LAW OF TORTS

1. LAW OF TORTS WEEKEND LECTURE 2B NEGLIGENCE DEFENCES REMEDIES – DAMAGES PERSONAL INJURY/DEATH NUISANCE

2. LAW OF TORTS NEGLIGENCEDEFENCES

3. 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

4. Contributory Negligence • Earlier approaches in Common Law: - The last opportunity rule - The complete defence • The development of apportionment legislation - Wynbergen -v- Hoyts Corporation P/L (1997) perHayne J (Gaudron, McHugh, Gummow & Kirby JJ agreeing)

5. 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

6. 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

7. Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34 • 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.

8. 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%."

9. 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”.

10. 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

11. Civil Liability Act 2002 • s5S – a court may determine a reduction of 100% if it is just and equitable to do so : compare Wynbergen –v- Hoyts Corp (1997) 149 ALR 25 • 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

12. 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

13. 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)

14. 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)

15. 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

16. 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.

17. 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

18. 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

19. 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)

20. 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

21. 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

22. 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 )

23. 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)

24. The Issue of Thresholds • A threshold is the level of personal bodily impairment/suffering that an injured person must reach to receive compensation for their injuries. • This is usually expressed in terms of a percentage of a ‘most extreme case’

25. 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) • Courts/parties may refer to other awards of non-economic loss in earlier court decisions: Section 17A

26. 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

27. Civil Liability Act 2002 • Economic Loss: • Maximum for gross 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 

28. Negligence - Remedies INJURY TO RELATIONAL INTERESTS

29. 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

30. 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

31. SURVIVAL OF ACTIONS: NSW • Law Reform (Miscellaneous Provisions) Act (NSW) 1944 Part 2 Survival of Causes of Action After Death • Subject to the provisions of this section, on death of any person …all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate;...

32. QUALIFICATIONS • Section 2(2) of the Law Reform (Miscellaneous Provisions) Act (NSW) 1944 does not allow for recovery of the following types of damages: • exemplary damages • loss of earning capacity/loss of future probable earnings • loss of expectation of life • pain and suffering • Incidental losses or gains except for funeral expenses will not affect the quantum of damages

33. ALLOWABLE DAMAGES Needs created; reasonable expenses incurred before death Reasonable funeral expenses NON-ALLOWABLE loss of earning capacity Non-economic loss HEADS OF DAMAGES

34. DEPENDENTS’ CLAIMS • Compensation to Relatives Act 1897 (NSW) • 3(1) Whenever the death of a person is caused by a wrongful act, neglect, or default, and the act , neglect or default is such as would ( if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof , then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages

35. DEPENDANTS: STANDING • Compensation to Relatives Act 1897 (NSW) S4: • spouses • parents (including those in loco parentis) • de factos Compensation to Relatives Act (De facto Relationships )Amendment Act 1984 • children (including step children) • siblings (half and full)

36. HEADS OF DAMAGES • Loss of economic support/loss of reasonable expectation of financial benefit • Loss of domestic services

37. LOSS OF REASONABLE EXPECTATION OF FINANCIAL BENEFIT • The benefit is a ‘chance’ that is lost. P must therefore establish such ‘chance’ in accordance with the principles of reasonable certainty. (Taff Vale Railway Co v Jenkins (1913)AC 1, 7 • All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact from which the inference can be reasonably drawn... • It may be immaterial that the deceased was unemployed prior to his/her death • In the case of a young child, there has to be evidence sufficient to establish the potential to provide the benefit

38. DOMESTIC SERVICES • Nguyen v Nguyen (1990) CLR 245 (held gratuitous services of deceased spouse for the benefit of husband & children had a monetary value) • The claim: ‘loss of the deceased’s domestic capacity being the value of services such as child care, cooking, washing, ironing and cleaning’ • The definition of ‘services’ is broad: • ‘There is no reason why ‘services’ in this context should be given an unduly narrow construction, as if a wife is no more than a house keeper’ Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen)

39. TORTS LECTURE NUISANCE

40. WHAT IS NUISANCE? • An unreasonable conduct that materially interferes with the ordinary comfort of human existence

41. THE TWO ‘SIDES’ OF NUISANCE NUISANCE PRIVATE PUBLIC NUISANCE

42. PRIVATE NUISANCE • Unlawful interference with P’s interest in land • The tort protects against interferences with the enjoyment of land

43. THE NATURE OF THE TORT • Conduct or something that emanates from D’s land • Noise • Dirt • Fumes • Noxious smell • Vibrations etc • (interference with TV signals)?

44. INTERESTS PROTECTED • The tort centres on interest in the land that is affected • D’s conduct must impact on P’s land as a form of interference to the enjoyment of the land in question • Victoria Park Racing v Taylor (D constructs a platform on his land to view and comment on races taking place on P’s land) • Thomson-Schwab v Costaki (prostitutes in the neighbourhood) • Raciti v Hughes (1995) (flood lights and camera equipment overlooking P’s backyard)

45. TITLE TO SUE • P must have proprietary interest in the affected land to be able to sue • Blay, ‘The House of Lords and the Lord of the House: Making New sense of Nuisance’ ALJ ( 1999) Vol. 73, 275

46. WHO MAY BE SUED? • The creators of the nuisance • Fennell v Robson Excavations (1977) • Occupiers • De Jager v Payneham & Magill Lodges (1984) 36 SASR Occupier may be liable for the acts of a party who resides on the property with occupiers permission • Hargrave v Goldman ( an occupier may be held liable where they allow the continuation of a nuisance from the land even though they may not have created it initially)

47. PUBLIC NUISANCE • Any nuisance that materially affects the reasonable comfort and convenience of a class of people • P may sue in public nuisance only if he/she can establish special damage above and beyond that suffered by other members of the affected public • Walsh v Ervin ( D ploughs up part of highway obstructing access to P to the highway, D held liable)

48. QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS • Silservice Pty Ltd v Supreme Bread Pty Ltd (queues to buy bread on George Street) • Queues do not necessarily provide a basis for an action even where they seem to obstruct a public access way that affects the P • However D may be liable if • the crowd is attracted by something done by D which is not bona fide necessary for the conduct of his/her business • the facility for the purpose of D’s trade is inadequate or not suitable to hold or control the crowd • D could employ some other reasonable means within his control to minimize or prevent the damage to P

49. PUBLIC BENEFIT AND PUBLIC NUISANCE • In general public benefit is not a defence that can defeat P’s objections to D’s conduct • Where the interference to P is not substantial, the public benefit argument may be used to reinforce the justification to the inconvenience caused to P

50. REMEDIES • Abatement of nuisance (self-help remedy) • Who bears the cost of abatement? • Normally the abater does as often there is little or no cost, but see Proprietors-Strata Plan No 14198 v Cowell where it was held that D may be required to bear cost if the steps taken by P to abate were in reasonable mitigation • Injunction to prevent the continuation • Damages