interests
Section 12: Onus of Proof • And lawyers have not helped – especially in the U.S.A.
VOLUNTEERS WHO’S BEHIND TORT REFORM
“...the plaintiff always bears the onus of proving, on the balance of probabilities, any fact
S. 38: Definition – people doing voluntary work for community organisation
relevant to the issue of causation” • Insurance Companies
S. 39: No liability for actions done in good faith
• Businesses facing higher insurance costs
S. 40: No exemption for criminal acts
Section 13: Obvious Risk • Statutory Authorities (self insured)
S. 41: Not protected if drunk and fails to exercise due care and skill
Obvious t a reasonable person • Ideologues concerned about:
S. 42: Not protected if acting outside scope or contrary instructions
Includes risks that are patent or common knowledge o Judicial adventurism
Can be obvious even though it has a ‘low probability of occurring’ o Personal responsibility
EXCLUSIONS – CRIME
Can be obvious even if ‘not prominent, conspicuous or physically observable’
S. 45 Criminals not be awarded damages • Anti-lawyer sentiments
Not obvious if created by a failure to maintain e.g. a vehicle or bungee cord
• Liability s excluded if the court is satisfied on the balance of probabilities that the
incident occurred while the plaintiff was engaged in an indictable offence Negligence of Land Managers Form
Section 14: Presumption of awareness
• Can get if ‘would operate harshly or unjustly’ 1. Define Negligence
Reverses the onus of proof in a volente defence
2. D.O.C. of Land Managers
If a volente defence is raised, there is a reputable presumption that P was aware of any
EXCLUSIONS – INTOXICATION a. Stat Action
obvious risk
S. 46: Not relevant to consider in the standard of care that persons may be exposed b. RF, Use Encouraged., Not Obvious, Admin
Need only be aware of the type of risk
to increased risk because of intoxication 3. Breach
I.e.: No duty of care arises just because someone is drunk a. Calc of Neglect
Section 15: Duty to warn = No duty to warn of obvious risks
Drunkenness does not change the standard of care owed b. Precautions
But does apply if:
4. Suffered Loss
1) P requests information about risks
Contributory negligence is presumed if P was intoxicated at the time but rebuttable if 5. Causation
2) D is required by ‘a written law’ to warn of risks
plaintiff can show intoxication did not contribute or not self induced. – 25% minimum a. But For
3) D is a professional (other than a doctor – S21) and risk is PI from the
deduction b. Novus Actus
provision of a professional service by D
6. Remoteness (Wagon 1; Wagon 2)
Section 24: Contributory negligence can reduce an award of damages by 100% 7. Defences (Volenti, Contributory etc)
Section 16: Inherit Risk
8. Damages
An inherent risk is of something occurring that cannot be avoided by the exercise of
Section 35: Principles concerning resources, responsibilities, etc of public or other TRESPASS PROTECTED INTERESTS & NATURE OF INTERFERENCE/REMEDIES
reasonable care and skill e.g. the risk of sympathetic opthalmia in Richard v Whitaker
No liability in an inherent risk materialises authorities
• Interests protected- physical/mental integrity and property interests (land and
Does not exclude liability for failure to warn (where applicable) chattels)

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• Nature of interference – Direct

• Fault required – intentional negligent or reckless act

• Act must be voluntary and a positive and affirmative action (not omission)

• Proof of Damage - not necessary to prove actual damage – Actionable per se

• Remedies – nominal, compensatory, aggravated and exemplary damages; self-help;

injunction
NEGLIGENCE PROTECTED INTERESTS & NATURE OF INTERFERENCE
o Protected Interests-right to physical and emotional integrity, and property and
economic interests
o Nature of interference- Indirect or consequential act or omission
o Fault- breach of duty of care causing damage which is not too remote
o Proof of damage- P must prove actual damage ‘damage is the gist of negligence’
o Remedies- Compensatory, aggravated. Exemplary damages in very rare cases
where negligence. Personal Injuries Proceedings Act 2002 (Qld) limits availability
of exemplary damages

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