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LAW OF TORTS

LAW OF TORTS. WEEKEND LECTURE 2B G reg Young Contact: greg.young@lawyer.com NEGLIGENCE Defences Remedies – Damages Personal Injury/Death DEFAMATION NUISANCE. DEFENCES TO ACTIONS IN NEGLIGENCE. COMMON LAW Contributory negligence Voluntary assumption of risk Illegality CIVIL LIABILITY ACT

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LAW OF TORTS

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  1. LAW OF TORTS WEEKEND LECTURE 2B Greg YoungContact: greg.young@lawyer.com NEGLIGENCEDefencesRemedies – Damages Personal Injury/Death DEFAMATION NUISANCE

  2. DEFENCES TO ACTIONS IN NEGLIGENCE COMMON LAW • Contributory negligence • Voluntary assumption of risk • Illegality CIVIL LIABILITY ACT • Pt 1A - ss5F to I: Assumption of Risk - ss5R to T: Contributory Negligence • Pt 5 - s45 “Highway Immunity” restored • Pt 6 Intoxication • Pt 7 Self-Defence & Recovery by Criminals

  3. Contributory Negligence: The nature of the P’s conduct • To plead the defence D bears the onus of proof and must prove the requisite standard of care that has been breached by P. • It would seem that courts apply the standard leniently to P, and whether P’s action by reason of D’s negligent conduct constitutes an unreasonable risk to him/herself will depend on the circumstances of each case

  4. The Substance of Apportionment Legislation • Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent 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) s10

  5. Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34 (18 June 2003) • Facts - Mr Berryman drank enough alcohol in the company of Ms Joslyn on Friday evening, 25 October 1996, to be so intoxicated as to feel "fairly crook" on the following morning. - He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he admitted that he was beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle which was turning over. - Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml.

  6. Joslyn v Berryman - Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time. - Mr Berryman then drove, Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's café, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time. - Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then." - He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident.

  7. Joslyn v Berryman - Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking. - Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. She too was seriously affected by alcohol, and the blood alcohol reading, some hours later, was 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am.

  8. Joslyn v Berryman - Ms Joslyn had last driven a vehicle three years earlier. She had at some time previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend." - By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken. - Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident. • Trial – Boyd-Boland ADCJ found for Mr Berrymen but reduced damages by 25% for contributory negligence.

  9. Joslyn v Berryman • NSWCA - Priestley JA, Meagher JA and Ipp AJA upheld Mr Berryman's appeal by holding that he was not guilty of any contributory negligence at all. The leading judgment was given by Meagher JA with whom the other members of the Court agreed. • "His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they stood at the time of handing over control of the car, (not as they were in the previous 24 hours), a task which his Honour did not really undertake. One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's finding on apportionment (Podrebersek v Australian Iron and Steel Pty Ltd), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of reducing it from 25% to 0%."

  10. Joslyn v Berryman • HC – McHugh, Gummow, Callinan, Kirby & Hayne JJ allowed the appeal (ie. Overturned the decision of the NSWCA) • Besides criticism of the NSWCA for not referring to s.74 MAA 1988 (ie. contrib neg shall be made unless found not to have contributed), Gummow and Callinan JJ found the NSWCA erred in fact.

  11. Joslyn v Berryman • Gummow & Callinan JJ – “A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”.

  12. Motor Accidents Compensation Act 1999 s 138 • A finding of contributory negligence must be made in the following cases: • where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident… • Where the driver’s ability to control vehicle was impaired by alcohol and the P as an adult voluntary passenger was/ought to have been aware of this… • Where the injured party was not wearing set belt/protective helmet, and was required by law to wear such belt/helmet

  13. Civil Liability Act 2002 • s5S – a court may determine a reduction of 100% if it is just and equitable to do so • s5T – a court may reduce a claim for damages under the Compensation to Relatives Act 1897 for contributory negligence of the deceased • S50(4) – a presumption of contributory negligence of 25% if the plaintiff was intoxicated at the time of injury

