LAWS 1113 LAW OF

TORTS A
Reference
Bible
Compiled by William Macintosh, Tom Ashby and
San-Joe Tan
2008

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Main sources: The Law of Torts in Australia (Trindade et al);

Torts A Learning Guide 2008 (Hinchy)
Butterworths Concise Legal Dictionary Third Edition (Butt et al)

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CONTENTS
Introduction ...............................................................................................................................................9
What is a tort? ...........................................................................................................9
Difficulty in defining a tort ......................................................................................10
Tort and Criminal Law ..........................................................................................10
Tort and Contract Law .........................................................................................10
Tort and Restitution Law ......................................................................................11
Tort, Trust and Property Law ................................................................................11
Standards of Liability ..............................................................................................11
Faults and Alternatives ...........................................................................................12
Sources ..................................................................................................................12
Tort Theory ............................................................................................................12
Economic Analysis ...............................................................................................13
Corrective Justice Theory .....................................................................................13
Critical Theory .....................................................................................................13
1.7 Distinction between Trespass and Action on the Case .......................................13
Intentional Torts against the Person ...........................................................................................15
Introduction ............................................................................................................15
Battery ....................................................................................................................15
Direct Act Reynolds v Clarke (1726) 93 ER 747 ..................................................15
Positive Act Innes v Wylie & Ors (1844) 174 ER 800 ...........................................15
Hostile Touching In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 .................16
Intentional Act Gray v Barr [1971] 2 QB 554 ......................................................16
Consent 16
Assault ...................................................................................................................16
Positive Act and Direct Physical Threat Stephens v Myers (1830) 172 ER 735 .....16
Must be reasonable apprehension of imminent/harmful contact ..........................17
Conditional Threats Tuberville v Savage (1669) 89 ER 684 .................................19
Fault Must be the intention to cause the apprehension Hall v Fonceca [1983]
WAR 309 ..............................................................................................................19
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Consent 19
False Imprisonment ................................................................................................19
Introduction Myer Stores v Soo [1991] 2 VR 597 ................................................19
Must be a positive act of the defendant ...............................................................21
Restraint of liberty must be total ..........................................................................21
Defences ................................................................................................................22
Necessity .............................................................................................................22
Incapacity: Insanity and Infancy ...........................................................................22
Mistake - Hall v Fonceca [1983] WAR 309 ............................................................23
Ex Turpi Causa Smith v Jenkins (1970) 119 CLR 397 .........................................23
Self-Defence Fontin v Katapodis (1962) 108 CLR 177; Albert v Lavin [1982] AC
546
23
Defence of another ..............................................................................................24
Defence of property .............................................................................................24
Provocation .........................................................................................................24
Inevitable accident McHale v Watson (1964) 111 CLR 384 .................................24
Consent Marions Case (1992) 175 CLR 218 ......................................................25
Trespass to Land ..................................................................................................................................26
What is trespass to land? ........................................................................................26
Interference must be with land in the lawful possession of the plaintiff Delaney v
T. P. Smith Ltd [1946] KB 393 ..............................................................................26
Must be a positive act and direct interference Esso Petroleum Co Ltd v Southport
Corporation [1954] 2 QB 182; Public Transport Commission of NSW v Perry (1977)
14 ALR 273 ..........................................................................................................27
Interference with or entry upon must relate to land - Kelsen v Imperial Tobacco Co
Ltd [1957] 2 KB 334 .............................................................................................28
Transient Intrusions Graham v K. D. Morris & Sons Pty Ltd [1974] Qd R 1;
Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479 ...............28
Section 180 of the Property Law Act 1974 (Qld) Lang Parade Pty Ltd v Peluso
[2006] 1 Qd R 42 .................................................................................................29
Fault Public Transport Commission of New South Wales v Perry (1977) 137 CLR
107
31
Unjustifiable Entry or Interference Halliday v Nevill and Another (1984) 155 CLR 1

31

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Remedies ................................................................................................................32
Damages .............................................................................................................32
Injunctions ..........................................................................................................32
Abatement by Self-Help .......................................................................................32
Defences ................................................................................................................33
Necessity .............................................................................................................33
Re-Entry on Land .................................................................................................33
Inevitable Accident ..............................................................................................33
Consent 33
Lawful Authority ..................................................................................................34
Nuisance ...................................................................................................................................................35
Private Nuisance .....................................................................................................35
Background .........................................................................................................35
Noise 35
Material Damage vs Personal Discomfort St Helens Smelting v Tipping (1865) 11
HLC 642 ..............................................................................................................35
Unreasonableness ...............................................................................................35
Interests protected ..............................................................................................38
Who can sue? Hunter v Canary Wharf [1997] AC 665 .........................................39
Who can be sued? Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574 ......................39
Defences ................................................................................................................40
Coming to the nuisance Campbelltown Golf Club v Winton [1998] NSWSC 257 ..40
Statutory Authorisation Lester-Traves v City of Frankston [1979] VR 2 ...............40
Remedies ................................................................................................................40
Abatement ...........................................................................................................40
Injunctions ..........................................................................................................40
Damages .............................................................................................................41
Intentional Torts against Chattels ................................................................................................42
Trespass to Goods ..................................................................................................42
Overview ..............................................................................................................42
The nature of the plaintiffs possession ...............................................................42
The nature of the defendants actions ..................................................................43

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Is it actionable per se? .........................................................................................43

Conversion .............................................................................................................43
Introduction Kuwait Airways Corporation v Iraqi Airways Co and Others [2002]
UKHL 19 ..............................................................................................................43
What are goods? ..................................................................................................44
The nature of the plaintiffs interest in goods ......................................................44
The nature of the defendants acts ......................................................................45
Detinue ...................................................................................................................46
Defences ................................................................................................................46
Necessity .............................................................................................................46
Mistake 46
Ex Turpi Causa ....................................................................................................47
Recaption of Chattels ...........................................................................................47
Distress 47
Inevitable Accident ..............................................................................................47
Consent 47
Lawful Authority ..................................................................................................47
Penfolds Case .........................................................................................................48
Introduction to the Law of Negligence and Duty of Care ...................................................51
Introduction to Negligence ......................................................................................51
Duty of Care Donoghue v Stevenson [1932] AC 562 .............................................51
Reasonable Foreseeability .......................................................................................53
Proximity Sullivan v Moody (2001) 107 CLR 562 ...................................................55
Introduction to the Civil Liability Act 2003 (Qld) ......................................................55
Examples of Duties of Care .....................................................................................55
Duty of care owed by employer to employee - Czatyrko v Edith Cowan University
(2005) 214 ALR 349 ............................................................................................55
Duty of care owed by an occupier to an entrant - Thompson v Woolworths (Qld) Pty
Ltd (2005) 221 CLR 234 .......................................................................................55
Duty of care owed to other road users - Manley v Alexander (2005) 223 ALR 228 56
Breach of Duty of Care .......................................................................................................................57
The Forseeability Test .............................................................................................57
Common Law Wyong Shire Council v Shirt (1979) 146 CLR 40 ...........................57
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Foreseeability and the Civil Liability Act 2003 (Qld) ..............................................58

Standard of Care .....................................................................................................58
Common Law .......................................................................................................58
Civil Liability Act ..................................................................................................59
Breach of Duty of Care ............................................................................................59
Common Law .......................................................................................................59
CLA

60

Res Ipsa Loquitur ....................................................................................................61

Causation and Remoteness ..............................................................................................................62
Factual Causation at Common Law ..........................................................................62
Introduction ........................................................................................................62
Role of the Tribunal of Fact ..................................................................................62
Tests for causation ..............................................................................................62
Factual causation under the CLA ..........................................................................64
Remoteness ............................................................................................................65
Introduction ........................................................................................................65
Reasonable foreseeability as the test of remoteness Overseas Tankship (UK) Pty
Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC
388
66
Foreseeability of the type or kind of damage Hughes v Lord Advocate [1963] AC
837; Tremain v Pike [1969] 3 All ER 1303 ............................................................66
The Egg Shell Skull (or thin skull) rule - Smith v Leech Brain & Co Ltd [1962] 2 QB
405
67
Remoteness and the CLA .....................................................................................68
Proportionate Liability and Contribution among Tortfeasors .........................................69
Introduction ............................................................................................................69
Joint and Several Concurrent Tortfeasors Thomson v Australian Capital Television
Pty Ltd (1996) 186 CLR 574 ....................................................................................69
Solidary and Proportionate Liability .........................................................................70
Contribution between tortfeasors ...........................................................................70
The right to contribution Brambles Constructions Pty Ltd v Helmers (1966) 114
CLR 213; Nilon v Bezzina [1988] 2 Qd R 420 ........................................................71
Assessment of contribution .................................................................................71

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Aggravation of Previous Tortious Injury State Government Insurance Commission v

Oakley ....................................................................................................................72
Defences to Negligence .....................................................................................................................73
Introduction ............................................................................................................73
Volenti Non Fit Injuria Voluntary Assumption of Risk ............................................73
Common law ........................................................................................................73
Civil Liability Act 2003 (Qld) ................................................................................74
Contributory Negligence .........................................................................................75
Common law ........................................................................................................75
Civil Liability Act 2003 (Qld) ................................................................................77
Relevant sections of CLA .........................................................................................79
Compensation for Personal Injury ................................................................................................83
Damage vs. Damages .............................................................................................83
Compensation at Common Law ...............................................................................83
The once-for-all rule ........................................................................................83
11.2.2 The compensatory principle ......................................................................83
Compensation under the Civil Liability Act 2003 (Qld) .............................................83
Case Law: Personal Injury Claims under the CLA .....................................................84
Damages under the CLA .........................................................................................87
Limitation of Actions ..........................................................................................................................90
When does time begin to run? .................................................................................90
Introduction to Limitation of Actions Act 1974 (Qld) ...............................................90

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1.

Introduction

1.1 What is a tort?

Tort is a French word meaning wrong or injury.
The law of torts, normally described as the law of civil wrongs, encompasses many
individual torts with different characteristics and elements eg trespass, negligence,
nuisance.
You cannot define any particular tort, you can only describe it, and as these torts
deal with a range of situations, their differences are more important than their
similarities:
o

One act can constitute more than one tort (concurrent liability); and

Because of differing elements, there could be an argument as to what tort

was committed.

Torts are civil wrongs: tortfeasors (people who commit torts) are usually ordered to
pay a sum of money as a remedy.
Civil and criminal offences are not mutually exclusive, eg assault/theft.
When an act constitutes more than one wrong, it may be easier to it as one wrong as
opposed to another to find a better remedy.
A working definition (from the textbook): A tort is a breach of duty owed generally
to ones fellow subjects, the duty being imposed by law and not as a consequence of
duties imposed by parties themselves.
The consequential event of a breached duty is an infringed right or interest, as
duties protect rights and interests.
Hinchys definition: A tort is a legal wrong committed by one person that allows
the aggrieved person to sue the wrongdoer for the recovery of damaged for the
wrong. The damages are awarded by way of compensation for the personal
injury, property damage or economic loss that has actually occurred of the law
presumes to have occurred.
Following on: Tort law protects the individuals interest in physical and mental
health and safety, in reputation, and to a certain extent, privacy and interests in land
and goods. To a limited extent is also protects against pure economic loss.

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1.2 Difficulty in defining a tort

1.2.1 Tort and Criminal Law
The procedure for criminal trials is different from that of civil trials:
o

Enforcement of criminal law is left to the prosecution authorities; whereas

Causes of action in tort are initiated by the victim.

Criminal law sanctions are different from tort law.

It is often seen as: criminal law = punishment; tort law = compensation. However:
o

Compensation has a deterrent effect;

Tortfeasor pays damages for their gain (even if there is no loss to the
victim); and

Tort victims can be awarded exemplary damages to punish and deter

(usually awarded in trespass and defamation actions where the defendant
has acted deliberately and outrageously.

Criminal law is not solely about punishment.

o

Some statutory provisions require that the defendant compensate the

victim.

Some crimes are torts (eg false imprisonment and deprivation of liberty), but many
criminals cannot pay compensation; therefore, tort law plays a small role in criminal
law. Also, not all torts are crimes, and vice-versa.
The standard of proof on civil cases is on the balance of probabilities, whereas
criminal cases are decided when it is beyond reasonable doubt.
1.2.2 Tort and Contract Law
Contractual and Tortuous obligations can be distinguished in five ways:
o

Contractual obligations and productive whereas tortuous obligations are

protective;

People under contractual obligations will have received payment, but

people may be under tortuous obligations not to do something, and will
have received no payment;

Most contractual obligations are between identified and specified

people, whereas tortuous actions can arise between strangers;
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Contractual obligations are defined quite specifically whereas tortuous

obligations are much more general; and

Justification for contractual obligations is that the person has done some
voluntary act, but justifications for tortuous obligations is that in doing
some voluntary act, the person has committed a tort.

Contract fallacy: a person cannot sue on a contract to which they are not a party.
Therefore, they should not be able to evade this rule by bringing an action in tort.
1.2.3 Tort and Restitution Law
Restitution law deals with obligations resting on A to restore benefits to B that A
received from B, or benefits acquired by A from a third party at Bs expense.
Where tort comes in:
o

Where A has misappropriated Bs property, B is entitled to damages

based upon its value; and

Where A has exploited Bs property without consent, B may recover

damages for the exploit.

1.2.4 Tort, Trust and Property Law

Dont get into it, as the relation between trusts and torts is very deep. However, a
trust is an arrangement where the trustee holds, manages or uses property for the
benefit of another (the beneficiary).
Tort plays a central role in protecting property rights & interests.
1.3 Standards of Liability
Tort liability is never absolute: the mere fact that the tort was committed is not
sufficient evidence for damages.
o

Unless the plaintiff argues that the act was of a certain sort of quality, in
principle at least, there is some justification for the defendant.

There is no tort liability for involuntary conduct.

Tort liability will not be imposed unless the plaintiff can prove the defendant was at
fault.
o

Fault involves intentional, reckless or negligent conduct.

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It is harder to prove innocence than guilt it has the effect of imposing

liability without proof of fault.

Strict liability is liability regardless of fault, not in absence of it.

Intent is a state of mind; negligence is a failure to take reasonable precautions to
avoid foreseeable and significant risks of injury; motive is ends or purposes beyond
the immediately obvious.
1.4 Faults and Alternatives
Faults:
o

Only a small percentage of road/work accidents receive compensation;

It is a cause-based compensation system; and

It is expensive to operate.

Alternatives include Workers, Road Accident and Criminal Injuries compensation

schemes. There are also many more, and these are all supplements to the tort
system.
These alternatives mean that tort law is one part of a complex network of
arrangements for dealing with the effects of injury etc.
Tort is an imperfect attempt to deal with complex social and human problems.
1.5 Sources
Tort law is predominantly precedent-based (common law).
Decisions of English courts are often referred to, as are decisions from New Zealand
and Canada, and to a lesser extent, the US; however, we are becoming largely
independent of foreign influence.
There are many statutes that are relevant to tort law, however whilst the courts are
bound by these statutes, they must interpret them first.
1.6 Tort Theory
Although theorists present their positions in competition, they are complementary.

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1.6.1 Economic Analysis

Legal rules can be used to give people incentive to behave in economically efficient
ways.
Liability for negligence and negligence law deters people from such conduct.
Influencing peoples behaviour is only one of tort laws purposes.
1.6.2 Corrective Justice Theory
Stresses that tort law is concerned with the impact of risky behaviour on the rights
and interests of others.
It is concerned with interpersonal responsibility, i.e. the relationship between this
particular plaintiff and defendant (it does not include external factors).
Theorists say that the only way of explaining basic tort features is in terms of
correlative rights and obligations of doers and sufferers of harm.
o

Tort law does now compensate all the injured, only those injured by torts.

1.6.3 Critical Theory

Deals with the social implications of tort law law is politics.
Both other theories conceal social implications:
o

Perspectives of social groups, eg women, racial minorities, the poor etc;

and

Whether there will be a flow-on effect of a particular decision to society.

Critical theorists are interested in:

o

Distributional assumptions and implications; and

Distributional effects.

1.7 Distinction between Trespass and Action on the Case

A trespass action (any intentional tort) is actionable per se. This means that the
plaintiff is not required to prove actual damage to succeed. The action requires
direct action by the defendant.

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 Other tortuous actions are action on the case: the plaintiff must prove that there
was actual damage in order to proceed. This type of action requires an indirect
action by the defendant.

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2.

