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LECTURE 1Torts as recipes● The structure of tort law as portrayed in the typical tort text was laid down over a century ago under the influence of the formulary system of litigating disputes before the courts. Much understanding can be gained, not only of tort law but of also of other areas of the c...

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LECTURE 1 Torts as recipes ● The structure of tort law as portrayed in the typical tort text was laid down over a century ago under the influence of the formulary system of litigating disputes before the courts. Much understanding can be gained, not only of tort law but of also of other areas of the civil law of obligations, by analyzing tort law not in terms of the discrete torts which we have inherited from the days of the formulary system but in terms of the concept of correlativity and the ideas of sanctioned conduct, protected interests and sanctions. Underlying this approach is the view that tort law is best seen as a system of ethical rules and principles of personal responsibility (and freedom) adopted by society as a publicly enforceable statement about how its citizens may, ought and ought not to behave in their dealings with one another. Against this background, it is now time to begin the task of dismantling tort law into its constituent building blocks of sanctioned conduct, protected interests and sanctions. Matheson v Northcote College [1975] 2 NZLR 106 ● Background ○ Matheson's house was next door to Northcote College, and due to its proximity, students from the college frequently left litter, cigarette butts, etc. on his property, as well as stealing fruit from his fruit trees. Matheson sued the college for nuisance. ● Issue ○ Matheson (plaintiff) is seeking an injunction to restrain the defendants from continuing certain acts which were alleged to constitute an actionable nuisance. ● Application ○ Nuisance is commonly a continuing wrong, the defendant has so badly supervised the pupils and not prevented them from committing acts of trespass and in consequence of this state of affairs was responsible for that which amounted to a private nuisance. ○ A public nuisance is one which inflicts damage or injury or inconvenience upon all persons who come within the sphere or neighbourhood of its operation as distinct from a private nuisance which interferes with an individual person’s use or enjoyment of his land or of some right connected with land. ● Conclusion ○ Trespass is direct liability for your actions, nuisance can be used against third parties

○ Liable for nuisance on behalf of the children's multiple trespasses LECTURE 2 Donoghue v Stevenson [1932] AC 562 (HL) ● Background: ○ The facts involved Mrs Donoghue drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. A dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. ● Issue: The respondent as a manufacturer of an article intended for consumption and contained in a receptacle which prevented inspection owed a duty to her as consumer of the article to take care that there was no noxious element in the goods, that they neglected such duty and are consequently liable for any damage caused by such neglect. ● Application: ○ Mullen v AG Barr & Co Ltd: The majority held that on a factual basis AG Barr & Co Ltd had rebutted a presumption of negligence and that on a legal basis product manufacturers only owed a duty of care to the ultimate consumers if there was a contractual relationship between the parties; if the dangerousness of the product was intentionally withheld from the consumer (in which case there might also be a claim for fraud); or if there was no warning of the intrinsic dangerousness of certain products, such as explosives. Only Lord Hunter dissented, finding that negligence to be inferred and that the fact that the bottle contents could not be examined (because of the dark glass) gave rise to a specific duty of care that would allow consumers to claim for damages ○ However, neither of the circumstances in which negligence could be found in product liability cases applied to Donoghue: ginger beer is not intrinsically dangerous, nor did Stevenson intentionally misrepresent the threat it posed. Nevertheless, Donoghue's counsel argued that manufacturers also owed a duty of care to their ultimate consumers if it was not possible to examine the goods before they were used, an exception that would apply to Donoghue ○ Lord Thankerton ruled that Donoghue had no contract with Stevenson, nor that her case was covered by one of the scenarios in which a duty of care had previously been found. However, he held that where goods could not be examined or interfered with, the manufacturer had "of his own accord, brought himself into direct relationship with the consumer, with the result that the consumer [was] entitled to rely upon the exercise of diligence by the manufacturer to secure that the article shall not be harmful to the

consumer", an exception to the general nonexistence of a duty of care that applied to Donoghue. ● Conclusion: ○ The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers.

LECTURE 3 Bolam v Friern Hospital Management [1957] 1 WLR 582 ● Background ○ Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electroconvulsive therapy. He was not given any muscle relaxant, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. ● Issue ○ He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved. ● Application ○ McNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a reasonable person would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression", said McNair J. ○ "I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a

