Exam - flash cards - Summary Torts Law PDF

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Duty of care:

Donoghue v Stevenson F: Snail in a bottle R: Neighbour principle: ‘Those to whom would be directly impacted by any of your acts or omissions are said to be your neighbour and they are who you owe a duty of care to’ – D owed P a duty of care

General Chapman v Hearse – reasonable foreseeability F: A (Chapman) had a car accident – Dr Cherry stopped to help – R (Hearse) was driving negligently and hit Dr Cherry causing his death R: Chapman owed Dr Cherry estate – ‘The precise sequence of events does NOT have to be reasonably f bl i d t

DOC: Medical Professionals DOC: Duty to rescuers

Wicks v State rail authority F: P (police officer) respondent to call of train accident – P attended to help – as a result of what P saw (people being put in peril) sustained mental harm R: The survivors of the train accident remained in peril UNTIL taken to a place of safety

Palsgraf v Long Island F: fireworks at train station case: P ran to catch a train – dropped package containing fireworks – exploded, knocked down scales – causing P injury R: P was an unforeseeable P therefore dismissed

Rogers v Whitaker – Professional F: P becomes blind in remaining eye due to sympathetic blindness – D failed to warn of risk R: Professionals owe P ‘a duty to exercise reasonable care & skill in their provision of professional advice and treatment’

Chapman v Hearse F: A (Chapman) had a car accident – Dr Cherry stopped to help – R (Hearse) was driving negligently and hit Dr Cherry causing his death R: Had it not been for Chapman’s negligent driving Dr Cherry never would have stopped to help

DOC: Omissions/scop e of duty of care

Romeo v conservation commission of the NT F: P at parking lot at a cliff – P is drunk and falls off the cliff R: Kirby J: ‘Unreasonable to say that any foreseeable risk requires to be guarded against’ – low probability no incident over 100 years, obvious risk, to fence everywhere is costly = high b d

DOC: Duty to rescue/omission s

Stovin v Wise F: P injured – knocked off his motorcycle by D R: D created the risk OR endangered P by ‘their own actions’ – A duty to prevent others, OR render assistance

Stuart v Kirkland F: Man commits suicide after reassuring police that he was fine – P is widow R: The duty argued from the P that D owed is ‘general duty to rescue’ requires anybody who knows that another is threatening self-harm to take reasonable steps to avoid it – knowledge of a risk of harm & power

DOC:

Tame v NSW – psychiatric harm F: P suffers irrational & obsessive fear from wrong info about incorrect alcohol rate by police R: No duty of care owed by police – police duty is to provide info to superior and not a duty that ensures a person doesn’t suffer mental harm – s32(1) *N l f tit d

Mental harm

Annetts v Australian Stations – psychiatric harm F: P’s allowed son to work for D – BUT with the D supervision – 16 year old son ran away to the dessert and died R: D owed duty – due to the relationship between D & P – D had to supervise the son it was under this condition that the son was allowed to work – breach of duty: failing to Wicks v State rail authority F: P (police officer) respondent to call of train accident – P attended to help – as a result of what P saw (people being put in peril) sustained mental harm R: For s30(2)(b) whether the P witnessed, at the scene, a person being injured, killed or put in peril

Tomisevic v Menzies F: P is a cleaner who cleaned pooh at a police station R: It was NOT reasonably foreseeable that the P would have sustained a recognisable psychiatric injury

king v Philcox F: R brother was on the A motorbike – A negligent driving caused an accident – R drove by several times unknowing that his brother was involved – R was told later that his brother had died & visited the site the next day – resulting in major depressive disorder R: Witness requires a significant

Koehler v Cerebros – psychiatric illness F: P claimed she had to do a lot of work into small amount of time R: No duty owed: BECAUSE P agreed to the work & gave employers no reason to believe she was at risk of psychiatric injury – not reasonably foreseeable

DOC: Pure economic loss

Hedley Byrne v Heller F: Bank gave wrong info – negligent words caused pure economic loss R: A duty of care can arise: ‘When the recipient of the statement reasonably relies on the statement and suffers financial loss’ – consider if special skill was applied

Esanda v Peat Marwick F: P sued D because D for wrong auditing info of Excel for a loan decision R: No, duty is owed – because there was no reasonable reliance – Brennan CJ: “P has to prove that D knew or ought to have known that the info /advice would be communicated to the P” Toohey J:

Caltex case – negligent misstatement F: P uses a pipeline that the D caused a hole in (damaged) – causing P to have new form in transporting petrol/fuel R: Reasonable foreseeability for this category is not enough – Prove: D has knowledge or means of knowledge that P individually will likely suffer economic loss as a

