Torts Textbook Summaries

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes
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CHAPTER 1: General Observations
CHAPTER 2: General Considerations Appertaining to
Trespass
CHAPTER 3: Intentional Torts to the Person
BATTERY - any act of the defendant which directly and
intentionally/negligently causes some physical contact with the
plaintiff and without his/her consent
State of mind of the defendant
o Most suits for battery are based on intentional acts
o An act will be intentional if the defendant meant to do it
o It is not needed to prove that the defendant had intended to
cause injury/harm, merely that the defendant had intended to
do the action, with the knowledge that his action would
substantially certainly result in the act complained of
o If A, throwing a stone with the intention to hit B, hits C
instead, it would be battery, provided that given the particular
circumstances, C is likely to be hit (James v Campbell; Ball et
Uxor v Axten)
o Connection between liability in law of torts and transferred
intent in criminal law
o The defendants act must be voluntary e.g. if a third party
forcibly carried the defendant onto the plaintiffs land, then
the third party is liable
o Rule as to involuntary acts Commissioner Lozier Stokes v
Carlson
No consent by the plaintif
o Trespass to a person presupposes that the act was committed
without the permission of the plaintiff therefore lies the
question of who bears the onus of proving consent or lack
thereof
o In Australia (but not England or New Zealand), the onus is on
the defendant to prove consent to the alleged trespass
(Secretary, Department of Health and Community Services v
JWB and SMB (Marions case))
o Tort of battery aims to protect the physical integrity of an
individual, who need to only prove a direct interference
Character of the act of the defendant
o There can be no battery unless there is an act by the
defendant and there is contact with the plaintiff
o Every persons body is inviolate (Holt CJ Cole v Turner)
o Idea of implied consent in this modern society where people
expose themselves inevitably to the risk of bodily contact (e.g.
in super market, busy street)
o Collins v Wilcock: test whether the contact went beyond the
generally acceptable stands of conduct of everyday life

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acts of physical contact fall into 2 categories: 1) ordinary
conduct of daily life (permitted) 2) outside this acceptable
range (prima facie be cases of battery)
o Protects against all unpermitted and unwelcome contacts
o The act must directly cause the contact an injury is direct if
it follows so immediately after the act that it may be
considered part of the act - it is consequential if by reason of
some obvious and visible intervening cause
o If the contact is with an item of the plaintiffs clothing, battery
may be committed when it involves force (R v Day; Fagan v
Metropolitan Police Commissioner)
Damages
o Battery is actionable per se (without proof of damage) once
the tort has been proved, consequential loss of goods and
personal damage can be recovered (whether the injury is
foreseeable or not)
N.B. this is unlike an action founded in negligence
o Courts can award additional damages for insult/injury to
feelings for a battery which has also caused physical harm
o Exemplary damages (damages meant to deter or reform the
defendant) can be awarded where the defendant acts in
contumelious (scornful and disregarding; insolent) disregard of
the plaintiffs rights (but not when the defendant has already
been punished under criminal proceedings)
o Provocation (action or speech which is held likely to prompt
physical retaliation) on the part of the defendant may lead to
a reduction of exemplary damages
ASSAULT any act of the defendant which directly and either
intentionally/negligently causes the plaintiff immediately to
apprehend a contact with his or her person
assault is both a crime and tort + fact that the search for a
rational basis for compensation in the form of the plaintiffs
apprehension is recent old cases in assault is on the
intention of the defendant, whereas new cases focus on the
effect produced by the threat on the plaintiff
Character of the defendants conduct
o Law of assault is very similar to the law of battery (both are
intentional torts), BUT in law of assault, the apprehension of
contact (rather than the contact itself) must be established
o Although battery and assault are commonly grouped together
to mean the same thing, and in practice, when there is
battery, there is also assault, battery and assault are distinct
e.g. 1) battery: being hit from behind without any warning 2)
assault: pointing a loaded gun at the plaintiff

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o Assault doesnt always have to be threatening physical
contact is what must be apprehended (therefore the unwanted
photographing of a person is not an actionable assault)
o Nature of the act must put the plaintiff in apprehension of
immediate physical violence dependent on proximity
o No assault is committed where the intervention of the
police/other protective ensure that the defendants cannot
carry out threats of violence e.g. when the working miners
were escorted under police guard, the threats by the striking
miners were not assaults as the working miners knew that the
threats could not be carried out and they were not
apprehended by an immediate battery
o Is it assault to point an unloaded gun at someone? one early
case: no as defendant could not have intended the battery;
another early criminal case: yes now: yes, Bray CJ if the
defendant intentionally puts in fear of immediate violence an
exceptionally timid person known to him to be so then the
unreasonableness of the fear may not prevent conviction
indicates shift in emphasis of the courts from concentrating on
the subjective intention of the defendant to the objective
effect of the threat on the mind of the plaintiff
o Mere words without physical action is not assault (inadequate
authority)
o Verbal threats must be of immediate force to be actionable
against assault
o Words may constitute an assault: R v Wilson, Meade and Belts,
Barton v Armstrong
o Tuberville v Savage: words accompanying an act may explain
away what might otherwise be an assault not establishing a
rule that a conditional threat may never amount to assault if
it were not assize time, I would not take such language from
you (unfulfilled condition nullified the assault)
o Defendant would be liable in assault if they made a condition
(which they dont have a right to) relating to the plaintiffs
future conduct e.g. they told the victims that they would be hit
if they moved
o An assault is committed where the defendant demands (by an
improper threat) something to which she/he has a legal right
to
Plaintifs state of mind
o The plaintiffs state of mind must be such that he/she
anticipates the imminent contact taking place question of
assault will not be whether victim is courageous or timid,
unless the defendant knows the plaintiff is timid
o Time frame is an important element in assault plaintiff must
apprehend imminent physical violence question to be asked
is not how immediate does the fear of physical violence have
to be? but how immediate must the threatened physical

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violence be after the utterance of the threat which creates the
fear?
INTENTIONAL PHYSICAL HARM OTHER THAN TRESPASS TO
THE PERSON
The wilful statement or act of the defendant, calculated to
cause physical harm to the plaintiff and in fact causing
physical harm to him or her is a tort (established in Wilkinson
v Downton, the practical joke case)
o This was upheld in Janvier v Sweeny (private
detective/mistress/fiance is a traitor case)
o Both cases were upheld in Bunyan v Jordan (gun unloading
case) but majority found that no tort have been committed
because plaintiff had only overheard that defendant was
going to shoot someone
o Stevenson v Basham (burning husband/miscarriage case):
tort was committed because the appellant knew that she
was within earshot and that he should have known that his
behaviour was calculated to frighten people
o Defendant must be proved to have intended to violate the
plaintiffs interest in remaining free from physical harm; it
is not enough that it is proved that the defendant had
intended to do an act which consequentially resulted in the
physical harm
o This tort is not limited to nervous shock cases; can also be
a remedy for other situations e.g. putting poison in
someones tea or passing on an infectious disease like AIDS
(which only indirectly causes harm)
o Old cases where it was declared that to set spring
guns/other mechanical devices with the intention of
injuring trespassers fits into this category of torts, as it is
inappropriate to define it as negligence as the harm was
deliberately inflicted
o For a harm suffered to be actionable, the nervous shock
should be more than merely a transient reaction, however
initially severe Khorasandijian v Bush (relationship
breakdown obvious risk that continued harassment would
result in such an illness)
o This decision was overruled in Hunter v Canary Wharf Ltd
and Wainwright v Home Office question whether the law
should extend to compensate for the mere suffering of
distress which doesnt amount to recognised psychiatric
injury even when brought about intentionally
o Wilkinson and Janvier cases can be seen as really early
nervous shock cases modern negligence cases
Australian courts unlikely to recognise a discrete tort of
intentional infliction of serious mental distress (like
American courts) or an extension of the Wilkinson principle