body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pigheadedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.” That clearly would be wrong." ● Conclusion ○ In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electroshock practice, they had not been negligent in the way they carried out the treatment. Bolton v Stone [1951] AC 85 (HL) ● Background: ○ The claimant was injured after a ball from a neighbouring cricket pitch flew into her outside her home. The cricket field was arranged such that it was protected by a 17-foot gap between the ground and the top of the surrounding fence. Balls had been known to get over the fence and land in people’s yards, but this was rare, making the strike which hit the claimant exceptional. The claimant sued the cricket club in the tort of negligence for her injuries. ● Issue: ○ The test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the Defendant, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent danger. ● Application: ○ Establishing the tort of negligence involves establishing that the defendant owed the claimant a duty of care, which they breached in a manner which caused the claimant recoverable harm. To establish a breach of any duty owed, the claimant must establish that the defendant failed to act as a reasonable person would in their position. ○ If the only test applicable to this case is that of foreseeability, then Plaintiff must prevail. Plaintiff claims that at least as soon as one ball had been driven into the road in the ordinary course of a match, the appellants could and should have realized that it might happen again and that, it if did, someone might be injured. Under the theory of foreseeability alone, it is irrelevant to determine the percentage of chance a ball might hit Plaintiff. It is only necessary to determine if it is foreseeable.

○ * The foreseeability test alone does not address the standards of ordinary careful people in the ordinary course of life. Even the most careful person cannot avoid creating risks. ○ The risk here was extremely small. Defendant’s ground was held to be large enough to be safe for all practical purposes. ○ Concurrence. (Lord Radcliffe) There is nothing unfair with requiring the Defendant to compensate Plaintiff for the injuries sustained to Plaintiff on the account of Defendant. However, the law of negligence is concerned less with what is fair than with what is culpable. A breach of duty has taken place if Plaintiff shows that Defendant failed to take reasonable care to prevent the accident. In this case, a reasonable man would not have felt himself called upon either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. In this case, the reasonable man would have done nothing. ● Conclusion ○ The House of Lords held that the cricket club was not in breach of their duty. The following factors were held to be relevant to whether a defendant is in breach of their duty of care: ● The likelihood of harm; ● What precautions were practical for a defendant to take in terms of cost and effort; ● Whether the defendant provides a socially-useful service. ● In this case, the likelihood of the harm was very low, and erecting a fence any higher than the defendant had already done would be impractical. The cricket club was also providing a social useful service to the community. A reasonable cricket club would have, therefore, not behaved any differently.

Hamilton v Papakura District Council [2002] 3 NZLR 308 (PC). ● Background ○ The Hamiltons grew hydroponic cherry tomatoes, using the Papakura town water supply to supply their water needs. When they found their crop had been destroyed, they claimed that the water supply company and the local council were at fault, claiming that the water was contaminated by minute traces of herbicide in the water supply. ● Issue ○ Violated sale of goods act ● Application

○ This case was different from a standard case where the buyer could choose a particular product from a particular seller, to suit the buyer’s purpose. Papakura had one product, water, which it sold to all its customers to a standard fit to drink. In that situation there could not be an assumption of reliance by a buyer still less an acceptance of responsibility by a seller, that the water was of a higher quality than the drinking water standard. The Hamiltons had not shown that they were relying on Papakura’s skill and judgment in ensuring that the bulk water supply would be reasonably fit for their particular purpose ○ Neither Papakura nor Watercare was liable to the Hamiltons in negligence. The mere fact that certain herbicides might kill or damage certain plants at certain concentrations did not make such a risk foreseeable. Damage was foreseeable only when there was a real risk of it occurring, that is, one which would have occurred to a reasonable person in the position of the defendant and not brushed aside as being far-fetched ○ Watercare was not liable to the Hamiltons in nuisance or under the rule in Rylands v Fletcher. Foreseeability was a necessary element to establish liability under both heads. The test of foreseeability was the same as for negligence ● Conclusion ○ Dismissing the company’s appeal, the water supplier had a general duty to supply water to accepted standards. The water company had done this. The claimant had failed to show that it had brought its particular needs to the attention of the water company, and a claim in contract failed. The Ashington Piggeries case did not apply because in this case there was one supply of one product. Negligence could not be established without accepting a higher duty to some consumers. No such duty was established. The claims in nuisance, of having allowed the escape of materials brought onto their land, failed because there was no foreseeability of this damage. McHALE v WATSON [1966] HCA 13 (1966) 115 CLR 199 (HCA) ● Background ○ McHale, Watson, and another young girl were playing tag. Watson was 12 years old at the time. At the end of the game, Watson threw a sharpened metal rod at a piece of wood and it bounced off and hits McHale in the eye causing permanent blindness. McHale sued for damages. McHale was unsuccessful at the lower court which she appealed. ● Issue ○ Should children be assessed based on the adult standard of care?

