TORTS Remoteness and Damage


TORTS Remoteness and Damage
Remoteness and Damage
Duty of Care
= Negligence
There must be a causal link between D’s
breach of duty and damage to P or P’s property
Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd (The Wagon Mound 1)
• The facts:
• The rule: the replacement of ‘direct’ cause
(Re Polemis )with reasonably foreseeable’
• It is not the hindsight of a fool, but the
foresight of a reasonable man which alone
can determine liability (per Viscount
• Causation involves two fundamental
– the factual question whether D’s act in fact
caused P’s damage: causation-in-fact
– Whether, and to what extent D should be
held responsible for the consequences of his
conduct: legal causation
• (1) A determination that negligence caused
particular harm comprises the following elements:
– (a) that the negligence was a necessary condition of the
occurrence of the harm ( "factual causation" ), and
– (b) that it is appropriate for the scope of the negligent
person’s liability to extend to the harm so caused (scope
of liability" ).
• (4) For the purpose of determining the scope of
liability, the court is to consider (amongst other
relevant things) whether or not and why
responsibility for the harm should be imposed on
the negligent party.
(Causation in fact)
• Causation in fact relates to the factor(s) or
conditions which were causally relevant in
producing the consequences
• Whether a particular condition is sufficient to
be causally relevant depends on whether it
was a necessary condition for the occurrence
of the damage
• The necessary condition: causa sine qua non
• To be successful in a claim for a remedy,
P needs to prove that the loss for which
he/she seeks compensation was caused in
fact by the D’s wrongful act
• Traditionally, the test whether D’s
wrongful act did in fact cause the loss is
the ‘but for’ test
Kavanagh v Akhtar
• Facts:a Muslim woman who was physically injured
while shopping was forced by the medical condition
she had to then cut her previously long hair…
Husband rejects her causing her to suffer
– In any event, the possibility that a person will desert a
partner who has been disfigured in the eyes of the
deserter is sufficiently commonplace to be foreseeable
(Per Mason J)
• It was not necessary that the defendant should
have foreseen the precise nature of the
consequences of his act. In the present case, the
plaintiff’s psychiatric illness was foreseeable
Chapman v Hearse; Jolley V Sutton
• The place of intervening acts in causation
• Jolley v Suttton
– P then aged 14, sustained serious spinal injuries in an accident.
It arose when a small abandoned cabin cruiser, which had been
left lying in the grounds of the block of flats, fell on Justin as he
lay underneath it while attempting to repair and paint it. As a
result he is now a paraplegic.
– D held liable; what must have been foreseen is not the precise
injury which occurred but injury of a given description. The
foreseeability is not as to the particulars but the genus.
• In general, it is not sufficient for a plaintiff to
show that the negligence was one of several
possible causes; It needs to be demonstrated
that D’s conduct was the most probable cause
of P’s damage.
In Common Law, it is also not enough for P to
show that D’s conduct materially increased the
risk to D. P needs to prove that D’s conduct
materially caused the damage
• Bonnington Castings v Wardlaw [1956]
AC 613
– The plaintiff had a lung disease because of
fumes the employer had exposed him to, plus
he had exposed himself to smoke – issue
whether employer had caused the disease?
– House of Lords held: P must make it appear
at least that on the balance of probabilities
the breach of duty caused or materially
contributed to his injury
• Chappel v Hart (1998) 156 ALR 517
– Court noted that the Plaintiff must show the
Defendant’s action materially contributed to
the Plaintiff’s injury
• M’Ghee v National Coal Bd (1972) 3 All ER 1008
– The P claimed employer’s failure to provide showers to wash away
residue caused his dermatitis - the doctors were not certain if
showers would have stopped the plaintiff contracting dermatitis D
held liable but mainly on policy grounds
• Wilsher v Essex Area Health Authority (1988):
– a premature baby negligently received an excessive concentration
of oxygen and suffered retrolental fibroplasia leading to blindness.
However the medical evidence demonstrated that this can occur in
premature babies who have not been given excessive oxygen, and
there were four other distinct conditions which could also have been
causative of the fibroplasia
– M’Ghee distinguished on the grounds that there was only one causal
candidate (brick dust)
Bailey v The Ministry of
Defence & Anor (2008)
• The claimant aspirated her vomit leading to a cardiac
arrest that caused her to suffer hypoxic brain damage.