Intentional Torts against the Person

2.1 Introduction
An intentional tort against the person is an intentional, direct action by the
defendant, and is actionable per se (the plaintiff does not have to prove that actual
damage was caused by the defendants actions). By not insisting on proof of actual
physical damage in all intentional torts, rights and interests such as humiliation and
indignity are protected.
Fault is an essential element in determining liability in an action in trespass.
2.2 Battery
Battery is a direct act by the defendant causing bodily contact with the plaintiff
without consent.
Battiato v Lagana [1992] 2 Qd R 234 Moynihan J at p235: The direct, intentional
imposition of any unwanted physical contact on another person constitutes the tort
of battery.
2.2.1 Direct Act Reynolds v Clarke (1726) 93 ER 747
This direct act requires a direct interference with the person or plaintiff rather than
an interference which is merely a consequence of the defendants act.
Fortescue CJ at p748: If a man throws a log into the highway, and in that act it hits
me; I may maintain trespass, because it is an immediate wrong; but if as it lies there
I tumble over it, and receive an injury, I must bring an action upon the case.
An act that set in motion an unbroken series of continuing consequence, the last of
which ultimately caused contact with the plaintiff, is still direct for trespass.
2.2.2 Positive Act Innes v Wylie & Ors (1844) 174 ER 800
Battery requires the positive doing of an act, i.e. standing your ground as opposed
to actually moving in order to batter the other person.
Lord Denman CJ at p803: If the policeman was entirely passive like a door or a
wall put to prevent the plaintiff from entering the room, and simply obstructing the
entrance of the plaintiff, no (battery) had been committed on the plaintiff. The

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question is, did the policeman take any active measures to prevent the plaintiff from
entering the room, or did he stand in the door-way passive, and not move at all?
The jury concluded that the policeman had committed battery by putting his hands
on and pushing the plaintiff.
2.2.3 Hostile Touching In re F (Mental Patient: Sterilisation) [1990] 2 AC 1
Goff L J said that he respectfully doubted whether touching must be hostile in
order for the touching of another to amount to battery (therefore, the touching
does not have to be hostile).
2.2.4 Intentional Act Gray v Barr [1971] 2 QB 554
It is the action of the defendant which must be intended, not the harm which
results.
It is sufficient that the defendant intended only to frighten the plaintiff but in a
manner fraught with serious risk of bodily contact or harm.
Lord Denning: Yet his conduct in walking up the stairs with the loaded gun was no
accident. It was deliberate.
2.2.5 Consent
In Australia, consent it a defence see section 2.5.10
2.3 Assault
An assault is a direct threat by the defendant that places the plaintiff in reasonable
apprehension of an imminent harmful or offensive direct contact with the plaintiffs
person either by the defendant or by some person or thing within the defendants
control.
In other words, the plaintiff has a reasonable apprehension that a battery is about to
occur.
2.3.1 Positive Act and Direct Physical Threat Stephens v Myers (1830)
172 ER 735
Before an assault can be committed, there must be a positive act and a direct
physical threat.
Defendant must have means of carrying out the threat:
Stephens v Myers (1830) 172 ER 735
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- Plaintiff was chairman of a parish meeting and sat at the head of the table.
- There were 6 or 7 people between him and the defendant.
- In the course of some angry discussion, a vote was taken to exclude the defendant.
- The defendant said he would rather pull the plaintiff out of his chair, and began to
advance with his fist clenched.
- The defendant was stopped by a person two seats from the plaintiff, where he was
not close enough to hit the plaintiff. Witnesses gave evidence that it appeared as the
defendant intended to hit the plaintiff.
- Tindal CJ: 'It is not every threat, when there is no actual personal violence, that
constitutes an assault, there must, in all cases, be the means of carrying the threat
into effect. The question I shall leave to you will be, whether the defendant was
advancing at the time, in a threatening attitude, to strike the chairman, so that his
blow would almost immediately have reached the chairman, if he had not been
stopped
then, though he was not near enough at the time to have struck him, yet
advancing with thatintent, I think it amounts to an assault in law. If he was so
advancing, that, within a second or two of time, he would have reached the plaintiff,
it seems to me it is an assault in law.
2.3.2 Must be reasonable apprehension of imminent/harmful contact
Imminent harmful contact: Zanker v Vartzokas (1988) 34 A Crim R 11; Barton v
Armstrong [1969] 2 NSWR 451
- South Australian criminal case but is still relevant to the issue.
- A young woman accepted a lift from the accused and whilst the van was moving, the
accused offered the woman money for sexual favours.
- She rejected, and the accused accelerated the van saying I am going to take you to
my mates house. He will really fix you.
- She jumped out of the van, and although it was travelling at approximately 60km/h,
she was not injured seriously.
- Per White J (pp15-16): The young woman was in immediate and continuing fear so
long as she was imprisoned by the defendant. this defendant's threat of violence
was explicit, namely, that when they arrived at his mate's house, he will really fix
you up. The threat was, it is true, to be carried out in the future but there was no
indication by the defendant whether the mate's house was around the next corner
or several or more streets away in the suburban area. The young woman was in
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immediate and continuing fear so long as she was imprisoned by the defendant.
this defendant's threat of violence was explicit, namely, that when they arrived at
his mate's house, he will really fix you up. The threat was, it is true, to be carried
out in the future but there was no indication by the defendant whether the mate's
house was around the next corner or several or more streets away in the suburban
area.
I think the question is how immediate must the threatened physical violence be
after the utterance of the threat which creates the fear? Put in that way, it can
readily be appreciated that the fear is a continuing fear in the mind of the victim, the
utterance having as much effect in an hour or so as it has at the moment of
utterance.
Another case which provides an answer for this is Barton v Armstrong [1969] 2
NSWR 451. Per Taylor J at p455: In my opinion the answer depends on the
circumstances. Some threats are not capable of arousing apprehension of violence
in the mind of a reasonable person unless there is an immediate prospect of the
threat being carried out. Others, I believe, can create the apprehension even if it is
made clear that the violence may occur in the future, at times unspecified and
uncertain. Being able to immediately carry out the threat is but one way of creating
the fear or apprehension, but not the only way. There are other ways, more subtle
and perhaps more effective.
Reasonable apprehension: Stephens v Myers; Brady v Schatzel, Ex parte Brady [1911]
St R Qd 206
Whether or not the apprehension is reasonable will be determined by reference to
whether the defendant had a present and apparent ability to carry out the threat. In
Stephens v Myers per Tindal CJ: It is not every threat, when there is no actual
personal violence, that constitutes an assault,there must, in all cases, be the means of
carrying the threat into effect.
Is apprehension synonymous with fear? If the plaintiff is not fearful as to the intentions
of the defendant, can there be apprehension?
Brady v Schatzel, Ex parte Brady [1911] St R Qd 206
- Is a criminal case but still relevant.
- When the police officer Brady went to interview Schatzels son, Schatzel got very
agitated and pointed a rifle at Brady and the other police officer saying, this is my
law for you bastards. If the lot of you dont clear out of this, I will put something in
your bloody arses.

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- In cross-examination, Brady said that he was not a bit scared.

- Per Chubb J (at p208): In my opinion, it is not material that the person assaulted
should be put in fearIf that were so, it would make an assault not dependent upon
the intention of the assailant, but upon the question whether the party assaulted
was a courageous or timid person.
2.3.3 Conditional Threats Tuberville v Savage (1669) 89 ER 684
In some circumstances assault can occur even when the threat is conditional, eg.
Dont come any closer or I will shoot you.
In Tuberville v Savage, The plaintiff put his hand upon his sword and said: If it were
not for the fact that the judges were in town, I would not take such language from
you. The issue for the court was whether this constituted an assault. It was held
that it did not, because the plaintiff stated that he was not going to do anything.
2.3.4 Fault Must be the intention to cause the apprehension Hall v
Fonceca [1983] WAR 309
The requirement of an assault is not necessarily an intent to cause harm, but an
intention to create an apprehension that harm is about to occur.
In Hall v Fonceca, the fact that the defendant did not intend to punch the
respondent when he moved his right hand was not relevant. The court said it would
be sufficient to constitute a threat if there had been an intention on the part of the
defendant to cause apprehension to the plaintiff.
2.3.5 Consent
The law of battery with regard to consent applies to assault as well (it is regarded as
a defence).
2.4 False Imprisonment
2.4.1 Introduction Myer Stores v Soo [1991] 2 VR 597
False imprisonment is a direct act by the defendant which intentionally deprives the
plaintiff of his or her liberty without consent or lawful justification. The deprivation
must be total. It arose as part of the writ of trespass to prevent wrongful restraint of
persons. Its significance lies in its protection of the liberty of individuals.
Myer Stores v Soo [1991] 2 VR 597
- The plaintiff (Soo) was a regular customer of Myer Melbourne and was in the hi-fi
area of the sote.
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- In the store, there were security cameras, and a store detective would watch these
cameras. Police were called if there was any suspicious activity.
- On the day of the incident, two police officers were with the store detective in the
security room on a semi-social visit.
- The store detective told the policemen that there had recently been crystalwear
stolen and the man he suspected was in the hi-fi department.
- The three of them approached Mr Soo, who protested his innocence.
- They asked Mr Soo to accompany them to the security room, which he did. He was
in there for 1 hour and then was allowed to leave.
- Later, the Police obtained a search warrant for Mr Soos home, and two police
officers searched the home and found nothing. They then suggested that he could
attend the police station in a couple of days. Mr Soo voluntarily accepted.
- After being interviewed at the police station he was told he was innocent, so he left.
- He sued Myer, the Store Detective and the Police for false imprisonment.
- Succeeded in relation to the Myer security room because even though he agreed to
go, he had no other option other than to go with the staff, but he failed at the police
station because he did that voluntarily.
- He obtained $10,000 for aggravated damages: distress/humiliation/stressful
circumstances.
- Per OBryan J (at p611): The gist of the action for false imprisonment is the mere
imprisonment and the respondent carried the burden of establishing the
imprisonment. It is enough to prove there was a constraint upon the respondent's
will so great as to induce him to submit to deprivation of liberty. Actual physical
force does not have to be proved
- Per McDonald J (at p 625): In Carnegie v The State of Victoria (unreported,
Supreme Court of Victoria, Full Court, 14 September 1989) the Full Court consisting
of Crockett, O'Bryan and Gray JJ stated, at p. 4:
"The gist of the action for false imprisonment is the mere imprisonment. As a result
the plaintiff carries the burden of establishing no more than imprisonment. He need
not prove it was unlawful. If imprisonment is proved it is for the defendant if he is to
escape liability to prove a lawful justification for the imprisonment either at common
law or by statute."
Therefore, the plaintiff proves imprisonment, and the defendant then proves lawful
justification.
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2.4.2 Must be a positive act of the defendant

The plaintiff must prove that the defendant positively contributed to his/her lack of
liberty. If the defendant fails to do anything, and as a result the plaintiff is
imprisoned, this is a passive act and cannot amount to false imprisonment.
2.4.3 Restraint of liberty must be total

Bird v Jones (1845) 7 QB 742

- The plaintiff was prevented by the defendant from using part of a bridge that was
normally used as a footway because the defendant had put some seats there to view
a regatta on the river.
- The plaintiff was told that he could use the other part of the bridge but he declined.
- When he tried to force his way through and assaulted the defendant he was taken
into custody by police who were stationed there to prevent the plaintiff from using
that part of the bridge.
- In this case the court drew a distinction between a total restraint of liberty of a
person and a partial obstruction of their will.
- The court held that the plaintiff had not been wrongfully imprisoned. This is
because the was at liberty to stay or go in any direction he pleased.
Symes v Mahon [1922] SASR 447
- Plaintiff was informed by a police officer that there was a warrant for his arrest and
he had to accompany the police officer to Adelaide.
- Mistaken identity: the plaintiff succeeded in the action as he did not have any other
option other than to accompany the police officer to Adelaide (i.e. total restraint of
his liberty similar to Soo case)
Murray v Ministry of Defence [1988] 1 WLR 692
- Plaintiff does not need to be aware of false imprisonment.
- In this case, however, the Court stated that lack of knowledge of false imprisonment
would affect the damages that are awarded. Only nominal damages will be awarded
unless the plaintiff can otherwise prove some form of damage.

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2.5 Defences
2.5.1 Necessity
There are three facets that are required in order for a defendant to successfully raise
the defence:
o

Defendant must prove that it was reasonably necessary to do the act, in

respect of which the action is brought, to preserve life or protect the
person from a situation of great danger of harm;

The danger must outweigh the illegal activity undertaken to avoid the
danger;

There must be no reasonable legal alternatives;

The threat was not merely in the mind of the defendant but existed
actually; and

It created an urgent situation of imminent peril.

The defendant does not need to prove that the measures he/she took actually
succeeded or whether without the defendants interference, the plaintiff would have
suffered injury or destruction (Cope v Sharpe (No 2) [1912] 1 KB 496).
2.5.2 Incapacity: Insanity and Infancy
Insanity: Morris v Marsden [1952] 1 All ER 925 (preferred over White v Pile (1951) 68
WN (NSW) 176)
- The judge found that at the time of attack on the plaintiff, the defendants mind
directed the blows he struck.
- The defence of insanity was held not to be available to the defendant even though
he was a certifiable lunatic.
- Per Stable J (at p928): Knowledge of wrongdoing is an immaterial averment, and
that, where there is capacity to know the nature and quality of the act, that is
sufficient although the mind directing the hand that did the act is diseased.
Infancy: McHale v Watson (1964) 111 CLR 384
- The defendant, who was aged 12 at the time, threw a metal dart at a post, which
ricocheted off the post and struck the plaintiff, who was 9, in the eye occasioning
serious injuries.

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- It was contested whether the case was a trespass or negligence case. Even though it
was to be decided in negligence, Windeyer Js obiter at p386 provides a good
explanation: A child is personally liable for the consequences of his wrongful acts.
This is certainly so if he was old enough to know that his conduct was wrongful
that is to say, if, in the common phrase, he was old enough to know better.
2.5.3 Mistake - Hall v Fonceca [1983] WAR 309
Mistake is not a defence for intentional torts, however it may be relevant in
mistaken self-defence:
o

If the defendant, erroneously but reasonably believing that the plaintiff is

about to attack, uses force to defend himself or herself there is no
liability if the defendant used no more force that was seen to be on
reasonable grounds to be necessary (Hall v Fonceca [1983] WAR 309).

2.5.4 Ex Turpi Causa Smith v Jenkins (1970) 119 CLR 397

Per Kitto J (at p403): Persons who join in committing an illegal act which they
know to be unlawful or which they must be presumed to know to be unlawful
have no legal rights inter se by reason of their respective participations in that act.
This suggests that the fact that the plaintiff and the defendant are participating in
an illegal course of conduct in which both parties are jointly engaged will afford the
defendant a complete defence in relation to any tort that arises from that course of
conduct.
2.5.5 Self-Defence Fontin v Katapodis (1962) 108 CLR 177; Albert v Lavin
[1982] AC 546
A person who is threatened or attacked by another and who reasonably believes that
he or she is in danger of death or serious injury can act in order to protect his or her
right of personal safety. The act, however, must be reasonably necessary and must
not be excessive.
Fontin v Katapodis (1962) 108 CLR 177
- After an exchange of words, the plaintiff took a wooden T-square and hit the
defendant once on the arm and once on the shoulder.
- When he raised the T-square again, the defendant picked up an off-cut of glass and
threw it at the plaintiffs face.
- The plaintiff raised his hand to fend off the piece of glass and it cut his thumb,
severing the ulnar nerve.

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- Per McTiernan J at p182: To throw the piece of glass at the plaintiff as a means of
self-defence was out of all reasonable proportion to the emergency confronting the
defendant.
The question of whether measures taken in self defence were reasonably necessary
and whether the defendants actions were not excessive are questions of fact.
However, courts do not forget that an action in self-defence is instinctive and does
not wait upon a precise appreciation of the exigencies of the occasion or upon the
formation of a belief concerning the precise measures which are necessary.
Albert v Lavin [1982] AC 546
- A person who is detained (by a police officer or private citizen) because he or she is
breaking or threatening to break the peace cannot use force to free themselves from
such a detention and those who do will be liable to an action in trespass. In such
circumstances they will not be allowed to rely on self defence.
- Per Lord Diplock (at pp564-5): Every citizen in whose presence a breach of the
peace is being, or reasonably appears to be about to be, committed has the right to
take reasonable steps to make the person who is breaking or threatening to break
the peacerefrain from doing so; and those reasonable steps in appropriate cases will
include detaining him against his will.
2.5.6 Defence of another
This is not assessable.
2.5.7 Defence of property
This is not assessable.
2.5.8 Provocation
This is not assessable.
2.5.9 Inevitable accident McHale v Watson (1964) 111 CLR 384
The defendant can show that an act was not done intentionally and that it was done
without negligence or carelessness on the defendants part.
McHale v Watson (1964) 111 CLR 384
- The defendant who was alleged to have thrown a metal dart in the direction of the
plaintiff escaped liability in tort because it was shown that there was absence of

Page | 24

intent to make contact with the body of the plaintiff and absence of negligence. The
court held that the plaintiffs injuries were regarded as a consequence of an
inevitable accident.
2.5.10 Consent Marions Case (1992) 175 CLR 218
An action in battery or assault will not succeed if there is consent given.
This does not necessarily mean express consent: consent may be implied
(depending upon the circumstances) Collins v Wilcock; In re F (Mental Patient:
Sterilisation). However if implied consent cannot be inferred from the circumstances,
express consent will be required.
For the consent to be valid:
o

Consent must be real and freely given (plaintiff needs to have been
informed in broad terms of the nature of the physical contact, but not the
exact nature; consent under duress is not freely given); and

Any consent given must not be exceeded (Murray v McMurchy; Giumelli v

Johnston)

In Australia, it is up to the defendant to prove that consent existed: as such, it is

treated as a defence.
Marions Case (1992) 175 CLR 218
- McHugh J (at p310-11): In England, the onus is on the plaintiff to prove lack of
consent. That view has the support of some academic writers in Australia, but is
opposed by others. It is opposed by Canadian Authority. It has also been opposed
by Australian authority. Notwithstanding the English view, I think the onus is on the
defendant to prove consent the contrary view is inconsistent with a persons right
of bodily integrity. Other persons do not have the right to interfere with an
individuals body

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3.

Trespass to Land

3.1 What is trespass to land?

Every occupier of land has a right to protect his or her right to possession of that
land.
Trespass is any unauthorised, direct interference with anothers lawful possession of
land. It is actionable per se: the plaintiff does not have to prove actual loss or
damage.
There are five characteristics which must be fulfuilled:
o

The interference must be with land in the lawful possession of the

plaintiff;

There must be a positive and direct interference;

The interference must relate to land;

There must be fault; and

There must be lack of consent.

