Torts Exam Answers PDF - Prepared paragraphs on topics for the exam. PDF

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Vicarious Liability Vicarious liability refers to a persons responsibility for another’s actions, specifically a superior’s for a subordinate’s, even when they were not personally negligent themselves. Its intention is to act as a deterrent for negligent conduct, by making the engager of workers responsible for their actions.! To determine if vicarious liability exists, it must be established if the individual involved is an employee or contractor (or neither) of the potentially liable third person. There must also have been a tort committed and the tort must have occurred during the course of the relationship.! In Stevens v Brodribb Sawmilling (1986), it was held that the defendant was not liable for the independent contractors actions, because they were not his employees, as they had too much ‘control’ over their own work. The court assessed a range of indicators of the relationship in Elazac v Shirreff. These included the degree of control the individual has over their work, how they get paid, their holiday and sick leave entitlements, the right of the other individual to dismiss this person from work and whether or not the individual themselves considers they are working for themselves. These indicators were also supported in the case of Hollis v Vabu, where the High Court determined bike couriers were employee’s of a company due to their skills not being specialised, their wearing uniforms, the company controlling their finances and the couriers having little control over their work. ! However the employer will not automatically be held liable merely on the basis of employment; consideration must be given for the connection between the misconduct and the authorised conduct (NSW v Lepore). For instance, the employer would likely not be vicariously liable for their employee’s actions, if the employee has acted with serious wilful misconduct, or outside of the course of their employment (s5, Employees Liability Act 1991 (NSW)) or with personal retribution (Deatons v Flew). They will be held liable however, for an employee who acts ‘more enthusiastically’ than necessary, if the acts arise from conduct authorised by the employer (Stark v RSM). !

Duty of Care An action of negligence can only be brought against a person who owed a duty of care to the plaintiff. This was established via the neighbour principle in Donoghue v Stevenson, which recognised the duty of care between a consumer and a manufacturer, despite there being no contract between the parties. ! To establish if a duty of care exists, one of two legal options must be present. Firstly, the relationship between the plaintiff and defendant must fall into an existing category of duty of care, or, if it falls outside of an existing category, that it can be proven (via reasonable foreseeability and salient features) to be a legally significant category. Existing categories include:! • Physical harm by positive act! • Patient-practitioner! • Client-lawyer! • Carers-wards! • Teachers-students! To establish a novel category of duty of care:! Chapman v Hearse held that a duty of care will only exist if the condition of reasonable foreseeability is met. The plaintiff must be able to show that a reasonable person in the defendants position would have foreseen that the negligent conduct could cause injury to another person. In this case, ‘reasonable foreseeability’ was defined as an event that was ‘not unlikely’, and it was held that the precise way in which the injuries were sustained must not be shown but just that the injury could occur to a class of people to which the plaintiff belongs.! A plaintiff must look out for their own safety when a risk of injury is so obvious. Reasonable foreseeability cannot be the only factor used to determine that a duty of care exists either. Other important factors that indicate a duty of care include proximity, the power of the defendant versus the vulnerability of the plaintiff and the use of a common sense analysis on a case-by-case basis.