  14. Contributory Negligence of Rescuers • Azzopardi v Constable; Azzopardi v Thompson [2006] NSWCA 319 • The NSW Court of Appeal has found that two rescuers hit by a motor vehicle contributed to their injury by not taking due care when assisting another motorist. The two rescuers were dressed in dark clothing, neglected to turn on their vehicles' hazard lights and were not alert to oncoming traffic. Hodgson JA and McColl JA both reduced the damages payable to the rescuers from 75% to 50%. Ipp JA dissented, finding that the rescuers ought to have been more careful when in a position of such obvious danger, and would have reduced the damages to 25%. 

  15. Voluntary Assumption of Risk • In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situation • The elements • P must have perceived the danger • P must have fully appreciated the danger • P must have voluntarily accepted the risk

  16. Voluntary Assumption of Risk • Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289 (P contracted lung cancer by allegedly smoking D’s cigarettes, D sued for negligently and misleadingly advertising cigarettes) • If it is to be the case that the smoking of the said cigarettes involved risk of injury as alleged… the P knew or ought to have known that the smoking of the said cigarettes involved such risk and the P accepted, consented to and voluntarily assumed the same (extract from D’s statement of defence)

  17. VAR in the Work Place • Smith v Baker & Sons P (injured by falling rock while working a drill, fellow workers had complained of the danger previously, issue whether P voluntarily accepted the risk, held defence not applicable) • The defence is not constituted by knowledge of the danger and acquiescence, but by an agreement to run the risk and to waive your rights to compensation

  18. Physical and Legal Risk • By engaging in a sport or pastime the participants may be held to have accepted the risk which are inherent in the sport… but this does not eliminate all duty of care of the one participant to the other

  19. Civil Liability Act 2002 Assumption of Risk • s5F – “obvious risk” defined • s5G – injured person presumed to be aware of obvious risk unless proven otherwise • s5H – no proactive duty to warn of obvious risk in certain circumstances • s5I – no liability for materialisation of “inherent risk” (as defined)

  20. Swain –v- Waverley Municipal Council • Pre-Civil Liability Act: “Obvious Risk” Facts - Three people went to the beach that afternoon, the plaintiff and his two companions. - The conditions were benign; P argued the benign conditions hid a danger. - P and his two companions (Mr Wilson & Ms Galvin) went into the water between the flags, and that was a strongly contested issue at the trial. - Mr Wilson, went in first. He was wading out when he kicked something and it was the edge of a sandbar – a sharp sand wall – when he was about waist-deep. He did not see it before that. - Ms Galvin went into the water and stumbled into a level change, a variation in the water depth. She did not see that before she encountered it. - P’s evidence was that he went into the water to about waist-deep or a little higher, when a wave came towards him. He dived – a “flat dive” – into the wave, and that is all he recalled until he realised that he was severely injured. He saw nothing. - So, to that extent, there was a condition in the water which was not obvious to those three people at least.

  21. Swain –v- Waverley Municipal Council Facts - D’s case was that by reason of drink and taking ecstasy the night before, P was reckless and was outside the flags - The lifeguard’s (Mr Nightingale) evidence was that he patrolled the beach. He could not say what had occurred with respect flag placement between 6 am and 10 am. From 10 until the afternoon when the accident occurred, the flags had not been moved, the conditions on the beach had not changed. He patrolled the beach and observed conditions in the water from his outlook post on the north end at the beach. - Mr Nightingale gave evidence that he could tell whether the water was shallow or deep, where there were sandbars and where there were not by the colouration of the water (ie. Sandbar is “yellowy” and deeper water is “darker green”). - The flags would be moved if conditions required it. The determination of whether conditions required it was made by the lifeguards on duty at the time. Mr Nightingale’s evidence was that he both patrolled either on foot, an all-terrain vehicle, or observed from his position at the lookout post.