3.1.1 Interference must be with land in the lawful possession of the

plaintiff Delaney v T. P. Smith Ltd [1946] KB 393
Trespass to land is available only as a remedy for someone who is in possession of
land pursuant to some form of proprietary right.
Delaney v T. P. Smith Ltd [1946] KB 393
- The defendant owned a house in England which was damaged during WWII. The
plaintiff was anxious to obtain tenancy on completion of repairs.
- In August 1944, an oral tenancy agreement was made between the plaintiff and the
defendants agent.
- Under this agreement the plaintiff would pay rent of 24/6 per week, pay two weeks
in advance and commence occupation as soon as the house was ready.
- It was ready in December 1944; however the plaintiff was informed that the
defendant had decided to sell the house. The plaintiff was told he could not rent the
house. However, somehow the plaintiff came into possession of a key and took

Page | 26

possession on 11 December 1944. On 20 December he was forcibly ejected from

the house.
- The plaintiff sued for trespass to land.
- He failed his action because he was not a lawful tenant under the Law of Property
Act 1925. As he was not a lawful tenant, he was not in possession of the land (and
house) pursuant to some form of proprietary right (a tenancy agreement which
complied with the act).
- If there was a tenancy agreement which complied with the act, the plaintiff would
have had a proprietary right, and therefore would have succeeded.
3.1.2 Must be a positive act and direct interference Esso Petroleum Co
Ltd v Southport Corporation [1954] 2 QB 182; Public Transport
Commission of NSW v Perry (1977) 14 ALR 273
For an action to succeed in trespass to land there must be a positive act and a direct
interference by the defendant. The issue of directness is considered in the Esso
Petroleum case. The issue of positivity is dealt with in the case of Public Transport
Commission of NSW v Perry (1977) 14 ALR 273.
Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182 Direct Act
- An oil tanker was stranded and to prevent the vessel breaking her back, the master
jettisoned 400 tons of oil which was carried to the foreshore, causing damage.
- The plaintiff foreshore owners sued the defendant ship owners based on trespass to
land, nuisance and negligence.
- On appeal, the defendant (appellant) company was cleared of all allegations. Lord
Tucker (at p244): trespass to land does not like on the facts of this case, as the
discharge of the oil was not done directly onto the foreshore but outside the river
estuary to the plaintiffs foreshore.
Public Transport Commission of NSW v Perry (1977) 14 ALR 273 Positive Act
- While waiting for a train, the respondent suffered an epileptic fit and fell onto the
rail tracks. She suffered injuries when an oncoming train hit her.
- It was held by the majority (Gibbs, Stephen, Mason and Jacobs JJ; Barwick CJ
dissenting) that the respondent, when standing upon the railway platform, was
lawfully upon the appellant's land, and her involuntary or inadvertent movement
therefrom onto the track, upon which she was neither invited nor licensed to be, did
not classify her as a trespasser for the purpose of defining the appellant's duty
towards her.

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3.1.3 Interference with or entry upon must relate to land - Kelsen v

Imperial Tobacco Co Ltd [1957] 2 KB 334
Even though the interference must relate to land, it can relate to airspace as well.
Kelsen v Imperial Tobacco Co Ltd [1957] 2 KB 334
- The plaintiff, Kelsen, was a tobacconist and leased his premises. His shop was
located at 407-407b City Road, Islington, London. There was a skylight on the roof
of this single-storey shop which was never used by the plaintiff.
- The defendant wanted to put up a sign on the adjoining property, 409. The
solicitors for number 409 sent a letter to the owners of Kelsens leased premises,
and the freehold owners agreed. The sign jutted over Kelsens premises.
- After failing to come to an agreement, Kelsen gave formal notice to the defendant to
remove the sign. The plaintiff sued the defendant seeking an injunction to remove
the sign.
- It was held that an invasion of the airspace over the plaintiffs tobacco shop
amounted to trespass (as it is actionable per se). McNair J concluded that it was a
proper case to award an injunction, and that there had been no nuisance as there
was no damage caused.
3.1.4 Transient Intrusions Graham v K. D. Morris & Sons Pty Ltd [1974]
Qd R 1; Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978]
1 QB 479
- Transient intrusions can amount to trespass as seen below.
Graham v K. D. Morris & Sons Pty Ltd [1974] Qd R 1
- Mrs Graham (plaintiff) owned the house next to a construction site run by K. D.
Morris & Sons Pty Ltd (defendant). The jib of a crane would often swing over her
property.
- The plaintiffs solicitors wrote a letter to the defendant demanding the jib be
stopped from swinging. The defendant said this was not possible.
- The plaintiffs solicitors wrote a letter further to the previous one saying that if the
jib did not stop swinging then an injunction would be sought.
- According to W.B. Campbell J (at pages 4,5 and 7), in applying Kelsen, said that
trespass to land had occurred. His Honour said that to award damages would be to
allow a trespass to continue (condoning a breach of the plaintiffs proprietary
rights), therefore an injunction was necessary. This is because the defendant did not

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seek prior permission, and did not start to negotiate until the writ had been issued.
Section 180 of the Property Law Act 1974 (Qld) was not referred to because it did
not exist when the verdict was brought down.
Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479
- The defendant was in the business of taking aerial photographs and took a
photograph of Baron Bersteins property. The allegation was that the defendants
were guilty of trespass to land.
- It was held by Griffiths J that a landowners rights in the airspace do not extend to
an unlimited height, therefore no trespass had occurred. The problem is to balance
the rights of an owner to enjoy land and the general public to also.
- The test his honour came up with was did it restrict the owners enjoyment and did
it allow the publics enjoyment? In applying this test, his Honour found there had
been no trespass.
3.1.5 Section 180 of the Property Law Act 1974 (Qld) Lang Parade Pty Ltd
v Peluso [2006] 1 Qd R 42
- Section 180 states that:

(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of
any land (the dominant land) that such land, or the owner for the time being of such land,
should in respect of any other land (the servient land) have a statutory right of user in respect of
that other land, the court may, on the application of the owner of the dominant land but
subject to this section, impose upon the servient land, or upon the owner for the time being of
such land, an obligation of user or an obligation to permit such user in accordance with that
order.

(3) An order of the kind referred to in subsection (1) shall not be made unless the court is
satisfied that
(a) it is consistent with the public interest that the dominant land should be used in the
manner proposed; and
(b) the owner of the servient land can be adequately recompensed in money for any loss
or disadvantage which the owner may suffer from the imposition of the obligation; and
(c) either
(i) the owner of the servient land has refused to agree to accept the imposition ofsuch
obligation and the owners refusal is in all the circumstances unreasonable; or
(ii) no person can be found who possesses the necessary capacity to agree to accept
the imposition of such obligation.
Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42
Page | 29

- Lang Pde Pty Ltd applicant under s180; Peluso respondent

- Applicant sought a statutory right of user for 2 tower cranes
- In November 2003, the Pelusos met with the design manager of the construction
company, contractors Abbey Corporation
- In January 2004, the design manager wrote in his diary: no worries with crane
provided we dont drop anything
- The cranes would encroach upon the Pelusos property by 6-8m. When not in
operation, the jib was allowed to swing freely at a height of approximately 28m.
- In November 2004, the Pelusos solicitors wrote a letter on behalf of their client
stating that they had never consented to the jib encroaching on their property. Lang
Pde responded. *In the judgment (at 12) the case of LJP Investments Pty Ltd v
Howard Chia Investments Pty Ltd is referred to
- Lang parade offered $5,000 as compensation, which was later increased to
$16,250
- The Pelusos solicitors replied to these offers and said access would be agreed to if
$90,000 was paid
- There was no calculation for this sum, and it became obvious that they were after
money
- Soon after, the Pelusos were seeking $160,000
- The judge looked at practical alternatives to the cranes and possible alternative
positioning, and the court appointed an expert to give advice
- Mobile cranes were dismissed, and the court concluded that there was no practical
alternative to the regular cranes that were in use.
- Douglas J analysed s180, in particular (1): public interest
- The main issue for the rest of the judgment is the analysis of adequate
compensation
- His Honour rejected the previous case (on what was saved/gained) his issue was a
reasonable amount
- The encroachment was temporary, therefore his Honour concluded that $20,000
was reasonable.
- Peluso paid all court costs.

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3.1.6 Fault Public Transport Commission of New South Wales v Perry

(1977) 137 CLR 107
Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107
- See facts on p18
- In the circumstances, the High Court held that the plaintiff had not been trespassing
because she was not at fault or liable to negligence it was an involuntary act.
3.1.7 Unjustifiable Entry or Interference Halliday v Nevill and Another
(1984) 155 CLR 1

Halliday v Nevill and Another (1984) 155 CLR 1

- Halliday was charged by police constables Nevill and Brida with a number of
charges.
- Halliday, then a disqualified driver, was reversing a car out of 375 Liberty Parade
when he saw a police care, where he drove back in
- The officers walked down the driveway and arrested him for driving whilst
disqualified
- He escaped to his own house at 370 Liberty Parade. The officers pursued him into
the house where there was a scuffle before he was finally overcome
- If an entry is unobstructed, the law grants an implied licence for lawful entry. If the
entry is locked, then there is no implied right
- This licence is a question of law, whereas whether the police went up the driveway
was a question of fact
- Held by Gibbs CJ, Mason, Wilson and Deane JJ (at p8): The evidence indicates that
the premises at 375 Liberty Parade were residential premises with an open driveway
to the roadway. There is no suggestion that the driveway was closed off by a locked
gate or any other obstruction or that there was any notice or other indication
advising either visitors generally or a particular class or type of visitor that intrusion
upon the open driveway was forbidden. That being so, a variety of persons with a
variety of legitimate purposes had, as a matter of law, an implied licence from the
occupier to go upon the driveway.
The question which arises is whether, in those circumstances, the proper inference
as a matter of law is that a member of the police force had an impliedlicence from
the occupier to set foot on the open driveway for the purpose of questioning or
arresting a person whom he had observed committing an offence on a public street
Page | 31

in the immediate vicinity of that driveway.

The conclusion which we have reached is that common sense, reinforced by
considerations of public policy, requires that that question be answered in the
affirmative. All that that conclusion involves is that, in the absence of any indication
to the contrary, the impliedlicence to persons to go upon the open driveway of a
suburban dwelling for legitimate purposes is not so confined as to exclude from its
scope a member of the police force who goes upon the driveway in the ordinary
course of his duty for the purpose of questioning or arresting a trespasser or a
lawful visitor upon it. It follows that Police Constable Nevill was lawfully upon the
driveway of 375 Liberty Parade when he arrested the appellant.
3.2 Remedies
3.2.1 Damages
If the trespass results in damage in the sense of personal injury, property damage or
financial loss then the defendant may be liable for this. Any assessment of damages
is made upon the rule of whether the damage sustained was the natural or
reasonable consequence(s) of the original wrongful act. Nominal damages can be
awarded for injuries to their feelings (humiliation, abuse etc)
3.2.2 Injunctions
The most common remedy for trespass to land. The reason for these is summed up
by W.B. Campbell J in Graham v K D Morris & Sons Pty Ltd [1974] Qd R: In all the
circumstances I consider that I cannot allow the defendant to continue to commit
this unlawful trespass. If I did not grant the injunction I would be condoning a clear
breach by the defendant of the plaintiffs proprietary rights. The time to seek
permission and for negotiation was prior to the commencement of the workWhy
should I bring pressure upon the plaintiff to hamper her legal rights for monetary
compensation of any amount?
3.2.3 Abatement by Self-Help
This is the right in a person to remedy a situation by a resort to self-help. If a
person interferes with the plaintiffs exclusive possession of land by coming on to
the land, the plaintiff can eject that person (Tulley v Read (1823) 1 Car & P 6). If the
defendant entered forcibly, he or she can be ejected forcibly; as such, if the
defendant did not forcibly enter, force cannot be used to eject them (Polkinghorn v
Wright (1845) 8 QB 197; Hemmings v Stoke Pages Golf Club [1920] 1 KB 720).
In Burton v Winters [1993] 1 WLR 1077, at p1081 the English Court of Appeal said
that the courts have confined the remedy by way of self-redress to simple cases
Page | 32

such as an overhanging branch, or encroaching root, which would not justify the
expense of legal proceedings, and urgent cases which require an immediate
remedy.
However, this remedy has been discouraged by many judges.
3.3 Defences
3.3.1 Necessity
It is much a matter of public policy, and current community attitudes will play a part
in deciding whether an act was necessary or not.
However, the defendant must prove that it was reasonably necessary (Kirk v Gregory
(1876) 1 Ex D 55; Proudman v Allen [1954] SASR 336) to do the action, not
convenient (Murray v McMurchy [1949] 2 DLR 442).
It was an urgent situation and existed actually (not merely in the belief of the
defendant)
It was not any act of negligence on the defendants part that contributed to the
urgency of the situation.
3.3.2 Re-Entry on Land
This is nothing more than the common law remedy of self-help, which allows a
person who is entitled to exclusive possession of land to come on to the land and to
eject the person who is no longer entitled to be there without incurring any liability
in tort, if no more force is used than is reasonably necessary. (Trindade p161)
For authority: Harman J in Aglionby v Cohen [1955] 1 QB 558.
3.3.3 Inevitable Accident
A defendant who succeeds in showing that the act was note done intentionally and
that it was done without negligence or carelessness, then they will escape liability in
trespass (or torts in general) Public Transport Commission of NSW v Perry (1977)
14 ALR 273.
3.3.4 Consent
If there is consent to entry on land or for things to be placed on land then there can
be no trespass. As for intentional torts to the person, consent can be express or
implied.

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 A person who comes on to the land of another with the latters consent can become
a trespasser is the person remains on the land after the permission is revoked (per
Gaudron and McHugh JJ in Plenty v Dillon (1991) 171 CLR 635 at 647).
3.3.5 Lawful Authority
Under common law a police officer or citizen has a power of entry into premises
and, if necessary, powers to break down doors to do so, in four instances without
being subjected to an action for trespass to land. (Trindade p163)
o

A police officer or citizen to prevent murder;

A police officer or citizen if an arrestable offence had in fact been

committed and the person who had committed said offence had been
followed to a house;

A police officer or citizen if an arrestable offence was about to be

committed, or would be committed unless prevented; and

A police officer following an offender running away from an affray.

In every State and Territory of Australia statutory provision allow a police officer to
enter private property for the purpose of effecting an arrest or to assist in the
eviction of a person from premises or land and they also give power to a local
authority or a statutory body to enter upon private land for the purposes mentioned
in the statute. (Trindande p165)

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4.

Nuisance

4.1 Private Nuisance

4.1.1 Background
Private nuisance involves an unreasonable, indirect interference with the use and
enjoyment of land in respect of a person who has exclusive possession of that land.
It is considered action on the case. In order to succeed in an action for nuisance,
there must be actual damage suffered. This damage can be physical; however
interference with comfort or amenities through noise, smoke, smells etc can be
considered damage.
4.1.2 Noise
Sections 6W and 6X of the Environmental Protection Regulation 1998 (Qld) sets out
when noise can occur. A contravention of these sections is reported to the local
Council for a residential contravention, and to the Environmental Protection Agency
(EPA) for an industrial or commercial contravention. Such a contravention constitutes
an offence under the Regulation.
4.1.3 Material Damage vs Personal Discomfort St Helens Smelting v
Tipping (1865) 11 HLC 642
When material damage to property occurs, nuisance is generally satisfied.
However, if the damage was to personal discomfort, then in order for the nuisance
to be satisfied, the interference must be unreasonable.
4.1.4 Unreasonableness
Whilst all these factors are relevant, they do not all need to be considered in a case.
They are not elements, they only to be used to determine whether an action in
nuisance can succeed.
4.1.4.1Triviality- Walter v Selfe (1851) 64 All ER 849
An interference must be more than trivial to amount to nuisance.
Walter v Selfe (1851) 64 All ER 849

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- The plaintiff (Walter) sought an injunction in nuisance in respect of the smell and
cinders that resulted from the defendant (Selfe) making bricks in a kiln on a strip of
land adjacent to the plaintiffs house.
- The plaintiff succeeded in obtaining an injunction.
- The Vice-Chancellor stated at p852: And both on principle and authority the
important point next for decision may properly, I conceive, be thus put: ought this
inconvenience to be considered in fact as more than fanciful, more than one of mere
delicacy or fastidiousness, as an inconvenience materially interfering with the
ordinary comfort physically of human existence, not merely according to elegant or
dainty modes and habits of living, but according to plain and sober and simple
notions among the English people?
4.1.4.2Give and Take Kennaway v Thompson [1981] 1 QB 88; Clary v
Principal and Council of the Womens College (1953) 90 CLR 170
Kennaway v Thompson [1981] 1 QB 88
- The plaintiff (Kennaway) owned a house on land adjoining a lake on which motor
boat races were conducted regularly. She sued for an injunction and damages and
succeeded on appeal. The injunction simply reduced the frequency and length of
motor boat racing on the lake.
- The Court of Appeal explained the issue of give and take in the context of
unreasonableness on p94: The neighbour who is complaining must remember, too,
that the other man can use his property in a reasonable way and there must be a
measure of give and take, live and let live.
Clarey v Principal and Council of the Womens College (1953) 90 CLR 170
- The Womens College at UQ leased part of a house at Kangaroo Point and some
students from the college stayed there. The Clareys were the freehold owners of the
house and live in the part that was not subject to the lease.
- The plaintiffs (Mr and Mrs Clarey) started an action, alleging that the students had
breached the Landlord and Tenants Act by creating a nuisance. The basis of this
nuisance was talking before bed, moving chairs on the floor, keeping late hours etc.
- The High Court concluded that there was no nuisance. At p175: But the noises
made by the students were only noises of the kind that are incidental to the
occupation of premises as a dwelling.

