LLB02 Torts case summaries PDF

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LLB02 Torts: Case Summaries: WEEK 1:

McHale v Watson (1964) 111 CLR 384 FACTS: McHale, Watson, and another young girl were playing games. Watson was12 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 Watson under the tort of trespass to person (battery). ISSUE: The intention for Watson to cause any harm on McHale. The defendant had said that he intended for the dart to stick into the piece of wood and not bounce off into a tangent that struck McHale in the eye. Another issue that arises in this case is if the parents are liable for damages their child may cause. Decision: The court decided that Watson did not intend to cause any harm to McHale. That in fact Watson was aiming for the tree and not McHale. It was also ruled that Watson could not yet foresee any consequences that his action may cause as he is only 12. The court also ruled that it was not negligent for Watson’s parents to give him the object. This is based on that a parent does not incur responsibility for misuse of an object that is not reasonably foreseeable.

Brady v Schatzel [1911] St R Qd 206 FACTS: Schatzel pointed a gun at Brady when he entered her property to question her son over something. Brady is suing Shatzel on trespass to person (Assault)ISSUEL: Shatzel showed no fear when the gun was pointed at them and did not try to protect themselves on the grounds they didn’t actually think the defendant would shoot. DECISION: The defendant was held guilty of assault. This is centred on the fact that assault is not based on whether the plaintiff was a courageous or a timid person. Instead, assault

is dependant upon the intention of the defendant to carry out the unlawful harm. Rixon v Star City Pty Ltd (2001) 53 NSWLR 98

FACTS: The Plaintiff (Rixon) was subject to an exclusion order by the casino but found on the premises. A security guard walked up and placed his hand on the Plaintiff’s shoulder (Trespass to person: Battery). ISSUE: If the mere placing of a hand on someone’s shoulder is classified as battery. A direct interference on someone’s person without consent DECISION: In this case the purpose of placing a hand on Rixon’s shoulder was to gain his attention. It was also ruled that this contact was within the grounds of everyday contact. It is not deemed as battery.

WEEK 3: Hargrave v Goldman (1963) 110 CLR 40 FACTS: The Defendant’s tree was truck by lightning, which caused it to catch fire.

The Defendant then cleared the area adjacent to their property and cut down the tree. However, the defendant did not take the time to extinguish the blaze. As a result the Plaintiff’s property was damaged. ISSUE: Whether respondent responsible for spread of nuisance not personally caused DECISION: Occupier of land responsible for damage caused by nuisance if reasonable care could have rendered nuisance harmless. By cutting down the

tree the Defendant created a new hazard, which they are responsible for. Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825 FACTS: Plaintiff is a silver fox breeder. The Plaintiff refused to remove a sign advertising their farm when asked by the defendant. The defendant’s son upon instruction fired ‘bird-scaring’ cartridges on their own but as close as possible to breeding pens on the Plaintiff’s land. As a result it has caused damages to the Plaintiff’s foxes.

ISSUE: The shooting did occur on the defendant’s land, which is acceptable however, the motives of why it occurred led to the tort of Nuisance DECISION: It was held that the was a nuisance for which the defendant was liable in damages and an injunction was granted restraining him from discharging guns or making other noises during the breeding season. This decision was based upon the malice intent to cause the nuisance, which cancelled out the argument

of abnormal sensitivity towards the foxes. Hunter v Canary Wharf [1997] 2 All ER 426 FACTS: The Defendants constructed a WEEK 3: Hargrave v Goldman (1963) 110 CLR 40

private nuisance

FACTS: The Defendant’s tree was struck by lightning, which caused it to catch fire. The Defendant then cleared the area adjacent to their property and cut down the tree. However, the defendant did not take the time to extinguish the blaze. As a result the Plaintiff’s property was damaged. ISSUE: Whether respondent responsible for spread of nuisance not personally caused DECISION: Occupier of land responsible for damage caused by nuisance if reasonable care could have rendered nuisance harmless. By cutting down the tree the Defendant created a new hazard, which they are responsible for.