There was evidence of negligence by the medical team
the question: what caused her to aspirate her vomit.
– Issue: whether the negligence had "caused or materially
contributed to" the injury
– Held: If the claimant could have established on the balance of
probabilities that 'but for' the negligence of the defendant the
injury would not have occurred, she would have been entitled to
– The instant case involved cumulative causes acting so as to create
a weakness so that she could not prevent the aspiration
• “A material increase in the risk of injury by a
defendant is not legally equated with a material
contribution to the injury by a defendant. However, in
some circumstances if it were proved that the
defendant did materially increase the risk of injuring
the plaintiff then the court might infer causation, i.e.
that the defendant’s negligence materially contributed
to the injury (Wallaby Grip (BAE) Pty Ltd (in liq) v
MacLeay Area Health Service )
Causation principles under the
CLA: s5D (2)
• In determining in an exceptional case, in
accordance with established principles, whether
negligence that cannot be established as a
necessary condition of the occurrence of harm
should be accepted as establishing factual
causation, the court is to consider (amongst
other relevant things) whether or not and why
responsibility for the harm should be imposed on
the negligent party
• Where the injury or damage of which the
plaintiff complains is caused by D’s act
combined with some other act or event, D
is liable for the whole of the loss where it
is indivisible; where it is divisible, D is
liable for the proportion that is attributable
to him/her
• Concurrent sufficient causes
– where two or more independent events cause the
damage/loss to D ( eg, two separate fires destroy P’s
• Successive sufficient causes
• Baker v Willoughby; Faulkner v Keffalinos;
– D2 is entitled to take P (the victim) as he finds him/her
– Where D2 exacerbates a pre-existing loss/injury (such as
hasten the death of P) D2 is liable only for the part of the
damage that is attributable to him
The Law of Torts
Particular Duty Areas:
Product Liability
Abnormal Plaintiffs
Unborn Children
Liability for Defective Products:
The Scope
• Product liability as a regime for protecting
consumer rights:
– Defective structures/premises (as products?)
– Consumer goods as products
Product Liability: Evolution in
Common Law
• Originally in Common Law, a consumer in
receipt of defective goods (including goods
that caused injury to the consumer because
of defects) was protected by the warranties
implied in the contract of sale
• The implied warranties was later
incorporated into statutes:
– Sale of goods Act 1983 (UK)
– Sale of Gods At 1923 (NSW)
The Difficulties with Implied
• Warranties do not ‘run’ with goods. It is simply an
element of the contract and does not therefore
attach to the goods as such
There is generally no ‘ vertical privity’ between the
manufacturer and the ultimate consumer let alone
between wholesalers and the ultimate consumers
Privity of contract ‘remained a recalcitrant obstacle
to the extension o warranties between the
manufacturer and the ultimate consumer ‘
The Emergence of Negligence
Law: Donoghue v Stevenson
• The existence of the duty of care
between the manufacturer and
ultimate consumer
• ‘a manufacturer of products … owes
a duty to the consumer to take
reasonable care’
The Sources of Law on Product
• Common Law:
– contract
– tort
• Statute Law
– Trade Practices Act 1974 (Cwth)
– State fair trading legislation, State Sale of Goods
– Strict liability regime.
Common Law: Negligence
• Donoghue v Stevenson and the Common
Law duty of manufacturers
• The scope of the duty:
– The extent of the duty: Junior Books v Veitchi
(the duty extends beyond merely causing harm
to safety or property)
– Intermediate examination: Grant v. Aust.
Knitting Mills
– The range of defendants: Haseldine v. Daw
The Act of the Defendant
• Negligent design of product
– O’Dwyer v. Leo Buring [1966] WAR 67
• Negligence in the manufacturing process:
– Grant v. Australian Knitting Mills
• Negligent Marketing of a Product
– Adelaide Chemical & Fertilizer Co
V. Carlyle
• Failure to warn of dangers or proper use
Norton Aust. Pty Ltd V. Steets Ice Cream Pty Ltd
• Sale of Goods Act (1923) NSW implies into
contracts for sale of goods certain
– fitness for purpose
– merchantable quality
– cannot be excluded
• Trade Practices Act (Comm) Pt V
Div 2A
– S74B Allows a consumer or person acquiring title
through or under consumer an action against
manufacturer in respect of goods unsuitable for
purpose of sale.
