Torts notes 2

Seite 1

Torts notes part 2

Scanlan v American Cigarette Company [1978]

D showed risk of activity to P, P not aware of risk involved

P has been informed and accepted terms of the agreement.

A man is not willing unless he is able to choose freely, and is fully informed.

No coercion or duress in P's behavior (being forced).

social pressures of the smoking- encouraged by peers to engage in potentially risky activity

Empirical Chemical v Shatfield

feudal liability - tortious wrongdoing of employee legally transferred to the employer

Look at employee actions, legal relationship between employer and employee

the assumption of risk would not ordinarily defeat a claim- supported by the House of Lords

employee-employer relationship - vicarious liability weakens voluntary nature of risk - employee believes he was compelled but he accepted the risk

False constructions of employee/employer relationship undercuts 'volenti' principle

Kent v Scattini

P consented to the risky activity - shooting water at pedestrians. Just because she got into the car does not mean she consented to the totality of the negligence of the driver.

Joyce's case

P drunk, injured and unconscious in car. D found in bushes, also drunk. D concedes negligent driving. P sued D.

Issue: Had P accepted risk of D's negligent driving even though D was drunk?

Held: P's actions failed

DOC not breached

P contributorily negligent

defense of volenti

Getting drunk- a reasonable person is a sober person. Universal application of the standard of reasonable person - on a balance of probabilities

Maybe they were both so drunk they could not recognize the state of the other. Being drunk at the time is not a defense to the standard of a reasonable person.

SOC owed by Learner driver to instructor different to Learner driver SOC owed to other road users. (subjective)

objective/universal approach: need to be sober and objective

Seite 2

Defence of Illegality

Anyone who is injured on someone's premises can sue. Anything that is objectively unsafe. Engaging in illegal activity (criminal) with a partner and injured, there is no DOC between criminals (case of bank robbers).

Wrongs Act S14 (g) (2a) and (b)

Court considers intoxication and illegal activity.

Interpret legislation broadly-policy decisions-illegal defenses hard to run-judges are normative.

Hemwood case

P drunk on the tram. P stuck head out of the window to vomit. He hit his head on a post and died. P committed crime at the time he was killed (vomiting). No duty of care (DOC) was owed.

Held: court's discretion: a person will not lose a remedy at law merely because there is a causal connection between harm done and crime committed.

When the defence was raised, courts decided through issues of morality.

Miller v Miller (2011)

1998- P was drinking and out on the streets. She stole a car from the parking lot to get home since trains were not running. Sister (no license and drunk) was asked to drive the car. contributory negligence and assumption of risk). 9 passengers in the car at the time. Consent withdrawn by P (she asked her cousin to stop and let her out). The car hit pole and P became a quadriplegic and a passenger died.

Defence: If part of criminal negligence and try to get out of it, it is a criminal defense in SA.

Illegal activity: no DOC owed because car was stolen.

Held: in the first instance, the court found for P. Reversed by CA and SC.

High Court: majority allowed P's claim, the case governed by common law principles. By the time the accident happened, P and D were no longer in a joint enterprise.

P asked twice to be let out of the car before the accident. D now owed her a DOC, she was not complicit. SOC was reasonable. Reasonable criminal- should the courts set a relevant SOC. All aspects and relations must be considered. The scope was wide.

Skalpin v Collins (1966)

If care expenses (amenities) of the award is based on the hospital stay. But for the accident, the P would have had to meet the boarding and clothing expenses, therefore, cannot be compensated for both pecuniary and amenities.

Loss of amenities of life (consciously enjoying life to the full). Permanent unconsciousness- no experience of loss as P was brain dead.

Volunteers and Good Samaritans

Wrongs Act: S31 (a), (b), 40

consequences of participating in a dangerous activity, altruism and charity, community values

If you are not being paid (no self-interest) the defense should be able to be utilized.

Even if good samaritans partially brought about the accident but attempted to rectify it they may be found not liable. The finding of tortious liability vicariously transferred to the employer.

Limitation of Actions Act 1958 (Vic.)

time limits for initiating litigation

Under CL- P's ability to action dates from the time when you feel the effects of injury, not at the time the harm occurred.

