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					MONASH UNIVERSITY                                FACULTY OF LAW




                                  JD



                             LAW 7266




                    PRINCIPLES OF TORTS



           READING GUIDE Trimester 2 2009




                    Suzie Linden – Phone:0411442029


               e-mail Suzie.Linden@law.monash.edu.au
Topics

See Appendix One. Not all listed topics will be covered in detail. Topics of Primary
emphasis are marked *.

Case studies are included in the topics to be studied, to be used as background for
seminars. However, it is contemplated that these topics may change from year to year to
address current issues in tort law.

Page references to “LH” are to the textbook: Luntz, Hambly et al, Torts:Cases and
Commentary, 6th edition, LexisNexis, 2009


                          APPENDIX ONE – TOPICS COVERED


1.    INTRODUCTION TO TORT LAW

      What is a Tort?
      Development of tort law
      The function of tort law
      Types of interests protected
      Relationship between torts and other areas of law
      Objectives of the law of torts – Tort Law reform – Ipp Report
      Role of insurance in tort law
      Remedies available when a tort has been committed.
      Categories of tort actions*.


2.    INTENTIONAL TORTS - TRESPASS TO THE PERSON

      Battery*
      Assault*
      Statutory alternatives
      False Imprisonment*
      Action on the case: Intentional (non-trespassory) injury to the person*
      Defences*
      Remedies*

3.    CONTROL AND PROTECTION OF GOODS

      Bailment*
      Trespass to Goods*
      Conversion*
      Detinue*
      Remedies*

4.    RIGHTS AND DUTIES ASSOCIATED WITH LAND

      Trespass to Land*
      Private Nuisance *
      Defences*
      Remedies




                                                                                          2
5.    THE TORT OF NEGLIGENCE

      5.1    General Principles / Wrongs and Other Acts (Law of Negligence) Act
             2003 (Vic)

      5.2    Duty of Care – General test for Establishing Duty of Care*

      5.4.   Breach of Duty of Care*
                - The reasonable person
                - Standard of Care
                - Causation and Proof – Res Ipsa Loquitur
      5.5    Causation* – in fact
                          - in law – Novus Actus Interveniens
      5.6    Remoteness of Damage*
      5.7    Vicarious Liability*
             Non-Delegable Duties of Care*
      5.7    Defences*
                    – Contributory Negligence
                    - Voluntary Assumption of Risk
                      - Illegality
      5.8.   Particular Duty Situations
             Nervous Shock*
             Rescuers*
             Omissions / Duties of Affirmative Action*
             Occupiers Liability
             Defective Products & Structures
             Pure Economic Loss Caused by Statements*
                   - Tort of Deceit
                   - Negligent Misstatements*
             Statutory Alternatives - Trade Practices Act 1974 (Cth) /Fair Trading Act
             1999 (Vic)
             Pure Economic Loss Occasioned by Negligent Acts*

6. Limitations, Contribution Between Tortfeasors




                                                                                         3
                            SEMINAR ONE – INTRODUCTION

1.    Definition & Scope -     What is a Tort?
                        Development of tort law
                        The function of tort law
                        Types of interests protected
                        Relationship between torts and other areas of law
                        Objectives of the law of torts – Tort Law reform – Ipp Report
                        Role of insurance in tort law
                        Remedies available when a tort has been committed.
                        Categories of tort actions*.
LH: Ch 1

2.     Trespass and the action on the case

LH Ch 11

2.1:   Trespass – Elements to Cause of Action

       2.1.1: Direct act vs indirect
              Hutchins v Maughan,LH 579
              Southport Corporation v Esso Petroleum Co. Ltd, LH 581
              Scott v Shepherd, LH 581

       2.1.2: actionable per se – burden of proof

       2.1.3: Voluntary vs involuntary

       2.1.4: Positive act vs passive conduct/omission


2.2:   Battery - Application of force to person of another, manner of contact


       2.2.1: Must the contact by angry or hostile?
              Cole v Turner, LH 590
              Collins v Wilcock, LH 592
              Wilson v Pringle, referred to in Rixon,LH 589
              Rixon v Star City LH 589