● Application ○ McTiernan, in the majority, held that Watson was acting as a normal 12 year old boy would, and cannot be expected to have the perceptions of risk that an adult should have. The act was not done intentionally to hurt McHale, and the judge states that a "reasonable" 12 year old boy would not expect this action to create this outcome. ○ ‘The standard of care being objective, it is no answer for him, [that is a child] any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent- minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.’ ● Conclusion ○ Appeal dismissed Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] AC 617 ● Background ○ The defendants negligently caused oil to spill into the Port of Sydney. This spill did minimal damage to the plaintiff’s ships. The oil subsequently caused a fire when molten metal dropped into the water and ignited cotton waste floating in the port. The fire destroyed the ships. ● Issue ○ Had the defendant breached his tortious duty of care in negligently allowing the oil to spill. ● Application ○ If a party did nothing to prevent the injury, he is liable for the foreseeable consequences of his actions, even if the consequences are remote. ○ Based on the trial court’s findings, it is true that the Wagon Mound’s operators would have foreseen that oil spilling into the harbor had a possibility of causing a fire, but would have only a very low probability. A fire could only result under exceptional circumstances. However, because the risk of fire was foreseeable, the defendants bore a duty to prevent the risk, even if the risk was a remote possibility. ● Conclusion ○ The Privy Council held that the defendant was in breach, as despite the likelihood of the oil spilling had been low, the defendant had been aware that were such an event to happen, the harm that it could cause was very

significant. Moreover, a reasonably professional person on the ship would have been able to tell that the risk of fire existed. Further, the risk could have been easily mitigated at minimal cost to the defendant. Thus, the approach to establishing duties of care in tort requires consideration of both the extent and gravity of a possible injury. LECTURE 4 Bourhill v Young [1943] AC 92 ● Background ○ Mr Young had been negligently riding his motorcycle and was responsible for a collision with car in which he himself suffered fatal injuries. At the time of the crash, Mrs Bourhill (C) was in the process of leaving a tram about 50 feet away. C heard the crash and, after Mr Young’s body had been removed from the scene, she approached and witnessed the immediate aftermath. C was 8 months pregnant at the time of the incident and later gave birth to a stillborn child. C subsequently brought an action against Mr Young’s estate, claiming she had suffered nervous shock, stress and sustained loss due to the negligence of D. ● Issue ○ The principal issue on appeal to the House of Lords was whether D owed a duty of care to C. In order for such a duty to be found it had to be said that that C was both sufficiently proximate to the incident itself and, if so, that D ought reasonably to have foreseen that, in driving negligently, he might cause psychiatric damage to a person hearing the crash from C’s position. ● Application ○ Can it be said that John Young could reasonably have anticipated that a person, situated as was the appellant, would be affected by his proceeding towards Colinton at the speed at which he was travelling? I think not. His road was clear of pedestrians. The appellant was not within his vision, but was standing behind the solid barrier of the tramcar. His speed in no way endangered her. In these circumstances I am unable to see how he could reasonably anticipate that, if he came into collision with a vehicle coming across the tramcar into Glenlockhart Road, the resultant noise would cause physical injury by shock to a person standing behind the tramcar. In my opinion, he owed no duty to the appellant, and was, therefore, not guilty of any negligence in relation to her. ● Conclusion ○ D was not liable for any psychiatric harm that C might have suffered as a

result of the accident. It was not foreseeable that C would suffer psychiatric harm as a result of D negligently causing a loud traffic accident, nor was C sufficiently proximate to the scene of the crash itself. D, therefore, could owe no duty of care to C. Marx v Attorney General [1974] 1 NZLR 164 ● Background ○ The appellant’s husband was severely injured during his employment when a heavy weight fell on his head. Negligence was admitted by the respondent in respect of the accident to the husband. As a result of this injury the husband suffered brain damage which affected his personality and domestic relations with the appellant. ● Issue ○ Does the husband’s employer owe a duty to the wife? ● Application ○ ● Conclusion ○ Although foreseeability is a necessary precedent condition in negligence, it is not the determinant of duty, which is a question of law decided in many cases in accordance with contemporary judicial policy ○ The Court has to determine whether the act was negligent vis-a-vis the plaintiff. If a wife has a cause of action it is because of a wrong to herself; she cannot build on a wrong to someone else ○ The duty to take care does not extend to include the relatives of a person who is injured ○ When a Court is asked to recognise a new category of negligence it must proceed with some caution Home Office v Dorset Yacht Co Ltd [1970] AC 1004 ● Background ○ Seven boys detained in a bostral – a type of youth detention centre, were working on an island under the supervision of three officers. The bostral boys escaped from the island at night with the plaintiffs’ yacht and damaged it. The plaintiffs brought an action for damages against the Home Office which was in control of the bostrals on grounds that the officers on the island were negligent as they failed to exercise control and supervision over the boys. The Queen’s Bench held that the Home Office owed duty of care to the plaintiffs, which was capable of g...