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o Tucker v News Media Ownership Ltd (newspaper threatened
person with heart condition with the publication of the
details of his criminal past court accepted the tort) can
be seen as a preventative approach similar to
Khorasandjian Wilkinson principle could be adapted to
provide a remedy to a person whose privacy has been
invaded by (threat of) public disclosure of private facts
FALSE IMPRISONMENT an act of the defendant which, without
lawful excuse or justification, directly and intentionally/negligently
causes the confinement of the plaintiff within an area delimited by
the defendant
protects the interest in freedom of movement
State of mind
o Tort must be intentional; fault or malice is irrelevant
o Negligence ought to be enough to satisfy the mental
requirement
o Debate as to whether negligence is a factor: some maintain
that trespass doesnt lie for negligent conduct (i.e. only cause
of action available for the carelessly imprisoned defendant will
be negligence and unless the plaintiff can prove damage, no
action will life), others have said that action for false
imprisonment will lie even for a negligent act (perhaps greater
acceptance here in Australian than in England as it is
accepted that trespass to the person may be committed either
intentionally or negligently
Character of the act
o Actionable per se
o Imprisonment must amount to a total restraint of the liberty of
the person, regardless of the amount of time
o The area of confinement must have a boundary and the
boundary must be fixed by the defendant
o If a person can only escape confinement at the risk of
personal injury or if it is otherwise unreasonable to attempt
escape, it constitutes the tort of false imprisonment if the
means of escape must be apparent and reasonable, then no
false imprisonment
o The barriers dont have to be physical it can be a
metaphorical boundary effected by an assertion of authority
o Restraint on movement in the street even without laying on of
hands can be false imprisonment (e.g. being wrongfully
arrested by police)
o Symes v Mahon: where there has been no application of
physical force to the person alleging false imprisonment, there
must be evidence of complete submission by that person to
the control of the other party
o False imprisonment normally results from some positive act

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o Herd v Weardale Steel, Coal and Coke Co: miner (plaintiff)
employed by defendants, descended their mine to pursuance
of his contract of employment; after a dispute, his request to
carry him to the surface in their cage was refused because
they could only do so at the end of his shift, as per his
contract action in false imprisonment failed authority for
the proposition that failure to provide a means of egress from
premises is not a tort where there is no duty to provide it
o Robinson v Balmain New Ferry Co Ltd (ferry turnstile case)
defendants were not obliged to let the plaintiff leave any other
way because plaintiff had contracted to leave the wharf by
ferry only
o Robinson decision has been criticised as at common law a
person cannot restrain the liberty of another to enforce a
mandatory condition as to exist, and that any such restraint
amounts to false imprisonment even when contractual
conditions are reasonable, there still could be liability for
false imprisonment because no person can force that another
abide if compliance is required by the contract, then the
contract can be abandoned and assume liability for the breach
o Cowell v Corrective Services Commission of New South Wales:
an imprisonment which begins lawfully may later become a
false imprisonment even though there is no further act on the
part of the defendant
Knowledge of the plaintif
o Unsettled: whether the plaintiff must know that the defendant
is committing an act which restricts his/her freedom
o On principle, plaintiff should have the knowledge because the
interest protected is of a mental one (like in assault)
o Two early cases offer differing perspectives Herring v Boyle:
teacher not liable for holding the child who couldnt afford fees
because child didnt know that he was being detained;
Meering v Grahame-White Aviation Co: knowledge was
irrelevant (ratio of Lord Atkin) (you could be asleep/drunk and
still be falsely imprisoned)
o May be possible to reconcile the two cases by confining the
need for knowledge to cases where no actual physical
restraint is employed, but only words and conduct
o Murray v Ministry of Defence: it is not essential that the victim
is aware of the fact of the restraint in the tort of false
imprisonment because the victims liberty has been violated
nonetheless
o Myer Stores Ltd v Soo: knowledge of the restraint was relevant
to the issue of damages
o McFadzean v Construction, Forestry, Mining and Energy Union:
injury to feelings and damage to reputation (classically
associated with false imprisonment) can still be issues even
when the victim is unaware of his/her imprisonment

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o Obiter nature of the above statements the question is still
unsettled
o If action in false imprisonment is seen solely as a means of
adjusting losses between individuals Herrings case may be
preferable (i.e. it is not false imprisonment if the victim does
not know) as the plaintiff has not suffered any injuries as
he/she is unaware of the imprisonment
o If the tort has a deterrent function to prevent wrongful
behaviour and enforce civil liberties, Meering may be more
appropriate (i.e. it is still false imprisonment if the victim is
unaware)
Who is liable, the police officer or the aggrieved defendant
who calls in the police officer?
o In an action of false imprisonment, the physical restraint must
have been directly caused not false imprisonment if you
make false statements to the authorities to cause a person to
be detained in an asylum or if you dig a trench in which the
plaintiff falls
o In this case, the person might be liable in malicious
prosecution (an action on the case) but the burden of proof
and requirements for actionability of conduct is very strict
provides protection for citizens who were acting honestly
o When deciding who should be sued, ask: Who was active in
promoting and causing the confinement?
o The issue is whether the officer effecting the arrest is acting
independently or as the agent of the defendant
o Very fine line between who directly and indirectly causes the
false imprisonment of another: Dickenson v Waters Ltd
(stealing case) manager of the store was held liable because
he had been the one to tell the police officer to arrest the
plaintiff
o Bahner v Marwest Hotel Co Ltd (refusing to pay for wine): both
the citizen who called in the police and the police officer were
held liable for false imprisonment security guard and police
officer
o If defendant wrongfully gives the plaintiff into custody and
then the magistrate remands the plaintiff, the defendant is
answerable in false imprisonment for damages only up to the
time of the judicial remand once the remand interposes,
liability for false imprisonment ceases
o Must distinguish between false imprisonment and malicious
prosecution (tort concerned with the abuse of judicial process
calls for proof of malice and of absence of reasonable cause)
if A wrongly prefers a complaint against B before a
magistrate who then issues a warrant/tries B/remands B, then
A has not committed the tort of false imprisonment
Damages

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o Damages are awarded in the first instance not as
compensation for loss but as a non-compensatory means of
signifying the infringement of a right
o Court may also compensate injury to feelings and loss
damages for loss of reputation
o When assessing these general damages, account may be
taken of the defendants conduct at the time of the verdict
may be relevant to the assessment of the injury to feelings may be aggravated damages
o No aggravated damages will be award where the plaintiff has
been found guilty of provocative and insulting conduct (but
provocation will not reduce the real damages)
o Exemplary damages may be awarded against a police
officer/official who falsely imprisons the plaintiff
CHAPTER 5: Land
Trespass
o Intentionally/negligently entering or remaining on or directly
causing any physical matter to come into contact with, land in
the possession of another without permission or otherwise
without lawful authority is a trespass (quare clausum fregit)
o Protects the interest of plaintiffs of maintaining their land free
from physical intrusion more focussed on physical
interference with possession not a function of the tort to
protect ownership
o May provide useful remedy for the violation of a persons
privacy where that violation takes the form of unlawful
intrusion on that persons land or premises
o Plenty v Dillon: law of trespass to protect possession of
property and privacy and security of owner BUT action in
trespass to land cannot be used as a general remedy for
violations of privacy due to the limitations in the nature of the
tort
Types of Acts
o Act must be immediate (cannot be consequential)
o Difficulties in drawing the line between direct and
consequential
o Gregory v Piper: it was held to be trespass when rubbish was
pushed onto the plaintiffs land by natural forces
o Southport Corporation v Esso Petroleum Co Ltd: oil discharge
from the ship carried by the tide was not trespass because the
damage was consequential
1. Entering anothers land without permission
2. Causing some foreign matter to entre or to come into
physical contact with the land of the plaintiff (the intrusion
onto the plaintiffs land must result from an act/omission by
the defendant)