2.3:   Assault – Cause of Action


       2.3.1: creation of reasonable apprehension of unlawful contact

       2.3.2: apprehension vs fear

       2.3.3: apprehension – objective test

             Brady v Schatzel [1911]SR Qd 206

       2.3.4: apparent capacity vs actual capacity


                                                                                        4
2.3.5: effect of words – conditional threats

       Tuberville v Savage LH 593
       Rozsa v Samuels LH 593
       Rixon v Star City LH 589

2.3.6: mere words enough?

       Zanker v Vartzokas LH 594
       Barton v Armstrong [1969] 2 NSWLR 451

2.3.7: statutory alternatives

       Crimes Family (Violence Act) 1987, ss3-5, 7, 22-23
       Crimes Act 1958 (Vic), s21A – stalking,




                                                            5
                  SEMINAR TWO: TRESPASS TO THE PERSON

1.     False Imprisonment

1.1:   definition – total restraint of a person‟s freedom of movement

1.2:   total restraint – no reasonable means of escape, conditions as to exist

              Bird v Jones, LH 604
              Balmain New Ferry Co Ltd v Robertson LH 607
              Herd v Weardale Steel Coke & Coal Co LH 609
              Keng Feng Tan “A Misconceived Issue in the Tort of False Imprisonment”,
              (1981) 44 MLR 166
              Trindade, F., “The Modern Tort of False Imprisonment”, in N. J. Mullany (ed)
              Torts in the Nineties, 1997,229

1.3:   nature of restraint – physical/psychological

              Symes v Mahon, LH 605
              McFadzean c CFMEU LH 605

1.4:   knowledge of restraint

              Murray v Ministry of Defence, LH 611

1.5    directness of restraint

              Dickinson v Waters Ltd LH 614
              Myer Stores Ltd v Soo LH 615


2. Action on the case – Intentional Infliction of Injury

LH – 619-627

2.1:   Definition: an intentional act calculated to cause damage and damage so caused

              Bird v Holbrook (1828) 130 ER
              Wilkinson v Downtown LH 619
              Nationwide News Pty Ltd v Naidu, LH 623-6




                                                                                             6
2.2:   intentional infliction of injury – implied from malice or reckless indifference

             Carrier v Bonham LH 620
             Hanford D, “Wilkinson v Dowtown and Acts Calculated to Cause Physical
             Harm” (1985) UWALR 31


3. Trespass to the Person : Defences

LH Ch 13

3.1:   Consent

       3.1.1: form, scope – cover the act in question

             McNamara v Duncan LH 656

       3.1.2: real vs fraud, duress, incapacity, mistake

             Latter v Braddell LH 660

       3.1.3: medical practice - overlap between trespass vs negligence

             Chatterton v Gerson LH 658
             Rogers v Whitaker LH 658

       3.1.4: minors – vs parental/court

             Department of Health v JWB (Marion‟s Case) LH 664-5

       3.1.5: refusal of consent, legislative provisions LH 660-661

       3.1.6: revocation of consent

             Balmain New Ferry Co Ltd v Robertson LH 607

3.2: Defence, Defence of Another & Defence of Property

       3.2.1: reasonable conduct
              Proportionality

             Fontin v Katapodis LH 671
             Rozsa v Samuels LH 593
             Zecevic v DPP LH 672
             Ashley v Chief Constable of Sussex Police, LH 674-5

3.2.2: defence of others

             Goss v Nicholas LH 672

       3.2.3: protection of property


                                                                                         7
3.3:   Necessity

       3.3.1: imminent danger

       3.3.2: reasonable necessity – to avoid greater peril

3.3.3: no contrary policy considerations

             Southwark London Borough Council v Williams LH 669

       3.3.4: public necessity, private necessity

       3.3.5: personal protection

             Scott v Shephard, LH 581

       3.3.6: protection of others

             Proudman v Allen LH 670-1

       3.3.7: prevention of suicide

             Crimes Act 1958 (Vic), s463B

       3.3.8: medical necessity

             Murray v McMurchy LH
             In re F (Mental Patient: Sterilisation), LH 667
             Part 4A – Guardiaship and Administration Act 1986n (Vic)
             Medical treatment Act 1988 (Vic) ss 3, 5, 5A, 5B, 5C, 6