2 of 8 Proximity refers to the closeness of the relationship between the plaintiff and defendant. In Donoghue v Stevenson it was stated that the closer a relationship becomes, the more a persons act will directly impact on the other person, and the more likely a duty of care will be owed. This is supported in Perre v Appand, where it was also suggested that a duty of care may be owed when one party has more power over the other who has more vulnerability. In Graham Barclay Oysters Pty Ltd v Ryan; Ryan v Great Lakes Council; NSW v Ryan, the High Court used a range of common sense analysis techniques to determine that a council who did owe a duty of care to the public, had not breached that duty to any individuals, exhibiting how the court can determine, through reasoning, the existence of a duty of care. ! Duty to avoid causing pure economic loss:! The defendant will be liable for pure economic loss when they knew or ought to know that the plaintiff would reasonably rely on their words and suffer economic loss as a result (Essanda). It must be shown that the defendant had a special duty of care, specifically not to cause pure economic loss to the plaintiff. A defendant may be liable for the pure economic loss of the plaintiff in one of two ways; negligent misstatement or negligent act/omission (Hedley Byrne). ! The court will consider the following factors to determine if it was reasonably foreseeable that the plaintiff would rely on the ‘advice’ of the defendant (Essanda):! • Plaintiffs request for information! • Defendants special skills or competence! • Defendants initiation to plaintiff to act on advice! • Defendants intention to induce the plaintiff to act, and! • The plaintiff reasonably taking the defendants advice.! The court will consider the following factors to determine if it was reasonably foreseeable that the defendants ‘actions’ caused the plaintiff pure economic loss (Perre):! • Vulnerability of loss! • Control over loss (Woolcock)! • Knowledge that loss would be caused to plaintiff, even if it was not the plaintiff who/whose property was injured (Caltex)! Duty to avoid causing psychiatric injury (mental harm/nervous shock):! A person does not owe another a duty of care not to cause mental harm, unless the person ought to have foreseen that an ordinary person might, in the circumstances, develop a recognised mental illness if reasonable care was not taken (s32 CLA). ! A plaintiff is able to claim damages for personal injury that results from mental or nervous shock (s 29 CLA). However in order to claim pure mental harm, the plaintiff must prove that the defendants act or omission resulted in the death, injury or placing in peril of a victim. The plaintiff can only claim damages if they ‘witnessed, at the scene, the victim being killed, injured or put in peril’ or they are a close family member of the victim (s 30 CLA). A close family member includes spouse, child, parent, brother or sister, or person with parental responsibilities for the victim. The defendant is only liable if the mental harm that results from the negligence is a recognised psychiatric illness (s 31 CLA). !

Breach of Duty Once a duty of care has been established, it must then be proven by the plaintiff that this duty was in fact breached by the defendant, in order for a claim in negligence to succeed. Section 5B of the Civil Liability Act 2002 (NSW) (‘CLA’) states that a person will be found liable for negligence resulting in harm if the risk of harm was foreseeable, the risk was not insignificant and if a reasonable person would have offered a higher standard of care.! Foreseeable Risk:! In the case of Wyong Shire Council v Shirt (1980), it was established that a foreseeable risk was one that was ‘not farfetched or fanciful’. A risk is deemed foreseeable when the defendant knew or it to have known of its existence and when it constitutes a ‘real risk’ (Overseas Tankship). Just because a risk of injury is plainly foreseeable, does not mean it must also be likely to occur (i.e.

3 of 8 foreseeability and likelihood of occurrence need not correlate). It also need not be the exact events that were foreseeable, but the general details of the occurrence only, that were foreseeable (Doubleday v Kelly?).! Not Insignificant:! A risk is ‘not insignificant’ if it is above the threshold of ‘not farfetched or fanciful’, but below the measurement of ‘substantial risk’, according to Shaw v Thomas. To determine if a risk is not insignificant, which is not the same as saying ‘significant’, an assessment In regards to the probability of the risk occurring, according to the facts and circumstances of each case, must be undertaken (Benic).! Standard of Care:! The defendant’s conduct will be measured against the objective standard of what a ‘reasonable person’ would have done in the same circumstances. This is outlined in s5B of the CLA, as requiring the plaintiff to prove that the defendant failed to act as a reasonable person would have. To determine if a reasonable person would have taken precautions against the harm that occurred, the Court considers the following: ! 1. the probability the harm would have occurred if precautions were not taken (Bolton v Stone)! 2. the likely seriousness of the harm (Paris)! 3. the burden of taking the precautions (Romeo v NT Coastal) and ! 4. the social utility of the activity that created the risk of harm.! What standard of care was owed?! Examples:! - Child! - Medical practitioner! - Council! - Learner driver! - Lawyer ! - Professionals:! - The degree of skill to be expected of professionals is that ‘which is appropriate to a member of the profession with the relevant special skills.’ (Heydon v NRMA).! - A professional does not incur a liability in negligence if it is established that they acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice at the time (s 50 CLA).!

Damage Some damage must occur to the plaintiff in order for a claim in negligence against the defendant to succeed. According to s 5 of the CLA, this damage can be in any of the following forms:! • Personal injury or death! • Personal injury:! • Impairment to mental and physical condition! • Pure or consequential mental harm! • Pre-natal injury! • Disease ! • Damage to property! • Economic loss! • Pure or consequential!