– S.74C : Action in respect of false description
– S.74D: goods of unmerchantable quality
– S.74E: goods not corresponding with sample
– S.74K : No exclusion or modification of T.P.A
The TPA: The manufacturer
• Manufacturer: defined widely (S74A
(3) & (4)) to include a corporation
– -allows its name or brand on goods
– -holds itself out as manufacture
– -is importer & manufacture has no Aust
place of business
The TPA: The Consumer
• CONSUMER: person acquiring goods
– -prices does not exceed the prescribed
amount ($40,000)
– OR
– -where price was greater but goods were
of a kind ordinarily acquired for personal
domestic or household use.
The TPA: Remedies
• S75AE: Remedy for other persons
who suffer consequential losses.
• S75AF: Remedy for damage to
personal, domestic or household
• S75AG: Remedy for damage to land
or buildings
The TPA: Defences
• Defences: S75AK
• Contrib. Neg: S75AN
• 3 year time limit: S75AQ
The TPA Part VA
• Pt VA T.P.A was enacted in 1992 and
deals with the liability of manufacturers
and importers of defective goods
– S.75A: Applies to goods “if their safety is
not such as person generally are entitled to
– S.75AD: A corporation supplying such goods
is liable for damages to a person injured or
Fair Trading Act (1987) (NSW)
The Action: TPA or Tort
• Under the TPA the Plaintiff does not
– -duty of care
– -negligence
• P should where possible plead 2 causes of
– -in tort
– -under TPA
Abnormal Plaintiffs and
Particularly Sensitive Plaintiffs
• To be liable, P must show that she/he was
foreseeable. In general the abnormal P is not
• There is a distinction to be drown between
the abnormal Plaintiff and the particularly
sensitive Plaintiff
Abnormal Plaintiffs
• In general where D is negligent, D
takes P as he /she finds P. Any unusual
condition that aggravates the damage
cannot be used by D as a defence
– Haley v. London Electricity Bd. A blind P
held not to be abnormal: D “ought to
anticipate the presence of such person
within the scope and hazard of their
Particularly Sensitive Plaintiff
• Where P suffers damage because of a
particular sensitivity in circumstances
where D’s conduct is not considered a
breach, P cannot claim
• Levi. V Colgate Palmolive
– “the bath salts supplied to P were innocuous
to normal persons… the skin irritation which
she suffered…was attributable exclusively to
The Unborn Child
• In general, a duty of care may be owed to P
before birth
– Watt v. Rama: “the possibility of injury on birth to
the child was… reasonably foreseeable…On the
birth the relationship crystallised and out of it
arose a duty on the D…”
– X v. Pal: Duty to a child not conceived at the time
of the negligent act
– Lynch v. Lynch:Mother liable in neg to her own
foetus injured as result of mother’s neg driving.
Wrongful Birth Claims
• Claims by parents in respect of the birth of a child
who would not have been born but for the D’s
– Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled
child born bec. Pl lost opportunity to lawfully terminate
pregnancy. Damages included costs for past & future care
of child for 30 years.)
– CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost
opportunity to terminate pregnancy as a result of D’s neg
failure to diagnose pregnancy. NSW Ct of Appeal held claim
maintainable but damages not to include costs of raising the
chills as adoption was an option.
– Melchior v Cattanach [2001] QCA 246 Mother of healthy
child after failed sterilization procedure. Qld CT Appeal held
damages shld include reasonable costs of raising the child.
Wrongful Life Claims
• Claim by child born as a result of negligent
treatment by De of child’s parent.
• Bannerman v Mills (1991) ATR 81-079.
Summary dismissal of claim by child born with
disabilities as result of mother having rubella
whilst pregnant. Tort of wrongful life unknown
to common law
Wrongful Life Claims
• Edwards v Blomeley; Harriton v Stevens; Waller v
James (2002 ) NSW Supreme Court, Studdert J.
No duty of care to prevent birth
Policy reasons -
– 1. Sanctity & value of human life
– 2. impact of such claim on self-esteem of disabled persons
– 3. exposure to liability of mother who continued with
– 4.Plaintiffs’ damage not recognizable at law - would involve
comparison of value of disabled life with value of nonexistence
– 5.Impossibility of assessment of damages in money terms taking non-existence as a point of comparison.