3.4:   Lawful Authority – Arrest

       3.4.1: powers of arrest

             Crimes Act 1958, ss 457-459; 461-2, 464A

       3.4.2: mode of arrest – common law

             Christie v Leachinsky [1947] AC 573, per Viscount Simon 587-8, Lord
             Simonds 591-3 LH 676-7
             Dallison v Caffery [1965] 1 QB 348, per Denning MR, 365-7
             Crimes Act 1958 (Vic) s464A

3.5:   Inevitable Accident

       McHale v Watson LH 584

3.6:   Contributory Negligence

       Wrongs Act 1958 (Vic) ss25-26, LH 322
       Horkin v North Melbourne Football & Social Club LH 675




                                                                                   8
4. Other Aspects of Trespass - Intentional and Unintentional Acts


4.1:   Is intention an essential element of the tort of trespass – UK vs Australia

              England:     Fowler v Lanning LH 583-4
                           Letand v Cooper LH 585
                           League Against Cruel Sports v Scott, LH 585

              Australia:   Williams v Milotin LH 582
                           McHale v Watson LH 584
                           Stingel v Clark, LH 586, 602

4.2.   Highway cases:      Venning v Chin LH 585-6

4.3.   Future Directions   Platt v. Nutt LH 586-7

4.4. Impact of Civil Liability Legislation: Wrongs Act 1958 (Vic) s 28C, s28LC, LH 589


5. Remedies

5.1:   Damages – Nominal, Compensatory, Aggravated, Exemplary

5.2:   Injunction


6. Statutory Alternatives to trespass to the person

6.1:   Domestic Violence and Sexual Abuse

       Family Law Act 1975 (Cth)
       Crimes (Family Violence) Act 1987 (Vic), ss3-5, 7, 22-23
       Crimes Act 1958 (Vic) s21A (Stalking)

6.2:   Alternative Sources of Compensation

       Victims of Crime Assistance Act 1996 (Vic)




                                                                                         9
                           SEMINAR TWO – CASE STUDY

You are asked to advise Max as to his common law rights and liabilities (if any) arising from
the following incidents.

While Max was refuelling his car at a country service station, another motorist, Peter, who
was also refuelling his car, noticed Max was smoking. Max was intoxicated and swore at
Peter when asked to extinguish his cigarette. Peter, fearing an explosion, jumped at Max,
knocking the cigarette from Max‟s lips, stamping on it and kicking it under Max‟s car.
Max was furious as it was his last cigarette. He threatened Peter, telling him that he‟d break
his neck if Peter didn‟t go and buy him another packet of cigarettes. Peter retreated quickly
to the service station office to summon the owner.

                                                                                [8 marks]


Peter‟s girlfriend, Pru, was alarmed. She tried to get out of Peter‟s car to follow Peter to the
office, but was stopped by Max leaning against her door. Max swore at Pru, telling her to
„stay put if you know what‟s good for you‟. Pru was too scared to try leaving the car again
and instead locked both car doors for added protection from Max.

                                                                               [6 marks]

When Peter returned to find Max leaning on his car, he pushed Max aside and helped Pru
out of the car. The service station owner, Con, told Max to leave the service station and go
sober up for his own good. Max took no notice and continued arguing with Peter. Con, with
Peter‟s assistance, took Max by the arm and escorted him a short distance to a nearby
police station. Max was not charged with any offence and later reclaimed his car,
threatening legal action.