Causation In order to succeed in a claim of negligence, the plaintiff will have to prove, on the balance of probabilities, that the damage suffered was caused by the negligent act of the defendant (March v Stramare). If the plaintiff cannot prove that the act caused the damage, the defendant will not be held liable for the negligence. ! Causation is comprised of two main issues, outlined in s 5D of the CLA. Firstly being factual causation, which asks if the defendant’s negligence was a ‘necessary condition’ of the plaintiff’s damage, and secondly being the scope of the defendants liability. This asks whether the

4 of 8 defendant should bear legal responsibility for the plaintiff’s loss and whether that liability extends to all of the damage suffered or not.! To determine factual causation, the court considers whether the defendant should be held liable or not and why, and whether the plaintiff would have suffered the harm if not for the defendants actions (s 5D CLA). The common law equivalent of this statute is the ‘but for’ test (Adeels), as outlined in March v Stramare, which tests if the plaintiff’s harm would not have occurred ‘but for’ the defendants negligence. This is used in addition to the common sense of the court. It is not enough that the defendant acting reasonably ‘might’ have prevented the harm, it needs to ‘actually’ have prevented the harm, when tested on the balance of probabilities (Adeels). If more than one condition necessary to cause the harm was present, it is sufficient that the defendants actions were one of those conditions (Strong v Woolworths). ! To determine the scope of the defendants liability, the court considers whether the defendant was responsible or not and why and whether it is appropriate for the scope of negligence to be extended to the harm caused (s 5D CLA). How closely linked the scope of liability is with the resulting harm is determined by the remoteness of the foreseeability of risk from the actual harm. In other words, if the resulting harm was different from what the defendant foresaw, they will not be held liable (Wagon Mound). It is sufficient however, that the defendant foresaw the ‘kind’ of harm, even if the extent or exact detail of the actual harm was foreseen (Hughes v Lord Advocate). ! The causation can be interrupted by another event. If this new event, called a ‘novus actus interveniens’, can be proven to break the chain of causation, then the defendant will not be held liable for negligence (Haber v Walker). This is because the new act has severed the causal link between the defendants act and the plaintiffs harm. Several requirements of the intervening act include: ! • that it must be a voluntary act, of a sane person, that is independent of the defendants act (Haber v Walker)! • The defendant must not have foreseen the intervening act (Haber v Walker)! • Medical advice and treatment generally doesn’t break causation unless it is ‘inexcusably bad’ or ‘completely outside’ of reasonable medical practice (Mahoney).! The argument of what the plaintiff would have done if warned by the defendant is inadmissible in court (s 5D CLA).!

Defences The defendant must take the plaintiff ‘as they find them’ (Nader). This is referred to as the ‘eggshell skull rule’ and means that the sensitivities, beliefs or weaknesses, whether they be physical, social, economical or religious, etc, of the plaintiff, cannot be used by the defendant as a defence. The result is that some plaintiffs will suffer more from the same act than others would, but this does not lessen the defendants liability because they must take the plaintiff as they are. ! Where the physical injury caused by the defendants negligent act subsequently leads to the plaintiff developing a psychiatric injury, the defendant is liable for all damage of the same kind that are reasonably foreseeable (Kavanagh).! There are two key defences to the tort of negligence. These are contributory negligence, and voluntary assumption of risk. ! Contributory negligence:! The same principles that were applied to the defendant to deem liability for failing to take precautions to reduce the risk of harm, are applied to the plaintiff, as per s 5R of the CLA. The plaintiffs actions are to be judged by those of a reasonable person in the same circumstances and of the same age (Doubleday v Kelly). However the plaintiff will not be penalised for actions undertaken in the ‘agony of the moment’. If for example the plaintiff was in an emergency situation and only had seconds to decide how to respond, they would not be penalised for a poor decision (Caterson). They would also not be penalised for not taking precautions that were too