  22. Swain –v- Waverley Municipal Council Facts– Nobody asked Mr Nightingale whether there was any safer place to put the flags. - Suffering a spinal injury in surfing was reasonably foreseeable. There was evidence of that inasmuch as the surf lifesaving club kept equipment to deal with spinal injuries. - Damages had been agreed. - The jury found contributory negligence of 25 per cent (ie. presumably, diving under a very small wave) and the effect of that was to reduce the agreed damages to a judgment figure of $3.75 million.

  23. Swain –v- Waverley Municipal Council • NSWCA - Upon the appeal, the Court of Appeal being constituted by Chief Justice Spigelman (dissenting) and Justices Handley and Ipp (majority), the Court of Appeal split in favour of the Council. • During the course of the appeal the appellant Council amended and raised a ground of appeal that there was no evidence to support a finding that the placement of the flags was negligent. Ultimately, it was that ground alone which succeeded before the Court of Appeal. Chief Justice Spigelman, finding there was evidence, Justices Ipp and Handley finding that there was none. • Menzies QC: “The majority said that although it was safe to swim, although there may have been a representation that it was safe to swim, that is not to say it was safe to dive... Justice Spigelman’s position on that was surfing at Bondi Beach or anywhere else requires as part of the activity, diving, so that distinction really goes nowhere. If it was safe to swim then one has to accept, we say, it must incorporate safe to dive, obviously within reasonable bounds”

  24. Swain –v- Waverley Municipal Council • HC – 3-2 majority found in favour of Mr Swain BUT the appeal was limited to whether the NSWCA should have disturbed the jury’s finding of breach of negligence. • Gleeson CJ: “The system does not regard the trial as merely the first round of a contest destined to work its way through the judicial hierarchy until litigants have either exhausted their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply retry the case.”

  25. Swain –v- Waverley Municipal Council • McHUGH J: That is the only issue in the case, is it not? The issue is so narrow you can hardly see it. It is whether the representation that Mr Nightingale agreed the flags indicated that it is safe swimming includes safe diving through waves as you go out into the water... I would have thought 90 per cent of people, at least under the age of 50, get wet by diving through the first lot of waves they encounter, and this is what your client did, did he not?

  26. Swain –v- Waverley Municipal Council • GUMMOW J: You see, your evidence was that the flags were not moved. That was your point. • MR MENZIES: Yes. • GUMMOW J: And you say it was up to your opponent to say some exculpation.

  27. Swain – Insight to how the HC view the operation of the CLA • MR MENZIES QC: Indeed, because obviously the defendant, in considering its duty, has to take into account that sometimes people do do risky manoeuvres and that may be the simple explanation for it. Of course, so far as closing every beach in Australia, that is of historical interest, certainly in New South Wales, because as a result of the Civil Liability Act the chances of this plaintiff, were he to proceed now and succeed in tort against the defendant, are nil. • KIRBY J: It cuts a little both ways, that it is Parliament saying that the approach of the courts in the past has been too generous or as Justice Thomas said “too Santa Claus”. • MR MENZIES QC: Your Honour, what it demonstrates, in our respectful submission, is the legislature doing its job as it perceives it to be and that is, there is a policy decision made, policy decisions generally speaking are for the legislature, not for courts. The legislature has decided as a matter of policy that these torts are no longer sound in damages in New South Wales for whatever reason. It is not a bad example of the separation of powers and the appropriate organ of Government. • KIRBY J: How is that done? Have you the section of the civil liability? Has that passed into law in New South Wales? • MR MENZIES QC: It is now, your Honour, yes. It was not relevant at the time. I did not include it on our list or provide copies, but it is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” - - -

  28. Swain – Insight to how the HC view the operation of the CLA • GUMMOW J: What does it say? What is the critical provision? • MR MENZIES QC: Well, 5J: • applies only in respect of liability in negligence for harm to a person (“the plaintiff”) resulting from a recreational activity engaged in by the plaintiff. Recreational activity is divided into two kinds. There is; • “dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm.That is in the definition section 5K, and: • “recreational activity” includes:(a) any sport . . . (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and(c) any pursuit or activity engaged in at a place (such as a beach . . . 5L No liability for harm suffered from obvious risks of dangerous recreational activities . . . 5M No duty of care for recreational activity where risk warning –so that liability would seem to be excluded if a risk warning is put up, assuming this is a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this might well be regarded as a dangerous recreational activity, you do not even have to put a sign up, that is the end of it.