Discoverability-moment in time when you realize you have been hurt 'longstop' provision- file claim in this time.

Seite 3

Damages

Wrongs Act Part V

standardized formulas used to commute damages

Pecuniary loss: loss of money in the past and future

Limits on non-pecuniary losses-everything suffered not related to financial loss e.g. depression, suicide, death interest in capping damages

Purpose- backward-looking, restores P to original position

Pain and suffering cannot be calculated in monetary terms

Serious incapacitation: cannot calculate lost opportunities

Calculation must calculate loss of future ability, medical costs, and P's life expectancy: overcompensation vs under compensation

Cost of future medical care: Leopard case

If P dies, cost problem is solved

Lump sum: core remedy - 'one and for all' rule

P brings only one action out of all damages that came due to D's negligence.

Provides compensation for all past and future losses.

Special damages may modify lump sums.

Non-pecuniary: solace to P, no caps with Court statutory limits

in Vic max: $371, 380 compensation: cannot appeal

loss of enjoyment of life: no legs, no arms, disfigurements

Indexation calculus

Road and work injuries not allowed to file for N-P damages

Pain and suffering: insurers deal with out of court settlement.

Amounts decided in previous case are not binding, they are not precedent

Assessed on a subjective basis

Seite 4

Negligence: Breach of Duty/Remoteness

D will not liable for P's injury if the injury is too remote

scope of liability: extending the negligent person's liability to the harm

Test of remoteness: reasonable foreseeability of the kind of injury suffered by the plaintiff

Was it reasonably foreseeable to the reasonable person in the position of D that the conduct caused by D would result in damage of some kind to P or to the class of persons to which P belongs?

Thin skull rule

Remoteness (negligence)

Was the harm too remote from the original negligence?

Categorise the harm

In ordinary cases, P’s kind of harm should be categorised broadly (Metrolink)

A case which involves an unusual injury or injury that arised from an unusual sequences of events, narrow categorisation may be appropriate (Metrolink)

P will always argue for broad categorisation and D will always argue for narrow categorisation.

For p- Easier to make out RF later on, if narrow difficult to make out rf.

Metrolink case

Remoteness is a two stage inquiry

Determine genus of harm to which the loss belongs

Determine whether a reasonable person in the circumstances would act in the same way and foresee the particular kind or genus

Involves q of policy, precedent and reasoning by analogy

Broad categorisation

Hughes v Lord Advocate-burns

Workmen left site and hole left caused boy to fall in and suffer burns to his body. Held: injuries were foreseeable. Needed to be foreseeable that him causing would cause burns- broad categorisation.

If P has burn injuries refer to case and lead on to broad categorisation determine by analogy.

Mt Isa Pines-mental illness

P was at site of electrical explosion, witnessed deaths of two people. Suffered schizophrenic reaction and severe mental disturbances. Harm: mental disturbance.

Held: broad categorisation, foreseeable possibility that shock and mental disturbance would result. Damage was RF.

Harm has to be ‘some harm of a like kind’

Did not have to be schizophrenic harm but had to be foreseeable and of a like kind i.e. mentally disturbed

Whenever you have a case of mental illness/ disturbance it will be a broad categorisation

Nader v Urban Transit Authority

10 yo boy developed rare condition known as Gansa syndrome- no genetic history

Where psychiatric illness of some kind is reasonable foreseeable as a consequence of physical injury- it doesn’t matter that the illness is rare or uncertain.

Narrow categorisation

Tremain v Pike

P contracted Wheel’s disease from coming into contact with rats urine working on a farm. P sued employer. Argued that D was negligent allowed rat infestation to occur. While it was RF that a person might come into contact with rats, Wheel’s disease was not RF. Looking at Wheel’s disease rather than any disease a rat could give to a human.

Doughty v Turner

P was injured at work when he knocked over an asbestos cement cover. Molten liquid burnt P. Argued that injury was RF when he knocked it over. Held: Even though risk of injury by splashing was RF, the kind of injury was injury by eruption therefore not RF. Case not made out. Looking specifically at the end result.