5 of 8 inconvenient, such as travelling to train station 80km away while their son waited on a platform for them (Caterson). ! A defendants liability is not automatically waived upon a finding on contributory negligence. Instead, damages can be awarded to a reduced extent, in proportion to the appointment of responsibility found by the court (s 9 of Law Reform (Misc Provisions) Act 1965 (NSW)). However the claim may be defeated if the court finds that it is ‘just and equitable’ to find the plaintiff 100% contributorily negligent (s 5S CLA). To determine the proportions of responsibility, the court assesses:! • each parties degree of departure from the standard of care of a reasonable person in the same circumstances (Pennington v Norris)! • The importance or ‘causal potency’ of each parties act in causing the damage (Podrebersek)! • Voluntary intoxication - no damages unless harm still would have occurred (s50 CLA).! Voluntary assumption of risk:! If a plaintiff voluntarily assumes the risk of participating in an obviously dangerous recreational activity, the defendant will not owe a duty of care for harm suffered, as it is presumed that the plaintiff was aware of the risk, unless they can prove otherwise (s 5L CLA). The three elements to this defence are that the plaintiff voluntarily accepted the risk, that they appreciated the scope of the risk and that they were aware of the danger.! S 5K of the CLA explains the meaning of these terms as:! • Recreational activity = any activity done at a place where sports or leisure activities usually take place.! • Dangerous = has a significant risk of harm! • Significant risk = a risk that has a real chance of eventuating, judged on the probability that it would occur to a reasonable person (Laoulach).! • Obvious risk = one that is apparent to a reasonable person, even if it is not prominent, conspicuous or observable; common knowledge, even if the probability is low (s 5F CLA)! • Must also consider the circumstances surrounding the plaintiff before the harm occurred (Fallas)! • Reasonable person = in the position of the plaintiff, but exercising ordinary intelligence, precaution and judgment (Laoulach)! • Inherent risk = a risk that can’t be avoided by reasonable care or skill.! The defendant has no duty to warn the plaintiff of an obvious risk, unless they ask for information, it is a requirement of law or the defendant is a professional whose services create the risk (s 5H CLA). Likewise, the defendant will not be liable for the materialisation of an inherent risk, being a risk that can’t be avoided by any reasonable care or skill (s 5I CLA).!

Remedies Remedies are a monetary compensation payable to the plaintiff upon proving their case. The goal of remedies is putting them back into the position they had have been in before suffering harm as a result of the defendants negligence (Skelton). The award of remedies has a ‘once and for all’ rule attached (Todorovic). This means that damages for a claim are awarded once, in a total lump sum, and are not able to be revised or adjusted again in the future, even if the injury worsens. ! In order to calculate what the plaintiff should be owed, the court divides the damages into separate heads of loss, as follows:! • Economic loss! • Past expenses! • Out of pocket e.g. medical! • Lost earnings e.g. salary! • Care costs e.g. hospital! Principles:! • The award for lost earning capacity is capped at three times the average NSW employees weekly wage (s 12 CLA).!

6 of 8 • Future expenses! • Earning capacity e.g. salary! • Entitlements e.g. superannuation! Principles: (Sharman v Evan)! • The capacity of the plaintiffs ability to earn can still be calculated, even if they hadn’t reached that potential yet.! • But the plaintiff must prove that this capacity was based on the most likely circumstances i.e. that they were more than likely to end up in this role.! • The plaintiff is compensated for net losses, not gross loss, taking into account work expenses.! • Plaintiff will be compensated for years of work lost due to the injury, minus personal living expenses. ! • But capped at three times average earnings in NSW (s 12 CLA).! • 5% discount applied to account for benefit of receiving a lump sum (s 14 CLA).! • Superannuation loss can be compensated but by the minimum requirement by law (s 15).! • A discount of 15% for the vicissitudes of life is applied, and shifted along the scale depending on the perceived circumstances and outcomes for the plaintiff. i.e. depending on what unfortunate circumstances were likely to result regardless of the injury, the damages are reduced (s 13 & Wynne).! • No damages for gratuitous care will be provided, unless it is required by the injury, and then care must be 6+hrs per week for more than 6 months (s 15).! • The reasonableness of the care costs is weighted against the benefit of the plaintiff/ patients health i.e. hospital care is good enough, wont pay for personal home care (Sharman).! • Non-Economic loss! • Pain and suffering! • calculated subjectively case by case (Skelton)! • Loss of enjoyment/amenity of life! • Takes into account hobbies, interests and experiences of plaintiff before and after (Sharman) ! • Loss of expectation of life! • Objective assessment! • Disfigurement! • Assessed on severity and visibility! • Plaintiff ...