Mid term assignment PDF

Preview

Summary

Received 78 for this. Problem scenario answer and essay response....

Description

Z5251642

UNSW Law

Electronic Assignment Cover Sheet Student Declaration of Academic Integrity https://student.unsw.edu.au/plagiarism I declare that this assessment item is my own work, except where acknowledged, and has not been submitted for academic credit elsewhere, and acknowledge that the assessor of this item may, for the purpose of assessing this item:  Reproduce this assessment item and provide a copy to another member of the University; and/or,  Communicate a copy of this assessment item to a plagiarism checking service (which may then retain a copy of the assessment item on its database for the purpose of future plagiarism checking). I certify that I have read and understood the University rules in respect of Student Academic Misconduct. By the act of submitting this assignment to turnitin you are agreeing to the above Student Declaration of Academic Integrity.

1

Student name:

Jessica Monty

Student ID:

Z5251642

Course no:

LAWS1061

Course name:

TORTS

Lecturer name:

Julian Dight

Class Days/times: Due date: No of words:

Topic:

Monday 2-3pm, Thursday 2-3pm 2/6/21 Part 1: 1657 Part 2: 843 Total: 2500 Duty of care

Z5251642 Part 1 1. Phuong To establish a duty of care for physical injuries, reasonable foreseeability is the applicable test.1 This is whether it was reasonably foreseeably that NSWBCA’s continuing the event in dangerous slippery conditions might cause injury to horse riders, such as Phuong.2 Partaking in horse riding in muddy conditions comes with a high likelihood that is not far-fetched for physical injuries. 3 Additionally, two other riders had fallen off their horses that day in a similar manner to Phuong which means the accident was of a type that was anticipated. 4

Salient factors are also needed to be considered. 5 This includes whether NSWBCA had control over the accident and how vulnerable Phuong was. As NSWBCA stopped the race earlier after riders slipped to assess the safety of the course, they had the ability to determine the safety of the riders, and Phuong specifically. Phuong was vulnerable as she was a competitor in a race who had no control of the competition’s environment. Therefore, it is likely that NSWBCA owes a duty of care to Phuong for her physical injuries.

Phuong Due to Phuong’s serious injuries and that she may never compete in future campdrafting events, Phuong developed clinically diagnosed depression, a consequential mental harm. 6 An ordinary person being told they may never walk 1 Donoghue v Stevenson [1932] AC 562. 2 Chapman v Hearse [1961] HCA 46. 3 Wyong Shire Council v Shirt [1980] HCA 12 4 Chapman v Hearse [1961] HCA 46. 5 Miller v Miller [2011] HCA 9; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 [160] (Gummow J). 6 Civil Liability Act (NSW) (‘CLA’) 2002 s 27.

2

Z5251642 again would also likely suffer from a recognised psychiatric illness (‘RPI’) such as depression due to the impact on one’s life. 7 Additionally, when injury prevents participation in something previously enjoyed, any person would be likely to suffer a RPI. Accordingly, Phuong is of normal fortitude.8

Riding a horse at speed is dangerous, on wet muddy floor makes it more so. NSWBCA therefore should have foreseen the danger in continuing the sport and that a RPI could have resulted from injury in such conditions. 9

Kim As Kim herself was not injured, hearing Phuong’s screams may cause pure mental injury.10 An ordinary person would also be quite disturbed, especially when the screams are of a family member and therefore Kim is of normal fortitude. 11

The circumstances of the case can be considered for to determine foreseeability. 12 These include: a. Kim was disturbed as a result of the sudden shock of hearing Phuong scream.13 b. Kim hearing Phuong’s screams may constitute witnessing. 14 However, defining ‘witness’ as ‘a person who sees something’, means Kim hearing of the accident does not establish a duty of care. 15 7 Ibid s 32(1). 8 CLA s 32(1); Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower [2006]. 9 CLA s 32(1). 10 Ibid s 27. 11 Ibid s 32(1). 12 CLA s 32(2). 13 Ibid s 32(2) (a). 14 Ibid s 32(2) (b).

15 H. W Fowler and F. G Fowler, The Concise Oxford Dictionary Of Current English. 3

Z5251642 c. Kim is Phuong’s stepchild; hence more likely a duty of care is owed. 16 d. Kim and NSWBCA had no pre-existing relationship. 17

Although foreseeability here is debatable, it is likely established because the circumstances do not need to be equally weighted to determine a duty of care. Therefore, a duty of care is highly likely owed for pure mental harm. 18

In order for NSWBCA to be liable to pay damages, Kim needed to suffer from a RPI, and either be a close family member or witness to the accident. 19 Kim collecting objects and refusing to throw them out may constitute hoarding, which is a diagnosis under the DSM-5 and therefore is a RPI. 20 Also, expert evidence is necessary to determine if Kim mooing whilst crawling on her hands and knees constitutes a RPI. Kim is considered a close family member to Phuong and so section 30 is satisfied. 21 Therefore, NSWBCA is liable to pay damages to Kim for pure mental harm.

