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Monash Law Students’ Society

Student Tutorials Program SketchNotes Torts 2019 Prepared by Mia Steward, studied in semester 2 2015.

DISCLAIMER: PLEASE READ BEFORE CONSULTING THESE NOTES 1. The following SketchNotes have been prepared and provided by a law student tutor as a skeleton or sketch of the course material for this unit; 2. It is the responsibility of users to make note of any changes to course content; 3. SketchNotes may exclude some topics, cases and legislation and may therefore be inconsistent with current Faculty of Law course content or recent developments in the law; 4. Neither the Law Students' Society nor its sponsors endorse or take responsibility for the quality or accuracy of these SketchNotes; 5. SketchNotes should not be solely relied upon; 6. SketchNotes are to provide users with a basis from which they can create individual and extensive notes for their own assessments; 7. SketchNotes are not to be replicated, either in part or in full, during Faculty of Law assessments for this unit; 8. SketchNotes are designed to be used as a teaching aid in the Student Tutorials Program; 9. For copyright reasons, SketchNotes are not to be printed or altered by users; 10. It is against the Monash Law Students' Society's policy to provide further materials to law students in relation to course content for this subject. Student may not make any such request to the Monash Law Students' Society or it it's student tutors; 11. It is against the Monash Law Students’ Society’s policy for students to contact tutors directly via email. Any requests for further assistance outside of tutorials must be made to Kerstin McGregor, Tutorials Officer at [email protected]. Questions regarding course content should be made to the relevant Faculty lecturers or tutors; 12. The aim of the Student Tutorial Program is to facilitate collaborative learning and increase student exposure to practice problems. It's role is not to substitute Faculty teaching or provide a way for students to pass assessments without engaging in course content; 13. If you have any questions, please do not hesitate to contact Kerstin McGregor, Tutorials

3 Officer at [email protected].

Cases included in sketch notes which are not in the 2019 reading guide:

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Innes v Wylie (1844) 174 ER 800 Vaughan v Shire of Benalla (1891) 17 VLR 129 Zecevic v DPP (1987) 162 CLR 645 Goss v Nicholas [1960] Tas SR 133 Hackshaw v Shaw (1984) 155 CLR 614 St Helen’s Smelting Co v Tipping [1865] UKHL J81 Robertson v Swincer (1989) 52 SASR 356 Levi v Colgate-Palmolive (1941) 41 SR (NSW) 48 Haley v London Electricity Board [1965] AC 778 Tabet v Gett [2010] HCA 12 Smith v Leech Brain & Co [1962] 2 QB 405 Rootes v Shelton (1967) 116 CLR 383 Gala v Preston [1991] HCA 18 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1 Cases in the 2019 reading guide which are not included in the sketch notes: Southport Corporation v Esso Petroleum [1954] 2 QB 182 League Against Cruel Sports v Scott [1986] QB 240 Newington v Windeyer (1985) 3 NSWLR 555 Fenell v Robson Evacuations Pty Ltd [1977] 2 NSWLR 486 Mahoney v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 Lym International Pty v Marcolongo [2011] NSWCA 303 Engineering Co Pty Ltd v Inglis [2009] VS CA 227; (2009) 25 VR 633 Mt Isa Pines v Pusey [1970] HCA 60; (1971) 125 CLR 383 Tremain v Pike [1969] 3 All ER 1303 Rowe v McCartney [1976] 2 NSWLR 72 Doughty v Turner [1964] 1 QB 518 Mersey Docks & Harbour Board v Coggins & Griffiths [1947] AC 1 Kars v Kars (1996) 187 CLR 354, [1996] HCA 37 Morris v CW Martin & Sons Ltd [1966] 1 QB 716 Blake v J R Perry Nominees Pty Ltd [2012] VSCA 122 Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60 Prince Alfred College Incorporated v ADC [2016] HCA 37

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Table of Contents: 1. Trespass 1.1 False imprisonment 1.1.1 Positive and voluntary act 1.1.2 Total restraint 1.1.3 Directness 1.1.4 Fault 1.2 Trespass to land 1.2.1 Standing to sue 1.2.2 Positive and voluntary act 1.2.3 Fault 1.2.4 Directness 1.2.5 Defences: consent (express or implied) 1.3 Trespass to the person (defences) 1.3.1 Consent (express or implied) 1.3.2 Self defence/ defence of others/ defence of property 1.3.3 Necessity 1.3.4 Legal Authority 1.4 Damages for trespass (land or person) 1.4.1 Damages 1.4.2 Injunctions 2. Nuisance 2.1 Standing to sue 2.2 Unreasonable interference with the land 2.2.1 Material injury to property 2.2.2 Damage to sensibilities 2.3 Scope of protection 2.3.1 Freedom of observation 2.3.2 Uninterrupted views 3. Negligence 3.1 Duty of Care 3.1.1 Established Duty of Care 3.1.2 Reasonable foreseeability 3.1.3 Salient features 3.2 Breach 3.2.1 Particularise the breach 3.2.2 Standard of care 3.2.3 Did the D fall short of the standard of care? 3.3 Causation 3.3.1 Factual causation 3.3.2 Legal causation 3.3.3 Legally recognised harm 3.4 Remoteness 3.4.1 Categorising the harm 3.4.2 Reasonable foreseeability