  29. Swain – Insight to how the HC view the operation of the CLA • KIRBY J: It does not sound as though this is categorised. That is paragliding and things of that kind, I would have thought, because they say, “such as on a beach” in the definition of “recreational activity”. • MR MENZIES QC: True. • GLEESON CJ: What about recreational activities that are dangerous for some people, like people who cannot swim, and not dangerous for others? • MR MENZIES QC: I have no doubt that at some point that is going to entertain your Honours. • GUMMOW J: Here we are again, more imperfect law reform.

  30. Illegality • There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally he does not become a caput lupinum (an outlaw) ( per Latham CJ: Henwood v Municipal Tramsways Trust

  31. The Test to Disentitle the Defence • In each case the question must be whether it is part of the purpose of the law against which the the P has offended to disentitle a person doing the prohibited act from complaining of the other party’s act or default • Italiano v Barbaro (1993) 114 ALR 21(injury sustained while parties were in the process of looking for a spot to stage accident; Neaves & Whitlam JJ not “appropriate” to fix a standard of care in the circumstances )

  32. Civil Liability Act 2002 Illegality • S54 – criminals not to be awarded damages if: (a) on the balance of probabilities, the conduct constitutes a “serious offence”, and (b) that conduct contributed materially to the risk of death, injury or damage.

  33. Negligence - Remedies ASSESSMENT OF DAMAGES: PERSONAL INJURIES

  34. RECOVERABLE HEADS OF LOSS: PERSONAL INJURY • Windeyer J in: Teubner v Humble(1963) 108 CLR 491 • Three ways in which personal injury can give rise to damages: • destruction or reduction(of existing mental or physical capacity) • new needs (which did not exist prior to the injury) • production of pain (and suffering) • These categories include: • loss of earning capacity • the cost of medical and nursing care (past and future) • physical pain • mental anguish

  35. SPECIAL DAMAGES out of pocket expenses loss of income up to the date of verdict less any deductions* (This may be included in loss of earning capacity) GENERAL DAMAGES future medical and hospital expenses future economic loss loss of amenities and enjoyment of life Pain and suffering loss of expectation of life DAMAGES: PERSONAL INJURY

  36. OUT-OF-POCKET EXPENSES • Not affected by Pt 2 of the Civil Liability Act • In general this includes all expenses incurred by the plaintiff on account of the breach up to the date of verdict (Paff v Speed (1961) 105 CLR 549, 558-9) • medical expenses • surgical fees • Transportation • Special needs etc

  37. LOSS OF INCOME • [See ss.12 & 14 Civil Liability Act] • Loss of past & future superannuation • Nett loss of pay plus overtime: • less any savings to be made as a result of the injury (eg cost of transport to work) • less any boarding and lodging savings eg for being in hospital (Sharman v Evans (1977) 138 CLR 563 • less allowance for income tax deductions (Cullen v Trappell (1980) 146 CLR 1)

  38. FUTURE (HOSPITAL AND MEDICAL/CARE) EXPENSES • P is entitled to recover the future cost of hospital, medical, nursing and home care. • P is entitled to recovery of such cost even where the care (nursing/home care) is provided gratuitously by a spouse or relative Griffiths v Kerkemeyer (1977) 139 CLR 161 • The damages for such expenses are calculated by reference to the market cost of the services

  39. LOSS OF EARNING CAPACITY • The onus is on P to provide evidence of real possibility of the potential/capacity yet unexploited that would have been exploited in the future but for the injury suffered (Mann v Elbourn (1973) 8 SASR 298 ( police officer who was aspiring to be a lawyer) • Where D maintains that P retains the capacity to earn, the onus is on D to provide the relevant evidence and the range of work open to P