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3. Remaining on land after a trespassory entry thereon (AKA
continuing trespass)
o Continuing trespass: only when that which continues
after the first action is itself a trespass (e.g. if A
places goods on Bs land, and A is successfully sued
for B, A is liable for failing to remove the goods)
4. Persons (other than tenants) who originally enter land with
the permission or by licence of the possessor are
trespassers if they remain there for an unreasonable time
after the termination of the permission of withdrawal of the
licence (e.g. Cowell v Rosehill Racecourse Co Ltd)
o licence to enter property need not to be express can
be implied (e.g. by a household who leaves a front
garden gate unlocked so anyone could enter the gate
to request admittance and to conduct any lawful
business) but the implied licence is not a licence to
wander about at will
o If a person with a licence enters the land with the
sole purpose of exceeding the terms of that licence,
trespass lies
o Plenty v Dillon: held that police officer who enters
private premises without the permission of the
person in possession for the purpose of serving a
summons commits trespass (but this can be
authorised/excused by law)
Subject matter
o Aside from the land itself, anything that is attached to the soil,
and capable of being separately possessed (e.g. damage to
grass, turnips, rabbits) can be the subject matter for trespass
o Possession of land may be separated (e.g. A may have
ownership over the pasturage, B the surface and subsoil, and
C the minerals below) each of them can sue if the subject
matter of ones possession is invaded
o England: surface of the streets are vested in the highway
authorities by statute
o Australia and New Zealand: public roads were originally
vested in the crown and generally handed over the municipal
councils
o Members of the public have a right to enjoy the highway, but
if the highway is used for a purpose that is not reasonably
incident to its user, it is trespass (e.g. using the highway to
obtain information about the speed/performance of
racehorses)
o Trespass to tunnel beneath the soil, to mine, to use a cave
beneath it or to drive building foundations through the soil
because the owner of the land has a right over the land to
some depth

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o Stoneman v Lyons: trespass held when works who were
building a supermarket, had excavated a trench under the
footings of the adjoining landowners garage wall without
support leading to collapse
o Star Energy Weald Basin Ltd v Bocardo SA: trespass held due
to intrusion by pipelines 250-850m below the plaintiffs land
even though the surface of the land was not damaged
o Trespass to invade that portion of airspace which is needed for
the ordinary use of land and structures upon it - notion of
ordinary user liberally interpreted in cases where the
invasion has taken the form of oversailing cranes, advertising
signs and other structures erected on neighbouring premises
o Anchor Brewhouse Developments Ltd v Berkley House
(Docklands Developments) Ltd: court was not prepared to
concede that no trespass had occurred because the invading
booms were high above the property and their activity did not
interfere with the plaintiffs ordinary business
o LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd:
held relevant test is whether the incursion actually
interferes with the occupiers actual use of the land at the
time, but rather whether it is of a nature and at a height which
may interfere with the ordinary uses of the land which the
occupier may see fit to undertake.
o Ordinary user theory: applicable to transient incursions of
airspace e.g. projectiles
o Legislation in Australia (except for Queensland) and New
Zealand: aircraft are given the privilege of innocent passage
for the ordinary incidence of flight no action shall lie in
trespass or nuisance by reason only of the flight of an aircraft
of any property at a height above the ground which, having
regard to wind, weather and other circumstances of the case,
is reasonable statutes exclude actions being brought in
trespass for the mere transient invasion of airspace strict
liability on the owners of the aircraft for all material loss of
damage to persons or property caused by that aircraft without
proof of negligence or intention or other cause of action
State if mind of the defendant
o Issue: whether the defendant intended to enter the land (not
whether the d. intended to invade any interest of the plaintiff)
mistake is not a defence
o No liability if there is not voluntary act on the part of the
defendant
o Negligent unintentional act is enough (e.g. if A intentionally
throws a stone onto Cs land, and as A should have foreseen,
it ricochets onto Bs land, this is trespass to Bs ;and and Cs)
unintentional non-negligent act is not trespass

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o A personal will only be liable in trespass if they are present at
and has taken part in the trespass or has authorised/instigated
others to commit the trespass
o League Against Cruel Sports Ltd v Scott: hounds from local
hunt intruded on a deer sanctuary owned by the plaintiff
defendant could not be liable unless it was proved that d. had
encourage the dogs to enter the sanctuary or deliberately
failed to prevent the intrusion
The interest of the plaintif in the land
o Plaintiff with legal estate and exclusive possession may sue in
trespass
o Only tenant (not the landlord) can sue if a third party
trespasses on the land demised
o Tenant can also sue the landlord
o In England, owner of an equitable interest can sue (not in NZ)
o Owner with statutory possession can also sue
o Held: person may have such a right of exclusive possession of
property as will entitle him to bring an action for trespass
against the owner of that property but which confers no
interest whatever in the land (e.g. statutory tenant under the
English Rent Acts)
o McIntosh v Lobel: held where the tenant is a one-person
company, that company being the alter-ego of its managing
director, the latter has sufficient possession to sustain a suit in
trespass
o National Provincial Bank Ltd v Ainsworth: held that a deserted
wife has no proprietary interest in the matrimonial home (only
a personal right) she still had exclusive occupation and could
therefore bring proceedings against trespassers
o Hill v Tupper: A leased certain land, which adjoined their
canal, from X Co. A was also given the sole and exclusive
right to let out on hire pleasure boats for use on the canal. B
set up a rival concern B was sued in trespass by A action
dismissed X Co lacked the power to make an exclusive grant
o Question of fact: whether plaintiff has exclusive possession of
land AND whether plaintiff has licence to use land (not merely
right) enable plaintiff to sue in trespass
o No defence to wrongdoer that the possession of the plaintiff in
relation to a third party is unlawful fact of possession is
enough to establish the plaintiffs title
o Delaney v TP Smith Ltd: plaintiff entered property held under
a lease which was unenforceable because it did not comply
with the requirements of the successor to s 5 of the Statute of
Frauds held that he was unable to sue his landlord in
trespass for ejecting him plaintiff did not have a legal estate
and thus did not had a right to possession

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o In an action in trespass between two persons who each assert
a right to the property the one who doesnt have legal title
will be regarded as the trespassor
o During the period of adverse possession, dispossessed plaintiff
retains legal title and may sue the adverse possessor who is
the trespasser adverse possessor can then bring an action
in trespass against subsequent trespassers after the
requisite time period, adverse possessors title is then law and
they can sue for trespass against the dispossessed trespasser
o Plaintiff with right to immediate possession of the land, upon
entering, can sue for trespass between the date of accrual of
the right and the entry (trespass by relation)
Remedies
Damages
o Basic rule: plaintiff is entitled to full restitution for any
loss
o Depreciation in selling value and costs of reinstating and
restoring property are adequate measures for
destruction/damage to land and buildings cost of
restoration will not be awarded where it is unreasonable
or entirely disproportionate to the diminished value of
the land
o Jones v Shire of Perth: plaintiffs sued for damages for
trespass and the unlawful removal of natural support to
their land cost of restoring the land by building a
retaining wall as $10,000 whereas the injury done was
worth $2,000 disproportionate
o Special damages (e.g. business profits) can also be
awarded
o Consequential damages may be awarded where the loss
suffered is the natural and probable result of the
trespass
o Svingos v Deacon Avenue Cartage & Storage Pty Ltd:
agents of the respondent, trespassed on a farm
belonging to the appellant to get a van, left open a gate
cattle entered and damaged olive trees on the
property held to be foreseeable consequential
damage damages recoverable
o Hogan v AG Wright Pty Ltd: consequential loss awarded
for death of a filly which escaped from the plaintiffs
property after d. trespassed with a bulldozer and broke
down a fence court did not answer the question of
whether reasonable foreseeability is an essential test of
consequential loss in actions for trespass to land
o TCN Channel Nine Pty Ltd v Anning: held that
reasonable foreseeability is not relevant
o Measure of damages for wrongful occupancy of land:
reasonable rental value of the land during the time of