Hollywood Silver Fox Farm Ltd v Emmett [1936] 1 All ER 825 FACTS: Plaintiff is a silver fox breeder. The Plaintiff refused to remove a sign advertising their farm when asked by the defendant. The defendant’s son upon instruction fired ‘bird-scaring’ cartridges on their own but as close as possible to breeding pens on the Plaintiff’s land. As a result it has caused damages to the Plaintiff’s foxes. ISSUE: The shooting did occur on the defendant’s land, which is acceptable however, the motives of why it occurred led to the tort of Nuisance DECISION: It was held that the gun shots was a nuisance for which the defendant was liable in damages and an injunction was granted restraining him from discharging guns or making other noises during the breeding season. This decision was based upon the malice intent to cause the nuisance, which cancelled out the argument of abnormal sensitivity towards the foxes.

Munro v Southern Dairies [1955] VLR 332 Horse smell on a dairy farm. D’s conduct was acceptable, but interference was substantial bc long and continuous. - plaintiff lived adjacent to dairy and complain horses were noisy, and smell from urine and faeces attracted flies - nuisance successful - loss of a single night's sleep from the noise of the dairy would amount to a substantial interference

Hunter v Canary Wharf [1997] 2 All ER 426FACTS: The Defendants constructed a tower interfered with the TV reception of surrounding residents, courtesy if its steel cladding. Issue 

Could there be liability?

Decision 

No

Reasoning       

There is no liability in blocking light in the tort of nuisance, and television providing radio waves are analogous to light To sue, one must have a legal interest in land: with possession, as a tenant or as a licensee with full control over the property; children may not sue Potential claimants may be ‘bought off’ Damages in nuisance are calculated with a ‘loss of rent’ calculation: of the property were rented, how much less would a tenant be able to pay the claimant to rent it in its ‘damaged’ state Dust may constitute a nuisance if it reduces the value of the claimant’s land Damage due to personal injury may not be compensated under Rylands v Fletcher A right to TV reception was not in the general nature of rights capable of being recognised as an easement in land law – it is too uncertain

Challen v The McLeod Country Golf Club [2004] QCA 350 This case considered the issue of nuisance and whether or not a golf club was liable for the damage and nuisance caused by golf balls to a neighbouring house.

- Purchase land next to golf course. - about 20 golf balls per week landing on the P’s property - golf balls flew into home and damaged it breaking tiles and windows & on one occasion striking plaintiff – p lived next door to the d’s golf course - nuisance successful - no defence to nuisance to plead that plaintiff came to nuisance - even 2-3 balls a week with risk of physical harm/ property damage amounts to material interference Court of Appeal stated: if an occupier of land permits nuisance to be conducted on their land in which they know or ought to know – they can become liable for it The golf club wasn’t hitting the balls on to the P’s property but they did allow people to come and play golf so they authorised the activity – they knew balls were coming on to the P’s land Was held they didn’t take reasonable steps to stop the balls from crossing over Courts said they should’ve put up nets – were held to be liable for continuing and adopting it

Victoria Park Racing & Recreation Grounds Co Ltd v Taylor The plaintiff owned Victoria Park, a racing track which charged admissions to people who placed bets on the races. The racecourse was surrounded by a very high fence. Taylor, who had a house and front yard adjacent to the course, allowed the radio broadcasting station 2UW to construct a five-metre high platform on scaffolding from which someone could see into the course and broadcast – with the help of binoculars — the races and

information about horses posted at the ground, which facilitated unregulated off-track betting. Attendance at the ground plummeted. The Plaintiff claimed that on-track betting was lower as a result of the broadcasts, as people who had previously come to the track were now listening on the radio instead and Taylor was profiting at the expense of the plaintiff. He applied to the Supreme Court of New South Wales for an injunction against Taylor on the footing of nuisance and breach of copyright. Privacy and non-natural use of property were also cited as grounds. It was common ground that the mere construction and use of the raised platform constituted no breach of building or zoning regulations or of the betting and gaming legislation or indeed of the regulations governing broadcasting. The injunction was denied, and the decision was appealed to the High Court.