  40. NON-ECONOMIC LOSS • Non-economic loss is traditionally claimed under three main heads of damage: • Pain and suffering • loss of amenities • loss of expectation of life • "is not the prospect of length of days, but the prospect of a predominantly happy life . . . The ups and downs of life, its pains and sorrows as well as its joys and pleasures . . . have to be allowed for in the estimate" Benham v. Gambling (1941) AC 157: (p 166 )

  41. ASSESSMENT OF NON-ECONOMIC LOSS • There is no acceptable criteria for assessing what is fair compensation for a particular non-economic loss • (Sharman v Evans) – P was 20 yrs old injured in MVA rendered a quadraplegic: • Her ability to breathe, eat, speak, move, control her excretions, have social and sexual intercourse, bear or look after children is either greatly impaired or destroyed. She also went through the ordeal of releasing the young man from his promise to marry her…The estimate in respect of pain and suffering is seldom adequate( Murphy J) • She has suffered and will continue to suffer for the rest of her life in her left shoulder, another of her few remaining sensory areas…Pain and suffering and loss of amenities of life is a head of damages which is particularly difficult to assess (Gibbs and Stephen JJ)

  42. Civil Liability Act 2002 Part 2 Personal Injury Damages • Received assent on 18 June 2002 • Section 11A: (1) does not apply to claims excluded by Section 3B (eg. Damages for dust diseases, use of tobacco products, workers’ compensation…) (2) Part 2 applies regardless of whether the claim is brought in tort, contract, statute or otherwise (3) A court cannot award damages, or interest on damages, contrary to Part 2.

  43. Civil Liability Act 2002 • Pt 2 Non-economic loss: • No damages for non-economic loss unless assessed at 15% of a most extreme case (eg. 15% = 1% or $3,500, 16% = 1.5% or $5,250, …26% = 8% or $28,000, …33% = $115,500, …100% = $350,000): Section 16(1) & (3) • Maximum non-economic loss = $350,000: Section 16(2) • Maximum for non-economic loss indexed: Section 17 • Courts/parties may refer to other awards of non-economic loss in earlier court decisions: Section 17A

  44. Civil Liability Act 2002 Exemplary, punitive & aggravated damages: • A court cannot award exemplary, punitive or aggravated damages in an action for personal injury resulting from negligence : s21

  45. Civil Liability Act 2002 • Pre-judgment Interest: • No interest payable on damages for non-economic loss or gratuitous attendant care: s18(1) • If interest is awarded (eg. Past economic loss), the “relevant interest rate” is the Commonwealth Govt 10-year benchmark bond rate: s18(4)

  46. Civil Liability Act 2002 • Economic Loss: • Maximum for gross loss loss of earnings = 3 times average weekly earnings: s12 • 5% discount rate for future economic loss: s14 • Gratuitous Attendant Care: • No damages awarded if services provided: (a) for less than 6 hours per week, and (b) for less than 6 months: s15(3) Geaghan v D’Aubert [2002] NSWCA 260 Harrison v Melhem [2008] NSWCA 67 

  47. Negligence - Remedies INJURY TO RELATIONAL INTERESTS

  48. THE SCOPE OF THE ACTIONS Death Dependents may sue for loss actual or expected benefits Parent/master may sue for wrongful deprivation of the Services of a child/servant Loss of services Loss of consortium An action that permitted the husband to sue for wrongful deprivation of the wife’s consortium

  49. COMMON LAW AND THE SURVIVAL OF ACTIONS • In the event of death from a wrongful act there are two potential plaintiffs: • the estate; and • dependants • Traditionally in Common Law, a personal action ‘died’ with the victim

  50. The Estate: Lord Campbell’s Act (1846) • The Act modified the Common Law rule in England. • The effect of the legislation was to give to the estate the action which the deceased would have had she or he survived • Australian States and Territories have adopted similar statutes with modifications

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