“To be alive at all involves some risk.” Harold Macmillan

1. Tort law “To be alive at all involves some risk.”Harold Macmillan

2. What is a tort? A tort is a civil wrong (other than a breach of contract). The word ‘tort’ is taken from the French word meaning ‘wrong’. The law of torts affords a remedy (usually monetary) for someone injured by the act or omission of another.

3. Examples of torts Negligence Conduct causing damage to another in breach of the defendant’s duty of care to the other Passing off Misrepresenting business associations Defamation Words spoken or written or conduct disparaging the reputation of another

4. Examples of torts Injurious falsehood Words spoken or written or conduct intentionally disparaging another’s goods or business Nuisance Interference with another’s use or enjoyment of land; this may result from, eg, gas, fumes, water, smoke, obstruction, noise Deceit Fraudulent untruth

5. Intentional or direct torts • Trespass to land Direct interference with land in possession of another without lawful excuse • Trespass to the person Battery – the application of direct force to another Assault – the threat of direct force to another False imprisonment – deprivation of another’s liberty without lawful cause or excuse

6. Intentional or direct torts • Trespass to goods Conversion – Wrongfully dealing with the property of another (eg, title deeds and cheques) Detinue – Wrongfully detaining the property of another Trespass to chattels – Direct physical interference with personal property in the possession of another without lawful excuse

7. Defences to intentional or direct torts • Consent A plaintiff who consents to a tort loses the right to sue The consent must be genuine and informed • Defence of self, of others, or of property The defendant’s actions must be reasonable and proportionate to the risk • CASE: Hackshaw v Shaw (1984)

8. Defences to intentional or direct torts • Unavoidable accident Unavoidable accident is a good defence but mistake is not a good defence • Necessity • Statutory authority

9. Torts and contracts • Contractual obligations are determined by the terms of the contract. • Obligations under tort law are fixed by the law irrespective of any contract. • The same act may be both a tort and a breach of contract. • CASE: Bryan v Maloney (1995)

10. Torts and crimes In tort law, the action is commenced by the victim and the objective is compensation. In criminal law, the action is commenced by the Crown and the objective is deterrence and punishment. The same act may be both a tort and a crime (e.g. negligent driving causing injury to another).

11. The modern tort of negligence • The modern version of negligence was established in 1932 in the decision in Donoghue v Stevenson [1932] AC 562 • Negligence has become the most important area of tort law

12. Donoghue v Stevenson [1932] AC 562 A manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care. Lord Atkin, Donoghue v Stevenson [1932] AC 562 at 599

13. The neighbour principle There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances … That rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Lord Atkin, Donoghue v Stevenson [1932] AC 562 at 580

14. Negligence and harm • Careless acts do not always amount to negligence • In negligence, a person is only liable for harm that is the foreseeable consequence of their actions, that is, failure to exercisereasonable care and skill

15. Negligence defined • Negligence is the omission to do something which a reasonable person would do, or doing something which a prudent and reasonable person would not do

16. Negligence In order to succeed in a negligence action the plaintiff must establish on the balance of probabilities that: • the defendant owed the plaintiff a duty of care • the defendant fell below the required standard of care (breach of duty), and • the plaintiff suffered damage that was: • caused by the defendant’s breach of duty, and • not too remote

17. Duty of care The defendant owes the plaintiff a duty of care if it is reasonably foreseeable that any carelessness on the part of the defendant could harm the plaintiff. This is a question of fact and in most circumstances is easy to decide. CASE: Grant v Australian Knitting Mills (1933) CASE: Levi v Colgate-Palmolive Pty Ltd (1941) • A manufacturer does not owe a duty of care to every consumer (e.g. one with abnormal sensitivities) • However, there may be special circumstances that give rise to a duty to take special precautions to protect abnormal persons known to be likely to be affected

