Torts (Outline)

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This is a quick summary of the entire subject LAWS1061 - Torts.


General structure

The structure for solving a torts problem is as follows:

  1. Establish that a duty of care was owed by the defendant to the plaintiff.
  2. Establish that the duty was breached.
  3. Establish that, as a result of the breach, the plaintiff suffered damages. This involves:
    • Establishing causation.
    • Establishing that there is no remoteness.
  4. Establish if any defences can be used by the defendant.
  5. Calculate the damages.


Duty of Care

In broad terms, a duty of care exists when there is a sort of a 'relationship' or a proximity between the defendant and the plaintiff. To establish a duty of care, the test is one of reasonable foreseeability:

  • A defendant will owe a duty of care to a plaintiff where it is reasonably foreseeable that his act or omission act might harm the plaintiff: CLA, s 5B (1) (a), Donoghue v Stevenson.

There are also some common categories of relationships in which a duty of care is automatically owed:

  • A commercial relationship between the parties (such as a contractual relationship or an undertaking): French v QBE.
  • A special relationship between the parties (such as that between parent and child).
  • An undertaking by the defendant to do something for the plaintiff.

In the case of certain damages, a more stringent duty of care will need to be established.


Duty of Care - Psychiatric Injury

If a plaintiff wishes to recover damages for a psychiatric injury, he must establish that the defendant owed him a duty of care to avoid causing psychiatric injury (not merely a normal duty of care). Such a duty will be established if (: CLA, s 32 (1)):

  • It was reasonably foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. In determining this, the court considers (: CLA, S 32 (2)):
    • (a) whether there was a sudden shock.
    • (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril.
    • (c) the relationship between the plaintiff and any person injured.
    • (d) the relationship between the plaintiff and the defendant.

In cases of pure mental harm (ie, no physical injury to the defendant) there is a further requirement:

  • Plaintiff can only recover if the psychiatric injury suffered is a recognised mental illness (to be determined by the use of expert evidence): CLA, s 31.

Finally, in cases of pure mental harm, and in connection with another person (ie the person was injured by something happening to someone else), the plaintiff can only recover if he satisfies one of the following requirements (: CLA, s 30 (2)):

  • (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril.
    • This includes the aftermath, and being 'put in peril' has a wide application: Wicks v State Rail Authority of New South Wales.
  • (b) the plaintiff was a close member of the family of the victim.


Duty of Care - Pure Economic Loss

If a plaintiff wishes to recover damages for a pure economic loss, he must establish that the defendant owed him a duty of care to avoid causing pure economic loss (not merely a normal duty of care: Esanda Finance v Peat Marwick Hungerfords). The test for establishing this duty differs according to the scenario:

  • Negligent statement - if the economic loss was the result of a negligent statement, the court considers the following salient features (: Hedley Byrne & Co Ltd v Heller & Partners Ltd):
    1. Reasonable reliance - this is broken down into two parts:
      • Knowledge - the defendant knew, or ought to have known by reasonable standards, that the plaintiff would rely on his words.
      • Reliance - the plaintiff was acting reasonably when he decided to rely on the defendant's words (a plaintiff can't recover damages for loss suffered as a result of unreasonable reliance on any remark).
        • The purpose for which the statement was said is relevant to whether it was reasonable to rely on it.
    2. Special skill - was the defendant an expert (or in a position where he is perceived as an expert) in the field he was commenting on?
    3. Request for information - did the plaintiff request information from the defendant?
    4. Financial interest - did the defendant have anything to gain (directly or indirectly) from the Plaintiff's reliance on his words?
    5. Disclaimers or assumptions of liability - Was there either a disclaimer from liability, or to the contrary, an undertaking/assumption of liability?
      • Notice that a disclaimer can be ineffective if the court deems it too unfair.
  • Negligent act or omission - if the economic loss was the result of a negligent act or omission, the court considers the following salient features (: Perre v Apand):
    1. Reasonable foreseeability.
    2. Indeterminacy of liability.
      • Liability is indeterminate only when it cannot be realistically calculated
    3. Burden on commercial activity.
    4. Vulnerability of the plaintiff.
      • A plaintiff is vulnerable if he was unable of taking reasonable steps to protect himself from the negligent act.
      • Control and reasonable reliance also matter when determining vulnerability.
    5. Knowledge of the defendant about the possible harm to the particular plaintiff.

If the court determines that the considerations for imposing a duty of care outweigh those against the imposition of a duty of care, the duty of care to avoid causing pure economic loss will be established.