Reasonable foreseeability

TEST

In the sense that it is not far-fetched or fanciful (Wagon Mound 2) that D’s kind of carelessness may result in damage of the same kind suffered by the P or to a class of persons to which the P belongs (Wagon Mound 1)

Substitute statement with relevant harm.

Wagon Mound 1

Determining whether the damage is of such a kind that the reasonable man should have foreseen. Or is it not?

Extent of harm(thin skull rule)

P has pre-existing susceptibility

Accident creates abnormal sensitivity to further injury

Take victim as found and be liable for it

Have to be liable for all the consequences that flow on from original negligence

Holding D accountable for the negligence when there is a vulnerable P

Smith v Leech Brain

D caused burn on P’s lip. Burn got infected and led to cancer.

Thin skull rule:

Point 2.

D has to take P as found- caused burn therefore liable for cancer that came out of it.

D will argue that it was not RF that the burn would become cancer.

Only the original injury needs to be RF-everything that follows after can be D’s responsibility

Infection of such a harm that was RF from the burn.

Stephenson v Waite-Tileman

D is liable for new susceptibilities created. Was the original injury RF?

Kavanagh v Ahktar

Principle that the tortfeasor takes the victim as he or she is found is not absolute and unqualified. D’s argument.

Problem Question

Categorise the harm- fear of DID, if categorised narrowly it must be RF the whole time, if broad then considered a psychiatric illness that must also be RF- case authority: Nader where P was also a young boy

Where psychiatric illness of some kind is RF it doesn’t matter that the illness was rare. = broad categorisation

RF question/test

In the sense that it is not far-fetched or fanciful that Hannah’s leaving him alone may result in damage of the same kind suffered by Walter or any child she was babysitting.

Was it RF that Walter would development some type of psychiatric illness?

Walter was very attached to his mother and he is predisposed to mental illness.

Family history of schizophrenia.

D’s argument: Hannah was gone for 1 and a half hours. He woke up because of a nightmare. Was it RF that during his sleep he would go into a fit of rampage? Yes- predisposition.

Mental harm should always be categorised broadly.

Thin skull rule

Does he suffer a pre-existing susceptibility to mental illness?

He was attached to his mother and behaving strangely. Family history of schizophrenia.

Where D’s negligence makes him susceptible?

Being by himself triggered Walter’s episode.

Take victim as you find them- means that D will be liable for all flow on conequences of pre-existing susceptibility. Although DID is rare, this is irrelevant. Hannah is liable. It was RF that he would develop a mental illness.

BE careful what you categorise it to begin with.

Seite 5

Pure Economic Loss and Pure Mental Harm

In relation to harm suffered by the defendant

Economic harm: pure economic loss analysis used.

Pure mental harm- harm suffered by P becomes pure mental harm analysis

What is the harm at the beginning?

Financial or mental harm: pure eco and mental harm, substitue normal DOC analysis

In exams: it may not come up

Pure economic loss

First step define : Pure economic loss is the financial damage suffered as a result of the negligent act of another party which is not accompanied by any physical damage to a person or property

Only financial loss

Reasonable foreseeability

2nd step: Where any carelessness on the part of D would cause economic loss to a specific class (= broad test)

Can be made out in any fact scenario as it is any carelessness

Caltex oil (RF)

As a general rule damages are not recoverable for economic loss which is not consequential upon injury to person or property

One exception arises where D knew or ought to have known that a particular person not merely a member of an ascertainable class will be likely to suffer economic loss as a consequence of D’s carelessness.

RF test

Negligent advice (financial loss), was there any carelessness in giving the advice result in financial loss

Cant get damages if its consequential from the physical injury, exemption: if the plaintiff ought to have known the P will suffer financial harm

Third step: Salient features ( DOC, talk about the features)

No indeterminate liability

Control

Vulnerability

Interference with legitimate business activity

Actual or constructive knowledge of risk of harm

2. Pure mental harm (HOT)

Where the injury is mental don’t use usual DOC analysis

First step definition: pure mental harm other than consequential mental harm (s67 WA)

Use definition from wrongs act and state why it is mental harm OTF in addition to being a recognised mental harm

S. 75 says mental harm cannot be made out unless it is a recognised mental illness

No physical injury whatsoever, only mental harm has been suffered.