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the d.s occupancy (e.g. if d. uses part of the land for

tipping, p. is not limited to the diminution in the sale
value of the land but can recover the reasonable value
of that particular use of the land made by the defendant
together with the diminution in the value of the rest of
the land)
Where goods (e.g. coal, minerals, gravel, trees are
severed from the land), measure of damages depends
on whether the act was wilful or innocent if innocent,
d. can deduct the cost of severance from the value of
the goods; if wilful, then d. cannot deduct the cost of
severance from the value of the goods uncertain:
whether d. can also deduct additional sum for the profit
for work done or p. is entitled to the value of the
severed goods less the d.s actual expenses
Exemplary (punitive in nature expresses courts
disapproval where the trespass is wanton and
intentional or accompanied by violent, abusive or
insulting conduct) or aggravated damages (form of
general damages compensation for injury to the
plaintiff focus on the effect of the trespass on the
plaintiff malicious, insolent, high-handed,
contumelious conduct of the defendant) may also be
awarded for actions of trespass to land
Pollack v Volpato: held award of damages are
discretionary on the part of the tribunal appellate
court should not interfere (unless exemplary element of
the award is excessive)
Actionable per se: a person who had suffered no
pecuniary loss is still entitled to recover damages an
award if in vindication of the right to exclude others
from the property (could be more than nominal
damages)
In some cases, damages may be based on hypothetical
negotiation
Injunctions
o Injunctive relief (equitable remedy) are an alternative to
damages at the discretion of the courts
o Onus rests of the plaintiff to that it is the appropriate
form of relief
o To win injunction, need to prove: award of damages is
not enough, or irreparable harm would be suffered if the
injunction was not rewarded
o Continuing trespass and trespass where it is serious, or
threatened to be repeated courts will intervene with
injunction
o If the trespass causes little/no harm to the property,
courts are more likely to grant injunction if the courts

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o
o
o
o
were to insist upon damages, it could be seen to be

sanctioning the defendants wrongful action and that
people would be then able to infringe with impunity the
property rights of others with the belief that they are
entitled to do so because no tangible harm has been
done and the victim can then be compensated anyway
How the defendant conducts him/herself + his/her
attitude towards the plaintiff is also a factor when the
court decides whether or not to grant injunction
Graham v KD Morris & Songs Pty Ltd: the defendant had
failed to admit that its acts constituted a trespass and
failed to apologise to the plaintiff for the oversailing of
its crane + failure to offer the plaintiff monetary
compensation influenced court to grant injunction
Injunctive relief can not only avert the trespass, but also
supress its after-affects (e.g. prevent the subsequent
publication of a video/photograph/etc. obtained by the
trespasser)
Lincoln Hunt Australia Pty Ltd v Willesee: 3
preconditions for the granting of an injunction 1.
circumstances must be such as to make publication
unconscionable 2. irreparable harm will be suffered by
the plaintiff if the injunction is refused 3. balance of
convenience (or justice) favours the grant
Encorp Pty Ltd v ABC: damages would not be adequate
because if the telecast were to go ahead, then the
plaintiff could suffer a devastating blow to his business
Donnelly v Amalgamated Television Services Pty Ltd:
injunction granted against a telecaster to prevent it from
showing a video of police abusing their power because
there was not other satisfactory remedy
ABC v Lenah Game Meats Pty Ltd: equitable jurisdiction
exists not only to restrain the publication of a videotape
or photograph made by a trespasser, but also to a third
party who threatens to publish it
Plaintiffs who prove that only their reputations/interests
will suffer if the publication was to proceed would not
prove adequate unconscionability - must also show that
conduct of the defendant was that the publication of the
videotape could not reasonably be sanctioned (i.e.
where conduct was motivated by ill-will or callous
disregard of the rights of others, irresponsible and
biased, or where the incident portrayed was portrayed in
a way that would unfairly and severely prejudice the
plaintiff)
Actions by Reversioners
o People who are not in possession of the interests of land being
violated cant sue for trespass, but can still seek remedies

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o Landlords have contractual rights against tenants who
damage their interest (e.g. by allowing premises to fall into
disrepair waste branch of law property will afford a remedy
of tortious nature to landlords who establish that tenants have
damaged the reversionary interest)
o Non-possessory interest in land is violated by a third party
action derived from the old action on the case may lie
o Rodrigues v Ufton: action in trespass can only be maintained
by a person who has possession, but a reversioner can
maintain an action for an injury to the reversion done by a
trespasser
o Lockwood Buildings Ltd v Trust Bank Canterbury Ltd: today a
claim by a reversioner can fit comfortable unimportant for
there remains general agreement as to the need for
reversioners to be afforded an effective remedy for harm done
to their reversionary interest
o Can also seek injunction (over damages if needed) plaintiff
must prove that permanent injury as would be necessarily
prejudicial to the reversioner permanent injury means an
injury which will continue indefinitely unless something is
done to remove it (Jones v Llanrwst Urban District Council)
CHAPTER 6: Defences to Intentional Torts to the Person and
Property
Mistake and Inevitable Accident
Mistake as such is no defence
o Mistake is no defence to intentional torts, but it can decide if
another defence is open to the defendant (e.g. police officer,
who had reasonably mistaken the plaintiff to have committed
a offence, could have a defence against false imprisonment)
Inevitable accident
o Inevitable accident is separate to mistake
o Public Transport Commission of New South Wales v Perry:
women, epileptic fit at train station not a trespasser the fall
was involuntary
o no intention nor negligence McHale v Watson (steel dart)
authority: once p. proves injury or damage through a direct
act of d., d. will be liable in trespass UNLESS he/she proves
that the conduct was neither intentional nor negligent
Consent
Distinguished from assumption of risk
o volenti non fit injuria: you cant sue if you freely assented to
the conduct which resulted in damage
o two forms of consent: p. consents to invasion of interests
which would otherwise be a tort (consent) or willingness on

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part of the p. to run the risk of injury from a particular source
of danger (assumption of risk)
o although consent and assumption of risk are distinct, the
courts have not always acknowledged this
o Bain v Altoft: defence of assumption of risk applied where p.
consented to fight with the d.
o Fox J in McNamara v Duncan: cases of intentional trespass
volenti non fit injuria is applied differently than in cases of
negligence negligence refers to risk of injury, trespass
refers to consent to the trespass consent important to torts
already dealt with, assumption of risk important in negligence
What constitutes consent?
In general
o Consent may be treated as defence in trespass to person
(but not land), burden of proving lack of consent may be on
plaintiff
o Consent has two meanings broad: describe any basis of
non-liability traverse, confession and avoidance or an
objection to a point of law; narrow: basis for repelling a prima
facie case consent must take the form of a confession and
avoidance in pleadings (e.g. voluntary assumption of risk)
o Consent can be either express by words or inferred by
conduct
o Consent must be to the act complained of
Sporting injuries
o Consent is v. effective defence to sporting injuries
o Fox J in MacNamara v Duncun: because sports differ from one
another in their objectives, each situation must be looked at
individually
Effect of fraud or duress
o Consent may be vitiated by the application of fraud or duress
o Conduct obtained by fraud going to the quality of the conduct
and being not merely collateral no consent
o Consent obtained by duress or a show of authority no
consent
Consent to medical procedures
o physical contact with an adult patient of sound mind who
does not consent to that contact prima facie battery
even if patient refuses medical treatment which is in their
best interests, the choice must be obeyed
o Rogers v Whitaker, the consent necessary to negative the
tort of battery is satisfied by the patient being advised in
braod terms of the nature of the procedure to be performed.
Minors
o Consent must be given with someone with necessary legal
capacity child must be of sufficient intelligence parental
consent for young children
Persons unable to consent

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o If person is incapable due to intellectual handicap to make a
rational decision law is unclear
o Generally, no express/implied consent liable to battery and
assault EVEN though the operation is the for the patients
benefit UNLESS act can be justified (necessity/statutory
authority)
Consent and criminal acts
o Bain v Altoft: Gibbs J consent is a defence to an action of
trespass to the person, notwithstanding that the act
consented to was illegal
Revocation of licences
o current
Withdrawal of consent
Contributory Negligence
Self-defence
Defence of the Person of Another
Defence of Ones Property
Defence of the Property of Another
Necessity
Distinguished from defence of property
Nature of scope of the defence
Recaption of Chattels
Re-entry on Land
Abatement of Nuisance
Distress
Distress for rent
Distress damage feasant
Replevin
Discipline
Children
By parents