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4.1.4.3Hypersensitivity Robinson v Kilvert (1889) 41 Ch D 88

- The defendant landlord, Kilvert, leased a floor of his dwelling to the plaintiff,
Robinson, on which he manufactured brown paper. The defendant manufactured
cardboard boxes on his floor.
- The heat from the manufacturing process (only about 26o C) resulted in the spoiling
of the brown paper.
- Lopes LJ concluded at p97: A man who carries on an exceptionally delicate trade
cannot complain because it is injured by his neighbour doing something lawful on
his property, if it is something which would not injure anything but an exceptionally
delicate trade.
4.1.4.4Locality - St Helens Smelting v Tipping (1865) 11 HLC 642
- The plaintiff, Tipping, commenced an action against the defendant, St Helens
Smelting, to recover damages for material damage to the plaintiffs trees and crops
caused by noxious gases from the defendants smelter.
- The Lord Chancellor explained: If a man lives in a town, it is necessary that he
should subject himself to the consequences of those operations of trade which are
carried on in his immediate locality, which are actually necessary for trade and
commerce, and also for the enjoyment of property, and for the benefit of the
inhabitants of the town and of the public at large. If a man lives in a street where
there are numerous shops, and a shop is opened next door to him, which is carried
on in a fair and reasonable way, he has no ground for complaint, because to himself
individually there may arise much discomfort from the trade carried on in that shop.
But when an occupation is carried on by one person in the neighbourhood of
another, and the result of that trade, or occupation, or business, is a material injury
to property, then there unquestionably arises a very different consideration.
- The main point from this is that if you live in an industrial area, then these fumes
would be the norm and therefore no nuisance. However, because the plaintiff was
not living in an industrial area, it amounted to nuisance (which is what the court
held, i.e. that the material damage amounted to nuisance).
4.1.4.5Time and Duration Munro v Southern Dairies [1955] VLR 332
- The plaintiff owned a house next to a dairy run by the defendant. The defendant
used horse-drawn vehicles to deliver milk for sale, and the defendants stables were
next to the plaintiffs house. As such, there was significant interference from noise,
smell, flies etc.

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- The defendant gave an undertaking that it would move and build new premises,
however the plaintiff sought an injunction for it to be stopped and succeeded.
- The court held that one nights sleep is sufficient, but they also considered locality,
and whether the nuisance was continuous (i.e. it had gone on for several years).
4.1.4.6Motive Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468; Christie
v Davey [1893] 1 Ch D 316
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468
- The defendant was a property developer and wanted to subdivide and develop a
property near the fox farm.
- Beside the fox farm there was a sign saying that foxes were bred.
- The defendant was concerned that people would see the sign, and demanded that
the sign be removed. The plaintiff told him to go away.
- The defendant sent his son with a gun and he fired shots next to where the foxes
were, a few days in a row (foxes dont breed when its noisy). The defendant was
held liable in nuisance.
- The court looked at motive, i.e. the act was done maliciously, so therefore motive is
relevant.
Christie v Davey [1893] 1 Ch D 316
- The plaintiff (Christie) was a music teacher who would conduct lessons and play
piano until late. The defendant (Davey) was a wood engraver.
- The defendants solicitors sent a letter asking the plaintiff to stop. The plaintiff
ignored it.
- The defendant retaliated by making a racket of his own blowing whistles, knocking
trays together etc.
- It was held that the plaintiffs noise was legitimate but the defendants was not.
4.1.5 Interests protected
The tort of nuisance is not limited to property damage. The existence of a brothel
close to houses, for example, was held to be nuisance (Thompson-Schwab v Costaki
[1956] 1 WLR 335). Even ugly buildings could be a nuisance (was not ruled out in
Kent v Cavanagh (1973) 1 ACTR 43).

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 There is also no common law right to an unobstructed view from ones premises
(Phipps v Pears [1965] 1 QB 76).
A landowner has no right not to be observed in the use of premises, even if they are
used for commercial purposes that may be injured by the observation (Victoria Park
Racing & Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479).
Therefore, the pattern of included and excluded interests is based on how the costs
and benefits of social life should be distributed. (Trindade p175)
4.1.6 Who can sue? Hunter v Canary Wharf [1997] AC 665
- In this case, the plaintiff was living in a residential development, and the defendant
constructed a large building which interfered with television reception.
- It was held that this was not private nuisance. The right to sue in private nuisance
was considered.
- Held by Gough LJ: The essence of nuisance is that it is a tort to land. Or to be more
accurate, it is a tort directed against the plaintiffs enjoyment of rights over land
In true cases of nuisance, the interest of the plaintiff which is invaded is not the
interest of bodily security, but the interest of liberty to exercise rights over land
Since the tort of nuisance is a tort directed at the plaintiffs enjoyment of rights over
land, an action of private nuisance will usually be brought by the person in actual
possession either as freeholder or tenant.
4.1.7 Who can be sued? Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574
- The first plaintiff/first respondent, Peden Pty Ltd as trustee for the Dunn Family
Trust (the company), was the occupier of the Moondarra Motel (the motel) in
Innisfail. The second plaintiffs/second respondents, Peter Dunn and Denise Dunn
(the Dunns), were the managers of the motel where they resided and the
shareholders and directors of the company. The second defendant/applicant, Celina
Maria Bortolazzo, jointly with her two daughters, Clara de Faveri and Gloria Sim,
owned the property adjacent to the motel at 17 Ernest Street on which was situated
an old house divided into two flats. The applicant, who was about 80years old, and
Ms de Faveri, on behalf of the three co-owners, undertook the letting of those flats.
In about March 2003 Frank Maru and Cynthia Broome became the occupants and
tenants of one of the flats, initially under an oral tenancy agreement with the
applicant and her co-owners. From 19August 2003 MsBroome was responsible for
the flat under a written standard Form 18a General Tenancy Agreement under the
Residential Tenancies Act 1994. (per McMurdo P and Philippides J [2])
- It was held that: (Per McMurdo P and Philippides J) the applicant will only be liable
for the nuisance created by her tenants after October 2004 if she expressly
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authorised the nuisance or the nuisance was certain to result from the purposes for
which the property was let. ([45])
- In other words: a landlord is not liable to a neighbour for a nuisance created by the
tenant, unless the landlord expressly authorised the nuisance or it was certain to
result from the purposes for which the property was let.
4.2 Defences
4.2.1 Coming to the nuisance Campbelltown Golf Club v Winton [1998]
NSWSC 257
- The plaintiff purchased a house next to a golf course on the fifth fairway. Golf balls
were hit into the plaintiffs yard.
- At trial the defendants defence was coming to the nuisance as the plaintiff moved
to a danger area.
- The court said this was rubbish and that the defence did not exist.
4.2.2 Statutory Authorisation Lester-Traves v City of Frankston [1979] VR
2
- This case involved the council using land for recreational purposes. In this case it
was a golf course.
- The Local Government Act in Victoria said that the council may, from time to time,
purchase land for recreational purposes etc.
- The councils defence was that there was statutory authorisation, however the court
held that the phrase was permissive and not mandatory, therefore it was not a
defence.
4.3 Remedies
4.3.1 Abatement
This is mainly concerned with public nuisance and has no real relevance to private
nuisance.
4.3.2 Injunctions
The court will not by injunction order the doing of something that is physically
impossible. But even if compliance with the injunction may be difficult or expensive,
this is no ground not to award it. This is much a matter of public policy.

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4.3.3 Damages
In order to recover damages for nuisance, an individual must show loss or the action
will not succeed.

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5.

Intentional Torts against Chattels

5.1 Trespass to Goods

5.1.1 Overview
Trespass to goods is a direct interference by a defendant with a plaintiffs
possession of goods.
It is usually brought for wrongful, intentional interferences, but actions for reckless
and even careless interferences are not precluded (negligent trespass).
There are four matters for elaboration:
o

The nature of the plaintiffs interest, i.e. what kind of possession the
plaintiff must have in order to sue;

The nature of the defendants and, i.e. what kind of act constitutes
trespass to goods;

The question of whether interferences are actionable per se or whether

proof of damage is required; and

Jus Tertii (not examinable)

5.1.2 The nature of the plaintiffs possession

Trespass is a wrong to possession (Penfolds Wines Pty Ltd v Elliott).
The possession a plaintiff must have at the time of trespass is actual or constructive
possession of the goods. (Johnson v Diprose [1893] 1 QB 512)
A person without actual or constructive possession cannot bring an action for
trespass to goods except where that person brings an action for the violation of the
actual or constrictive possession of his/her servant/agent/bailee (Penfolds Wines Pty
Ltd v Elliott). (Trindade)
Actual possession: actual control of the chattel, eg a person is driving a car or
wearing a watch.
Constructive possession: no direct control of the chattel, but it still belongs to the
person, eg a person drops their watch into the sea. (Eg Hamps v Darvey [1948] 2 KB
311: If a person sets pigeons free for a race etc, they still have constructive
possession of the pigeons)
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5.1.3 The nature of the defendants actions

The defendant must have directly occasioned an act, i.e. he/she must have had
direct contact.
o

Any act that sets in motion a series of continuing consequences is seen

as direct.

The act of the defendant must be voluntary (where a sleepwalker breaks an

expensive vase, they will not be liable for the damage Beals v Hayward [1960]
NZLR 131)
Mistake does not make the act involuntary (Colwill v Reeves (1811) 2 Camp 575)
Must be intentional: The act is intentional when the defendant deliberately or
willfully interferes with the plaintiffs goods and it is also intentional if the contact or
interference with the goods is substantially certain to follow from the defendants
act. (Trindade p204)
5.1.4 Is it actionable per se?
For asportation of goods, it is actionable per se (no damage needs to have been
suffered) Kirk v Gregory (1876) 1 Ex D 55
For contact with goods, it is probably actionable per se, but the lack of case
authority shows that it is not free from doubt. (Trindade p206)
5.2 Conversion
5.2.1 Introduction Kuwait Airways Corporation v Iraqi Airways Co and
Others [2002] UKHL 19
This cannot be defined, but described.
In England the Kuwait Airways case provides the features:
o

The defendants conduct is inconsistent with the rights of the owner or

other person entitled to possession of those goods;

The conduct must be deliberate;

The conduct must not be accidental;

The conduct must be so extensive an encroachment on the rights of the

owner or other person entitled to possession as to exclude him or her
from use and possession of the goods.

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 Today, in Australia, the tort o f conversion is committed when a defendant, by

intentional conduct and without lawful justification, deals with goods in a manner
repugnant to the plaintiffs possession (actual or constructive) or immediate right to
possession of those goods. (Trindade p208)
5.2.2 What are goods?
A thing that is incapable of being property is incapable for conversion (Doodeward v
Spence (1908) 6 CLR 406)
Any tangible, movable object in or capable of being in possession can be
converted (eg bottles Penfolds case)
5.2.3 The nature of the plaintiffs interest in goods
In General
If a defendant interferes with the actual possession of a plaintiffs goods, the
plaintiff has an action in both trespass to goods and conversion (Wilbraham v Snow
(1669) 2 Wms Saund 47)
Bailment
A bailee who has actual possession of the goods has a sufficient interest o sue in
conversion.
If the bailment is for a term, then only the bailee can sue for that term and the bailor
cannot.
Lien
This is a right of a creditor to retain goods until a debt is paid, therefore the person
with lien over the goods has a limited interest in the goods.
Mortgage
A mortgagor may bring an action against the mortgagee either against a third party
or against the mortgagee if they became a wrongdoer by entering and taking goods
without proper notice.
Sale
A buyers interest in conversion depends on the terms of the sale.
Contract
To have an action in conversion, it depends whether the plaintiff has a right to
immediate delivery of the goods.
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Statute
Sometimes statue allows immediate rights of possession to particular plaintiffs,
therefore allowing actions in conversion.
Estoppel
Sometimes a person who would otherwise have a good title to goods is e4stopped
from asserting title to the goods, and this situation can be brought on by both the
common law (eg Egg Marketing Board (NSW) v Graham (1961) SR (NSW) 952) and by
statute (eg Goods Act 1958 (Vic)).
Co-Owners
A co-owner has no right to sue in conversion is the other co-owner uses/takes/
keeps the goods.
A co-owner has a right to sue if the other co-owner destroys/sells the goods
(without prior consent by both parties).
Finders
A proper explanation of this is given on p215-6 of Trindades (et al) book.
5.2.4 The nature of the defendants acts
In the Penfolds case, Dixon J stated: The essence of conversion is in dealing with a
chattel in a manner repugnant to the [actual possession] or the immediate right of
possession of the person who has property or special property in the chattel.

Dealings that amount to conversion:

o

Disposing of goods: If a defendant disposes of the plaintiffs goods by

sale and delivery, there is a dealing in the goods sufficient to constitute
conversion. (Trindade) (Foster v Franklin [1924] VLR 269)

Taking possession of goods without lawful justification

Abusing possession of goods McKenna & Armistead Pty Ltd v

Excavations Pty Ltd [1957] 57 SR (NSW) 515: It is clear that a bailor is
entitled to sue a bailee for damage resulting from any use by the bailee
of the goods or any dealing with the goods going outside or beyond the
terms upon which he has become bailee. An unauthorised departure from
the terms of the bailment renders the bailee liable for damage which
results from it.

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Transferring of possession Kitano v The Commonwealth (1973) 129 CLR

151

Withholding possession In the absence of any lawfully asserted right,

an intention to withhold or detain goods in defiance of the person who is
entitled to possession of them is a conversion of those goods a
conversion by detention. (Trindade) (Upton v TVW Enterprises Ltd (1985)
ATPR 40-611

Denial of plaintiffs right Motor Dealers Credit Corporation Ltd v

Overland (Sydney) Ltd (1931) 31 SR (NSW) 516

Statutory provisions for uncollected and unsolicited goods.

5.3 Detinue
The tort of detinue is committed when a defendant who is, or has been, in
possession of goods detains them after a proper demand has been made for their
returned by the person who has an immediate right to possession of the
goods. (Trindade)
In order to succeed, the plaintiff must have an immediate right to possession.
An essential element of the tort is detention: therefore the action indetinue is not
for damages to the chattel, but for its detention.
o

Intentional conduct relates to the refusal to return the chattel when a

proper demand is made.

Deliberate refusal is the gist of the action:

o

Was there a proper demand?

Has there been a refusal to return the goods?

5.4 Defences
5.4.1 Necessity
If this defence is raised, the defendant must prove that his/her action was
reasonably necessary to prevent the plaintiffs property from an imminent risk of
harm. (Same cases as defence of necessity in intentional torts to person).
5.4.2 Mistake
Mistake is not a defence to trespass to goods.

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5.4.3 Ex Turpi Causa

This is the defence that the plaintiff was involved in an illegal act when the tort
complained of occurred, and therefore the action should fail. It will apply if the
defendant can prove that the tort complained of was an essential part of the illegal
activity. (Jackson v Harrison (1978) 138 CLR 438)
5.4.4 Recaption of Chattels
This defence of reception is a common law right that allows a person who has been
deprived of possession of goods to recover them immediately and provides
immunity for the defendant.
The retaking of goods must be in a reasonable manner. Reasonableness varies and
depends on the case, but generally the courts will require that the force used to
retake the goods must not have been more than what was reasonably necessary to
retake the good.
5.4.5 Distress
The common law right of distress is nothing more than the right of a person, in
certain circumstances, to seize and detain the goods of another person in order to
force the other to perform some obligation or to punish the other for the nonperformance of an obligation. (Trindade)
5.4.6 Inevitable Accident
This defence almost speaks for itself once fault has been proved on the part of the
defendant, he/she can escape liability by showing that the act was done without
intention or negligence.
5.4.7 Consent
If the defendant proves that the plaintiff consented to the conduct, then the action
will not succeed.
5.4.8 Lawful Authority
At common law, there are many rights/powers that a police officer has in relation to
the seizure and detention of goods.
Also, there are other rights/powers that are vested in officials which are laid out by
statute.

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5.5 Penfolds Case

Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
- The brother of the respondent purchased two bottles of Penfolds wine, and of
course drank them.
- Through embossing on their bottles and notations on their invoices Penfolds
informed all those in possession of its bottles that they were to be used only for the
purposes of retailing and consumption of Penfolds wines and further, that they
always remained the property of Penfolds.
- Despite this, the empty bottles were received by the brother and he filled them with
his own wine, which he then sold to patrons of a restaurant.
Judgments
- Latham J dissenting
- p217 re bailment:
o The bailor is the owner of the good, and gives possession to the bailee
therefore the bailee is the one in lawful possession of the goods
o Thus Penfolds was the owner and bailor of the bottles
o At the moment the brother gave the bottles to the defendant, the bailment
relationship came to an end
o Once this ended, Penfolds had an immediate right to ownership
o Therefore when the defendant filled the bottles, he committed a trespass to
chattels
- p218-219 re conversion:
o In reselling wine in the plaintiffs bottles, the defendant was acting as if we
was the true owner of the bottles
- p220:
o Common law damages were not appropriate (he asked the question how can
you seek common law damages for lots of bottles?)
o Injunction was most suitable
- Starke J majority

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- P221 re conversion:
o There was substantial evidence supporting conversion of the appellants two
bottles, however there was no proof that the system of conversion was
systematic (therefore an injunction was not appropriate)
o His Honour said that Penfolds may be compensated with whatever remedies
the common law would allow (i.e. damages)
- Dixon J majority
- P224 re trespass:
o It cannot be trespass because there is, on the part of the respondent, no
infringement upon the possession of anyone
o His honour said that trespass is a wrong to possession and that the defendant
never committed a wrong to possession:
! When he filled his brothers bottles, he was in possession as the
brother delivered possession
o As the bottle is traded between many hands, the bailment remains acceptable
- p229 re conversion:
o Conversion appears to me to be equally out of the question
o Conversion is a dealing with a chattel in a manner repugnant to the
immediate right of possession of the person who has property of the chattel
o The defendants supplying of wine was no deprival or impairment of property
of the bottles
o The re-delivery was not a conversion, the purpose was merely to return/
restore the bottle to the person (if the bottle had been withheld, then there
was possibly conversion)
o If the wine was sold to the inspector then there was possible conversion (but
the transaction was not a wrong to property as the defendant was giving it
over to the official)
- p232:
o Thus no trespass or conversion (no grounds for injunction or other equitable
relief
- McTiernan J majority

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- p234 re conversion:
o Conversion was committed to the 2 bottles the officer took away using the
bottles as the defendant did was inconsistent with the right of property (the
defendant was using the bottles as receptacles for wine in his business)
o Note on p232: [t]he only wrong is conversion
- p236:
o Thus it is not the case for an injunction and may claim damages in common
law
- Williams J dissenting
- P240 re injunction:
o An injunction is necessary as the slow return of bottles meant a loss of
business for the plaintiff (in common law, a separate cause of action was
needed per bottle inappropriate)
- p241 re bailment:
o A breach of bailment occurred when the brother asked to refill the bottles
this breach led to the plaintiffs immediate right to possession
o However there was no trespass: the defendant did not take possession from
the brother as the bottles were delivered
- P 243 re conversion:
o The bottles were meant to be filled: by the defendant filling them, the plaintiff
was unable to fill them therefore conversion occurred (and an injunction
was appropriate)

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6.