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3.4.3 Extent of harm: thin skull rule 3.5 Pure Mental Harm 3.5.1 Define the harm 3.5.2 Was the harm direct or indirect? 3.5.3 Reasonable foreseeability 3.5.4 Salient features 3.5.5 Other important things to note 3.6 Pure Economic Loss 3.6.1 Reasonable foreseeability 3.6.2 Salient features 3.7 Defences 3.7.1 Contributory negligence 3.7.2 Voluntary assumption of risk 3.7.3 Illegality 3.7.4 Good Samaritans 3.7.5 Limitation of Actions 3.8 Damages 3.8.1 Pecuniary loss 3.8.2 Non-pecuniary loss 3.8.3 Concurrent liability 3.9 Vicarious liability 3.9.1 Was D an employee? 3.9.2 Was D acting within the scope of his employment? 3.9.3 The act or omission must be wrongful

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1. TRESPASS 1.1 FALSE IMPRISONMENT Definition = The total restraint on the plaintiff’s freedom that is directly, and intentionally or negligently brought about by the positive and voluntary act of the defendant.

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i. Positive and voluntary act ‘Not a mere passivity or omission’ (Innes v Wylie) Voluntary – conscious and willed o NOTE: D need not have intended to bring about the results to satisfy this element, D need only intend the action ii. Total restraint Must be ‘a total restraint of liberty of the person…not a partial obstruction of his will’ (Bird v Jones) For ‘however short a time’ (Bird v Jones) Restraint can be physical (McFadzean) in which case knowledge of the physical restraint is not needed (Meering v Grahame- White Aviation) Restraint can also be psychological (Symes v Mahon) where knowledge of the restraint is needed (South Australia v Lampard-Trevorrow) There is no total restraint where a reasonable means of egress is available (McFadzean) If the P surrenders agrees to surrender his liberty when entering into a contract, the p cannot claim total restraint (Balmain New Ferry v Robinson) iii. Directness Conduct must be direct, ‘so immediately upon the act of the defendant that it may be termed as part of the act’ (Hutchins v Maughan) There is an issue of agency, but it is generally accepted that police officers act independently iv. Fault Burden of proof is on the D to show that the trespasser act was neither intentional nor negligent (McHale) o NOTE: the burden of proof in highway accidents is switched, so that the burden is on the P (Venning v Chin)

a) Intention i) ii)

Actual intention: when the D intends the result of his action Possibly deemed intention: ‘Doctrine of substantial certainty’ when the D acts in a certain way, in which a reasonable person would believe that a particular result was certain to follow from the action, then the D is deemed to have intended that result (or been reckless as to it)

b) Negligence • A person is negligent if they acted with less care than what a reasonable person would have acted with • Negligent trespass has been preserved in Australia (Williams v Miolotin)

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1.2 TRESPASS TO LAND Definition = A voluntary and positive act of the D that directly and intentionally or negligently interferes with the P’s exclusive possession of land • Trespass may be by: o Unlawful entry o Entry under licence and/or revocation of licence o Continuing trespass (Konsiker v Goodman)

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Meaning of land: courts take a very liberal view of what constitutes normal use (Graham v KD Morris) o Land is ‘restricted until such a height, which would allow an ordinary use and enjoyment of land’ (Bernstein v Skyviews and General) o Land is the ‘strata beneath it’ (Bocardo SA v Star Energy UK Onshore) o TEST: whether the intrusion interferes with any ordinary use of the land which the P may see fit to undertake (LJP Investments)

v. Standing to sue In order to sue, the P must: • Be entitled to exclusive possession of the land; and • Be in actual (or constructive) possession of the land • NOTE: a mere licence to be on land will not give someone a right to sue in trespass, because a licence does not amount to exclusive possession (Vaughan v Shire of Benalla)

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vi. Positive and voluntary act must be positive and voluntary

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vii. Fault P bears the burden on proving every element (including fault) on the balance of probabilities