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By schoolteachers and others responsible for their training and
education
Passengers in public transport
o
CHAPTER 14: Nuisance
Nuisance as a Separate Tort
Meanings of the word nuisance
o Essence: interference with the enjoyment of land
o Law of private nuisance derived from action upon the case
for nuisance (required the plaintiff an interest in land)
o covers inferences with use and enjoyment of land by water,
fire, smoke, smell, fumes, gas, noise, heat, electricity or
any other similar thing which may cause such an
inconvenience
o Has different meanings: 1) factual description of
conduct/conditions on land that result in annoyance 2)
denote damage resulting from activity or condition 3)
connotes legal liability (i.e. courts can say that someone is
liable in a nuisance)
Nuisance and negligence
o Nuisance does not always involve fault overlap in liability
in nuisance with that of negligence e.g. where occupier
of land has failed to take reasonable steps as allowed by
financial/other resources to remedy a nuisance which the
occupier knew/should have known
o Substantial interference with enjoyment of land proof of
culpable conduct on the part of the defendant
o Nuisance complained of is the removal of the plaintiffs
right to the support of his/her land by the neighbouring
land of the defendant strict liability and proof of the fault
on the part of the defendant is not needed
o Nuisance complained of is substantial physical injury to
land plaintiff only needs to prove the injury, onus is on
the defendant to show the reasonableness of any
precautions taken
o Nuisance caused by roots/branches of trees occupier is
liable even if he/she was not the one who planted the trees
Private and public nuisance
o Public nuisance is a crime not a tort (interference with the
rights of the public) not actionable by individual unless
they prove that they have suffered damage that is beyond
that of the public
o Private nuisance: p. must prove interference with
enjoyment of land

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Nuisance and trespass
o Nuisance and trespass do not overlap if injury caused by
d. is indirect, then trespass does not apply
Conclusion
o Usually in nuisance, remedy is injunction, not damages
Is Damage Necessary?
o Nuisance is not actionable per se damage must be
proved
o Exceptions:
Interference is with an easement, profit a prendre
(right to take something from someones land), or
right of access on the basis that p. has absolute
legal right to the enjoyment of easement, profit or
right of access therefore infringement of right
implies damage
Injunction may be granted in a quia timet action
where no actual harm has yet occurred even if that
harm is to be reasonably feared statutory power to
substitute injunction with damages in quia timet
actions even though damages can not be awarded at
common law (this does not apply in Tasmania or
NSW)
The Nature of the Invasion of the Interest in Land
o Act may be indirectly causing a physical injury to
land/substantial interference with enjoyment/rights over land
Physical injury to land
o Actionable private nuisice sufficient invasion of the interest
of the p. on proof that the property has suffered material
injury, resulting in diminution of property value
o St Helens Smelting Co v Tipping: not relevant to look into
whether the locality in which the d. carried out the activity
was suitable (e.g. in this case, not relevant that the court
consider whether or not the copper smelting plant was located
in a suitable industrial locality)
o Locality is factor when deciding whether acts which cannot be
brought under private nuisance are sufficient interferences
with land need to define sensible material injury to
property sensible means damages visible by ordinary
persons without recourse to scientific evidence
o Meaning of property St Helens Smelting Co v Tipping:
material injury to property = damage goods on the premises
but not depreciation in the value of land and buildings
(interference producing sensible personal discomfort)

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o Distinction between physical injury to land and substantial
interference with enjoyment: physical injury d. does not
have to plead that all reasonable precautions had been taken
to prevent the injury being suffered true rule: Kraemers v AG (Tas) p.s cause of action is complete on proof of the
substantial injury to property, d. must show reasonableness of
any precautions that have to had been taken
Substantial interference with enjoyment
o substantial interference must be shown (Walter v Selfe (1851)
4 De G & Sm 315 at 322
o Examples of substantial interference with enjoyment: loss of
sleep, impinge on sense, use adjoining premises for
prostitution or sex shop, to install floodlights in domestic
premises (either to illuminate tennis court or back garden), to
erect glass veranda which reflects sunlight into neighbouring
buildings, equipment interferes with neighbours tv signals
Plaintiff putting land to a sensitive use
o if d.s activity damages p. because p. is carrying on some
extremely delicate trade on the land which demands
exceptional freedom from interference not actionable
nuisance
o Bridlington Relay Ltd v Yorkshire Electricity Board: ds
powerline interfered with p.s business of providing tv relay
service to subscribers held that p. did not have a claim
because their antennae were more sensitive and needed more
protection from interference than domestic antennae
o Important: need to distinguish requirement of substantial
interference from that harm actually suffered in respect of
which damages are recoverable Privy council decision
once nuisance is established, remedies for interference will
extend to a sensitive and delicate operation (e.g. growing of
orchids) damage of orchids was non-remote consequence of
what had already been proved to be a nuisance therefore,
the sensitivity of the orchids became irrelevant
Interferences which are not protected
o If d.s action is lawful, even if it deliberately blocks a
neighbours view, then no liability
o Victoria Park Raving and Recreation Grounds Co Ltd v Taylor:
p. lost profits due to d. broadcasting reports of the races p.
were unable to recover damages in an action in nuisance
because interference of the d. had effect only on the p.s
business activities not on their use/enjoyment of the land
Duration of interference
o Can be temporary in duration (because it can still be
substantial)

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Locality
o locality must be considered to determine how substantial the
interference is
o Pittar v Alvarez: action for nuisance dismissed p. had no
suffered more inconvenience due to smoke and soot from
neighbouring domestic fireplaces than people living in densely
populated districts
o Court must consider changes wrought in a localiy Dunstand
v King: sawmill was held to be a nuisance because at that
time there were few industrial undertakigns in the area
o No need to consider locality when the nuisance is constituted
by overhangings boughts of trees
State of affairs
o Castle v St Augustines Links Ltd: p. was blinded by golf ball
recovered damages from owners of the golf course for public
nuisance if ball had hit an interest of the occupier, private
nuisance would apply is the substantial interference the
actual injury sustained? if so , then all householders whose
windows have been broken by a golf ball can sue in nuisance
o Alternative view: test of substantial interference whether d.
was responsible for a condition of affairs on the land which
threatened damage golf course owners would only be liable
if they had constructed the golf course in such a way that it
would be foreseeable that occupiers of neighbouring land be
hit Bolton v Stone: pedestrian hit by cricket ball
o Damage does not have to be substantial if it is proven that the
state of affairs was such as to expose the premises to risk of
substantial harm
Interference with property rights
o can be a nuisance for d. to infringe a property right which the
p. has in respect of his/her land e.g. removal of support
which causes p.s land to subside
o other property right is that to light and air through a defined
channel
Unreasonableness
o conflict of interests between neighbouring landowners not
enough that p. shows that another is responsible for
substantial interference
The conduct of the defendant
The purpose of the activity
o need to take into account the purpose of the activity to see
whether or not it constitutes nuisance
Social utility
o even if d.s conduct is essential to the community and is of
high social utility, it must still be kept in mind that p. has a

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right to enjoy his property Munro v Southern Diaries Ltd: p.
complained of the noise/smell/flies from the stabling of horses
Malice
o if the d.s actions are motivated by malice and infringe the p.s
right to enjoy their property, then d. has committed nuisance
o Hollywood Silver Fox Farm Ltd v Emmett: d. let off guns on his
own property to disturb p.s foxes even though foxes can be
seen as putting the land to sensitive use, d.s malice held to
be nuisance
o Fraser v Booth: p. let off direcrackers to divert pigeons which
flew from d.s property over her own held that p. was not
liable because she did not disturb the d. in the use and
enjoyment of his land even though she had a malicious
intention
o Bradford Corporation v Pickles: d. abstracted water from
undefined channels under his land which would have
otherwise flowed into p.s reservoir even though d.
intentionally did this to make the p. pay an inflated price for
the land, p. did not have rights over the water not nuisance
Suitability of locality
o If disturbance complained of consists of emission (noise,
smell, dust, etc) of some form of trade or business need to
reference suitability of locality as one of the critera of
reasonableness
o Ball v Ray: stabling of horses in residential area more likely to
cause nuisance
o Comprehensive planning legislation (e.g. nowaways there are
places which are zoned for particular uses) suitability of
locality no longer that important
Ordinary use of land
o whether d.s activity is natural or ordinary is relevant in
determining reasonableness Bamford v Turnley: Those acts
necessary for the common and ordinary use and occupation of
land and houses may be done, if conveniently done, without
subjecting those who do them to an action [in nuisance].
o no need to complain if d.s actions are so ordinary that the p.
is also likely to do the same thing
Things naturally on the defendants land
o d. may be liable in nuisance for the escape of things which are
natural y on the land
o Sparke v Osborne: d. not liable for spread of weed from his
property to the p. because it would be an intolerable burden
on the d. for his to check the spread of the weed Privy
Council: it is probably that [it] would not be decided without a
balanced consideration of what could be expected of the
particular occupier as compared with the consequences of
inaction)
Impracticability of preventing or avoiding the interference