Perre v Apand (potato case) – act or omission F: P sold potatoes to WA – but D gave P’s neighbour bad product – causing infection onto P potatoes – WA didn’t allow potatoes near infection to be sold – P sued for great economic loss R: Reasonable foreseeability – Yes, a duty of care is owed

Woolcock street v CDG F: Bad soil causes = defective building R: On the basis of reliance & vulnerability factors CDG did NOT owe a duty – BECAUSE: P could have taken steps to protect themselves – had the capacity to look out for themselves

DOC: Novel categories Sullivan v Moody F: D incorrectly concludes sexual abuse of P’s daughter R: Multi factor test – No, duty was owed BECAUSE: reasonably foreseeable that P would suffer – the interest of the children is the paramount consideration

Johnson tiles v Esso F: Victorian gas explosion – caused Melbourne to be left without gas for weeks R: A duty was owed for ‘property damage’ only to business users of gas with property damage or economic loss from damage to property – no pure economic loss b th P NOT l bl Perre v Apand (potato case) F: Infected potato seeds – P couldn’t sell in WA – lost profit R: Multifactorial: reasonable foreseeability, unreasonable burden on commercial activity, vulnerability & knowledge – Yes, duty is owed Oyster case F: P’s contracted hepatitis A from oysters R: No duty as owed – BECAUSE: D had taken reasonable care

Vicarious Liability Employees Liability Act – s5 ELA s5: Act doesn’t apply to ‘serious misconduct’ of employee or to conduct not related to employment (a) If the act was ‘serious’ & ‘wilful’ misconduct (b) Conduct that didn’t occur in the course of & did not come about in the employment of the employee

Zuijs v Wirth Bros (Trapeze case) – 1st limb: employee F: Trapeze artist working in a circus is injured during an act R: Indicta factors: hiring, payment of hourly wages, right to suspend/fire for misconduct, costume (uniform), rehearsals, conduct within control of circus

Sweeny v Boyland – 1st limb: independent contractor F: P went to buy milk at servo – opened fridge door – door came off injuring P R: Principal is NOT liable for the acts of an ‘independent contractor’

Deatons Pty Ltd v Flew 2nd limb: course of employment F: Barmaid threw glass at man causing injury to his face R: 1st limb satisfied, 2nd limb fails – Barmaid’s act was not done within the scope/course

Employees Liability Act – s3 ELA s3: Employee not liable where employer is also liable ELA s3(1)(a): Employee is not required to pay back employer for the damages paid to P ELA s3(1)(b): Employer is liable to compensate the employee due to liability caused by the employee for th t t BUT h diti d Stevens v Brodribb (Log case) – 1st limb: independent contractor F: while carrying log – a log falls on the leg of the P R: ‘Control test’ – ‘Alleged employer has the right to exercise control over the alleged employee’ – Indicta factors: set own work hours, minimal supervision, power to delegate work, payments for value of timber, maintenance of equipment, provision of holidays, deduction of Elazac v Sheriff – 1st limb: independent contractor (persuasive only in NSW) F: P fell down a lift well – sued D claiming D as employer R: Indicta factors: P considered himself self-employed, P had his own employees, P had a business partnership (based on tax returns), P had additional unrelated work Vabu (Courier case) – 1st limb: employee F: Courier biker for Vabu runs into the P – causing injury – recognised as employee R: Factors: uniform, exercise control, equipment (bike), not ‘skilled labour’, Financial arrangement (provided pay slips), hours of work, D f th d f t Starks v RSM Security Pty Ltd [2004] NSWCA 351 – 2nd limb: course of employment F: Bouncer headbutted a person – B job was to throw people out who were drunk / acting inappropriate R: Bouncer acted in an ‘over enthusiastic way’ – still considered in course of employment

Lepore case- 2nd limb: course of employment F: Discipline used in school argued to be sexual assault by P R: Not in course of employment – employer not liable if employment offers an opportunity of wrong doing – intentional criminal misconduct is outside of the scope of the teachers duties Wyong Shire Council v Shirt F: Sign saying ‘deep water’ causes miscommunication – P becomes quadriplegic after striking his head on the bottom of the lake while skiing R: Unlikely does not mean it is ‘unforeseeable’ – unlikely risks satisfy 1st limb – not far-fetched or fanciful

Breach of duty Doubleday v Kelly (Roller skates on trampoline) F: 7 yr old with roller-skates on a trampoline – causing injury to arm R: The risk that was foreseeable was that the 7 yr old would not use the trampoline in a competent way Don’t have to foresee the exact way the injury came about

Drinkwater v Howart – s5B F: P at a hotel with friend – friend becomes unruly & gets kicked out by D’s two security guards – outside the guard shoves the friend causing him to fall backwards on to the P causing injury R: If the D was aware of the risk as established in the reasonable foreseeability test – than it could NOT be far-fetched or fanciful – used to