Duty of Care - Public Authorities


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Breach of Duty

In order to establish a breach, the actions of the defendant must be proven to fall below the standard of care likely to be taken by the reasonable man: CLA, s 5B (1) (c). This is done as follows:

  1. The plaintiff pleads an act or omission (an untaken precaution) fell below standard of care of the reasonable man.
  2. In determining the standard of care and what falls within it, the court considers:
    • The 'calculus of negligence' (:s 5B (2)):
      • (a) Probability - if the risk of injury is very likely, the standard of care will be higher and require more protective measures.
      • (b) Gravity/Magnitude - if the potential injury is very serious, the standard of care will be higher and require more protective measures.
      • (c) Burden - the difficulty and expense of the measures are also taken into account. Namely, the standard of care is lowered by economic and practical constraints.
        • If a measure is too much of a burden on the defendant, it will not be required by the standard of care.
      • (d) Social utility - the standard of care is raised or lowered according to the effects which the proposed measure will have on society as a whole.
      • Note: this process is done looking ahead and not in retrospect: RTA v Dederer.
    • The status of the defendant:
      • Children will be held to a lower standard of care. The standard of care will be of a reasonable child of the same age: McHale v Watson.
      • Professionals will be held to a higher standard of care: Wagon Mound No 2. The professional's standard of care is usually determined with reference to the current practices accepted in Australia (a court may make an exception if it deems it irrational): CLA, s 5O.
        • Regardless of any accepted practice, there is a duty to warn of a material risk: Rogers v Whitaker.
    • Whether the risk was an obvious risk.
      • The plaintiff is presumed to be aware of an obvious risk, and therefore more careful. A standard of care may be lowered since the risk is so obvious and people should be more careful: Romeo v Conservation Commission.
      • There is no duty to warn for an obvious risk (see exceptions): CLA, s 5H.
    • Whether the risk was an inherent risk - there will be no liability (no breach) for the materialisation of an inherent risk: CLA, s 5I (1).
  3. If the court determines that the act or omission falls below the standard of care, then the defendant will be deemed as in breach of duty since he acted in a way which a reasonable man would have.


Causation

Causation limits a plaintiff's ability to recover damages to only those which were actually caused by the defendant's negligence. A plaintiff must establish that a defendant's negligence caused the damages it seeks to recover: CLA, S 5D (1)(a). In determining causation, the court acts as follows:

  • In normal circumstances:
    • Apply a ' but-for ' test - would the harm not have occurred but-for (if not for) the defendant's wrongdoing? If yes, causation is satisfied.
  • Where there is an intervening act, causation will be cut off:
    • An act qualifies as an intervening act if it is either (: Haber v Walker)
      1. A completely voluntary human action.
      2. An independent event which is so unrelated and unforeseeable (to the original tortfeasor's conduct) that it can be called a coincidence.
      • Note: aggravation of injuries through medical treatment will not be counted as intervening acts unless the medical treatment was 'inexcusably bad': Mahony v Kruschich Demolitions.
  • Where there are multiple sufficient causes:
    • All negligent defendants will be held concurrently liable: Cook v Lewis [From the USA].
  • Where there are successive causes causing similar damage:
    1. If the successive event was tortious, the original tortfeasor is liable for the losses he caused as if the successive event never happened: Baker v Willoughby.
      • The successive tortfeasor will only be liable for the new damage which his act caused.
    2. If the successive event was natural, than the original tortfeasor will only be liable for the losses up to that event: Jobling v Associated Dairies Ltd.
  • In an exceptional case:
    • the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party: CLA, s 5D (2).


Remoteness

Remoteness is a mechanism which limits the ability of a plaintiff to recover damages to only those which were reasonably foreseeable consequences of the negligent act. A defendant will not be liable for damages which are too remote (outside the scope of liability), even if his negligence did cause them: CLA, s 5D (1) (b). The test for remoteness is as follows:

  • Damages will be too remote when the damage suffered was not 'reasonably foreseeable' by the defendant. : Wagon Mound No 1.
    • Damage is only 'not reasonably foreseeable' if it was thought to physically impossible or so 'far fetched' that a reasonable person would completely disregard it: Wagon Mound No 2.
    • Only the general type of the damage needs to be foreseeable, not the manner of its occurrence or its extent: Hughes v Lord Advocate.
    • The eggshell-skull rule still applies, meaning that: Stephenson v Waite Tileman Ltd.
      • The defendant would be liable for any subsequent injuries directly caused by the initial injury owing to the fragility or state of the victim.
      • The subsequent injuries do not have to be reasonably foreseeable.


Vicarious Liability

Vicarious liability is the imposition of liability on an otherwise blameless party who has some sort of responsibility over the tortfeasor. For example, an employer will generally be vicariously liable for the negligence of his employees.