CLA Part 11 s71
• In any proceedings involving a claim for the birth of a
child to which this Part applies, the court cannot award
damages for economic loss for: (a) the costs associated
with rearing or maintaining the child that the claimant
has incurred or will incur in the future, or (b) any loss of
earnings by the claimant while the claimant rears or
maintains the child. (2) Subsection (1) (a) does not
preclude the recovery of any additional costs associated
with rearing or maintaining a child who suffers from a
disability that arise by reason of the disability.
Defective Premises
• In general the occupier of premises owes
a duty of care to persons who come on
to the premises
• While the notion of occupier's liability
may have developed initially as a
separate category of tort law, it now
considered under the general principles
of negligence
– Zaluzna v Australian Safeway Stores
Occupiers’ Liability
• What are Premises?
– -Land and fixtures
– -but Cts have used wide interpretations
including moveable structures eg:
– scaffolding (London Graving Dock v. Horton
[1951] AC 737
– Ships and gangways eg. Swinton v. China
Mutual Steam Navigation Co Ltd (1951) 83 CLR
Occupiers’ Liability
• Who is an occupier – control
– Wheat v. Lacon [1966] AC 522
– Kevan v. Commissioner for Railways [1972] 2
The Liability of Public
Introduction: Public Authorities
and the Rule of Law
• Applying the same rules of civil liability to
the actions of public authorities or
– The rationale: No legal or natural person is
above the law
– The difficulties: The nationalization and
provision of public utilities and community
facilities necessarily distinguish public
corporations from ordinary citizens
The Rule of Law and Public
• “When a statute sets up a public authority, the
statute prescribes its functions so as to arm it with
appropriate powers for the attainment of certain
objects in the public interest. The authority is
thereby given a capacity which it would otherwise
lack, rather than a legal immunity in relation to
what it does, … There is, accordingly, no reason
why a public authority should not be subject to a
common law duty of care in appropriate
circumstances in relation to performing, or failing to
perform, its functions, except in so far as its policy-
making and, perhaps, its discretionary decisions are
concerned” (per Mason J in Sutherland Shire
Council v Heyman)
Some Basic Concepts:
• In tort law D is liable for a breach of
duty towards P
• The breach may take the form of an act
(misfeasance) or an omission (non
• However not every non-feasance
provides a basis for liability:
– Negligent omissions are actionable.
– Mere/’neutral’ omissions are not actionable
unless the D is under a pr-existing duty to
Some Basic Concepts: Powers
and Duties
• Duty:
– The obligation to act; the statutory
provision/function is cast in mandatory
– Once the content of the duty is
determined, the question of breach is a
question of fact
– Breach duty attracts liability
Basic Concepts: Power
• Power:
– The statutory function is case in permissive
– It confers on the power holder a choice to act
in a particular way
– The failure or refusal to exercise a choice may
not necessarily be illegal.
– The power holder has a freedom of choice to
act/ The duty holder has an obligation to act
Some basic Concepts: Ultra
• It is for the power holder to decide what
it wants to do within the limits of its
• Where a power holder acts beyond the
powers conferred on it by the relevant
statute, the power holder’s conduct is
ultra vires. The decision of the power
holder has no legal effect and can be
quashed by a court.
The Planning & Operational
Dichotomy I
• Planning decisions
– Are based on the exercise of policy options or discretions
– They may be dictated by social or economic
– not provide the basis for a duty
• In general, a public authority is under no duty of care in
relation to decisions which involve or are dictated by
financial, economic, social or political factors or
The Planning & Operational
Dichotomy II
• Operational decisions
– The implementation of policy decisions
– subject to the duty of care
- L v Commonwealth (sexual abuse in prison, D
held liable for operational failures)
- Parramatta CC v Lutz (failure to order the
demolition of building P’s property catches
Conclusions on the Basic
Concepts: Ann’s Case
• Intra Vires + Policy = Not actionable,
Ct. will not interfere
• Ultra Vires + Policy = Actionable, Ct
will assess whether Neg or not
• Not policy but Operational =
Actionable, Ct will assess
Australian Approaches to the
Liability of Public Authorities
• Sutherland Shire Council v Heyman:
Majority: Mason, Brennan & Deane JJ
– in general no duty to exercise statutory powers
– duty will arise where authority by its conduct
places itself in a position where others rely on
it to take care for their safety.