Dominick Dominick’s mental injury is not consequential mental harm and therefore is pure mental harm.22

An ordinary person feeling guilty towards their part in injuring someone typically would not result in a RPI. However due to the severity of Phuong’s injuries, they may go beyond temporary guilt and into depression, an RPI. 23 16 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35; CLA ss 30(5), 32(2) (b) (c). 17 CLA s 32(2) (d). 18 CLA ss 30, 31, 32; White v Blackmore (1972) 2 QB 651. 19 CLA ss 31, 30(2), 30(5).

20 CLA s 31; Diagnostic and Statistical Manual Of Mental Disorders (‘DSM-5 ‘) (American Psychiatric Association, 5th ed). 21CLA s 30(5); H. W Fowler and F. G Fowler, The Concise Oxford Dictionary Of Current English. 22 CLA s 27. 23 CLA s 32(1); Mt Isa Mines v Pusey (1970) 125 CLR 383.

4

Z5251642

The circumstances of the case are important in determining whether NSWBCA out to have foreseen Dominick could have suffered a RPI.24 These include: a. Dominick seeing Phuong suddenly fall of her horse is a sudden shock. 25 b. Dominick saw Phuong’s fall, so he constitutes as a witness. 26 c. Although Dominick and Phuong did not have a close relationship, 27 they had interacted previously that day when Phuong chose her bull. Thus, there was a relationship than strangers which may increase the likelihood of duty of care. 28 d. NSWBCA and Dominick had a pre-existing employment relationship and therefore there is more likely a duty of care owed. 29 Balancing the circumstances, foreseeability is likely established, and a duty of care likely owed.

Dominick witnessed Phuong’s accident and although guilt would not amount to a RPI, the severe depression that Dominick developed due to the accident does, therefore entitlement to recover damages. 30 However, it is likely that Dominick cannot claim under part 3 of CLA due to worker compensation schemes. 31

Farhad Farhad lost income due to reduced bookings because of the smell and noise of the horses and cattle of next door. It is reasonably foreseeable that Farhad’s hair salon

24 CLA s 32(2). 25 CLA s 32(2) (a). 26 CLA s 32(2) (b); Wicks & Sheehan v State Rail Authority of New South Wales (2010) HCA 22. 27 CLA s 30(5). 28 CLA s 32(2) (c). 29 CLA s 32(2) (d).

30 CLA ss 30(2) (a), 31; Diagnostic and Statistical Manual Of Mental Disorders (American Psychiatric Association, 5th ed); H. W Fowler and F. G Fowler, The Concise Oxford Dictionary Of Current English. 31 CLA pt 3; Workers Compensation Act (NSW) (1987) s 65A.

5

Z5251642 would lose business if the NSWBCA did not take reasonable care to ensure the environment is not unpleasant.32

As Farhad specifically enquired about the noise and smell prior to moving in, he would have reasonably relied upon NSWBCA’s negligent misstatement that the noise and smells ‘were really nothing’ and NSWBCA ought to have known he would.

33

Also, because NSWBCA run the events and thus should have adequate knowledge of the noise and smell.

Following Caltex Oil v Dredge, it is necessary for NSWBCA to reasonably foresee economic loss for Farhad in particular, rather than a class of persons, such as home hair salon businesses. 34 As Farhad’s business was unregistered, only accepted cash payments and evaded tax responsibility, it is unlikely Farhad can claim pure economic loss as his income was illegitimate, so NSWBCA would have no way of knowing their misstatement would cause economic loss. 35 Farhad also could have protected himself from economic loss by having a permanent location for his salon and not have to worry about a campdrafting complex next door. 36

Thus, it is unlikely NSWBCA owes a duty of care to Farhad for pure economic loss.

2. For NSWBCA to be liable to Farhad in the tort of private nuisance Farhad must firstly have actual exclusive possession to the land, secondly the nuisance must cause 32 Sullivan v Moody [2001] HCA 59. 33 Hedley Bryne & Co Ltd v Heller & Partners Ltd [1964] AC 465. 34 Caltex oil v Dredge [274-275] (Mason J) 35 Ibid. 36 Perre v Apand Pty Ltd [1999] HCA 36.