18. Positive action at common law • At common law, there will be no breach of duty where the injury arises as a result of a failure to positively act/intervene (eg. no duty to effect a rescue) • Exceptions include: • doctor and patient CASE: Rogers v Whitaker (1992) • school authority and students • local councils • statutory authorities

19. Positive action in the legislation • Recent legislation has, in relation to professionals and statutory authorities, introduced a new test for standard of care • professionals: Part X, Div 5 – Wrongs Act 1958 (Vic) • public or other authorities: Part XII – Wrongs Act 1958 (Vic)

20. Duty of care • Courts have sometimes struggled to decide whether a duty of care is owed when new types of claims of negligence have arisen. At one time the concept of the proximity between the defendant and the plaintiff was used as a guide. • Proximity • means nearness or closeness • is a limitation on the test of reasonable foreseeability • can be: • physical, in the sense of space and time • circumstantial, in the sense of a relationship such as employer-employee or professional adviser-client • causal, in the sense of the closeness or directness between the defendant’s actions and the damage

21. Duty of care • Proximity is no longer always part of the common law test for duty of care as today it is determined by the application of the ‘foreseeability’ test and whether there was a vulnerable relationship between D and P (i.e. was the P particularly vulnerable to the actions of the D?) • The test of proximity was rejected in the case of Sullivan v Moody (2001)

22. Duty of care Three factors are required to be considered for vulnerability: • Was the defendant in a controlling position? • Was the plaintiff reliant on the defendant? And was the plaintiff in a position to protect her/himself? • Was the defendant in a position to be protective of the plaintiff? Perre v Apand (1999)

23. Proximity inpsychological damage cases • Proximity is still important in psychological damage cases • In Victoria (Wrongs Act 1958 ss72,73) now limited to: - victims, witnesses and close relatives - recognised psychiatric illness - the effect on a person of normal fortitude CASE: Jaensch v Coffey (1985) CASE: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) CASE: Gifford v Strang Patrick Stevedoring Pty Ltd [2003]

24. Purely economic loss • Financial loss unaccompanied by physical injury to person or property • Proximity is also an important test in economic loss cases • Courts were initially reluctant to allow recovery • Now recoverable in certain situations including: • relational interests • negligent misrepresentation

25. Negligent misrepresentation • Economic loss caused by negligent misrepresentation is recoverable where: • a special relationship exists between the parties; • the defendant accepted responsibility in the circumstances of the advice; and • the plaintiff relied upon the misrepresentation. CASE: Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964]

26. Can a disclaimer removethe duty of care? • A representor may remove any duty of care by using an appropriate disclaimer. CASE: Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964]

27. Negligent misrepresentation • ‘Special relationship’ extended: CASE: Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1968) CASE: L Shaddock & Associates Pty Ltd v Parramatta City Council (1981)

28. Duty of care defined narrowly • The High Court has made it clear that the key to the existence of a duty of care is whether the information or advice was prepared for the purpose of inducing the representee to act in a particular way. CASE: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997)

29. Relational interests • Where the plaintiff is not directly affected but is affected because of their relationship with the primary victim CASE: Perre v Apand (1999) CASE: Johnson Tiles Pty Ltd v Esso Australia [2003] CASE: Hill v Van Erp (1997) CASE: Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976)

30. Element two - breach of duty Has D breached their duty of care to P ? • If the duty of care question is decided in favour of the plaintiff, it then becomes a question of fact whether the particular conduct complained of is a breach of duty. • A defendant has breached their duty of care if they failed to do whata reasonable person would have done in the same circumstances.

31. Breach of duty • The standard of care is an objective one and the standard required is that of a reasonable person. This is a question of law. • The defendant fails to show a reasonable standard of care if: • the risk of injury was reasonably foreseeable (‘not insignificant’ risk) (a question of law); and • there was a reasonable likelihood of the injury occasioned by it.