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determining whether property rights exist the appeal was dismissed, as no wrong was committed that was known to the law Ruling at High Court - judges held:  There was no property in a spectacle.  Nor could copyright be claimed in any information being posted on signs in the park  There was no proof that nuisance had been brought upon the race track  The Court did not recognize the existence of a legal right to privacy

Walter v Selfe (1851) 64 ER 849 A brick-maker is forbidden to violate his neighbour’s right to unpolluted and untainted air. Shortly after Mr. Selfe began manufacturing bricks on his property in the English countryside, the owner and tenant of the neighbouring house and garden took him to court. They sought an injunction against the burning process, objecting that the resulting smoke, vapour, and “floating substances” caused inconvenience and discomfort. Courts held: Interference has to interfere with more than "dainty modes" of living... Interference has to materially interfere with “ordinary comfort”, not elegant or dainty modes of living” - smell + cinders from brick kiln affect health of occupier of house + cause damage to property, trees, plantations - injunction Knight Bruce, the Vice-Chancellor who heard the case, determined that the brick burning constituted a nuisance and issued an injunction prohibiting any burning that damaged or annoyed the plaintiffs or injured their garden. The plaintiffs, he said, were entitled to “unpolluted and untainted air. A man may be disabled from building on his own land as he may wish, by reason of his neighbour’s rights.

Week 4: Hollis v Vabu Pty Ltd (2001) 207 CLR 21

(Existence of employment relationship — Vicarious liability) FACTS:The Plaintiff [Hollis] was a cyclist who got hit by an unidentified person, who was working for the Defendant [Vabu] courier services. ISSUE: The status of the couriers who were working for Vabu’s company was undefined and unclear. If they were employees or contractors. Therefore DECISION: Ultimately, the court ruled that a employee employer relationship was present due to these fact: The documents signed by the couriers and the work practices Vabu required the couriers to comply with indicate they were employees. (iii) The couriers had little control over the manner in which they performed their work. at (iv) The couriers were providing unskilled labour and were unable to develop an independent career as a courier. (v) The couriers were required to wear uniforms.(vi) The couriers had no opportunity to bargain for their rate of pay.(vii) The couriers were not free to take leave whenever they wished. This limited their opportunity to conduct a business on their own account.

Kondis v State Transport Authority (1984) 154 CLR 672

(especially Mason J’s judgment)Issue: - The appellant was employed by the respondent with a gang at the Joilmont Railway Yards engaged in dismantling a structure. They were to be assisted by a third party crane hire. The appellant was injured when struck by a metal rod falling from the cranes jib while the cranes operator, an employee of the third party, was fitting an extension to the jib. Decision- Found that the appellant had been instructed to assist in the extension procedure by standing under the jib and picking up the pin as it dropped and that Wallis, Cercone and Clissold were all aware of this but that neither Wallis nor Cercone had made any inquiries of Clissold as to the procedure to be followed I respect of lowering or dropping the rod. He further found that Clissold failed to give any warning that he was about to drop the rod and failed to keep a proper lookout before doing so. Towards the end of the judgement on this point, his Honour said:‘the court makes express finding that Clissold was at the time acting under the over-all control of the [respondent] and that the [respondent] is liable for his negligence’. If Clissold had kept a proper lookout or if he had given a proper warning before causing the tube to drop the accident to the [appellant] would not have occurred. The appellant was award $228,848 in damages.

State of New South Wales v Lepore; Rich v State of Queensland (2003) 212 CLR 511

Issue:- Sexual assault of a child during corporal punishment Decision:- Case on non-delegable duty of care, not is scope of employment.

LEICHHARDT MUNICIPAL COUNCIL v MONTGOMERY - (2007)

233 ALR 200

Issue: The appellant, Leichhardt Municipal Council (the council), was a roads authority within the meaning of the Roads Act 1993 (NSW) responsible for Parramatta Rd, Leichhardt. The council engaged a contractor, Roan Constructions Pty Ltd (Roan Constructions), to carry out work on the footpath running along Parramatta Rd. Pursuant to its contract with the council, Roan Constructions was required to place artificial grass or carpet across the disturbed area of the footpath to allow access to commercial premises. An employee of Roan Constructions placed carpet over a telecommunications pit which had a broken cover. The respondent, Mr Montgomery, walked on the carpet, fell into the

Dodwell v Burford [1670] A horse may be used as an agent for a battery Hitting a horse, causing it to run off and the defendant to fall off is a direct act

NEGLIGENCE Tame v NSW (2002) 211 CLR 317 

Plaintiff had an accident which wasn't her fault.