6

Z5251642 substantial or unreasonable interference with Farhad’s enjoyment of his land and thirdly NSWBCA must have either created the nuisance, authorised the nuisance or adopted/ continued the nuisance. 37

Title to sue Farhad rented the house for three months through Airbnb, is considered a tenant of the property and had actual exclusive possession to the land at the time and has title to sue.38

Interference The potential interferences of NSWBCA include the tangible, physical damage to Farhad’s doors and the intangible interference of Farhad’s use and enjoyment of the Airbnb from the increased presence of flies, the noise and the bad smells from the complex next door.39

As the horse dung had broken the glass of Farhad’s doors, the damage was material and more than trivial and therefore a substantial interference. 40

The flies, noise and bad smells constitute unreasonable interference if the give and take rule is satisfied.41 The elements to address include locality, duration, time, frequency, ordinary person and whether NSWBCA had malicious motives. 42 Although the area used to be farmland and the noises and smell of the animals were typical of 37 Hargrave v Goldman [1963] HCA 56 (Windeyer J). 38 Hunter v Canary Wharf Ltd [1997] AC 655 [691]. 39 Halsey v. Esso Petroleum [1961] 2 AII ER 145; St. Helens Smelting Co. v. Tipping [1865] 11 HL Cas 642. 40 Challen v McLeod Country Golf Club [2004] QCA 358 [2]; Halsey v. Esso Petroleum [1961] 2 AII ER 145; Oldham v Lawson (No. 1) [1976] VicRp 69 (Harris J). 41 Munro v Southern Dairies [1955] VLR 332 (Sholl J). 42 Ibid.

7

Z5251642 horses and cattle, it was redeveloped as a residential area in which constant animal noises and smells are not standard. Also, the number of flies in the area would have increased in comparison to another similar residential area of the same climate due to the presence of animals. As the cattle were always at the campdrafting complex, the noise and smell would be constant, however the flies only so in the heat. Additionally, the horses add extra noise through neighing and whinny during every Friday night and Saturday.

It could be argued that Farhad was particularly sensitive as the NSWBCA had said the noise and smells ‘were really nothing’. However, as the organiser of the events, NSWBCA would likely have adapted to the noise and smells and Farhad’s complaints were similar to another ordinary person. 43 Therefore, the interference is unreasonable.

Fault NSWBCA acknowledged there was noise and smell and consequently, flies, when Farhad asked but dismissed the interference as ‘really nothing’. Therefore, NSWBCA failed to take reasonable steps to terminate the nuisance and continued the nuisance.44

Additionally, NSWBCA did not monitor its workers effectively to prevent the horse dung being thrown onto Farhad’s house and yard, consequently NSWBCA authorised the nuisance.45

43 Ibid.

44 Stockwell v State of Victoria [2001] VSC 497. 45 De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498 [502]. 8

Z5251642 Alternatively, it might be said that the workers employed by NSWBCA were at fault as they created the nuisance by throwing the horse dung. 46 However, there is no proof that the dung was thrown by the workers, just a belief so it is likely NSWBCA would still be at fault as the workers are employees of NSWBCA not a third-party company.

Defences Farhad had been told the noise and smell was minimal and had not been told about the Saturday events. Therefore, it is unlikely consent would be an effective defence as unknown interferences cannot be consented to. 47

Remedies Hurling clumps of horse dung over a fence can cause damage to property due to the size and weight of it. Therefore, it would have been reasonably foreseeable that the workers employed by NSWBCA would cause damage to Farhad’s glass and damages can be recovered due to the remoteness test being successful. 48 However, only if Farhad’s belief the workers hurled the dung is correct.

As the events at the campdrafting complex are weekly, they are likely to continue. Thus, the smell, flies and noise are likely to continue to be of disturbance and a permanent injunction may be applied by the court. 49 However, Farhad only has a three month stay on the Airbnb property, so the nuisance would not continue to affect him. Yet, a permanent injunction would still be applicable as other tenants may be

46 Fennell v Robson [1977] 2 NSWLR 486. 47 Surges v Bridgman [1879] 11 Ch D 852. 48 Overseas Tankship v Miller Steamship (No 2) [1967] 1 AC 617 [639] (Lord Reid). 49 Munro v Southern Dairies [1955] VLR 332 (Sholl J).