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o liability will depend on the resources available to the d. to
prevent interference
o if p. complains of the activities carried out by d., it will always
be material whether the latter could still have achieved the
same purpose but, by taking reasonably practical steps, have
prevented an undue interference with the use by the p. of
his/her land
There seriousness of the interference with the plaintifs
user of land
The extent of the harm
o Extent of harm must be considered, in addition to duration of
interference
The character of the harm
o harm suffered by p. will be either physical injury to land or
interference with personal enjoyment of land
o some authority supports the view that in physical injury to
land, it is irrelevant that d. has undertaken all reasonable
precautions to prevent/minimise the damage
o Stern v Prentice Brother Ltd: not nuisance because d.s actions
were neither unusual nor excessive
The suitability to the locality of the use interfered with
o if action lies due to industrial inference, courts have often
taken into account that the interference occurred in a
residential area
o Sturges v Bridgman: held that it was material to the success in
nuisance of a physician, who complained that his work was
interfered with by a confectioner because the locality was
where many doctors practised
Could the plaintiff easily have avoided the consequence of the
harm?
o If p. could have easily avoided the consequences of the d.s
actions, then relevant issue would be something difference
e.g. that cause of interference was the plaintiffs own default,
but p. is never expected to accommodate to the d.s actions
Who Can Sue?
Nature of the interest necessary
o plaintiff can sue in nuisance only if he/she has an interest in
the land affected e.g. owner, tenant, licensee
o This does not cover those who merely reside with the
freeholder or tenant, or an unconditional purchaser of land
o landlord may sue on proof that reversionary interest in the
land has been interfered with p. will succeed by proving
harm of a permanent character
Types of damages recoverable
o Damage to chattels Howard Electric Ltd v A J Mooney Ltd:
damage to chattels was recoverable head of loss once

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damage to the plaintiffs [land] is established, he is entitled to
damages for whatever loss results to him as a natural and
foreseeable consequence of the wrongful act of the
defendant.
o Damages for personal injury: Pelmoth v Phillips: held injury
suffered, in the nature of nervous shock affecting the
plaintiffs health, being a reasonable and natural consequence
of the activities of the defendant, was compensable
Who Can be Sued?
o a person is liable in nuisance if he/she bears some degree of
personal responsibility having played a part in the creation
of nuisance or from a failure to remedy
Creation of the nuisance
o if actual wrongdoer is invested with the management and
control of the premises where the nuisance arises, liability
ensures irrespective of whether he/she is an occupier in the
normal sense of the word
o One who authorises another to commit a nuisance is also
liable
o d. can be vicariously liable for nuisances created by an
employee in the course of employment
o Occupier will not be liable if the acts of the independent
contractor cause injury which is neither necessary nor a
natural consequence of the employment of the contractor
Failure to remedy
o if occupier does not take reasonable steps, in the light of
his/her financial/other resources to remedy a dangerous state
of affairs on the land, then he/she is liable
o no liability if d. did not know or not ought to have known of
the state of affairs or could not be presumed to know that the
state of affairs would be dangerous to the neighbours
o most circumstances: occupier is liable by allowing trees to
encroach on and damage land (in NSW this has been
abolished by stature, in Queensland, there are alternatives
provided for by legislation)
Landlord and tenant
o Landlord and tenant must be treated separately
o If landlord knows of an issue at the date of letting, then the
landlord is liable during the tenancy (limited to those which he
knows or ought to know)
o P. must prove that defect resulted from landlords failure to
repair
Must the Interference Complained of Emanate from Land?

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o not necessary that disturbance to plaintiffs right to enjoy land
emanates from land belonging to the defendant
o Interference can be from the highway
o p. cant sue in nuisance for the activities of the defendant
which occur on the p.s own land
Defences
Prescription
o right to commit nuisance: easement by prescription law of
real property
o Australian/New Zealand is mostly registered under the Torrens
system
o Legislation in Australia (except NSW) does not prevent the
acquisition of easements by prescription
o Creating easement 20 years continual user without
owners permission or knowledge
o acts which are neither prevented nor actionable cannot be
relied upon to found an easement
The relevance of the conduct of the plaintiff
o not a defence if p. came to nuisance by occupying land
adjoining it, not a defence if the nuisance only arose because
p. has chosen to use a particular part of the land
o law protects a person in the reasonable use of land against
the nuisances which d. has not a prescriptive right to but p.
must take reasonable steps to mitigate loss
o Defences of consent and assumption of risk also available
defences
Statutory authority
o most important defence bc most activities which interfere with
enjoyment of land are carried out by public or private
enterprises in pursuance of an act of parliament
o defence of statutory authority fails if parliament authorised
was no more than a permissive act which might be carried out
without committing a nuisance matter of interpreting the
statute
Other defences
o Other defences e.g. defence of property or necessity may be
available
o not a defence that the act of the d. would not have been a
nuisance byt for the act of others, too, provided that the d.
knew what the others were doing
Fire
o Fires Prevention (Metropolis) Act 1774 s86 (not in NSW, n and
NT) it is a defence to prove that the fire began accidentally

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- but not application if the fire was caused by the negligence
of the defendant or intentionally even if fire was accidentally
started, if the d. negligently allowed the fire to increase in
size, then the defence would not apply burden of proof is on
the p. to prove that the fire was not accidental (only effect)
legislation is out of date
Remedies
Damages
o Sought when nuisance suffered was material injury to property
or interference with natural right of support for land
measure of damages similar to trespass
o P. is entitled to full restitution for that loss as well as losses as
are a reasonably foreseeable consequence of the commission
of the nuisance (e.g. business that has suffered interference,
loss of custom, if p, is forced to move elsewhere because of
the nuisance)
o Can take into account of future and past damages
Injunction
o If interference is likely to continue, p. will seek to prevent
further damage granting injunction against d.
o Once p. has proved that substantial interference has occurred
and is likely to continue, then burden is on the d. to prove that
injunction should not be granted
Abatement
o Self-help remedy removal of the source of the interference
(not merely taking protective measures to minimise its
harmful effects)
o If the removal of the source of interference involve entering
the land, it can be a defence to what may otherwise be a
trespass
o Permitted, but not favoured damages not available for
injury or cost of doing the work
o Does not affect the plaintiffs right to damages or injunction
Public Nuisance
Elements
o Any act/omission which obstructs or causes inconvenience or
damage to the public in the exercise of rights common to all
her majestys substances may constitute the crime of public
nuisance
o If this crime affects a number of people, they may bring an
action in tort since it affects public, action is usually
brought in the name of the Attorney-General individual
may maintain action in tort in public nuisance by showing that
they have suffered particular damage

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o Doesnt have to be actual pecuniary loss, but be of
inconvenience or delay
o Most important area: nuisance on the highway by obstruction
or rendering passage along it unsafe
The relation between public nuisance and private nuisance
o Distinct
o In public nuisance, prescription is not defence
o Private nuisance dont need to prove more lose than their
fellows, provided that they show substantial interference
o One form of private nuisance: interference with access to a
highway same facts may also constitute public nuisance
need to distinguish the two
o Rights of access (e.g. other property rights such as
easements) under property law different emphasis from
private nuisance
o Issue: has p. a right which the d. has violated? nor whether
d.s conduct is so unreasonable that an interference should be
deemed tortious
o Interference with access (roads or waters) is actionable
without proof of specific damage
CHAPTER 7: Duty of Care
Introduction
Emergence of negligence as a separate tort
o prior to 1825, negligence was subsumed under action on the
case
Conduct must be negligent and not merely careless
o carelessness do not necessarily constitute tort of negligence
o negligence means more than heedless or careless conduct,
whether in omission or commission: it properly connotes the
complex concept of duty, breach and damage thereby
suffered by the person to whom the duty was owing
o Three elements of the tort: duty, breach of duty, and where
the ensuing damage was within the risk created
The Duty Concept in General
Duty as a complex concept
o actions in negligence must fail where duty is not established
o important control mechanism against unwarranted expansion
of liability
o d. must be proved to owe a duty at least to somebody to act
or refrain from acting
o In some circumstances, there is not such duty p. must
further show that d. owed a duty specifically to the plaintiff
when acting in the manner complained of
o A must show not only that B owes A a duty but a duty in
respect of that interest of A which B has violated