                                                                               [6 marks]




                                                                                               10
                    SEMINAR THREE – PROTECTION OF GOODS
Supplementary Materials SM

1.     Bailment

1.1.   Definition
1.2.   Duties of bailees
       Ashby v Tolhurst SM1
       Morris v CW Martin & Sons Ltd SM 4

2.     Trespass to Goods

2.1. Cause of action – “unauthorised direct and intentional interference with possession of
goods “

       Penfolds Wines Pty Ltd v Elliot SM 17
2.2.   Standing to Sue? – actual/constructive possession/immediate right to possession
2.3.   Can trespass to goods occur unintentionally?

       Everitt v Martin SM 21


3.     Action on the case

3.1.   remedy for permanent damage

3.2.   Accidental harm - Mears v London & Southern Western Railway Co, SM 22

3.3.   Intentional damage - Hurrell v Ellis SM 23
                           Penfolds Wines v Elliot, per Dixon J SM 23


4.     Conversion

4.1.   Cause of Action – “Dealing with goods in a manner inconsistent with rights of true
       owner”
4.2.   Standing to Sue – possession or immediate right to possession at time of conversion

       International Factors Ltd v Rodriguez [1978] 3 WLR 877 SM 40
4.3.   Conduct amounting to act of conversion

       4.3.1. taking possession or dispossession

                     Fouldes v Willoughby SM 32
       4.3.2. withholding

       4.3.3. dealing & assertion of a proprietary right

                      Oakley v Lister SM 30


                                                                                              11
       4.3.4. transfer of possession

       4.3.5. destruction, loss, alteration or damage

       4.3.6. wrongful use of goods

                       Penfolds Wines Pty Ltd v Elliot, SM 34
4.4.   Defendant‟s state of mind

                       Moorgate Mercantile Co Ltd v Finch, SM 35
                       Willis v British Car Auctions Ltd, SM 37


5. Detinue

5.1.   Cause of action – “wrongful detention of, or refusal to return, a chattel to a person
       entitled to possession of it after a request for its return had been made”
5.2.   Onus of proof

              Houghland v RR Low (Luxury Coaches) Ltd SM 24


6. Remedies for conversion & detinue

6.1.   assessment of damages

              Greenwood v Bennettt [1972] 3All ER 586 SM 42




                                                                                               12
                            SEMINAR THREE – CASE STUDY
James Armstrong is the proprietor of Prestige Motors in Melbourne, which only sells „collectors‟
models‟ of well-known European cars like Porsche, Mercedes Benz, BMW, Audi etc.
On 1st January 1999, Richard Nixon, posing as a doctor, obtained a special model BMW from
Armstrong on hire purchase as follows:


            Cost of car: $180,000…
            Nixon has paid: $30,000.
            Balance of $150,000 to be paid in fifteen monthly instalments of
            $10,000 each commencing 1st February 1999.
            Car to belong to Armstrong until all instalments are paid and hirer
            not to loan, sell or dispose of car until all instalments are paid.