9

Z5251642 impacted in future and as the test of substantial/ unreasonable interference is objective it is applicable to other tenants. 50

Part II

Introduction Under current duty of care legislation and common law, minority groups are disproportionally impacted in terms of compensation and social equality. This is particularly the case for the category of pure mental injury. 51 In this essay, firstly the higher criteria for pure mental harm versus physical harm will be discussed with referencing the impact to women. Secondly, the paradox of deterrence as an aim of duty of care law will be discussed relating to corporations versus individuals. Although the economic and moral issues of duty of care are articulated in cases, they are rarely actioned upon. This is evident through the lack of law reform or the slow changes.

Pure mental injury criteria Current legislation necessitates more criterion for pure mental injury than other duty of care categories such as physical injury. 52 Although it is a development that pure mental injury is now recognised and able to be compensated, the additional requirements still create a division between different areas of duty of care. 53 This is an issue because emotional harm outcomes are more unfavourable to women as identified by feminist theory.54 This is due to the masculinised view that pure mental 50 Ibid. 51 CLA s 30.

52 CLA s 30; Jaensch v Coffey (1984) 155 CLR 549 [567] (Brennan J). 53 VRC v Coultas (1888) 13 App Cas 222 [226]; Dulieu v White & Sons [1901] 2 KB 669 [67-672]. 54 Tayu Wilker ‘Feminism In The Australian Torts System: A Continuation Of Classic Critiques ’ [2019].

10

Z5251642 harm is less important than physical, demonstrated in Koehler v Cerebos and fictional case, Bau-Yu.55 This reinstates patriarchy by disregarding mental distress because of the view of women as naturally emotional. 56

One of the current criterions for pure mental harm cases requires proof the victim suffered a recognised psychiatric illness (‘RPI’).57 This perpetuates pure mental harm to go uncompensated if symptoms present in differing ways. For example, Kim acting like an animal for hours clearly impacts her life, but no claim is possible without expert evidence to determine it as a RPI.

To rectify this imbalance in duty of care categories, equalising criterion for pure mental harm and physical harm has been suggested. 58 However, this may ‘open the floodgates’ to more actions in tort.59 For instance, in Bau-Yu, anyone who saw the footage may be able to have a claim. Although this would increase the number of successful cases, this would assist in successfully implementing the aim of compensation; being to put people back in the place they were in before the negligent act or omission, especially as it has been suggested mental injury can be more hindering than physical injury. 60 In the case of Bau-Yu, Bau-Yu would likely be successful for pure mental harm for less restrictive circumstances. This is because the discrepancies between medical practitioners on whether prosopagnosia is a real diagnosis would be less influential on whether her mental harm is actionable.

55 WAStuLawRw 1; Carolyn Sappideen, Prue Vines and John Eldridge, Torts: Commentary and Materials (Thomson Reuters, 13th ed, 2021) 21, 301.

56 Carolyn Sappideen, Prue Vines and John Eldridge, Torts: Commentary and Materials (Thomson Reuters, 13th ed, 2021) 21, 301. 57 CLA s 31. 58 Christine Forster and Jeni Engel, "Reinforcing Historic Distinctions Between Mental And Physical Injury: The Impact Of The Civil Liability Reforms" (2021) 19(593) Journal of Law and Medicine 9. 59 Ibid 6. 60 Ibid 9. 11

Z5251642

In the case of mental injury, early interventions reduce long-term harms, and a successful compensation claim would help reinstate the plaintiff’s previous mental state. Equalising requirements to prove duty of care for pure mental harm and physical harm would therefore reduce inequality, especially for women and would reflect the concurrent issue to reduce gendered stereotypes.

Deterrence Along with assisting the victims, compensation in tort law is meant to deter from future negligent acts to reduce the amount of unrecoverable compensation. This can be viewed as a paradox as negligence is about what one should have foreseen, not what they actually foresaw, so may be unpreventable. For instance, the pilot’s negligence in Bau-Yu was likely not due to a lack of care as he himself was likely injured, rather an accident.

To rectify insufficiencies in recovering compensation, a no-fault compensation scheme has been proposed.61 This would absolve individuals of paying for compensation and society as a whole would contribute through increased taxes or premiums to compensate individuals collectively. Although this would eliminate the deterrence effect of tort law, there is evidence that duty of care claims have weak deterrence effects anyway. 62 This however would create new systematic insufficiencies social inequality would remain, by just shifting the inequality to affect all minorities rather than just those who are fail in their duty of care. For instance, 61 Carolyn Sappideen, Prue Vines and John Eldridge, Torts: Commentary And Materials (Thomson Reuters, 13th ed, 2021) 20-21.

62 Harvard Medical Practice Study Group, Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation and Patient Compensation in New York (Harvard University Press, Cambridge, 1990).

12

Z5251642 NSWBCA may have had five action claims against them from one day of negligence. This would be rather costly, under such...