Vicarious liability will only be imposed if:

  1. There is a requisite relationship between the defendant and the tortfeasor: Hollis v Vabu.
    • To be determined using the 'sufficient relationship test' - did the defendant have a degree of control over the tortfeasor? Examine the following considerations (: Hollis v Vabu):
  2. The negligence occurred within the course of employment.
    • Determined using the 'Salmond test': an act is within the scope of employment if it is sufficiently close to what is authorised by the defendant.
    • Considerations include:
      • Particular capacity - an employer will only be vicariously liable if the tortfeasor's wrongdoing happened whilst he was acting in accordance with his particular capacity.
        • Namely, an employer will not be vicariously liable for the actions of a tortfeasor whose role is to collect tickets but instead decided to drive the bus and then crashed: Beard v London General Omnibus Cp.
      • Conduct outside employment - if the wrongdoing occurred outside the employment (not in employment hours, not in place of employment etc), the employer will not be vicariously liable: Joel v Morison.
      • Independent discretion or statutory authority - an employer will not be vicariously liable if the tortfeasor was exercising independent discretion or statutory powers: Enever v R.
      • Criminal conduct:
        • There will be vicarious liability for criminal conduct if there was a close enough connection with the particular responsibilities of the employer: New South Wales v Lepore.
  3. The tortfeasor's conduct was tortious (as in, passes the usual tests of negligence).
    • Any exclusions of liability provided to the tortfeasor by the CLA will extend to the defendant. Other exclusions will not.


Non-Delegable Duties


A non-delegable duty is a duty of care owed towards a group of people which cannot be assigned to someone else. This means that when one owes a non-delegable duty towards another, he has a duty not only to take reasonable care himself, but ensure that others take reasonable care (since he cannot discharge his duty by 'delegating' or transferring it to others): Burnie Port Authority v General Jones P/L; New South Wales v Lepore.

  • As a result, a defendant who owes a non-delegable duty will be liable for the wrongdoing of others even if they are independent contractors.

In order for a defendant to owe a non-delegable duty, the following requirements must be satisfied (: Burnie Port Authority v General Jones P/L):

  1. Control/responsibility - the defendant must have had some control over the plaintiff or the plaintiff's property.
  2. Vulnerability - the defendant must have been unable to protect himself and was forced to rely on the defendant to ensure that care had been taken.
  3. Criminal conduct is exempted - the defendant will not be liable for harm caused by someone else's criminal conduct: New South Wales v Lepore.


Defences


Voluntary Assumption of Risk

A plaintiff who is aware of a risk, and still puts himself in the position where the risk might eventuate, cannot recover damages if he suffers harm. There can only be a voluntary assumption of risk if: Reeves v Commissioner of Police.

  1. Knowledge - the plaintiff had knowledge of the risk (risk must be fully appreciated: Oran Park v Fleissig.
  2. Voluntary action - the plaintiff voluntarily made the choice to undertake the risk. A plaintiff who was constrained by circumstances from making a free choice will not be regarded as acting voluntarily.


Contributory Negligence

Contributory negligence occurs when the plaintiff's own negligence contributed to its own injuries: Froom v Butcher. Whilst contributory negligence used to be a complete defence to negligence, it now only reduces the damages recoverable by the plaintiff: Law Reform Miscellaneous Act 1965 (NSW), s 9 (1).

To establish contributory negligence, the same test is applied as to establishing normal negligence: CLA, s 5R. However, there are a few extra rules:

  1. Duty - a duty of care is automatically found, since one always has a duty to take reasonable care for his own safety.
  2. Breach - standard of care is breached if the plaintiff ought to have reasonably foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself: Froom v Butcher. 'Reasonableness' is also measured subjectively, according to what this specific person knew or ought to have known at the time: CLA, s 5R (2)(b).
    • The standard of care will not be breached if the plaintiff acted reasonably in the agony of the moment. Weigh up risk taken by the plaintiff's action against degree of danger caused by the defendant: Sabley v Kais; Caterson v Commissioner for Railways; Avram v Gusakoski.
    • The standard of care may be breached for failing to anticipate the negligence of others, in cases where the reasonable man would be likely to guard against such negligence: Grant v Sun Shipping Co Ltd.
    • The standard of care may be mandated by statutory safety requirements or community standards.
    • Special rules apply to intoxication: Motor Accidents Compensation Act 1999 (NSW), s 138 (2), CLA, s 50.
  3. Causation - the plaintiff's action need not be the original cause of the damage, it is enough that it aggravated the damage: Froom v Butcher'.
  4. Remoteness - Operates as normal. The plaintiff's contributory negligence liability for his own damages extends only to those damages which are not too remote. Jones v Livox Quarries Ltd.

If these requirements are satisfied, contributory negligence is found and the court will apportion damage according to relative faults. This means that the plaintiff's damages will be reduced so as to not include the damages that he caused himself. Damages are apportioned:

  • 'as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage': Law Reform Miscellaneous Act 1965 (NSW), s9.html (1) (b)
    • This involves 'a comparison both of culpability, ie of the degree of departure from the standard of the reasonable man...and of the relative importance of the acts of the parties in causing the damage': Podrebersek v Ausralian Iron and Steel Pty Ltd.