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viii. Directness must be direct, not consequential (Hutchins v Maughan)

ix. Defences: consent (express or implied) a) Express or implied • There may be an implied licence of entry (Halliday v Neville) o Look for things such as an unobstructed path, an unlocked entry gate and whether there is indication of entry being forbidden b) Revocation of consent • Consent can be revoked at any time o Reasonable time for departure must be given before it can be trespass o To be effective, the revocation must be communicated to the D (Cowell v Rosehill Racecourse)

1.3 TRESPASS TO THE PERSON: DEFENCES

9 1.3.1 Consent (express or implied) • Burden of proof is on the D • Must be obtained from the person who has legal authority to consent and relate to the specific act in question (Marion’s Case) 1.3.2 Self defence/ defence of others/ defence of property a) Self defence • D must have ‘believed on reasonable grounds that it was necessary in self defence to do what he did’ (Zecevic v DPP) • D must take steps in avoiding the violence when he is able to do so e.g. in Fontin, the High Court found that the D could have simply moved away • The force used by D must be proportionate to the harm inflicted on him (Fontin) b) Defence of others • Applies even when the person being defended is a stranger to the D (Goss v Nicholas) c) Defence of property • D must have possession over the property being defended (Hackshaw v Shaw) 1.3.3 Necessity • A person will not be liable for trespass if the trespass was reasonably necessary to protect a person or goods or land from imminent danger (Southwark London Borough Council v Williams) a) Medical necessity • Only medical treatment that is necessary to protect a person’s life or health may be justified by the defence necessity (Murray v McMurchy) 1.3.4 Legal authority • A person will have a defence against trespass to the person if his actions are sanctioned by the law, either common law or statute – e.g. the power of arrest

1.4 DAMAGES FOR TRESPASS (LAND AND PERSON) •

Trespass is actionable per se (without proof of damage)

1.4.1 Damages • Compensatory damages put the P, as far as possible, in the position they would have been had the trespass not occurred • Aggravated damages when the D’s actions have subjected the P to humiliation, distress or embarrassment • Nominal damages for when no financial loss has resulted • Exemplary damages when the D’s actions were so outrageous that the court wishes to punish and make an example of this behaviour 1.4.2 Injunctions • The court will only grant an injunction if it can be seen that irreparable damage will be suffered by the plaintiff if such an injunction is not given (Lincoln Hunt Australia) • Granted at the discretion of the court when damages are insufficient (Rinsale v ABC)

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2. NUISANCE Definition = An unreasonable interference with the P’s use and enjoyment of land

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a. Standing to sue In order to sue, the P must be in exclusive possession of the land (Hunter v Canary Wharf; c.f. Oldham v Lawson) b. Unreasonable interference with the land

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i. Material injury to property Physical interference test: as long as the physical damage is not trivial, the interference with land will be unreasonable (St Helens Smelting Co)

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ii. Damage to sensibilities The inconvenience must be an interference ‘not merely according to elegant or dainty modes and habits of living, but according to plain and simple notions among the English people’ (Walter v Selfe) Indicia to look out for: o Time/duration/frequency (Clarey; Seidler v Luna Park Reserve Trust) o Locality (Sturges v Bridgman; Munro v Southern Dairies) o Improper motive (Hollywood Silver Fox Farm v Emmett) o Social utility/benefit (Munro v Southern Dairies) o Abnormal sensitivities (Robinson v Kilvert; c.f. Hollywood Silver Fox Farm) c. Scope of protection

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i. Freedom of observation An action in nuisance cannot be brought against a person looking at his land (Victoria Park Racing) NOTE: The profitable conduct of business is not a protected interest (Victoria Park Racing) ii. Uninterrupted views a claim for nuisance will not exist in relation to a view being spoiled as a result of the physical presence of a nearby building (Hunter v Canary Wharf)

2.1 DEFENCES

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iii. Statutory authority There are instances where the law has recognised that a corporation, acting under statutory powers in carrying out duties imposed upon it, is not liable in nuisance for damage or inconvenience created by it in carrying out its duties under a statute (Laster-Travers v City of Frankston) iv. Coming to the nuisance (not a defence)

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Coming to the nuisance is not a defence (Laster-Travers; Miller v Jackson) o It may however impact the award of damages (Miller v Jackson)

2.2REMEDIES 2.2.1 •

Abatement (self-help) An occupier whose land is subjected to a nuisance or a threatened nuisance may take steps necessary to abate it (Lemmon v Webb) o If it would be necessary to go on to the neighbour’s land to abate the nuisance, notice must be given to the neighbour to allow the neighbour to take the necessary steps, otherwise the person who enters without permission will be guilty of trespass

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Damages The court will determine what is fair compensation in awarding damages in a lump sum (‘once and for all’)