Introduction to the Law of Negligence and Duty of Care

6.1 Introduction to Negligence

Negligence has its origins back when the common law was first developing: the first
real instances of negligence were incidents such as ship collisions and cases where
pedestrians were run over.
There are four elements of negligence which must all be fulfilled if the action is to
succeed:
o

The defendant must have owed a duty of care to the plaintiff (duty stage
- law);

The defendant must have breached the duty imposed (breach stage
law and fact);

There must be causation in fact (causation stage - fact);

The act must not have been too remote (remoteness stage - law).

This topic covers the duty stage; in particular the Donoghue v Stevenson case.
6.2 Duty of Care Donoghue v Stevenson [1932] AC 562
Donoghue v Stevenson [1932] AC 562
- This is case happened in Scotland.
- The plaintiff went to a caf, and the plaintiffs friend bought ginger beers and ice
cream
- The plaintiff realised there was a snail in the bottle, and subsequently fell ill, and
sued the manufacturer of the ginger beer, and the case went to the House of Lords.
- For Atkin L, the sole question was whether there was a duty of case: did the
manufacturer owe a duty of care to the drinkers?
- Therefore the issue was whether a duty of care (in negligence) could be owed
outside of a contract, or whether there had to be a contract.
- The dissenting judges said that there was no contract between the parties, so
therefore there was no duty of care owed (they concluded that no duty of care could
arise outside of a contract).
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- Tomlin L stated that it would be outrageous for these people to recover from a
defective manufacturer his Honour said it would open the floodgates.
- Atkin L stated that there must be some common element in past decisions even
though this was a novel case. His Honour also stated that there was a danger in
stating the law too widely.
- Atkin Ls neighbour principle: Who, then, 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. (at p580)
- This is a general perception (principle) of duty of care.
- His Honour is saying that even though this is a novel case, there is a general
conception, and the duty of care will be determined if the extension of this duty falls
within the (neighbour) principle.
- His Honours approach is an example of inductive reasoning his Honour has
looked at previous decisions and through these decisions, the principle is derived.
- If the extension goes beyond the principle, then the action cannot succeed.
- Atkin Ls ratio is found on p599: 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.
- Thankerton Ls ratio on p603 refers to drink rather than products.
- MacMillan L did not refer to the neighbour principle: his ratio at the bottom of p609
refers to two rival principles:
o

No-one other than a party to a contract can complain of a breach of that

contract; and

A party can bring an action for negligence outside of a contract.

- His Honour referred to previous decisions, and his Honours ratio at p619-20 refers
to food and drink.
- The ratio of the case is Atkin Ls ratio (the ruling in the case was applied: it was
no wider that was necessary to settle the dispute of law put forward by the parties in
the case

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Atkin L refers a lot to McPherson v Buick Motor Co (1916) NYCA this is

because the law of the United States was a lot more developed than the
law of England at the time.

6.3 Reasonable Foreseeability

Essentially the test is the question is it reasonably foreseeable that damage could
have been caused to a class of persons of which the defendant was a member?
Chapman v Herse (1961) 106 CLR 112 Precise series of events need not be
foreseeable
- This accident occurred on a day with poor visibility.
- A man, Mr Emery, was driving a car and approached a T-junction, signaling to turn
right.
- Emerys care was hit from behind (the back corner) by a car driven by Mr Chapman.
- Chapman was thrown out of his car and lay unconscious on the road whilst his car
went onto the golf course. Emerys car went off the road.
- Dr Cherry was leaving the golf course and saw Chapman, so Cherry went and
attended to him.
- A car driven by Mr Hearse hit Cherry, who then died.
- Cherrys estate sued Hearse as defendant (for damages as a result of his death).
- Hearse said that none of this would have happened if not for Chapmans negligent
driving, so Hearse sued Chapman as a third party to join him on the case.
- Hearse had been driving negligently, and was liable.
- The South Australian court said that because of Chapmans negligent driving, he
was liable for 25% of the damages.
- The case went to the High Court on Appeal where Chapman raised two issues:
o

Relating to the duty of care Chapman would only be liable if he was

negligent with respect to Cherry. If he owed no duty of care to Cherry he
could not be pulled in.

Chapman said that for a duty of care to be owed, the precise series of
events leading to the injury must be reasonably foreseeable.

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- The High Court said that the series of events does not have to be reasonably
foreseeable, but something of the general character or nature of the event must be
reasonably foreseen.
o

Novus Actus Interveniens: an intervening event. An issue that was

brought up was whether some intervening even breaks the chain of
causation between breach of duty and damage suffered.

Chapmans argument was that a wrongful intervening event is not

reasonably foreseeable. The intervening event was the negligent driving
of Hearse, and therefore did not break the series of events.

- The High Court rejected this: it said that a wrongful intervening event is reasonably
foreseeable, and therefore does not break the chain of causation.
Palsgraf v Long Island Railroad Co (1928) 248 NY 339 The unforeseeable plaintiff
- This is a New York Court of Appeal case with seven judges sitting. There was a 4-3
majority: Cardozo CJ (majority); Andrews J (dissent therefore whatever his Honours
says is not the law of negligence, or ever was)
- The plainfitff, Palsgraf, was at a railway station in New York with two daughters
waiting to catch a train to Rhode Island.
- Another train (not the one she was after) entered the crowded platform, and two
men ran to get on the train.
- The first one got in with no trouble, but the train had started moving when the
second man tried to enter. He was carrying a package, and the guards helped him
up onto the train.
- The guard knocked the package which contained fireworks, and they exploded.
- The allegation was that because of the fireworks, weighing scales were knocked
over, injuring the plaintiff.
- The issue was the question: was she a foreseeable plaintiff? The majority said that
she was not, and so the action failed.
- Per Cardozo J at p99: Negligence is not actionable unless it involves the invasion
of a legally protected interest, the violation of a right (at p106) If there was any
wrong committed, it was to the second man, not to Palsgraf. What the plaintiff must
show is a wrong to herself, that is a violation of her own right to bodily security, and
not merely a wrong to someone else.

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- Further down: The risk reasonably to be perceived defines the duty to be obeyed,
and the risk imports relation. It is a risk to another within the range of apprehension
Negligence, like risk, is thus a term of relation.
- Therefore, for a plaintiff to be a foreseeable plaintiff, that person must fall within
the reasonable range of apprehended risk. In the context, Palsgraf was outside a
reasonable range of apprehended risk of injury. The guard was within a reasonable
range, but not Palsgraf.
6.4 Proximity Sullivan v Moody (2001) 107 CLR 562
There is no doubt that proximity has been rejected by the High Court.
In Sullivan v Moody, five members of the High Court, in a unanimous joint judgment,
rejected it.
6.5 Introduction to the Civil Liability Act 2003 (Qld)
The act received assent on 9 April 2003, and was backdated to 2 December 2002.
Section 5: exclusions (eg workplace/dust-related injuries)
Section 7: does not create or confer any cause of action, therefore the cause of
action is created by common law.
s7 (5): the act is not a codification of the law.
As seen in s7, the act does not start at the duty stage: this is left to the common
law.
6.6 Examples of Duties of Care
6.6.1 Duty of care owed by employer to employee - Czatyrko v Edith
Cowan University (2005) 214 ALR 349
This case involved a garbage collector who, when returning a bin to the truck for
unloading of waste, was struck by a car. The content of the duty was: what should
the university have done?
6.6.2 Duty of care owed by an occupier to an entrant - Thompson v
Woolworths (Qld) Pty Ltd (2005) 221 CLR 234
This case involved a contractor who delivered bread to Woolworths in Stanthorpe.
She injured herself moving bins that blocked an entrance. See 12-14 of the case
for the duty owed by an occupier as an element.
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6.6.3 Duty of care owed to other road users - Manley v Alexander (2005)
223 ALR 228
This case involved a tow truck driver who did not see an intoxicated person lying in
the middle of the road because he was concentrating on a person on the side of the
road who he thought was going to run onto the road. In a spit (3-2) decision, the
truck driver was held liable.

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7.

Breach of Duty of Care

7.1The Forseeability Test

7.1.1 Common Law Wyong Shire Council v Shirt (1979) 146 CLR 40
- This case happened in a lake in New South Wales
- The lake was shallow and was used for, among other purposes, water-skiing
- There were signs erect where the deep water was located
- The plaintiff was waterskiing and fell off where the water was 3.5ft deep, and he
injured himself
- The plaintiff sued for negligence because it was unclear where the deep water was
located
- The council owed a duty of care to this person and was liable because it was found
to have breached this duty
- This case provides the common law test for foreseeability at the breach stage:
o

Mason J: A risk which is not far-fetched or fanciful is real and therefore

foreseeable.

This is a very wide test which was changed by the CLA

- At p47, Mason J expressed: In deciding whether there has been a breach of duty of
care, the tribunal of fact must first ask itself whether a reasonable person in the
defendants position would have foreseen that the conduct involved risk of injury to
the plaintiff or to a class of persons including the plaintiff. If the answer be in the
affirmative, it is then for the tribunal of fact to determine what a reasonable person
would do by way of response to that risk.
- In essence, his honour is asking two questions:
o

Would a reasonable person have foreseen that the conduct that they
were undertaking involved a risk of injury?

If yes then, What would a reasonable person (shire council) do in

response to this risk?
!

If a reasonable response was to do nothing, then there was no

breach
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If a reasonable response was to do something, then the duty had

been breached

7.1.2 Foreseeability and the Civil Liability Act 2003 (Qld)

9!

General principles
(1)
A person does not breach a duty to take precautions against a
risk of harm unless
(a)
the risk was foreseeable (that is, it is a risk of which the person knew or
ought reasonably to have known); and
(b)
the risk was not insignificant; and
(c)

in the circumstances, a reasonable person in the position of the person
would have taken the precautions.

Differences between the Common Law and CLA at the breach stage
Section 9 (1) (b) of the CLA provides that the risk was not insignificant. This
changes the common law by wiping out the far fetched and fanciful part from
Wyong Shire Council v Shirt.
It is more difficult for a plaintiff to prove that there has been a breach under the new
test: it makes it more difficult to prove that the risk was reasonably foreseeable.
s9 (1) (c) is a codification of the Shirt principle that a reasonable person would
have taken precautions.
Now you look at section 9 of the CLA to determine if there was a breach of duty, not
at Shirt.
7.2 Standard of Care
7.2.1 Common Law
Neindorf v Junkovic (2005) ALR 631
- This case involved a garage sale in South Australia
- This issue was what standard of care was owed by an occupier to an entrant
- There was a crack in the concrete pathway which led up to the house, and the
plaintiff tripped over it and broke her ankle
- She sued the defendant for negligence and it went to the High Court
- There was no dispute that the defendant owed the plaintiff a duty but the issue was
whether there had been a breach

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- The majority concluded that there had been no breach

- The court considered the standard of care required by an occupier, and concluded
that many driveways in Australia have cracks in the concrete, therefore it was
reasonable for the occupier not to do anything about it
- However, Kirby J in dissent said that because it was a commercial enterprise (garage
sale) the occupier owed a higher duty of care
- The majority overruled this saying that there was no principle of law involved as it
was a matter of fact
McHale v Watson (1966) 115 CLR 199
- The sole issue in this case was the standard of care that Watson owed to McHale
did Barry Watson owe the standard of an adult or a 12-year old boy to Susan
McHale?
- The court concluded that he owed the standard of care of a 12-year old boy, and a
reasonable response would have been to throw the dart at the post.
- In determining standard of care, a defendant cannot use unsoundness of mind, i.e.
it does not lower the standard of care.
7.2.2 Civil Liability Act
Section 9 (c) of the CLA deals with the standard of care: a person does not breach a
duty if in the circumstances, a reasonable person in the position of the person
would have taken the precautions.
The NSW case of Drinkwater v Howarth [2006] NSWCA 222 provides a good
application of the NSW CLA, which has a very similar section (5) to Queenslands s9.
In that case, the trial judges used the Shirt test to determine breach, whereas the
majority of the NSW court of appeal said that the CLA must be used.
7.3 Breach of Duty of Care
7.3.1 Common Law
Introduction
- The test from Shirt: How would a reasonable person in the position of the
defendant have acted having regard to the magnitude of the risk, the degree of
probability of its occurrence and the expense, difficulty and inconvenience of
reducing or avoiding the risk and other relevant countervailing considerations?

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Probability of Risk Bolton v Stone [1951] 1 All ER 1078

- The plaintiff (Stone) was standing on the road outside a cricket ground.
- A cricketer hit a six and hit Ms Stone, who subsequently sued the cricket ground.
- The issue of the case was: was the probability of harm such that the cricket ground
breached its duty?
- The court said that the test to be applied is whether the risk of damage to a person
was so small that a reasonable person in the position o the defendant, considering
the matter from a point of safety would have taken steps to prevent the danger. This
is not a question of law; it is a question of fact.
- The court concluded that the incidence of someone being hit by a six was very rare,
therefore the breach could be ignored.
Magnitude of Gravity of the Risk Paris v Stepney Borough Council [1951] AC 367
- The plaintiff lost sight in one eye during the war.
- When working as a mechanic, he chipped bit of metal and was blinded in his good
eye, and sued his employer for negligence.
- The court concluded that because they were aware he only had sight in one eye, he
did not wear protective eyewear.
- Therefore, the magnitude of the risk was large: the risk was total blindness, yet the
employer still did nothing.
7.3.2 CLA
Section 9 General Principles

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm,
the court is to consider the following (among other relevant things) (a)

the probability that the harm would occur if care were not taken;
(b)

the likely seriousness of the harm;
(c)

the burden of taking precautions to avoid the risk of harm;
(d)

the social utility of the activity that creates the risk of harm.
Section 10 of the Queensland CLA also provides other principles for determining
breach, such as some points on the burden of taking precautions and avoidance.

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7.4 Res Ipsa Loquitur

Res Ipsa Loquitur is a latin term which means the thing (or matter) speaks for
itself.
The primary purpose of this principle is, in describing a set of circumstances, which
if proved, would make it improper for a trial judge to withdraw the case from the
jury. When such circumstances are established there is enough evidence from which
a reasonable jury may, not necessarily must, draw an inference of negligence on the
part of the defendant. This is because res ipsa loquitur is a rule of evidence and not
a rule of law. (Hinchy, Learning Guide p42)
The way to apply this test is as follows:
o

If the thing (causing the accident) be shown to be under the management

or control of the defendant; and

The accident is such as in the ordinary course of things does not happen
if those who have management use proper care; then

It may be inferred that the accident was caused by the defendants

negligence with the result that a prima facie case is made out.

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8.

Causation and Remoteness

8.1 Factual Causation at Common Law

8.1.1 Introduction
Although the defendant may have breached the duty of care owed to the plaintiff,
the question arises as to whether the defendant has, as an issue of fact, caused the
plaintiffs injury or loss causation as an issue of fact is concerned with
determining from the facts of the case that the actions of the defendant caused the
plaintiffs harm. (Hinchy, Learning Guide p44)
8.1.2 Role of the Tribunal of Fact
If there is a jury at the trial, causation is an issue of fact for the jury but with the
overriding power of the trial judge to withdraw the issue from the jury if there is no
evidence upon which a jury could reasonably find a causal connection between the
defendants breach of duty and the injury to the plaintiff. The plaintiff therefore
bears the onus of proof on the balance of probabilities to prove the causal
connection. Causation is not a simple area that can be determined by one test or
fact. (Hinchy, Learning Guide p44)
8.1.3 Tests for causation
The but-for test Barnett v Chelsea and Kensington Hospital Management
Committee [1969] 1 QB 424

This test involves the question: But for the defendants breach, would the plaintiff
have suffered damage?
o

If no the breach caused the damage

If yes the plaintiff would have suffered damage notwithstanding the

breach

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 424

-

On New Years Eve 1965, the plaintiff (a night watchman) had a few drinks, but was
not drunk

- At 5am on New Years Day, the plaintiff drank tea with two other night watchmen
- 20 minutes later, they were all vomiting, and continued vomiting until 8am

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- They all went to the local hospital, saw a nurse, and explained the vomiting post-tea
- The nurse rang the doctor on duty, who said he was vomiting, and that they should
see their own doctor (the doctor on duty thought they were drunk from New Years)
- They all got back to the college, but the plaintiff was not well
- At midday the plaintiff was taken back to the hospital and given a bed, but it was
too late and he died
- Questions:
o

Did the doctor owe a duty of care to the plaintiff? Yes

Did the doctor breach his duty of care when he turned the plaintiff away?
Yes

- The main issue was did the breach cause the death?
- At the time, medical evidence showed that even if the doctor had diagnosed and
treated the plaintiff, he would have died anyway
- The court concluded that the breach did not cause the plaintiffs death
o

But for the breach, would the plaintiff have died? Yes, therefore the
breach did not cause damage

The Current Position March v Stramare (1991) 171 CLR 506

Section 11 (2) is a reference to March v Stramare (according to Hinchy)
- In this case, the plaintiff was injured when driving and collided with the back of a
stationary truck
- It was early morning in Adelaide on a six-lane (three each way) road
- The defendant owned a truck which he used to transport goods to a wholesale fruit
shop:
o

The practice was to load/unload the truck when it was parked on the road

When parked, the driver put on his hazard lights

- Whilst intoxicated, the plaintiff hit the truck, was injured, and sued the owner of the
business and the driver
- At trial, the plaintiff won, but his damages were reduced by 70% as a result of
contributory negligence (because of the intoxication)

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- On appeal to the South Australian Court of Appeal, the court found that the real
cause was the plaintiffs intoxication
- The case then went on appeal to the High Court:
o

5 judges sat, with Mason CJ, Toohey and Gaudron JJ in a majority, with
McHugh J providing a different approach

- Mason CJ (at p515) refers to previous decisions and raises common sense
however this is contentious
- His Honour analyses the but-for test: his Honour says that there are situations
where the test does not work it could be that if you apply it, no-one is liable, eg
Novus Actus Interveniens
- As a matter of both logic and common sense, it makes no sense to regard the
negligence of the plaintiff or a third party as a superseding cause or novus actus
interveniens when the defendant's wrongful conduct has generated the very risk of
injury resulting from the negligence of the plaintiff or a third party and that injury
occurs in the ordinary course of things. In such a situation, the defendant's
negligence satisfies the "but for" test and is properly to be regarded as a cause of
the consequence because there is no reason in common sense, logic or policy for
refusing to so regard it. (Mason CJ at p518-9)
- In this situation, the plaintiff was intoxicated:
o

There was contributory negligence, but the argument was that

contributory negligence is a superseding event is not the approach to be
taken:

Instead, ask did the defendant, in doing what he/she did (i.e. parking
the truck in the middle of the road), generate the very risk of injury to the
plaintiff, and would such an injury occur in the ordinary course of the
event?