Shaw v Thomas – s5B F: P 10yrs old – climbs onto top bunk bed – falls off – suffered serious injuries: fractured skull R: No breach of duty of care

Imbree v McNeilly – Leaner: Standard of the ‘reasonable person’ F: D was a 16yr old inexperienced driver – crash caused injury to P R: D is held to the same standard as an experienced driver

McHale v Watson - AGE: STANDARD OF THE ‘REASONABLE PERSON’ F: 12yr old boy aims to throw a sharp piece of metal at post – misses and blinds a 9yr old girl R: Standard is lowered for the D – standard: of same AGE & EXPERIENCE

Zanner v Zanner – AGE + CIRCUMSTANCE OF THE ‘REASONABLE PERSON’ F: Mother sues son – Son 11yr old little experience parking – foot slipped – car collided with the mother R: NSWCA stated the son had some experience in the act – therefore, he owed a duty of care

Carrier v Bonham – MENTAL ILLNESS – STANDARD OF THE ‘REASONABLE PERSON’ F: D is mentally ill – throws himself in front of a bus – P the bus driver suffers mental shock R: Standard remains the same - to that of a SANE person

Bolam v Friern PROFESSIONAL – STANDARD OF THE ‘REASONABLE PERSON’ F: Mental health patient during ‘electrical convulsive therapy’ is strapped in such a way he sustains injury R: Bolam test: For doctors – ‘Is a question for expert medical evidence from other doctors’ RTA v Dederer – s5B(2)(a) – ‘PROBABILITY’ F: D 14yr old boy jumps off bridge – becomes incomplete paraplegic – no one had been injured before R: No breach – No one was harmed UNTIL Dederer, therefore, the probability was very low

Woods v Multi-Sport Holdings s5B(2)(c) – ‘BURDENSOME’ F: P at indoor cricket – cricket ball injures P eye – P argues for full face helmet R: No breach – not reasonable to provide a safety helmet if none were required for the game nor had one existed

Rogers v Whitaker - PROFESSIONAL – STANDARD OF THE ‘REASONABLE PERSON’ F: W suffers sympathy blindness from surgery to eye from R – R did not tell W of this risk R: Held to a higher standard – court considers expert medical evidence, BUT court makes the final decision on h t bl & kill i f Paris v Stepney Borough Council s5B(2)(b) – ‘SERIOUSNESS’ F: P is blind in 1 eye is doing fixtures with a hammer for D – a chip of metal goes into his eye causing nearly total blindness – argued reasonable employer (D) to provide protective googles R: Yes breach - Duty must be related to both the risk and the degree of injury – D knew P was blind in 1 eye & the seriousness was total Neindorf v Junkovic s5B(2)(c) – ‘BURDENSOME’ F: P at the D garage sale – P while walking on the driveway falls due to the uneven surface R: No breach – the unevenness was so ‘ordinary’ & ‘visible’ = that reasonableness does NOT require any action from the occupier

E v Australian Red Cross Society s5B(2)(d) – ‘SOCIAL UTILITY’ F: P contracted AIDS through a postoperative blood transfusion – P argued for stricter testing R: No breach – stringent testing would lead to wasting 5% of all donations = effecting blood level supply – resulting in death for those t i i t f i ‘b h

Vairy v Wyong Shire Council – s5C CLA F: P’s suffered injury after diving into water – D was responsible for 27km of coastline R: No breach - Unreasonable to expect precaution if the burden (expense difficulty & inconvenience) of taking the precaution OUTWEIGHS the probability of risk occurring –

RTA v Refrigerated Roadways Pty Ltd – s5C CLA F: Truck driver dies – because people dropped objects from the bridge – going through the truck drivers windscreen causing death R: No breach - RTA was aware of this issue – started a program – BUT was slow due to lack of resources – l i 5C t bl

Damage & Causation

Civil liability Act – s5 CLA s5: Definition of “harm” a) personal injury or death b) property c) economic loss

Civil liability Act – s5E CLA s5E: Onus of proof ‘The onus of proof is on the P on the BOP (the standard is BOP)’ / Common law: Adeels case; Strong v Woolworths

Civil liability Act – s5D CLA s5D: If causation has been met ‘test’ s5D(1)(a): Factual causation: ‘Negligence is a necessary condition of the harm’ / Common law: March v Stramare: ‘But for test’ s5D(1)(b): The scope of liability: Normative considerations – ‘Appropriate for the scope of the March v Stramare – FACTUAL CAUSATION F: Drunk P crashes into the D negligently parked truck R: Introduced the ‘but for test’ – used to determine causation