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Rationalisation of the duty concept
o law initially developed by decisions that in some particular
circumstances there was a duty and in others, there was none
o Heaven v Pender first to attempt to rationalise these cases
o Lord Atkin in Donoghue v Stevenson: The rule that are to love
your neighbour becomes in law, you must not injure your
neighbour; and the lawyers questions, Who is my neighbour?
receives a restricted reply. You must take reasonable care to
avoid acts or omissions which you can reasonably foresee
would likely to injure your neighbour. Who, then in law if 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.
Creation of new duties
o categories of negligence are never closed that in
accordance with changing social needs and standards new
classes of persons legally bound or entitled to the exercise of
care may from time to time emerge
o Donoghue v Stevenson concept of duty has been extended
includes air traffic controllers duty to pilots and passengers
o Lord Wilberforces two-prong test in Anns v Merton London
Borough Council limited: focused on policy considerations
rather than whether it would be just and reasonable establish
duty of care 1) need sufficient relationship of proximity
based on foreseeability 2) any reason there should not be a
duty of care
o Other limitations: test would not be necessary if the facts fall
into a category which has already been recognised by the
authorities as attracting a duty of care, the scope of which is
settled - test cant be used to expand or restrict existing duty
situations or when in a factual situation in which the
existence of such a duty had been repeatedly held not to
exist
o Australia: test of proximity (Dean j in Jaensch v Coffey)
reasonable foreseeability
o Proximity factors: physical nearness, in the sense of space and
time
o Brennan CJ, rejected Anns approach, preferred that law should
develop incrementally and by analogy with established
categories any new categories of negligence (most found
favour with the house of Lords)
o No clear concise formula reasonable foresight is essential
but a negative/positive answer will not always give a straight
answer (e.g. was the injury suffered reasonably foreseeable?
no no duty, yes need more inquires)

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o Three-stage test: whether damage to p. was reasonably
foreseeable, relationship between p. a d f. was sufficiently
proximate, and if so, whether it was fair, just and reasonable
to impose a duty of care (criticism: third stage might
encourage courts in new situations to rely on ill-defined policy
considerations rather than legal principles)
o Policy considerations still should be relevant to the inquiry,
even if they are not conclusive
A duty must be owed directly to the plaintiff
o incumbent on the plaintiff to establish that he or she
personally was owned the duty
o if p. is in breach of a duty of care to Z, but that Y also suffered
damage in result of same careless act early cases would
see that Y can recover Palsgraf v Long Island Railroad Co:
no duty of care to Y, also Bourhill v Young (deciding case)
Particular Examples of the Duty Concept
Unborn plaintifs
o duty of care may exist not to cause injury to a plaintiff who is
in his/her mothers womb
o third party may be liable in damages to a child born with
disabilities sustained before birth as a consequence of that
partys negligence (Watt v Roma)
o Same principles apply to a foetus (B v Islington Health
Authority) also to allow a child to sue its mother for injury in
utero (Lynch v Lynch)
Omissions
o distinction between failure to act and positive action
o grounds of liability for an omission to act (exception and arises
only where there is a duty to act) is different from grounds of
liability for action (liability is presumed unless it can be
excused/justified) nonfeasance and misfeasance
Mere omissions
o where the failure to act is causally linked with p.s harm,
then the failure to at is a mere omission no liability
o if X witnesses a road accident, but does not call for medical
assistance, X is not liable even though X can foresee that
the victim might die if he didnt seek medical assistance
Duty to act
o Omissions which give rise to liability needs to be a duty to
act (as opposed to a duty to take reasonable care when act)
o For this duty to exist, there must be the foreseeability of injury
or damage, as well as relationship between tortfeasor and
victim must contain some feature which makes it reasonable

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for the law to impose liability for a failure to act (e.g.
ownership, occupation or use of land, earlier act of d.)
o e.g. if a person creates a danger and the omission is the
immediate cause of harm liability
o Duty may stem from understanding of a task which leads
another to rely on its being performed, or the ownership,
occupation or use of land or chattels
Special relationships
o some relationships contain special features that give rise to a
positive duty to take reasonable care to prevent or reduce risk
of harm including contractual relationships, non-contractual
relationships, fiduciary relationships, employment
relationships, and relationships between occupiers of adjoining
land
Existing relationships
Teachers and school authorities
o Teachers and school authorities have a duty of care over their
pupils to ensure that reasonable steps are taken to prevent a
reasonably foreseeably risk of injury
Doctor-patient
o Doctors have a duty of care over their patients covering all
the ways in which a doctor is called upon to exercise his skill
and judgment
o Doctors are the repository or specialised information or
knowledge only source upon which the individual can draw
and on whom the individual must rely on
o Not fiduciary relationship
Parent-child
o Relationship of dependency
o moral obligation of the parent, created by the blood
relationship, does not, of itself, automatically translate into a
legal obligation (Hahn v Conley) somehow wrong for a
child to sue its parents for an act/omission arising directly out
of parental obligation
Jailer-prisoner
o Relationship of dependency since jailer has taken away the
prisoners personal liberty and assumed control of his/her
person
Rescuers
o There is no obligation to rescue or attempt to rescue, unless
there are special circumstances that might give rise to a
positive obligation to rescue BUT rescuer will be liable if it was

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the rescuer who created the danger in his failure to rescue,
leading to victims death/injury
o Duty to rescue extends only to the need to take reasonable
care to attempt to rescue but if the rescuer is negligent and
causes injury or damage which would not have occurred, there
may be liability
o A person who acts according to conscience and attempts to
rescue will be protected since the law recognises their duty of
care
Duty to control the acts of third parties
o General rule: common law imposes no obligation on a person
to control the actions of another foreseeability of injury is
not sufficient to create a duty (even where the person would
not incur no personal risk in assuming control)
o Parents: not liable for the wrongful acts of their children but
parents who have immediate physical care and control of a
child will be responsible for negligence
o Smith v Luers: 13 year old kid, playing with shanghai parent
not liable because child was old enough to understand the
dangers of using a shanghai and he had disobeyed his father
o Carmarthenshire County Council v Lewis: actionable breach of
duty to users of the highway council was liable for failing to
take reasonable care to prevent a four year old girl from
straying onto a busy highway
o Hill v Chief Constable of West Yorkshire: presence of strong
policy grounds for not holding the police responsible in tort for
failure to control criminal behaviour
o Some relationships between two parties that gives rise to a
duty on the part of one of them to take reasonable care to
prevent harm ensuing to the other from the deliberate
criminal acts of a third party include employer and employee,
school authorities and pupils, bailor and bailee, jailer and
prisoner and hoteliers and patrons (but not occupier and
entrant)
Statutory powers
o public authority may be subject to a duty of care in the
exercise of its statutory powers
o Damages for negligence may be recovered if those who
exercise statutory powers could by reasonable precaution
prevented an injury which was occasioned
o Sutherland Shire Council v Heyman
o Principles to be applied in determining whether a public
authority has a duty of care or has breached a duty of care:
a) the functions required to be exercised by the authority are
limited by the financial and other resources that are
reasonably available to the authority for the purpose of
exercising those functions