On 2nd February 1999 Nixon, who has driven the car to Sydney, changes its number plates and
forges its registration certificate in a way that cannot easily be detected and then sells the car to
Mike Smith, proprietor of Super Motors, a well-known Sydney car dealer.
On 15th February since Nixon‟s first instalment was not received, Armstrong had sent a certified
letter to the Melbourne address given by Nixon, but the letter had been returned with the
endorsement “no such person at this address”. On 23rd February, Armstrong received an
anonymous telephone call saying, “your missing BMW is at Super Motors, Sydney”.
The next day Armstrong flies to Sydney. He borrows his brother-in-law‟s Mercedes Benz and goes
to the Super Motors office and showroom. Unable to spot the BMW, he asks for the owner. He tells
Mike Smith that he had learnt that his BMW was at this showroom. Mike Smith is not helpful and
tells Armstrong, „I don‟t know what you are talking about. If you have any problems about a missing
car, go tell the police‟. When Armstrong replies, „I think you are lying, I know you‟ve got the car‟,
Mike Smith extends his fist to punch Armstrong who steps back, knocks over some boxes and falls
on the floor.
As Armstrong is getting up, Mike Smith together with his assistant, Andrew pushes Armstrong into
an adjoining enclosed room and locks the door, saying, “wait there „til I get some of my mates.
Then we will really fix you up”. After about ten minutes the door is opened and the police are there.
Mike Smith had telephoned them.
The police take statements from both parties but decide not to press charges saying that it was a
civil dispute. Armstrong drives back to his brother-in-law‟s house to find that the Mercedes Benz
had been badly scratched on the left hand side with some metal by some employee of Super Motors
while he was there. The next morning while still in Sydney the police inform Armstrong that the
BMW is at Express Garages in Sydney. Although it has a new number plate, the engine number
was that given by Armstrong.
Armstrong contacts Express Garages and claims the car. They tell him that it had been given to
them for a repaint and some minor repairs by Super Motors. They have done work to the value of
$5,000 on it and if he wants the car, he must pay the $5,000 and bring a letter from Mike Smith.
Advise Armstrong of his legal rights (if any). Richard Nixon cannot be found. There is a well-known
agency called „Car Lovers‟ in Queensland which has a computerised inventory of the ownership of
all prestige cars and this particular BMW was in that inventory.
If further facts are necessary to develop your answer, state them.




                                                                                                        13
       SEMINAR FOUR – PROTECTION OF GOODS (Continued) & LAND


1.      Land

1.      Trespass to land


1.1.    Cause of action : positive conduct causing direct interference with another‟s
        possession of land


1.2.    types of interference/nature of defendant‟s conduct

               League Against Cruel Sports v Scott, LH 585

1.3.    Continuing trespass

               Konskier v B Goodman Ltd, LH 631

1.4.    Meaning of “land”

               Berstein v Skyviews & General Ltd, LH 644
               LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd, LH 646
               Wrongs Act (Vic) 1958, ss 30, 31
1.5.    Standing to Sue

               Newington v Windeyer, LH 642

1.6.    Defences - Consent: Express & Implied Licence

               Halliday v Nevill LH 632
               Lincoln Hunt Australia Pty Ltd v Willessee, LH 637
               Rinsale Pty Ltd v ABC, LH 639
               ABC v Lenah Meats Pty Ltd LH 640

1.7.    Revocation of consent

               Cowell v Rosehill Racecourse Co Ltd,LH 630 [12.2.4] and 651 [12.5.4]




                                                                                        14
2.     Private Nuisance

2.1.   Purpose – remedies for unreasonable interference with the beneficial use and
       enjoyment of land
2.2.   Standing to Sue

              Oldham v Lawson (No 1) LH 692
              Hunter v Canary Wharf Ltd LH 686
2.3.   Substantial and unreasonable interference

       2.3.1. physical damage

              St Helen‟s Smelting Co v Tipping LH693

       2.3.2. non-physical damage

       2.3.3. interference with use and enjoyment via sensibilities, eg smell, noise, etc

              Walter v Selfe LH 693
              Munro v Southern Dairies Ltd, LH 693
              Seidler v Luna Park Reserve Trust LH 697-8

       2.3.4. malice on the part of the defendant

              Hollywood Silver Fox Farm Ltd v Emmett, LH 698
2.4.   Interests Not Protected

       2.4.1. Freedom from observation

              Victoria Park Racing Co Ltd v Taylor, LH 701

       2.4.2. Interference with television reception

              Hunter v Canary Wharf LH 686

Who can be Sued? – Persons Legally Responsible

       2.5.1. Creators of Nuisance

              Fennell v Robson Excavations Pty Ltd, LH 704

       2.5.2. Continuing and adopting a nuisance

              Sedliegh-Denfield v O‟Callaghan, LH 708
              Hargrave v Goldman, LH 709
2.6.   Defences

       2.6.1. Coming to the Nuisance

              Miller v Jackson, LH 722

       2.6.2. Statutory Authorisation



                                                                                            15
             Lester-Travers v City of Frankston, LH 715

2.7.   Remedies

       2.7.1. Abatement (self help)- LH 728

       2.7.2. Damages – LH 728

       2.7.3. Injunction LH 730

             Miller v Jackson LH 722
             Kennaway v Thompson LH 730




                                                          16
                            SEMINAR FOUR– CASE STUDY

Recently, Amanda‟s unmarried brother Bart was discharged from an alcoholic rehabilitation
centre. To assist with his rehabilitation, Amanda purchased an outer suburban home with a
semi-country atmosphere for herself and Bart to live.