– duty arises where D ought to foresee a) Pl.
reasonably relies on D to perform function
AND b) P will suffer damage if D fails.
Australian Approaches to the
Liability of Public Authorities
• Parramatta City Council v. Lutz: Maj
of NSW Court of Appeal: Kirby P &
McHugh JA
– D held liable P because P had “generally
relied” on council to exercise its
statutory powers.
– “I think… that this Court should adopt
as a general rule of the common law the
concept of general reliance
Australian Approaches to the
Liability of Public Authorities
• Pyrenees Shire Council v. Day Maj: Brennan, CJ,
Gummow, Kirby, JJ
– -rejected concept of General Reliance (too vague,
uncertain, relies on “general expectations of
– (Only McHugh, Toohey, JJ approved and applied
concept of General Reliance)
– Brennan, CJ: No specific reliance by P here Duty
arises where “Authority is empowered to control
circumstances give rise to a risk and where a
decision not to exercise power to avoid a risk would
be irrational in that it would be against the purpose
of the statute.
Australian Approaches to the
Liability of Public Authorities
• Crimmins v. Stevedoring Industry Finance
Committee (1999) 167 ALR 1: McHugh J,
Gleeson CJ agreeing
– was it RF that Ds act or omission incl failure to
exercise stat power would cause injury?
– Did D have power to protect a specific class incl
Pl (rather than Public at large)
– Was Pl vulnerable
– Did D know of risk to specific class incl P if D did
not exercise power
– Would duty impose liability for “core policy
making” or “quasi-legislative” functions.
– Are there Policy reasons to deny duty
Australian Approaches to the
Liability of Public Authorities
• Ryan v. Great Lakes Council Federal Court of
Australia 9 August, 2000
-In a novel case involving a statutory authority the
issue of duty should be determined by the following
– 1.was it RF that act or omission would cause injury
– 2.Did D have power to protect a specific class including Pl
(rather than public at large)
– 3. Was P vulnerable
– 4.Did D know (or ought D have known) of risk
– 5.Would duty impose liability for “core policy making” or
“quasi legislative” functions> if so then NO duty
– 6.Are there Policy reasons to deny duty?
Mis-feasance and NoneFeasance: Highway Authorities
• The traditional position in Common Law:
– Highway authorities owe no duty to road users to repair or keep
in repair highways under their control and management.
– Highway authorities owe no duty to road users to take positive
steps to ensure that highways are safe for normal use.
• It is well settled that no civil liability is incurred by a road
authority by reason of any neglect on its part to construct,
repair or maintain a road or other highway. Such a liability
may, of course, be imposed by statute. But to do so a
legislative intention must appear to impose an absolute, as
distinguished from a discretionary, duty of repair and to
confer a correlative private right. (per Dixon J in Buckle v
Bayswater Road Board): See also Gorringe v. Transport
Misfeasance and non-Feasance:
Common Law Developments
• Brodie v. Singleton Shire Council
• Ghantous v. Hawkesbury City Council
The Civil Liability Act (NSW) and
Public Authorities
Part 5 of the Civil Liability Act (Sections 40 to
• Section 42 sets out the principles to determine duty
of care exists or has been breached (ie. financial
and other resources reasonably available, allocation
of resources, broad range of its activities, and
compliance with the general procedures and
applicable standards)
• Section 43: act or omission not a breach of duty,
unless it so was unreasonable that no authority
having the functions in question could properly
consider it as reasonable.
The Civil Liability Act (NSW) and
Public Authorities
• Section 44: Removes the liability of public
authorities for failure to exercise a regulatory
function if the authority could not have been
compelled to exercise the function under
proceedings instituted by the Plaintiff.
• Section 45: Restores the non-feasance
protection for highway authorities taken
away by the High Court in Brodie v Singleton
Shire Council Council; Ghantous v
Hawkesbury City Council
• Builders, developers, engineers,
architects, (as non-occupiers) all owe
a DUTY of CARE to visitors or
occupiers of negligently constructed
buildings ( basic principles of
negligence apply)
– Bryan v. Maloney
Defective Structures and the
Liability of Public Authorities
• Pyrenees Shire Council v Day