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b) the general allocation of those resources by the authority is
not open to challenge
c) the functions required to be exercised by the authority are
to be determined by reference to the broad range of its
activities (and not merely by reference to the matter to
which the proceedings relate)
d) the authority may rely on evidence of its compliance with
the general procedures and applicable standards for the
exercise of its functions as evidence of the proper exercise
of its functions in the matter to which the proceedings
relate
The planning/operational dichotomy
o originated from the decision in Dalehite v United States civil
suit immunity because original Cabinet deicision was
concerned to protect planning level decisions
o Planning decisions (not reviewable) is not the same as
operational decisions (conduct whereby policy is put into
operation and is reviewable)
o L v Commonwealth expressly adopt designations planning
and operational
English courts and the planning/operational dichotomy
o most English cases before Anns: accepted that liability only
lay where there was misfeasance
o no criterion by which a court can assess where the balance
lies between the weight to be given to one interest and that to
be given to another
o no immunity if discretion is exercised so carelessly or
unreasonably that there has been no real exercise of the
discretion
Australian courts, the planning/operational dichotomy and the ultra
vires doctrine
o In Anns, it was held:
1. that ultra vires was a precondition to any tortious liability
on the part of a statutory authority
2. in respect of planning matters, a duty of care might arise
by virtue of the proper consideration qualification
o policy/operational dichotomy remains relevant in considering
whether a statutory power gives rise to a duty of care
Omissions
o nonfeasance: no liability (Anns, Sheppard v Glossop
Corporation) rule that where where a public authority has a
power but no duty to act, it will only be liable, where it does
decide to act, for any additional harm brought about by its
intervention

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o antecedent act which has created or increased risk of injury
liability
o Antecedent act of public authority may lead to a situation of
dependence or reliance on the authority of the public
Occupiers liability
o duty owed by occupiers of land or premises towards any
visitor
o Two main factors: these special duties reflected then
prevailing attitudes about the sanctity of ownership of
property framed to provide minimal intrusion on these
rights, and injury suffered by visitor usually resulted from
some defect in the static condition of the premises
o Australian Safeway Stores Pty Ltd v Zaluzna: in order to
determine whether respondent was owed a duty, necessary
degree of proximity of relationship (reasonable foreseeability
of a real risk of injury to the visiter or to the class of person of
which the visitor is a member)
Pure mental harm or nervous shock
What is pure mental harm?
o not all injury to the psyche (if not consequential on physical
injury) is compensable
o Threshold test: is the reaction what most normal people
experience when someone they are fond of is injured/killed?
o Difference in common law approach (NT, Qld, WA) is that pure
mental harm is compensable (but the injury must be
recognised by the psychiatric profession or one which may
come in time) and in ACT, NSW, TAs and Vic: legislation denies
liability for pure mental harm resulting from negligence
unless the harm consists of a recognised psychiatric illness
frozen type of harm
Development of the law
o past reluctance to award damages for non-physical injuries
difficulty of putting monetary value on such a loss, risk of
fictitious claims, difficulty of proving link between d.s conduct
and p.s shock
o Primary and secondary victims secondary victims (suffer
pure mental harm) must be in a close and loving relationship
with primary victim,
o Tame v NSW wrongly reported accident dismissed
o Annetts v Australian Stations Pty Ltd son who died whilst
working as a jackeroo for the d. held
The basis of liability
o duty of care will only arise if d. ought to have foreseen that a
reasonable person might suffer a recognised psychiatric

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illness if reasonable care were not taken (legislation), even if
d. was aware that p. was esp. vulnerable
Factors to be taken into account:
Whether the psychiatric illness was the result of a sudden shock
- notion that illness must be shock-induced was rejected as a
precondition of recovery, at least where p. was a primary
victim and illness had been caused by p.s employer (Jaensch
v Coffey NSW v Seedsman) because principles relating to
standard of care and remoteness of damage were adequate
control devices in that situation
- Tame v NSW: in all cases of pure mental harm, question of
whether illness was shock-induced is not a prerequisite to
liability but it is something that might be a factor (al
jurisdictions other than NT and QLD)
Direct perception of distressing events
- before Tame v NSW: control factor was that if p. was a
secondary victim, then the psychiatric illness must have
resulted from a relatively close connection with a distressing
event affecting the primary victim
- Jaensch v Coffey: liability required the direct perception (i.e.
sight, hearing or touch) this view has weakened
- Benson v Lee: direct perception includes sigh of the
immediate aftermath of the accident, even if p. has not seen
or heard the actual impact/explosion/other precipitating event
e.g. through a telephone call, watching news
- Tame: direct perception of distressing events or their
aftermath is no longer a prerequisite to liability, but a further
factor that is to be taken into account similar approach in
legislation in all jurisdictions except for NT, QLD and Tas
courts take into account whether the p. witnessed at the
scene, the person killed, injured or put into danger
- Legislation in NSW, SA, Tas, Vic limitation on recovery of
damages for pure mental harm suffered by secondary victim
cannot claim damages unless he/she witness at the scence,
the primary victim being killed, injured or pu in peril, or was a
close member of the famil of the primary victim
- Wicks v State Railway Authority of NSW; Shechan v State Rail
Authority of NSW no recovery because the rescuers arrived
after the deaths and did not witness the derailment
Relationship between primary and secondary victim
- sufficient relationship e.g. workmates, rescuers, but not
bystanders
- legislation in Aus other than Qld, Tas, and NT relationship
between primary and secondary victim is a further matter

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-
In NSW, SA, Tas and Vic, secondary victim must be close

member of family to recover damages
Relationship between plaintiff and defendant

o whether or not p. and d. knew each other before 1.
employment relationship 2. p.s mental harm is caused by d.s
injury not of a third person but of the defendant personally
o Tame v NSW McHugh J company had a duty of care due to
the pre-existing relationship between that company and the
Annetts
o Claim for mental harm based upon the plaintiffs witnessing
the fact, or the apprehension, of physical injury which the
defendant has inflicted upon himself/herself rather than on a
third person Deane J in Jaensch v Coffey no recovery for
p. but rejected in FAI General Insurance Co Ltd v Lucre
recovery for d. even though primary victim was defendant
Extent of mental harm
o egg-shell skull rule once p. has proved that d.s breach of
duty caused some damage which was reasonably foreseeable,
then d. is also liable for any further injury flowing therefrom
o Tame v NSW this rule applies to cases of mental harm
principle of compensation
Contributory negligence of a primary victim
o NSW only legislature to impose further restriction on damages
recoverable by a secondary victim who has suffered mental
harm in connection with a primary victim suffering death or
physical injury (CLA s 30 (3)) if primary victim has been
contributorily negligent
Primary victim voluntarily accepted risk of harm
o NSW AND VIC: no award of damages if recovery of damages
from d. by and through the victim would be prevented by any
written or unwritten law
o E.g. if victim had voluntarily accepted risk, then family/close
relationship person cannot claim damages
Damage to property
o Can also apply to pets, houses (Attia v British Gas plc), funeral
hearse (Owens v Liverpool Corporation)
No Duty Situations
o sometimes no duty of care exists:
1. Barristers
- barrister/solicitor acting as advocate has immunity against incourt negligence also applies to for any work conducted outside
the court which is connected to the case and affects the way that
cause is conducted during hearing

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- policy reasons Authur J S Hall & Co v Simons courts have
sufficient powers under the doctrine of res judicata to protect
finality in civil proceedings and that a collateral challenge to a
criminal conviction was an abuse of process unnecessary to
preserve the barristers immunity
2. Wrongful conception: Wrongful life
- parents of an unplanned child can sue for the costs in
raising the child if it can be proved that the doctor/health
professional was negligent
- Cattanach v Melchior: doctor didnt clip the right fallopian
tube, woman pregnant damages
3. Protection of volunteers
- volunteers are not liable for any act/omission done in good
faith (does not cover criminal conduct or being under the
influence of alcohol or drugs)
4. Liability for animals straying onto the highway
- rule in Searle v Wallbank: owners of land abutting highways
are under no duty to users of highways to keep
hedges/fences/dates to prevent animals form straying
State Government Insurance Commission v Trigwell
legislation which abolishes the rule(Brown v Toohey
Meagher JA)

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Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

the d.s occupancy (e.g. if d. uses part of the land for

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

were to insist upon damages, it could be seen to be

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

In NSW, SA, Tas and Vic, secondary victim must be close

Relationship between plaintiff and defendant

Law of Torts 5th Edition (R P Balkin, J L R Davis) Summary Notes

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