- In this case, in parking the truck the way he did, the defendant generated the risk:
this was the causation damages were reduced because the plaintiff was
intoxicated.
8.1.4 Factual causation under the CLA

11 General principles
(1)
A decision that a breach of duty caused particular harm comprises the following
elements

Page | 64

(a)
the breach of duty was a necessary condition of the occurrence of the harm
(factual causation);
(b)
it is appropriate for the scope of the liability of the person in breach to extend
to the harm so caused (scope of liability).
(2)
In deciding in an exceptional case, in accordance with established principles, whether
a breach of dutybeing a breach of duty that is established but which can not be
established as satisfying subsection (1)(a)should be accepted as satisfying
subsection (1)(a), the court is to consider (among other relevant things) whether or
not and why responsibility for the harm should be imposed on the party in breach.
(3)
If it is relevant to deciding factual causation to decide what the person who suffered
harm would have done if the person who was in breach of the duty had not been so in
breach
(a)
the matter is to be decided subjectively in the light of all relevant
circumstances, subject to paragraph (b); and
(b)
any statement made by the person after suffering the harm about what he or
she would have done is inadmissible except to the extent (if any) that the
statement is against his or her interest.
(4)
For the purpose of deciding the scope of liability, the court is to consider (among
other relevant things) whether or not and why responsibility for the harm should be
imposed on the party who was in breach of the duty.
12 Onus of proof
In deciding liability for breach of a duty, the plaintiff always bears the onus of proving,
on the balance of probabilities, any fact relevant to the issue of causation.
8.2 Remoteness
8.2.1 Introduction
This requires the plaintiff to establish that the injury she/he suffered was not too
remote that is, was the injury suffered one which could have reasonably been
foreseen as arising as a consequence of the defendants conduct? The basis of
remoteness is to limit the injuries for which a defendant can be found liable - would
it be unreasonable for the defendant to be held liable for all the injuries that the
plaintiff suffers when a reasonable person could not foresee such injuries occurring?
Remoteness is sometimes referred to as legal causation (in contrast to factual
causation). The important issue with remoteness at common law is that the kind of
injury or loss that occurs must be reasonably foreseeable. (Hinchy, Learning Guide
p45)

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8.2.2 Reasonable foreseeability as the test of remoteness Overseas

Tankship (UK) Pty Ltd v Morts Dock and Engineering Co Ltd (The
Wagon Mound (No 1)) [1961] AC 388
- The ship owned by the plaintiff (Overseas Tankship) was moored in a dock, and was
being repaired by the defendant companys deckhands
- The deckhands were doing something with oil on the ship, and somehow this oil
was discharged into the water
- The oil ignited because of a flame which was not the fault of the deckhands
- The court held that it was far too remote to blame the deckhands because the
flashpoint of oil was much higher than the temperature around there
- Therefore it was not reasonably foreseeable that the oil (on the water) would ignite
- This is the test for reasonable foreseeability at the remoteness stage: The kind
or type of damage that occurs must be the kind of type of damage which is
reasonably foreseeable
8.2.3 Foreseeability of the type or kind of damage Hughes v Lord
Advocate [1963] AC 837; Tremain v Pike [1969] 3 All ER 1303
Hughes v Lord Advocate [1963] AC 837
- The plaintiff was an 8-year old boy when he was severely burned in 1958
- Post office employees were working on underground cables 400m away from a
residential area
- The workers left for a break; they left a tent with four paraffin lamps inside the
idea was that no-one would approach a glowing tent
- The plaintiff and a friend found a rope and tied a lamp to the end, which they
lowered into the manhole
- The plaintiff went down the ladder, and as he was coming back up, the lamp
dropped and there was an explosion, and the plaintiff fell into the manhole and was
severely burned
- The defence raised by the Crown was that the incident was too remote to be
foreseeable: how could it have been seen that a boy would have been severely
burned? this was rejected
- Ratio: If the kind of damage which results is reasonably foreseeable, then the
extent of damage is irrelevant.
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- Therefore the foreseeable damage of a child playing with a lamp was the child
burning themselves: once this is satisfied, the extent of the burns was irrelevant
Tremain v Pike [1969] 3 All ER 1303
- The plaintiff worked on a farm where he moved hay in barns, and it was alleged
there was a plague of rats
- The plaintiff contracted Weils Disease
- In dealing with the hay (which contained rat urine, apparently) he contracted disease
- Expert evidence was given to the court: the normal way of contracting disease is
through eating contaminated food
- The plaintiff failed as the judge said that evidence suggested that a person could
not contract a disease via the handling of hay
- It was not reasonably foreseeable, i.e. it was too remote
8.2.4 The Egg Shell Skull (or thin skull) rule - Smith v Leech Brain & Co Ltd
[1962] 2 QB 405
If a particular defendant causes injury to a particular plaintiff and the injury is made
worse because the plaintiff had another physical injury, the defendant cannot say it
is too remote because of a medical condition (for example).
You must take the plaintiff as you found them.
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
- The plaintiff worked in a factory as a galvaniser, which involved the lowering of
objects into molten metal in order to galvanise them
- He was protected by a shield
- One day the plaintiff looked around the shield and was splashed on the lip by
molten metal
- It set off a malignant cancer and the plaintiff died three years later
- The employee had a predisposition to this type of cancer, therefore the defendant
said that the burn was reasonably foreseeable, not the cancer
- The court held that the predisposition was irrelevant not too remote
- However the court recognised the predisposition so there was a substantial
reduction in damages

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8.2.5 Remoteness and the CLA

Section 11 (1) (b) reflects the common law: it is appropriate for the scope of the
liability of the person in breach to extend to the harm so caused.
Section 11 (4) the judge would have wider discretion than under the common law
in determining if it was too remote: [f]or the purpose of deciding the scope of
liability, the court is to consider (among other relevant things) whether or not and
why responsibility for the harm should be imposed on the party who was in breach
of the duty.
o

s11 (4) does not change the common law remoteness, and judges may
still refer to common law cases

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9.

Proportionate Liability and Contribution among Tortfeasors

9.1 Introduction
A joint tortfeasor is someone who is jointly liable for the same cause of action.
Several tortfeasors refers to various tortfeasors who have no connection with each
other apart from causing damage to the plaintiff, i.e. there is no connection to the
same cause of action.
Several concurrent tortfeasors: where the tortfeasors have no connection, but the
damage happens at the same time; eg a person injured in a motor vehicle accident
by caused by the negligent driving of both the driver of the car the person (plaintiff)
was in and another car.
Where the conduct of the joint or several tortfeasors results in the same damage to
the plaintiff, the tortfeasors are said to be concurrent tortfeasors. (Trindade p799)
Brinsmead v Harrison (has been changed by statute) was the common law rule: a
judgment against one tortfeasor who is held jointly liable with others prevents any
further action against the others for the same cause of action (for example, if a
plaintiff did not recover damages from one defendant they may move to another). If
a plaintiff released one of the tortfeasors from liability, then that prevented the
plaintiff from going after any of the other tortfeasors.
s6 (a) of the Law Reform Act 1995 (Qld) abolished the action barring principle:

Where damage is suffered by any person as a result of a tort

(whether a crime or not)
(a) judgment recovered against any tortfeasor liable in respect of that damage
shall not be a bar to an action against any other person who would, if sued,
have been liable as a joint tortfeasor in respect of the same damage

9.2Joint and Several Concurrent Tortfeasors Thomson v

Australian Capital Television Pty Ltd (1996) 186 CLR 574
- This case involved the airing of the Today show produced by Channel 9 in
Queensland
- Channel 9 had a licence agreement with Channel 7 so that Ch 7 could show the
program in the ACT

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- On the show, Thomsons daughter claimed that she had been sexually assaulted by
her father
- Channel 9 obtained a release for $50,000 for indemnity, and Channel 7 showed the
program
- Thomson commenced an action for defamation
- The issues were:
o

Were Channels 9 and 7 joint tortfeasors?

Did the release of Channel 9 cover channel 7?

Innocent dissemination? (dont worry)

- It was held that (1) the stations were joint tortfeasors as the publication was a result
of them acting in concert to achieve a common end
- (2) The common law rule was that a cause of action against joint tortfeasors is one
and indivisible was abolished by s 11 (2) of the Law Reform(Miscellaneous
Provisions) Act 1995 (ACT) so the release of one joint tortfeasor did not release
the other joint tortfeasors
- (3) In the circumstances of a live current affairs programme which carried a high risk
of defamatory statements being made, and where the broadcaster had the ability to
supervise and control the material televised but chose not to, the broadcaster was a
subordinate disseminator and the publication was not innocently disseminated.
- The appeal was therefore allowed and the matter was remitted to the Federal Full
Court for assessment of damages

9.3Solidary and Proportionate Liability

Solidary liability: if there are two wrongdoers and one of them is solvent and the
other is insolvent, the plaintiff is entitled to recover the full amount of the damages
from the solvent wrongdoer.
Proportionate liability: liability for the harm caused (jointly or concurrently) by the
multiple wrongdoers is divided (or apportioned) between them according to their
respective shares of responsibility

9.4Contribution between tortfeasors

This is provided for under s6 (c) of the Law Reform Act 1995 (Qld):

Page | 70

Where damage is suffered by any person as a result of a tort (whether a crime or not)
(c) any tortfeasor liable in respect of that damage may recover contribution from any
other tortfeasor who is, or would if sued have been, liable in respect of the same
damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall
be entitled to recover contribution under this section from any person entitled to be
indemnified by the person in respect of the liability in respect of which the
contribution is sought.
This abolishes the previous common law position, as the common law did not allow
for contribution (eg Chapman v Herse Herse brought Chapman in for contribution)
9.4.1 The right to contribution Brambles Constructions Pty Ltd v Helmers
(1966) 114 CLR 213; Nilon v Bezzina [1988] 2 Qd R 420
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213
- Per Barwick CJ at p 219: Section 5 (1) (c) provides that a tortfeasor who has come
under an enforceable obligation to pay money for the damage caused by his tortious
act may successfully recover contribution from another tortfeasor who has also
come under an obligation to pay money in respect of the same damage and he may
also recover contribution from any other tortfeasor who, not having been sued by
the injured party, had he been sued, would have been found to have caused or
contributed to the same damage by a tortious act.

Nilon v Bezzina [1988] 2 Qd R 420

- The plaintiff was injured in a motor vehicle accident as a consequence of the
negligence of another driver
- Several years later, the plaintiff was injured again in another vehicle accident
- Both tortfeasors were sued by Nilon
- The court had to determine the contribution of the two torfeasors
- Per McPherson J at p424: It is sufficient of the plaintiff to show on the balance of
probabilities that the breach of duty contributed materially to the injury complained
of. Once that onus is discharged there is no compelling reason of policy, in cases
such as this, why a plaintiff should be obliged to go further and attempt to
disentangle and identify with complete precision the relative contributions of each
defendant to his accumulated injury or loss
9.4.2 Assessment of contribution
s7 of the Law Reform Act provides for this (following on from s6 (c))
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In any proceedings for contribution under this division the amount of the contribution
recoverable from any person shall be such as may be found by the court to be just and
equitable having regard to the extent of that persons responsibility for the damage; and the
court shall have power to exempt any person from liability to make contribution, or to direct
that the contribution to be recovered from any person shall amount to a complete indemnity.
9.5 Aggravation of Previous Tortious Injury State Government

Insurance Commission v Oakley

A nurse was injured in a motorbike accident, and a few years later her back was
injured again whilst she was working
She sued the SGIC (WA) and the motor insurer was involved also
The plaintiff said that they should be considered as separated
The added damage was treated as an extension of the first incident (if the
injury was aggravated) per Malcolm CJ (full court of Supreme Court of WA):
In my opinion, where the negligence of a defendant causes an injury and the
plaintiff subsequently suffers a further injury the position is as follows: (1)
Where the further injury results from a subsequent accident which would not
have occurred had the plaintiff not been in the physical condition caused by
the defendant's negligence, the added damage should be treated as caused
by that negligence; (2) Where the further injury results from a subsequent
accident which would have occurred had the plaintiff been in normal health,
but the damage sustained is greater because of aggravation of the earlier
injury, the additional damage resulting from the aggravated injury should be
treated as caused by the defendant's negligence; and (3) Where the further
injury results from a subsequent accident which would have occurred had the
plaintiff been in normal health and the damage sustained includes no element
of aggravation of the earlier injury, the subsequent accident and further
injury should be regarded as causally independent of the first.

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10. Defences

to Negligence

10.1Introduction
There are two main defences to negligence
o

Volenti non fit injuria

Contributory negligence

10.2Volenti Non Fit Injuria Voluntary Assumption of Risk

10.2.1 Common law
Volenti differs under common law and statute
o

Under common law volenti is a total defence (that is, the defendant got
off completely)

To imply that the plaintiff voluntarily assumed the risk, it must be proved
that:
1. There was full knowledge and appreciation of the risk being run and its
extent
2. And that the risk was accepted freely
Leyden v Caboolture Shire Council
- Note: this case is pre-CLA
- 15 year old Plaintiff went to a council operated BMX bike-track
- In attempting a jump, the plaintiff was seriously injured
- The jump had been modified, but not by the council
- As a dirt track, witnesses said that it was often modified by persons outside of
council control, and that the council would come check on a weekly basis, and revert
any modified jumps
- The plaintiff knew the jump had been modified
- Trial judge found that while council owed a duty to ensure safety for other users of
council-run areas, the plaintiff was in a different situation
Page | 73

He did not rely on the Council to provide a reasonably safe jump, as he

knew the state of the jump after modification
o He also knew the effect of the modification was to make the jump more
hazardous
- Thus, council could use defence of volenti
- Upon appeal, court also allowed council to plead volenti
- However, there was contention over the boys age
10.2.2 Civil Liability Act 2003 (Qld)

s13 defines obvious risk

s13(1) a person who suffers harm refers to the plaintiff
o however, limits to personal injury
s13(3) an obvious risk can still be of low probability
o e.g. a parachute not opening
s13(4) an obvious risk may not be physically observable
o e.g. an underwater current
s13(5) No action for failure, unless the failure itself is an obvious risk
o e.g. a go-kart may be in good condition, but if it is involved in an
accident because of an hair-line crack in the underside, it is not
actionable as it is not an obvious risk
s14 reverses the common law onus of proof on volenti
o s14(1) states that if volenti is raised by the defendant, and the risk was
an obvious risk (as according to s13, then the onus is for the plaintiff to
prove, on the balance of probabilities, that they were not aware
s16 says that defendants are not liable for materialisation of inherent risks
o s16(2) An inherent risk is a risk of something occurring that can not be
avoided by the exercise of reasonable care and skill
While division 3 deals with obvious risk, division 4 follows through with Dangerous
Recreational Activities
S18 defines dangerous recreational activity as an activity engaged in for
enjoyment, relaxation or leisure that involves a significant degree of risk of physical
harm to a person
S19(1) Dangerous recreational activity
If using division 4 as a defence, defendant must prove:
o That the plaintiff was engaged in dangerous recreational activity
o There was a materialisation of obvious risk
NOTE: an obvious risk may not be a significant risk
Fallas v Mourlas
-

After an evening of drinking, the party was spot-lighting for kangaroos

Plaintiff agreed to hold the spotlight, while defendant drove
At one point, defendant left the vehicle with a handgun, but returned
Before entering the car, the plaintiff told the defendant not to bring the loaded
gun into the car
In attempting to disarm the gun, the defendant accidentally discharged a shot,
which hit the plaintiff in the leg