32. Breach of duty • The defendant need only take precautions against foreseeable risks. • The more likely/probable that the risk might occur, the greater the preventative measures are required. CASE: Bolton v Stone [1951] CASE: Wyong Shire Council v Shirt (1980) CASE: Nagle v Rottnest Island Authority (1993)

33. Breach of duty • The more serious the likely injury, the greater precautions the defendant must take. CASE: Paris v Stepney Borough Council [1951] • Other relevant factors include: • The practicability of precautions CASE: Romeo v Conservation Commission of the Northern Territory (1998) CASE: Wyong Shire Council v Shirt (1986) • The social utility of the defendant’s conduct CASE: Watt v Hertfordshire County Council [1954] CASE: Agar v. Hyde; Agar v. Worsley [2000]

34. Standard of care • The standard of care that is expected is that of the reasonable person equipped with the same skills and expertise as a person exercising a particular trade or profession. • The standard of care is flexible and varies from situation to situation CASE: Cook v Cook (1962) • In relation to children, the standard is that of a child of similar age and experience CASE: McHale v Watson (1966)

35. Element three - damage Has P suffered damage? • The plaintiff must suffer some loss or damage as a result of the defendant’s breach of duty. • The plaintiff must show some link between the damage suffered and the defendant’s conduct. Two factors for consideration are: • that the loss or damage was ‘directly caused’ by the defendant’s breach – causation; and • that the loss was ‘not too remote’ from the breach - remoteness.

36. Causation • Onus on plaintiff to establish that the damage they suffered was caused by the defendant’s conduct. • The most widely used test is the ‘but for’ test (and is aquestion of fact): • The breach caused the damage if the damage would not have occurred but for the breach. CASE: E H March v Stramare Pty Ltd (1991) CASE: Alexander v Cambridge Credit Corporation Ltd (in rec) (1987) • Note: the ‘but for’ test is not an exclusive test, e.g. there is the ‘common sense’ test: CASE: approved in Chappel v Hart (1998)

37. Remoteness • This permits the court to consider whether, and to what extent, the defendant should be responsible for the consequences of their conduct. • It is a question of law and the test is whether a reasonable person could foreseesuch a happening. That is, the damage must be reasonably foreseeable.

38. Remoteness • If the damage suffered by the plaintiff is too remote or far-fetched, it will not be recoverable. CASE: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co [1961] (also known as The Wagon Mound No 1 [1961]) CASE: The Wagon Mound No 2 [1967] • the test of remoteness was met where the risk was ‘very likely’ or ‘real’

39. Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 Facts: • Ms Cole attended a champagne breakfast at the South Tweed Heads Rugby League Football Club • She spent the day drinking at the Club • The Club stopped serving Ms Cole after 12.30 pm, but her friends provided her with drinks for the rest of the afternoon • At 5.30 pm the Club’s manager asked Ms Cole to leave the premises after she was seen behaving indecently with 2 men

40. Cole v South Tweed Heads Rugby League Football Club Ltd • The manager offered Ms Cole a taxi home, but Ms Cole rejected the offer in blunt and abusive terms • She then left the Club with the 2 men, who assured the manager that they would take care of her • At 6.20 pm Ms Cole was struck by a car near the Club and was seriously injured • She was found to have a blood alcohol concentration of 0.238%  Who was responsible for Ms Cole’s injuries?

41. Who was responsible for Ms Cole’s injuries? Issues before the court: • Did the Club owe a duty to take reasonable care: • to monitor and moderate the amount of alcohol served to Ms Cole? • that Ms Cole travelled safely away from the Club’s premises? • Does a general duty of care exist to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess? • Did the car driver owe Ms Cole a duty of care? • Did Ms Cole in any way contribute to her own injuries?

42. Cole v South Tweed Heads Rugby League Football Club Ltd Breach of duty of care • The evidence did not establish that the Club had failed to take reasonable care to protect Ms Cole from the risk of incurring the injuries sustained. • This is because the Club would have discharged that duty when the manager offered Ms Cole a taxi to get home.