2.2.3 •

Injunction If you can show that the D’s activities are imminent and will result in substantial damage to the P, you can get a quia timet injunction

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3 NEGLIGENCE 3.1DUTY OF CARE Established Duty of Care? Settled law that a duty of care exists: o Doctor/patient (Rogers v Whitaker) o Road users (Chapman v Hearse) o Manufacturer/consumer (Australian Knitting Mills v Grant) • Settled that a duty of care does NOT exist: o Barristers/client (concerning work done in court or that concerns court proceedings) (D’Orta-Ekenaike v Victoria Legal Aid) o Parents/children in relation to positive acts but not omissions (Robertson v Swincer) NOTE: If there is no settled law, then must proceed with duty of care analysis as follows.. 3.1.1 •

3.1.2 •

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3.1.3 • •

Reasonable foreseeability Must ask whether it was reasonably foreseeable that if D was careless in engaging in the general activity in question, that the P (either as an individual or a member of a particular class) might have been harmed (Donoghue v Stevenson) Precise sequence of events need not be foreseeable (Chapman v Hearse) Must be ‘not unlikely to occur’ (Caterson v Commissioner for Railways) The risk of injury must be ‘real and not far fetched and fanciful’ (Sullivan v Moody) Where the act is incapable of harming an ordinary person, no DOC arises simply because a person who is abnormally susceptible may be affected (Levi v Colgate-Palmolive) o The test for vulnerable plaintiffs is whether the D could reasonably have been expected to: 1. Know of the vulnerable group in question 2. Know that they could have been harmed by their general activities (Haley v London Electricity Board) Salient features Although reasonable foreseeability is necessary, it is not sufficient in establishing a duty of care (Sullivan v Moody) Salient features: o Proximity o Control (Adeels Palace Pty Ltd v Moubarak) o Vulnerability (Cal no 14 v Motor Incidents Board) o Reliance and assumption of responsibility (Annetts v Australia Stations) o Indeterminate liability o Floodgates (Sullivan v Moody) o Interference with legitimate business activities o Conflict of duty (Sullivan v Moody) o Conflict of laws (Sullivan v Moody) o Illegality

3.2BREACH 3.2.1

Particularise the breach

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3.2.2 •

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3.2.3

Begin by stating what exactly the D has/has not done which constitutes a breach to P, whom the D owes a duty of care to Standard of care D is not negligent in failing to take precautions against a risk of harm, unless in the circumstances, a reasonable person in the person’s position would have taken those precautions (s 48(1)(c) Wrongs Act) A child will be held to the standard of any ordinary child of comparable age (McHale v Watson) Standard of care is not lowered for inexperience (Imbree v McNeilly) or disability (Carrier v Bonham) If the D holds himself out as possessing a particular skill, he will be judged to the standard of a person possessing that skill (s 58(a) Wrongs Act; Phillips v Whitely) The standard of the reasonable person is assessed according to knowledge at the date of the alleged negligence and not at the date of judgement. (Roe v Minister of Health) Did the D fall short of the standard of care?

a) Reasonable foreseeability • Was it reasonably foreseeable that p (either as an individual or group/class of persons) might be harmed by the specific act or omission in respect of which breach by D is alleged? (s 48(1)(a) Wrongs Act; Wyong Shire Council) b) Not insignificant risk • The risk of harm must be ‘not insignificant’ (s 48(1)(b) Wrongs Act) • ‘not insignificant’ means not ‘far fetched or fanciful’ (Wyong Shire Council) c) Negligence calculus • D is not negligent unless, in the circumstances, a reasonable person would have taken precautions (s 48(1)(c) Wrongs Act) • In determining whether a reasonable person would have taken precautions, the following factors will be considered by a court (s 48(2) Wrongs Act): o Probability of risk occurring – The greater the probability of harm occurring, the greater degree of care a reasonable person would take (Bolton v Stone; Roads and Traffic Authority of NSW v Dederer) o Gravity of consequences – the greater the seriousness of harm if the risk eventuates, the greater degree of care a reasonable person would take (Paris v Stepney Borough Council) o Practicality of avoiding the risk - The greater the burden involved in taking the relevant precautions, the less likely it is that the reasonable person would have taken such precautions (Graham Barclay Oysters v Ryan; Romeo v Conservation Commission of the NT)

o Importance of social utility - The greater the public benefit flowing from the defendant’s general activity, the less likely that a reasonable person would have taken precautions that would undermine that public benefit (Roman Catholic Church Trustees for the Dicocese of Canberra and Goulburn v Hadba) d) Legislative standards

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Breach of legislative standards may point towards a breach of duty of care, but is not of itself conclusive (Tucker v McCann)

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e) Intoxication and illegal activity • The court may consider whether the P was ...