Pure mental harm is not consequential mental harm

Consequential mental harm not included only pure mental harm

State why the mental harm suffered by P is mental harm

Quote s75

Assuming xx is recognised mental illness, s75 applies….., pure mental harm is made out

Second step: Was the harm direct or indirect

Direct= places someone in danger

indirect=P suffers mental harm due to witnessing or learning of another being killed, injured or put in danger

If indirect, must satisfy s73

P placed directly in danger

P suffers mental harm because they witnessed another person being killed, put in danger or heard about such things happening

Usually always indirect mental harm

P did not experience negligence but they witnessed negligent act being done by someone else and experienced mental shock

Most important: Wrongs Act S.73 (2): The P cannot recover damages for pure mental harm unless they witnessed at the scene the negligent act and the person being put in danger, suffering, injury or death of the person, or the P was in a close relationship with V. By being in a close relationship they did not need to have seen the act to claim indirect mental harm.

Discuss whether a person was in a close relationship with the person (s.s. b)

Third step: Reasonable Foreseeability

D does not owe a DOC unless the D foresaw or ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken

Normal fortitude: temperament of P (if they were already weird) no DOC owed, as long as P is normal (do th facts show this)

S72(2): Four factors:

a) whether or not the mental harm was suffered as the result of a sudden shock (more easily foreseeable that P would suffer recognised psychiatric illness)

b) If they witnessed the negligent act at the scene

c) The nature of the relationship between P and the victim

d) Whether or not there was a pre existing relationship between P and D.

The case of Tame

P had an accident on the road due to no fault of her own. Police arrived and made a mistake in the report- saying she had a blood alcohol reading- she was sober however, entry of BAC affected her insurance and after 3 months the police fixed the error, but this did not remedy the insurance

She was then diagnosed with psychotic obsession, that everyone believes she was drunk and her insurance will never come through

P developed irrational obsessive fear that insurance related to her perceived drunkenness.

Not RF that making a mistake in the report she will suffer mental harm because of it

Court dismissed the case, said the police duty was to make a report

Not RF that in making a mistake in that report she would suffer mental harm as a result. (Direct mental harm)

Case of Wix v State railway

2 police officers

The found many people were killed and injured. They claimed psychiatric illness based on what they saw at the scene

Subsection (b), not RF that they will be killed or injured because they werent there

Rejected D’s argument

Even if the deaths were instantaneous in the time of crash, victims conti ued to be injured and put in peril when the P arrives

Quote: was it RF that a (train accident), that sights of the kind a rescuer might see, sounds they might hear, task they might have to undertake, to try and ease the suffering of others would be in combination such as that which might cause a person of normal fortitude to develop a recognised psychiatric illness? (prove its RF)

D ( State Railway)

Not RF because P could not have foreseen the fact that people would be injured.

Step 4: Salient features

Tame v NSW

Annets v Australian station

AP’s son was employed by the d, 16 yo son, D assured the p that the son would be supervised at all times, sent to desert to work (rural aus)

Son was sent to another station in rural aus and was not supervised, he ran away and died of starvation.

News conveyed to parents over a period of time

They did not hear about it immediately

There was a DOC, employer owed DOC to p’s parents to care for the child

It was RF that they could suffer mental harm as a result of hearing about their son’s death.

S 73 - close relationship with victim

Parent child relationship is enough to satisfy close relationship, was it a close and loving relationship

Indirect mental harm, because nothing specifically done to them

S 73 (b) close relationship with the victim: parents, parent child relationship is enoguh to satisfy a close relationship. Was it a close and loving relationship, not just legal title

Had no way to protect themselves from the harm

OTF: was there anything that showed there wasnt a close and loving relationship?

Assumption of responsibility: D assumed responsibility for the son because he gave the assurances. There was a DOC between D and P.

Vulnerability- vulnerable to the employer that he would do what he said he would do

Control- employer in complete control, parents had no control over who supervised their son or where he was sent in rural Aus

Interference with legitimate business activity

No conflict of duties

Relationship between the victim and the person

No determinate liability

Gifford v Strange

Indirect mental harm: satisfy s73 (2) a and b

Worker crushed to death through negligence of employer, estranged wife and children were told of his death but did not see the body, they claimed psychiatric illness

It was not RF that the estranged wife would suffer a recognisable psychiatric illness but they found that it was likely that the children would develop anillness.