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Trial judge found for the plaintiff, concluding that the defendant was guilty of
negligence and that s5L (equivalent of QLD s19(1)) did not assist defendant
- On appeal, the defendant once again claimed no liability because plaintiff was
involved in dangerous recreational activity
- First issue to the NSWCA was: did the circumstances constitute a dangerous
recreational activity?
o 2 judges in majority (Ipp and Tobias) held it was a DRA
o Trial judge said that as plaintiff was sitting in the car, not participating in the
shooting, he was not participating in DRA
o According to Ipp JA (and Tobias J agreeing), plaintiff involved in DRA as the
activity carried with it a significant risk of physical harm (i.e. the use of
firearms in the hands of amateurs) and, therefore, was a dangerous
recreational activity within the meaning of s5K.
o According to Basten J, not a DRA because:
! The risk was not significant because the results of iot eventuating
were not catastrophic
! Statistically, there was a low probability of being injured by a
firearm, therefore, it is not significant
! The defendant had not run the case that they were inexperienced
- Second issue for the NSWCA was: was the risk that materialised an obvious risk?
o 2 judges in majority (Tobias and Basten) held the risk was an obvious risk
o According to Ipp JA, as the defendant had reassured the plaintiff
continually that the gun was not loaded, and that it was safe, meant
that there was no obvious risk that the plaintiff could be shotexemplified by the plaintiff not leaving the vehicle
o According to Tobias J, the plaintiff found the defendant unreliable in his
assurances that the gun was not loaded, and therefore sought multiple
re-assurances- this only indicates that any reasonable person would have
sought continual re-assurance if they had recognised the risk
o According to Basten J, The fact that the plaintiff accepted that the risk of
accidental injury existed, may mean that such a risk, very broadly
defined, was obvious.
- Therefore, defendant remained liable as the majority found that both requirements
were not satisfied
10.3Contributory Negligence
10.3.1 Common law
Like volenti, there is a common law form of contributory negligence and a
contributory negligence under the Civil Liability Act
In broad terms, considered to be the failure of a plaintiff to take reasonable care to
protect themselves from suffering loss
In Common Law, contributory negligence occurs when the plaintiff fails to keep a
proper lookout for their own safety
In one instance, the defendant must show that the plaintiff failed to take reasonable
care in the circumstances of the accident

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McLean v Tedman
-

Plaintiff employed as a garbage collector, when technology was still limited

He had to run to the curb, pick up the bin and tip it into the truck
One morning, plaintiff collecting garbage when hit by a vehicle
Sued employer and driver of vehicle for negligence
At trial, judge found plaintiff was not guilty of contributory negligence and
apportioned responsibility between defendants
On Appeal to QCA, set aside judgement against employer (saying there was no
practical solution that would have avoided the sustained injuries) and found plaintiff
should recover only 60% of damages proved
Upon appeal to the High Court, the issue of the joint majority was: The question is
whether that failure should be characterised by mere inattention or inadvertence
Majority found that certain factors ensured that plaintiff was not contributory
negligent
o E.g. poor light, nature of the task needed preoccupation, the humper was
large and bulky and obstructed view, in order to retain employment
plaintiff expected to run and keep up with the truck
High Court set aside the orders of the QCA and restored the orders of the primary
judge

- Also, when the plaintiff acts in the agony of the moment, the plaintiff is not liable
for contributory negligence
Caterson v Commissioner for Railways
- The plaintiff and his son drove a friend 40 miles away from home to a train station
- As plaintiff was loading friends luggage onto the train, the train without notice
started to move
- Thinking of his son on a platform 40 miles away from home jumped off the train
and was injured
- Sued Commissioner for Railways for negligence
- High Court found that in the agony of the moment, jumping off the train was not an
unreasonable action, and therefore did not break the chain of causation between the
commissioners negligence and the sustained injuries
- Verdict was found for the plaintiff
To be considered for contributory negligence, the plaintiffs failure must be the
cause of the harm suffered- it is not necessarily that it be a cause of the accident
Froom v Butcher
- Plaintiff driving with wife and daughter when collided with defendants vehicle
- Defendant admitted liability for accident (as he was trying to overtake but did not
notice oncoming traffic)
- However, defendant claimed plaintiffs injuries were largely due to the plaintiffs
fault of not wearing the fitted seatbelts
- In the English Court of Appeal, according to Lord Denning (Lawton and Scarman LJJ
agreeing)
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o The question is not what was the cause of the accident. It is rather what
was the cause of the damage The accident is caused by bad driving. The
damage is caused in part by the bad driving of the defendant, and in part
by the failure of the plaintiff to wear a seatbelt. If the plaintiff was to blame
in not wearing a seatbelt, the damage is in part the result of his own fault.
He must bear some responsibility for the damage: and his damages fall to
be reduced to such an extent as the court thinks just and equitable
o i.e. it was recognised that the defendant was liable for the crash, but as the
plaintiff failed to keep a proper lookout for his own safety, was
contributory negligent
o It was found earlier that He probably would have been saved from these
injuries if he had worn a seatbelt.
10.3.2 Civil Liability Act 2003 (Qld)
In Queensland, statute has changed contributory negligence, in particular two pieces
of legislation:
o Law Reform Act
! s5 definition of wrong refers to contributory negligence at
Common Law
! s10 statutory apportionment
(b) the damages recoverable for the wrong are to be reduced
to the extent the court considers just and equitable
having regard to the claimants share in the responsibility for
the damage.
o Civil Liability Act
! s23 Changes the common law concept of contributory negligence
CLA raises the standard of care of plaintiffs to a level the
same as the standard of acre owed to them
Therefore, in determining whether the plaintiff was
contributory negligent, the court will use the same test to
see whether or not the plaintiff was negligent to others
Refer back to s9 to determine whether or not there has been
breach
! s24 provides that contributory negligence may defeat a claim
In deciding the extent of a reduction in damages by reason
of
contributory negligence, a court may decide a reduction of
100% if the court considers it just and equitable to do so,
with
the result that the claim for damages is defeated.
Therefore, the procedure for Contributory negligence is as follows:

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Note that there are other provisions of the Civil Liability Act regarding
intoxication
s46 Provides that if a person (=plaintiff) is intoxicated, that intoxication is not
relevant in determining duty of care
o i.e. if a person intoxicated it does not mean that no duty is owed, or that
the standard of care is increased or decreased etc.
s47 Applies if plaintiff was intoxicated at the time of the incident
(2) if the plaintiff was intoxicated, there is the presumption that they are
contributory negligent
(3) Plaintiff may only rebut the presumption if: the intoxication did not
contribute to the breach of duty, or that the intoxication was not selfinduced (both are upon the balance of probabilities)
(4) If the presumption holds, the court must apportion an amount greater
than or equal to 25% to the plaintiff
(5) If incident in a motor vehicle, and subject to specific provisions,
threshold may be increased to 50%
s48 Applies if injured plaintiff 16 years or older, relied on the skill of the
intoxicated defendant, and was aware or ought to have been aware of the
defendants intoxication
(2) If defendant alleges contributory negligence, it will be presumed
(3) Plaintiff may only rebut the presumption if: defendants intoxication
did not contribute to the breach of duty or, the plaintiff could not
reasonably be expected to have avoided relying on the defendants care
and skill
(4) If the presumption holds, the court must apportion an amount greater
than or equal to 25% to the plaintiff
(5) Volenti non fit Injura does not apply to a matter to which this section
applies
s49 Applies to same plaintiffs and defendants mentioned in s48
(2) If the concentration of alcohol in the defendants blood was 150mg or
more of alcohol in 100mL of blood; or the defendant was so much under
the influence of alcohol or a drug as to be incapable of exercising
effective control of the vehicle, the minimum reduction is increased to
50%
(3) The plaintiff is taken, for this section, to rely on the care and
skill of the defendant i.e. the rebuttal in s48 does not apply
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10.4Relevant sections of CLA

13 Meaning of obvious risk

(1) For this division, an obvious risk to a person who suffers harm is a risk that, in the
circumstances, would have been obvious to a reasonable person in the position of that
person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low
probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that
gives rise to the risk) is not prominent, conspicuous or physically observable.
(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is
not an obvious risk if the risk is created because of a failure on the part of a person to
properly operate, maintain, replace, prepare or care for the thing, unless the failure itself
is an obvious risk.
Examples for subsection (5)
1 A motorised go-cart that appears to be in good condition may create a risk to a user of the go-cart that is
not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.
2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is
not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it
is used in circumstances contrary to the manufacturers recommendation.

14 Persons suffering harm presumed to be aware of obvious risks

(1) If, in an action for damages for breach of duty causing harm, a defence of voluntary
assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff
is taken to have been aware of the risk unless the plaintiff proves, on the balance of
probabilities, that he or she was not aware of the risk.
(2) For this section, a person is aware of a risk if the person is aware of the type or kind
of risk, even if the person is not aware of the precise nature, extent or manner of
occurrence of the risk.
15 No proactive duty to warn of obvious risk
(1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an
obvious risk to the plaintiff.
(2) Subsection (1) does not apply if
(a) the plaintiff has requested advice or information about the risk from the
defendant; or
(b) the defendant is required by a written law to warn the plaintiff of the risk; or
(c) the defendant is a professional, other than a doctor, and the risk is a risk of the
death of or personal injury to the plaintiff from the provision of a professional
service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the
circumstances referred to in that subsection.
(4) In this section
a professional has the same meaning as it has in division 5.
16 No liability for materialisation of inherent risk
(1) A person is not liable in negligence for harm suffered by another person as a result of
the materialisation of an inherent risk.
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(2) An inherent risk is a risk of something occurring that can not be avoided by the
exercise of reasonable care and skill.
(3) This section does not operate to exclude liability in connection with a duty to warn of
a risk.
17 Application of div 4
(1) This division applies only in relation to liability in negligence for harm to a person
resulting from a dangerous recreational activity engaged in by the plaintiff.
(2) This division does not limit the operation of division 3 in relation to a recreational
activity.
18 Definitions for div 4
In this division
dangerous recreational activity means an activity engaged in for enjoyment, relaxation
or leisure that involves a significant degree of risk of physical harm to a person.
obvious risk has the same meaning as it has in division 3.
19 No liability for personal injury suffered from obvious risks of dangerous
recreational activities
(1) A person is not liable in negligence for harm suffered by another person as a result of
the materialisation of an obvious risk of a dangerous recreational activity engaged in by
the person suffering harm.
(2) This section applies whether or not the person suffering harm was aware of the risk.
23 Standard of care in relation to contributory negligence
(1) The principles that are applicable in deciding whether a person has breached a duty
also apply in deciding whether the person who suffered harm has been guilty of
contributory negligence in failing to take precautions against the risk of that harm.
(2) For that purpose
(a) the standard of care required of the person who suffered harm is that of a
reasonable person in the position of that person; and
(b) the matter is to be decided on the basis of what that person knew or ought
reasonably to have known at the time.
24 Contributory negligence can defeat claim
In deciding the extent of a reduction in damages by reason of contributory negligence, a court
may decide a reduction of 100% if the court considers it just and equitable to do so, with the
result that the claim for damages is defeated.
46 Effect of intoxication on duty and standard of care
(1) The following principles apply in relation to the effect that a persons intoxication has
on the duty and standard of care that the person is owed
(a) in deciding whether a duty of care arises, it is not relevant to consider the
possibility or likelihood that a person may be intoxicated or that a person who is
intoxicated may be exposed to increased risk because the persons capacity to
exercise reasonable care and skill is impaired as a result of being intoxicated;
(b) a person is not owed a duty of care merely because the person is intoxicated;
(c) the fact that a person is or may be intoxicated does not of itself increase or
otherwise affect the standard of care owed to the person.
(2) Subsection (1) does not affect a liability arising out of conduct happening on licensed
premises.
(3) In this section
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licensed premises see the Liquor Act 1992, section 4.

47 Presumption of contributory negligence if person who suffers harm is
intoxicated
(1) This section applies if a person who suffered harm was intoxicated at the time of the
breach of duty giving rise to a claim for damages and contributory negligence is alleged
by the defendant.
(2) Contributory negligence will, subject to this section, be presumed.
(3) The person may only rebut the presumption by establishing on the balance of
probabilities
(a) that the intoxication did not contribute to the breach of duty; or
(b) that the intoxication was not self-induced.
(4) Unless the person rebuts the presumption of contributory negligence, the court must
assess damages on the basis that the damages to which the person would be entitled in the
absence of contributory negligence are to be reduced, on account of contributory
negligence, by 25% or a greater percentage decided by the court to be appropriate in the
circumstances of the case.
(5) If, in the case of a motor vehicle accident, the person who suffered harm was the
driver of a motor vehicle involved in the accident and the evidence establishes
(a) that the concentration of alcohol in the drivers blood was 150mg or more of
alcohol in 100mL of blood; or
(b) that the driver was so much under the influence of alcohol or a drug as to be
incapable of exercising effective control of the vehicle;
the minimum reduction prescribed by subsection (4) is increased to 50%.
48 Presumption of contributory negligence if person who suffers harm relies on
care and skill of person known to be intoxicated
(1) This section applies to a person who suffered harm (plaintiff) who
(a) was at least 16 years at the time of the breach of duty giving rise to the harm;
and
(b) relied on the care and skill of a person who was intoxicated at the time of the
breach of duty (defendant); and
(c) was aware, or ought reasonably to have been aware, that the defendant was
intoxicated.
(2) If the harm suffered by the plaintiff was caused through the negligence of the
defendant and the defendant alleges contributory negligence on the part of the plaintiff,
contributory negligence will, subject to this section, be presumed.
(3) The plaintiff may only rebut the presumption if the plaintiff establishes, on the
balance of probabilities, that
(a) the defendants intoxication did not contribute to the breach of duty; or
(b) the plaintiff could not reasonably be expected to have avoided relying on the
defendants care and skill.
(4) Unless the plaintiff rebuts the presumption of contributory negligence, the court must
assess damages on the basis that the damages to which the plaintiff would be entitled in
the absence of contributory negligence are to be reduced, on account of contributory
negligence, by 25% or a greater percentage decided by the court to be appropriate in the
circumstances of the case.

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(5) The common law defence of voluntary assumption of risk does not apply to a matter
to which this section applies.
49 Additional presumption for motor vehicle accident
(1) This section applies to a plaintiff and defendant mentioned in section 48.
(2) If
(a) the breach of duty giving rise to the harm suffered by the plaintiff was a motor
vehicle accident; and
(b) the plaintiff was a passenger in the motor vehicle; and
(c) the motor vehicle was driven by the defendant; and
(d) either
(i) the concentration of alcohol in the defendants blood was 150mg or
more of alcohol in 100mL of blood; or
(ii) the defendant was so much under the influence of alcohol or a drug as
to be incapable of exercising effective control of the vehicle;
the minimum reduction prescribed by section 48(4) is increased to 50%.
(3) The plaintiff is taken, for this section, to rely on the care and skill of the defendant.

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11. Compensation

for Personal Injury

11.1 Damage vs. Damages

Damages is different from damages in negligence Harrington v Stephens
The argument concerning damage:
o

Damage is the gist of the action in negligence

The existence cannot be compared with non-existence. To award

damages would be to compare the two and you cant

11.2 Compensation at Common Law

11.2.1 The once-for-all rule
The court determines a lump sum at the time of trial (to deliver them from evil?)
the plaintiff cant move back and try to obtain more damages
Two heads of damages:
Special damages
General Damages
An exact amount can be
Where it is difficult to quantify damages
quantified eg medical expenses, eg pain and suffering, future loss of
costs of physio etc
earning capacity
11.2.2 The compensatory principle
The compensatory principle: put the plaintiff in position as if the tort had not been
committed
If the compensatory principle cannot be applied (i.e. to calculate an amount) then
the damage claimed is unrecoverable (i.e. damages cannot be awarded to
compensate for damage caused)
11.3 Compensation under the Civil Liability Act 2003 (Qld)
s54 (Damages for loss of earnings) is different from the common law in that it caps
the loss of earnings (also be aware of ss50, 51, 55)

50 Application of ch 3
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Subject to section 5,10 this chapter applies only in relation to an award of personal injury
damages.
51 Definitions for ch 3
In this chapter
general damages means damages for
(a) pain and suffering; or
(b) loss of amenities of life; or
(c) loss of expectation of life; or
(d) disfigurement.
injury means personal injury.
54 Damages for loss of earnings
(1) In making an award of damages for loss of earnings, including in a dependency claim,
the maximum award a court may make is for an amount equal to the limit fixed by
subsection (2).
(2) The limit is an amount equal to the present value of 3 times average weekly earnings
per week for each week of the period of loss of earnings.
(3) In this section
present value means the value when the award is made.
55 When earnings can not be precisely calculated
(1) This section applies if a court is considering making an award of damages for loss of
earnings that are unable to be precisely calculated by reference to a defined weekly loss.
(2) The court may only award damages if it is satisfied that the person has suffered or will
suffer loss having regard to the persons age, work history, actual loss of earnings, any
permanent impairment and any other relevant matters.
(3) If the court awards damages, the court must state the assumptions on which the award
is based and the methodology it used to arrive at the award.
(4) The limitation mentioned in section 54(2) applies to an award of damages under this
section.

s55 applies when a quantifiable amount cannot be pointed to

s55 (3): the judge needs to state the assumption made when determining
compensation
11.4 Case Law: Personal Injury Claims under the CLA

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

The plaintiff worked in a meatworks and was diagnosed with brucellosis
At trial, Kelly SPJ found that it was equally probable that the plaintiff's supervening
neurotic condition was "precipitated by brucellosis" or attributable to other
unrelated circumstances.