She sought insurance, and became quite anxious when the payments weren't coming for some time.

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Her solicitor notified her that the Police wrote on the form that the Plaintiff had a blood-alcohol rating of 0.14 (legal limit is 0.05) at the time (that rating belonged to the other driver).

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The police acknowledged their mistakes, issued a formal apology,

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The police fixed this mistake after 2 or 3 months, but not in time to be passed on to the insurer.

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However, there is evidence that the insurer did not think that the Plaintiff was drunk. It still paid a substantial sum to the Plaintiff, although it took time before the payments came.

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The Plaintiff developed some irrational and obsessive fear that delay of the payments is related to her perceived drunkenness, and that everyone around her thought she was drunk at the time.

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It was diagnosed that this obsession was the cause of the psychotic depression that followed.

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The Plaintiff sued the police for negligence.

Conclusion Gleeson CJ: 

Control mechanisms should be rejected, and were not used for this judgement. Ultimately, it all comes down to the question of whether the harm was a reasonably foreseeable result of the action. The relationship between the plaintiff and defendant obviously makes a difference.

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Case is dismissed for two reasons: 1. The police officer's primary duty is to make a police report with the purpose of giving it to his superiors. It is not his duty to take measures to make sure that a person doesn't suffer mental harm as a result. Even if he also had this duty, there would then be a conflict of duties, and as a general principle the main duty will prevail in a conflict. 2. The harm itself was not reasonably foreseeable at all - who would have known that a mistake about blood tests in a police report would lead to mental illness?

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Both the Court of Appeal and the High Court dismissed the claim - nervous shock and depression is not a reasonable general consequence of filling out a form erroneously

Donoghue v Stevenson [1932] ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour… [Neighbours] are closely and

directly affected by [the] act that [you] ought reasonably to have them in contemplation as being so affected when [you are] directing [your] mind to the acts or omissions which are called in question ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour… [Neighbours] are closely and directly affected by [the] act that [you] ought reasonably to have them in contemplation as being so affected when [you are] directing [your] mind to the acts or omissions which are called in question

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Facts:  Ms May Donoghue was given a bottle of ginger beer, which had

purchased for her by a friend.  The bottle was later discovered to contain a decomposing snail. Since the bottle was not made of clear glass, Donoghue had consumed most of its contents before she became aware of the snail. She later fell ill and a physician diagnosed her with gastroenteritis.  Donoghue subsequently took legal action against Mr David Stevenson, the manufacturer of the ginger beer. She lodged a writ in the Court of Sessions, Scotland’s highest civil court, seeking £500 damages.  Donoghue could not sue Stevenson for breach of contract, because a friend had purchased the drink for her. Instead, her lawyers claimed that Stevenson had breached a duty of care to his consumers and had caused injury through negligence Donoghue’s initial action failed, however she was granted leave to appeal to the House of Lords

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he leading judgement, delivered by Lord Atkin in 1932, established that Stevenson should be responsible for the well-being of individuals who consume his products, given that they could not be inspected.

 Negligence. Firstly, the House of Lords ruling affirmed that negligence is a tort. A plaintiff can take civil action against a respondent, if the respondent’s negligence causes the plaintiff injury or loss of property. Previously the plaintiff had to demonstrate some contractual arrangement for negligence to be proven, such as the sale of an item or an agreement to provide a service. Since Donoghue had not purchased the drink, she could prove no contractual arrangement with Stevenson – yet Lord Atkin’s judgement established that Stevenson was still responsible for the integrity of his product.  Duty of care. Secondly, the case established that manufacturers have a duty of care to the end consumers or users of their products. According to Lord Atkin’s ratio dec...