The court did not find a close and loving relationship between the estranged wife and the father.

The closeness and affection is relevant when deciding a duty of care, not legal

MESSENGERS (annets)

There is no DOC for mental harm caused by the manner in which bad news is communicated

OBITER not binding: There may be a duty of care for mental harm caused by carelessness in the accuracy of the information communicated. (blunt or insensitive isnt taken into account, if a person exaggerated the facts)

Limitation of damages

A court cannot make an award of damages for economic loss ofr mental harm resulting from negligence unless harm consists of a recognised psychiatric illness s75 WA.

No damages for mental harm unless it is a recognised psychiatric illness

There is a higher threshold level (10%) mental harm before damages for noneconomic loss can be awarded.

Problem Questions

Pure mental harm problem

1.Look at what P has suffered -PTSD which is not physical injury, do not talk about DOC

2. Define pure mental harm that is not consequential on physical injury

3. S. 75 recognised psychiatric illness

4. Was it indirect or direct?- indirect: the negligence was not done to her but someone else

5. WA S. 73 (2) for indirect mental harm, falls under scenario b) she was not in a close relationship with the victim because they were divorced. Close and loving OTF: they had children together, their relationship could be very hostile if not for the children, probably not very close and loving

6. DOC/ Mental Harm- RF, was it RF that the negligence of his death would harm someone of normal fortitude. If there is nothing OTF to suggest otherwise, can just assume that P is of normal fortitude.

7. S. 72 (2): The harm was caused by the sudden shock.

Pre existing relationship between her and D ?

RF: maybe and maybe not. She was the ex wife, there was not much relationship left

Indirect and RF probably not made out.

8. Salient features

9. Pure mental harm most likely not to be made out.

Financial loss = 10K

Define pure economic loss: damage suffered as a result of the other party

Design of the soles - negligent

R F: carelessness of nadia in making the shoes

It was Rf because shoes were famous for the soles.

Remember RF is a broad test .

Salient features- who was in control

The negligent party (Nadia) was in control

Vulnerable: Kellie needs the shoes made in acertain way

Interfering with Kellie’s business because she was selling shoes

Nadia does owe a DOC to Kellie for pure economic loss.

Nadia had relationship with K in the past and she is also a dancer.

Problem 1: Pure Mental Harm

1. Straight away see its pure mental harm and not physical

2. Not DOC test

3. Indirect: the negligent wasn’t done to her, but to someone else and she just found out about it

a. S73(2) (b): Is she in a close relationship with the victim

i. Legally not, divorced

ii. Gifford: must look at actual relationship between the pair

iii. Facts: children, relationship could have been hostile or non existent (not made out but continue)

4. RF: was it RF that the negligence that caused Mark to die would harm someone of normal fortitude. (assume normal unless the facts say so)

a. S72(2)

i. Result of sudden shock: yes, fainted (more likely to be RF)

ii. Witness at the scene: np

iii. Nature of relationship: hostile and maybe non existent

iv. Pre existing relationship: no, ex-wife

b. Not made out because of relationship

5. Salient features

6. Pure mental harm is not made out

Problem 2: Pure economic Loss

1. Not physical, not mental

2. Define economic los

a. Financial damage suffered by a party without physical injury

b. Negligence: the design of the soles (taking out the special material to save costs

3. RF: was there any RF that the carelessness of Nadia in making these shoes would result in economic loss for Kelly

a. Yes, because the shoes were famous for the soles. So when its changed, it is RF that there will be financial loss because people wont buy them

b. Broad test (no matter what can make argument to satisfy)

c. Damages recoverable because no physical injury

4. Salient features

a. Control: Nadia is in control of making the shoes

b. Vulnerability: Kelly is vulnerable to Nadia’s making of the shoes, she has no say in their quality

c. Interference: interfering with kelly’s business as she has lost demand

d. Points towards having a DOC

e. Nadia owes Kelly DOC for pure economic loss

f. Actual constructive relationship: compete in the past, a dancer herself and knows the importance of soles.