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 Even thought the Full Court of the Supreme Court of QLD said that the plaintiffs
personality may have led to a similar neurotic condition irrespective of the
brucellosis, they increased the damages
From headnote of HCA case: In assessing damages where questions arise as to the
future or hypothetical effect of physical injury or degeneration, the degree of
probability of the occurrence of associated future or hypothetical events will be
evaluated by the court (except in the extreme cases of mere speculation or of
practical certainty). Where proof is necessarily unattainable, the court assesses the
degree of probability that an event would have occurred, or might occur, and
adjusts its award of damages to reflect the degree of probability, leading to an
increase in or decrease of the amount of damages otherwise to be awarded. The
approach is the same whether it is alleged that the event would have occurred
before, or might occur after, the assessment of damages takes place.

s59 of the CLA provides for damages for gratuitous services

59 Damages for gratuitous services

(1) Damages for gratuitous services are not to be awarded unless
(a) the services are necessary; and
(b) the need for the services arises solely out of the injury in relation to which
damages are awarded; and
(c) the services are provided, or are to be provided
(i) for at least 6 hours per week; and
(ii) for at least 6 months.
(2) Damages are not to be awarded for gratuitous services if gratuitous services of the
same kind were being provided for the injured person before the breach of duty
happened.
(3) Damages are not to be awarded for gratuitous services replacing services provided by
an injured person, or that would have been provided by the injured person if the injury
had not been suffered, for others outside the injured persons household.
(4) In assessing damages for gratuitous services, a court must take into account
(a) any offsetting benefit the service provider obtains through providing the
services; and
(b) periods for which the injured person has not required or is not likely to require
the services because the injured person has been or is likely to be cared for in a
hospital or other institution.
At the time of the drafting of the Civil Liability Act 2003 (Qld), the Queensland
Parliament misunderstood the common law.
Section 59 (3) of the CLA allows damages to be awarded to third parties inside the
household. This was based on the decision of Sullivan v Gordon which said that
damages could be recovered by third parties for the loss of gratuitous services
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 In CSR v Eddy, the High Court overruled Sullivan v Gordon damages, thus rendering
s59 (3) useless
CSR v Eddy (2005) 226 CLR 1
- The plaintiff was the administrator of an estate (Thompsons)
- Thompson had died before the case reached the High Court
- Thompson had provided domestic services for his injured wife pre-condition
(gratuitous)
- Thompson sued CSR (employee) for negligently having exposed him to asbestos
- Gleeson CJ, Gummow and Heydon JJ
o Sullivan v Gordon damages (pg 8 paragraph 4 look at issues a) and b),
a) where a personal - Sullivan v Gordon)
! Sullivan v Gordon amount to cover a commercial rate for the
services rendered
o Griffiths v Kerkemeyer
! In a claim for personal injury the plaintiff was entitled to recover
an amount to the commercial cost of nursing and domestic
services which had been provided in the past and would be
provided in the future by the family or friends of the plaintiff
(paragraph 6)
! Griffiths v Kerkemeyer that the rue basis of the claim was the
need of the plaintiff for the services
! Basis was that services were provided to plaintiff
o High Court said at paragraph 17 that Sullivan v Gordon does not follow
from Griffiths v Kerkemeyer
! In Sullivan v Gordon the basis was the need of a third party rather
than the need of the party the basis could not be extended by
reasoning
o Par. 51 comment on CLA
! 59(3) assumes that at common law services are available for loss
of services that would have been provided by the injured person
based on Sturch v Willmott QCA
! High Court said that Sullivan v Gordon type damages are wrong in
law
- Sullivan v Gordon overruled: Griffiths v Kerkemeyer affirmed
o

Sullivan v Gordon involved services by the plaintiff; whereas Griffiths v

Kerkemeyer involved services to the plaintiff

- On a side note, McHugh Js quote at [113] ([i]f the law of damages is to retain its
coherence, overruling Sullivan v Gordon is a necessity.) provides another example
of his coherence-based approach

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- CSR v Eddy conclusion: you can recover damages for gratuitous services
rendered TO you (i.e. to the plaintiff from G v K) but not BY you (from S v G
overruled).
Kriz v King [2006] QCA 351
- Application of CSR v Eddy in Queensland
Ballesteros v Childlow [2006] QCA 323
- Another application of CSR v Eddy in Queensland
Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211
- An application of Malec v J C Hutton: damages were assessed upon probability
- The appellant (plaintiff) was suing for damages for personal injuries suffered in a
motor vehicle accident in 2004
- The Queensland Court of Appeal concluded that the probability of the plaintiff
moving up to the World Championship Tour was low, and the probability that the
injuries he sustained from the accident would impair future earnings was low, so the
damages awarded showed this
- It is simply an application of the probability-based damages from Malec v J C
Hutton
11.5Damages under the CLA
Sections 61 and 62 of the CLA completely change the common law

61 Assessment by court of injury scale

(1) If general damages are to be awarded by a court in relation to an injury arising after 1
December 2002, the court must assess an injury scale value as follows
(a) the injured persons total general damages must be assigned a numerical value
(injury scale value) on a scale running from 0 to 100;
(b) the scale reflects 100 equal gradations of general damages, from a case in
which an injury is not severe enough to justify any award of general damages to a
case in which an injury is of the gravest conceivable kind;
(c) in assessing the injury scale value, the court must
(i) assess the injury scale value under any rules provided under a
regulation; and
(ii) have regard to the injury scale values given to similar injuries in
previous proceedings.
(2) If a court assesses an injury scale value for a particular injury to be more or less than
any injury scale value prescribed for or attributed to similar particular injuries under

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subsection (1)(c), the court must state the factors on which the assessment is based that
justify the assessed injury scale value.
62 Calculation of general damages
The general damages must be calculated in relation to an injury arising after 1 December
2002 as follows
(a) if the scale value of the injury is assessed as 5 or lessby multiplying the
scale value by $1000;
(b) if the scale value of the injury is assessed as 10 or less but more than 5by
adding to $5000 an amount calculated by multiplying the number by which the
scale value exceeds 5 by $1200;
(c) if the scale value of the injury is assessed as 15 or less but more than 10by
adding to $11000 an amount calculated by multiplying the number by which the
scale value exceeds 10 by $1400;
(d) if the scale value of the injury is assessed as 20 or less but more than 15by
adding to $18000 an amount calculated by multiplying the number by which the
scale value exceeds 15 by $1600;
(e) if the scale value of the injury is assessed as 25 or less but more than 20by
adding to $26000 an amount calculated by multiplying the number by which the
scale value exceeds 20 by $1800;
(f) if the scale value of the injury is assessed as 30 or less but more than 25by
adding to $35000 an amount calculated by multiplying the number by which the
scale value exceeds 25 by $2000;
(g) if the scale value of the injury is assessed as 35 or less but more than 30by
adding to $45000 an amount calculated by multiplying the number by which the
scale value exceeds 30 by $2200;
(h) if the scale value of the injury is assessed as 40 or less but more than 35by
adding to $56000 an amount calculated by multiplying the number by which the
scale value exceeds 35 by $2400;
(i) if the scale value of the injury is assessed as 50 or less but more than 40by
adding to $68000 an amount calculated by multiplying the number by which the
scale value exceeds 40 by $2580;
(j) if the scale value of the injury is assessed as 60 or less but more than 50by
adding to $93800 an amount calculated by multiplying the number by which the
scale value exceeds 50 by $2760;
(k) if the scale value of the injury is assessed as 70 or less but more than 60by
adding to $121400 an amount calculated by multiplying the number by which the
scale value exceeds 60 by $2940;
(l) if the scale value of the injury is assessed as 80 or less but more than 70by
adding to $150800 an amount calculated by multiplying the number by which the
scale value exceeds 70 by $3120;
(m) if the scale value of the injury is assessed as 90 or less but more than 80by
adding to $182000 an amount calculated by multiplying the number by which the
scale value exceeds 80 by $3300;
(n) if the scale value of the injury is assessed as 100 or less but more than 90by
adding to $215000 an amount calculated by multiplying the number by which the
scale value exceeds 90 by $3500.
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 Under the CLA, s63-64 provides that damages, if the parties agree, can be paid as
an annuity rather than a lump sum. This protects the plaintiff well into the future as
the risks/temptations associated with a large amount of money are alleviated.

63 Definition for pt 4
In this part
structured settlement means an agreement providing for the payment of all or part
of an award of personal injury damages in the form of periodic payments funded
by an annuity or other agreed means.
64 Court required to inform parties of proposed award
(1) The purpose of this section is to enable the court to give the parties to a proceeding a
reasonable opportunity to negotiate a structured settlement.
(2) A court that decides to make an award for future loss (not including interest) of more
than $100000 must first notify all the parties to the proceeding of the terms of the award
it proposes to make.

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12. Limitation

of Actions

12.1When does time begin to run?

The basic rule is that time begins to run when the cause of action accrues. In
relation to tosrts that are actionable per se without proof of damage the
limitation period begins to rune when the wrongful act is done, even though
damage, if there is any, does not occur or is no discovered until later. But where
damage is the gist of the action the basic rule is that the period does not begin
to run until the damage occurs. (Trindade p 818)
12.2Introduction to Limitation of Actions Act 1974 (Qld)
Section 10 of the act provides that where there is an action in (among other things)
negligence (i.e. no personal injury), the plaintiff has six years to commence an
action
S.11 in respect of personal injury 3 year limit to commence an action
Part 3 Extension of periods of limitation
29 Extension in cases of disability
(1) If on the date on which a right of action accrued whether before or after the
commencement of this Act for which a period of limitation is prescribed by this Act the
person to whom or for whose benefit it accrued was under a disability, the action may
be brought at any time before the expiration of 6 years from the date on which the
person ceased to be under a disability or died, whichever event first occurred,
notwithstanding that the period of limitation has expired.
(2) Notwithstanding subsection (1)
(a) where a right of action that has accrued to a person under a disability accrues
on the death of that person while still under a disability to another person under
a disabilitya further extension of time shall not be allowed by reason of the
disability of the second person;
(b) an action to recover land or money charged on land shall not be brought by
virtue of this section by a person after the expiration of 30 years from the date on
which the right of action accrued to that person or a person through whom the
person claims;
(c) an action to recover damages in respect of personal injury or damages in
respect of injury resulting from the death of any person shall not be brought by a
person after the expiration of 3 years from the date on which that person ceased
to be under a disability or died, whichever event first occurred.
(3) This section does not apply
(a) in a case where the right of action first accrued to a person (not under a
disability) through whom the person under a disability claims;
(b) to an action to recover a penalty or forfeiture or sum by way of a penalty or
forfeiture by virtue of an enactment save where the action is brought by an
aggrieved party.
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30 Interpretation
(1) For the purposes of this section and sections 31, 32, 33 and
34
(a) the material facts relating to a right of action include the following

(b) material facts relating to a right of action are of a decisive character if but only if a
reasonable person knowing those facts and having taken the appropriate advice on those
facts, would regard those facts as showing
(i) that an action on the right of action would (apart from the effect of the
expiration of a period of limitation) have a reasonable prospect of success and of
resulting in an award of damages sufficient to justify the bringing of an action on
the right of action; and
(ii) that the person whose means of knowledge is in question ought in the persons
own interests and taking the persons circumstances into account to bring an
action on the right of action;
(c) a fact is not within the means of knowledge of a person at a particular time if, but only
if
(i) the person does not know the fact at that time; and
(ii) as far as the fact is able to be found out by the personthe person has taken all
reasonable steps to find out the fact before that time.
(2) In this section
appropriate advice, in relation to facts, means the advice of competent persons qualified in
their respective fields to advise on the medical, legal and other aspects of the facts.
30A Application of s 30 in actions for dust-related conditions
(1) This section applies for the purposes of applying section 30 in relation to a right of action if
(a) the right of action relates to personal injury resulting from a dust-related condition
that is, or will be, a contributing factor to significant loss of amenities, or expectation, of
a persons life; and
(b) the knowledge of the person suffering the injury of the nature and extent of the injury
would, apart from subsection (2), be taken to be knowledge of a material fact of a decisive
character.
(2) The knowledge is taken not to be knowledge of a material fact of a decisive character unless
it is within the means of knowledge of the person suffering the injury that the dust-related
condition is, or will be, a contributing factor to significant loss of amenities, or expectation, of
the persons life.
(3) To remove any doubt, it is declared that personal injury resulting from a dust-related
condition does not include personal injury resulting from smoking or other use of tobacco
products or exposure to tobacco smoke.
(4) In this section dust-related condition see the Civil Liability Act 2003, schedule 2.
31 Ordinary actions
(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of
duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or
independently of a contract or such provision) where the damages claimed by the plaintiff for the
negligence, trespass, nuisance or breach of duty consist of or include damages in respect of
personal injury to any person or damages in respect of injury resulting from the death of any
person.
(2) Where on application to a court by a person claiming to have a right of action to which this
section applies, it appears to the court
(a) that a material fact of a decisive character relating to the right of action was not within
the means of knowledge of the applicant until a date after the commencement of the year

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(3) This section applies to an action whether or not the period of limitation
for the action has expired
(a) before the commencement of this Act; or (b) before an application
is made under this section in respect of the right of action.
33 Prior bar ineffective
Where after the expiration of a period of limitation to which this part applies,
the period of limitation is extended by order under this part, the prior
expiration of the period of limitation has no effect for the purposes of this
Act.
40 Contribution between tortfeasors
(1) An action for contribution under the Law Reform Act 1995, section 6(c)1
shall not be brought after the expiration of the first of the following periods
to expire
(a) a period of limitation of 2 years running from the date on which the
right of action for contribution first accrues to the plaintiff or to a
person through whom the plaintiff claims;
(b) a period of limitation of 4 years running from the date of the
expiration of the period of limitation for the principal action.
(2) For the purposes of subsection (1)(a), the date on which a right of action
for contribution first accrues is
(a) if the plaintiff in the action for contribution or a person through
whom the plaintiff claims is liable in respect of the damage for which
contribution is claimed by judgment in a civil action or by arbitral
awardthe date on which the judgment is given or the award made
whether or not in the case of a judgment the judgment is afterwards
varied as to quantum of damages; or
(b) if, in a case to which paragraph (a) does not apply, the plaintiff in
the action for contribution or a person through whom the plaintiff
claims makes an agreement with a person having a right of action for
the damage for which the right of action for contribution arises, which
agreement fixes, as between the parties to the agreement, the amount
of the liability in respect of that damage of the plaintiff in the action
for contribution or a person through whom the plaintiff claimsthe
date on which the agreement is made.
(3) In subsection (1)(b)
The period of limitation for the principal action means the period of
limitation prescribed by this Act or by any other enactment (including an
QLD v Stephenson (2006) 227 ALR 17

Although 3 separate appeals, the High Court heard all three at once, as they
deemed the three very similar

All three plaintiffs were\had been undercover policemen, working for the QLD
Police Force

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They were involved in the drug arm, and frequently underwent covert and
dangerous missions

In the middle of 1997, the first plaintiff (Stephenson, to whom the plaintiff now
refers to) started to suffer from severe depression

Mid-1997

Mid-1999

Plaintiff started to

suffer from severe
depression

Mid-1998

Commencement of the last year

preceding the expiration of the 3-year
limitation period

Mid-2000
End of third year

Plaintiff retired on medical grounds on the 23 February 2001

Commenced court action on the 20 December 2001

Defendant Queensland pleaded the time-bar limitation of s11

o i.e. as the personal injury occurred mid-1997, the plaintiff could not sue
for damages after mid-2000

Plaintiff was seeking an extension to the 20 December 2001 to commence court

action, pursuant to s31(2)

To the High Court, the issue hinged upon the interpretation of s31(2) of the
Limitation of Actions Act 1974 (QLD):
(2) Where on application to a court by a person claiming to have a right of
action to which this section applies, it appears to the court
(a) that a material fact of a decisive character relating to the right of action
was not within the means of knowledge of the applicant until a date after
the commencement of the year last preceding the expiration of the period
of limitation for the action; and

The court may order that the period of limitation for the action be extended so
that it expires at the end of 1 year after that date and thereupon, for the
purposes of the action brought by the applicant in that court, the period of
limitation is extended accordingly.

Majority said that if a material fact of a decisive character relating to a right of

action was not within the means of knowledge of the plaintiff until 20
December 2001, then the court has digression to extend action for a year
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Joint majority (Gummow CJ, Hayne and Crennan JJ) firstly looked at the date of
submission
o As the plaintiff was seeking an extension to that date, the date of
submission was the final chance considering the extension
o Therefore, the joint majority considered the 20 December 2000 to be the
expiry date or the relevant date
o i.e. Plaintiff had to show that until after 20 December 2000, a material
fact of a decisive character relating to the right of action was not within
his means of knowledge

In looking at s31(2) High Court agreed with the reasoning of the Queensland
Court of Appeal judge Davies J

That a material fact of a decisive character relating to the right of action

was not within the means of knowledge of the applicant should be read as
a composite phrase
o You cant break it up!
o According to Davies J
o

One can not have the means of knowledge of material facts of a

decisive character at a time when those material facts do not have that
character. If the correct question is as I have stated it then the answer is
that it was after the critical date because the material facts did not
acquire a decisive character until that date.

So when did the material fact take on decisive character?

o In February 2001 (the critical date) when the plaintiff retired upon
medical grounds

What was the significance of this event?

o The plaintiff couldnt start an action before this date because:
!

He was still in an unfit state and starting legal proceedings would

have aggravated his situation

If he started an action before February 2001, it would have

jeopardized his claim for retirement form the Police Force on
medical grounds. Getting permission to retire upon medical
grounds provided as redundancy payment, as opposed to
resigning

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See paragraph 35
o The material fact that the plaintiff knew that he was permanently
incapacitated for police work occurred in November 2000
o However, it was not of a decisive character until after the critical date

Kirby J agreed with the joint majority and Davies J in extending the period for
the plaintiff
o

refers to beneficial approach to remedial provisions

An issue of statutory interpretation: a remedial or beneficial provision is

one that gives some benefit to a person and thereby remedies some
injustice

Beneficial provision should be interpreted widely, liberally in favour of

the person receiving the provision

extension of time is a beneficial provision and the approach taken by

the joint majoirty was consistent with that beneficial approach

Heydon J in dissent looked at s31 in a different manner

o

Believed all three conditions can be read separately

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