Dangerous Recreational Activity

A dangerous recreational activity is recreational activity which involves a significant risk of physical harm: CLA, s 5K. To qualify as such an activity, an activity must:

  1. Be a recreational activity, which includes engaging in:
    • (a) Any sport (whether organised or not).
    • (b) Any activity for pleasure, relaxation etc.
    • (c) Any activity in a place used for the sport/pleasure etc.
  2. Involve a significant risk, which is:
    • 'somewhere between a trivial risk and a risk likely to materialise': Fallas v Mourlas.

If such requirements are satisfied, an activity is considered a dangerous recreational activity. Once this has been established, a plaintiff's claim can be defeated if:

  • The plaintiff's harm resulted from the materialisation of an obvious risk of such a dangerous recreational activity: CLA, s 5L (1).
  • Note: this applies even if the plaintiff was unaware of the risk: CLA, s 5L (2).

If these requirements are also satisfied, the plaintiff's claim will be defeated and the defendant will escape liability. This is a complete defence.


Damages

A plaintiff must prove that he has suffered a loss (or 'damage') in order to be able to recover monetary compensation for the negligence of another. The monetary compensation for that loss is called damages. The laws regarding damages in tort law are as follows:

  • Damages are given on a compensatory basis - restoring the party to his original position.
  • Damages are given in a once and for all lump sum.
    • Can be made in periodic payments if both parties agree.
  • Damages are paid by the defendant (the fault system).
  • The plaintiff must prove his loss. Loss can be broadly categorised into:
    1. Economic loss (special damages). This includes:
      • Past expenses (medical treatment and loss of ability to work etc incurred before the time of the trial).
      • New economic needs (future medical treatment after the time of the trial).
        • Only reasonable medical needs are recoverable. Reasonableness is determined using a 'cost < benefit' analysis: Sharman v Evans.
      • Loss of earning capacity (inability to earn money in the future).
        • Calculated according to the ability of the plaintiff to make money, not present day wages: Cullen v Trappel; Atlas Tiles Ltd v Briers.
        • Net income, deducted by 'outgoing' expenses (expenses incurred in order to maintain one's job - clothing, transport etc): Sharman v Evans.
        • Maximum estimated earning capacity is 3 times the average wage: CLA, s 12.
        • Later adjusted to account for vicissitudes (see below).
      • Gratuitous care services (compensation for friends or family who are likely to become carers for the plaintiff without seeking payment): CLA, s 15
      • Inability to provide gratuitous care services (compensation for the plaintiff's inability to care for those who previously depended on his gratuitous care): CLA, s 15B.
    • Note: economic losses undergo discounts or adjustments:
      1. Present value discount (this accounts for interest. 5% negative compound interest on all economic damages): s CLA, s 14.
      2. Vicissitudes discount/adjustment (this accounts for ups and downs of life (this applies only to future earning capacity): CLA, s 13. A 15% reduction is set by default to account for sickness, unemployment etc, but can be adjusted by the court: Wynn v NSW Insurance Ministerial Corp.
    1. Non-economic loss (general damages). This includes:
      • (a) pain and suffering,
      • (b) loss of amenities of life,
      • (c) loss of expectation of life,
      • (d) disfigurement.
      • Note: damages under these heads will be lower for plaintiff's who are unconscious of their condition (comas, brain damage etc): Skelton v Collins.
    • Non economic damages are subject to limitations:
      • Maximum amount is $350,000 (subject to inflation): CLA, s 16(2). Rules regarding inflation are specified in CLA, s 17.
      • Losses considered as below 15% in proportion to a very extreme case cannot be recovered: CLA, s 16(1).
      • Losses are adjusted according to their proportion to a very extreme case according to the sliding table in s 16 (3).
      • Note: A plaintiff is not required to show extreme loss under all four heads of non-economic loss in order to qualify as a 'most extreme cast': Dell v Dalton.
  • Interest is not awarded for (: CLA, s 18 (1)):
    • (a) Non-economic loss.
    • (b) Gratuitous care services.
    • (c) Loss of capacity to provide gratuitous care services.
  • Plaintiff must take reasonable steps to mitigate or minimise his harm. To demonstrate that the plaintiff failed to mitigate, the defendant must show that: Glavonjic v Foster.
    1. The proposed steps could have actually have mitigated the harm (in this case, the defendant successfully showed how the surgery probably would have mitigated the harm).
    2. The proposed steps were reasonable, or that the refusal to take them is unreasonable.
      • When examining whether a refusal to mitigate was unreasonable (or, whether the step to mitigate was reasonable), a court considers what a reasonable person in all the circumstances of the plaintiff would have done.

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

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