Adeels Palace v Moubarak – FACTUAL CAUSATION F: Argument occurs in function room – a man shoots P – P sues Adeels for lack of security R: It is not enough to say that it might make a difference – P has to prove on the BOP that it would have deterred/prevented in this case the security prevent the man’s entry with

Strong v Woolworths Ltd – FACTUAL CAUSATION F: P slips on a chip on the sidewalk outside a big W – Woolworths Pty Ltd is responsible for the maintenance R: P has to prove on the BOP that the D negligence was a necessary condition of harm (proof of a casual link)

Overseas Tankship (The Wagon Mound (No.1)) [– SCOPE OF LIABILITY: REMOTENESS F: D spilled oil in ocean – P enquired if flammable = highly unlikely – while working it catches fire and damaged P wharf and ship R: Has to be reasonably foreseeable the KIND of damage suffered by the P if not ‘far-fetched’

Hughes v Lord Advocate – SCOPE OF LIABILITY: REMOTENESS F: 2 boys went down a hole – a paraffined lamp was knocked over causing explosion = boys suffered physical injury (burns) R: Irrelevant that the manner in which damage occurred was unforeseeable, it applies that the KIND of harm must be foreseeable

Chapman v Hearse (1961) – NAI F: A (Chapman) had a car accident – Dr Cherry stopped to help – R (Hearse) was driving negligently and hit Dr Cherry causing his death – argued that R was an NAI R: Ultimate consequence Dr Cherry death was foreseeable i.e. car crash, someone stops to help

Haber v Walker – NAI F: Victim who was badly injured from D’s negligence committed suicide – P is victim wife – D argued suicide was NAI R: If the act (suicide) is not voluntary = does not break the chain of causation BECAUSE it was not an act of a sane person

Medlin v State Government Insurance Commission – NAI F: P retired 4 years earlier due to injury caused by negligent act of the D – D argued voluntary act to retire was NAI R: In this case NO – foreseeable consequence of the D negligence that P would feel unable to work to the same standard Jobling v Associated Dairies Ltd – SUPERVENING NON-TORTIOUS EVENT F: P suffers a disease which is unrelated to the injury caused by the D R: P suffered a supervening nontortious act – D is only liable up until this event (disease)

Mahoney v J Kruschich – NAI F: P injured by D – P sought medical assistance which was also negligent – D argued the negligent medical assistance was NAI R: In this case NO – bad medical treatment is reasonably foreseeable UNLESS inexcusably bad

Nader v Urban Transit Authority of NSW – FAMILY CONTEXT F: P’s son suffers injury (hit to the head) – P is neurotic and overreacts, over the injury R: ‘Take the victim as you find them’ – social, economic and religious attributes

Kavanagh v Akhtar – CULTURAL CONTEXT F: Injury to P’s arm causes her to cut her hair because she cannot take care of it – because of religious reasons – this causes arguments with her husband, violence and divorce R: You have to ‘take the P as you find them’ including cultural context – D is liable to an unforeseen extent

Stephenson v Waite Tileman – EGGSHELL SKULL RULE F: P handling wire rope which was rusty – rope sprang free – cut P right hand on the back – P special susceptibility = immune system vulnerability R: D is still liable for consequence of the injury from the pre-existing susceptibility or new risk of susceptibility created by the by the

Chappel v Hart – FAILURE TO WARN F: P requires surgery – implies to D she doesn’t want to lose her voice – during surgery D punctures P oesophagus (P aware of this risk) BUT a virus that was already causes injury to vocal cords – D did not aware the P of this risk R:Act S5D– (3) Civil Liability s5RP cannot say what they Standard would have donefor UNLESS CLA s5R: of care against their own interest & strength ‘contributory negligence’ s5R(2)(a): 1. Reasonable person in the position of the P s5R(2)(b): 2. What the person knew or ought to have known at the time

Defences:

Civil Liability Act – s30(3) CLA s30(3): Limitation on recovery for pure mental harm from mental shock ‘Consider contributory negligence of the victim’ – Where P witnessed victim being injured/killed/put in peril’ – reduce the same amount as if

Contributory Civil Liability Act – s5S negligence CLA s5S: Contributory negligence can defeat claim ‘The court can reduce the claim to 100% if found just & equitable’ = claim for damages defeated

Civil Liability Act – s50 CLA s50: No recovery where person is ‘intoxicated’ s50(1): P is so intoxicated reasonable care and skill is impaired (includes: prescription medication, alcohol, drugs) s50(2): No claim unless harm would

Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9 S9(1)(b): ‘just & equitable’ ‘The damages recoverable in respect of the wrong re to be reduced to such an extent that as the court think is just and equitable having regard to the claimant’s share in the responsibility for the damage’

Doubleday v Kelly F: 7 yr old with roller-skates on a trampoline – causing in injury to arm R: The standard is to that of a chi...