On their first morning at the new house, Amanda and Bart were awoken at 5.00 am by a
strange cooing noise. To her horror, Amanda saw hundreds of pigeons swooping over her
front lawn. The pigeons were owned by her neighbour, Colin.

Over the following weeks, Amanda and Bart, who are light sleepers, were constantly woken
early, sometimes before dawn, by the noise of Colin‟s pigeons. The pigeons droppings
soiled clean washing on Amanda‟s clothesline and some built nests in Amanda‟s chimney,
causing blockage.

Amanda complained to Colin and asked him to take charge of his birds. She is a tolerant
person, but was concerned that the disturbance was adversely affecting Bart‟s health. She
explained Bart‟s condition in some detail but Colin simply dismissed her request saying, „it‟s
good for the body to wake up early‟.

Bart‟s emotional condition deteriorated due to the pigeons and he became agitated. Armed
with a box of poisoned bird seed he clandestinely entered Colin‟s property and emptied the
poisoned seed into Colin‟s pigeon feed barrel. Later, Colin fed the poisoned seed to his
birds and several prize birds died. Elated, Bart sought to repeat the procedure but was
caught by Colin as he entered the pigeon house. Colin grabbed the box of seed from Bart‟s
hands, yelled at Bart and stalked off to contemplate his revenge.

Over the next month, Colin telephoned and awoke Bart at midnight, threatening in
menacing tones to poison Bart if he went anywhere near the pigeons again. Overcome by
fear, Bart broke down and sobbed during these conversations, much to Colin‟s delight. As
a result, Bart has become extremely nervous and seldom steps outside for fear he might
brush against or injure one of Colin‟s pigeons.

Advise Colin as to his liability (if any) to (I) Amanda and (ii) Bart. Also advise Bart as to his
liability (if any) to Colin.




                                                                                                17
                  SEMINAR FIVE - NEGLIGENCE : Duty of Care
1. Duty of Care LH Ch 2

Wrongs Act 1958, Part X - Negligence, Divisions 1 & 2.S43

1.1    Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic) – thresholds

1.2    Overlap with Contract Law
1.3
              Donoghue v Stevenson LH 102-6

1.4    Historical Origins/General concept

              Heaven v Pender referred to in Donoghue v Stevenson
              Donoghue v Stevenson LH 102-6

1.5    Reasonable Foreseeability of harm

              Chapman v Hearse LH, 130
              Caterson/ Commissioner for Railways (NSW) LH 132

1.6    Foreseeability of Vulnerable

              Bourhill v Young LH 138
              Chester v Waverley Municipal Council LH 138
              Haley v London Electricity Board LH 360
2.     “Proximity” Concept and Policy Considerations LH 147-9

              Jaensch v Coffey, LH 149
              Sutherland Shire Council v Heyman LH 147
              Gala v Preston, LH 149

2.1.   Evaluation of Current Approach
              Sullivan v Moody LH 113-16
              Tame v NSW/Annetts v Australian Stations Pty Limited [2002] HCA 35 (see
              last section of class materials) LH 445-52

3.     No Duty Situations – Policy Considerations
       3.1.   Military

                     Shaw Savill & Albion Co Ltd v The Commonwealth, LH 166
       3.2.   Barristers

                     D‟Orta-Ekenaike v Victoria Legal Aid, LH 153
       3.3.   Parents

                     Robinson v Swincer, LH 418-20




                                                                                        18
                                   BREACH OF DUTY

Wrongs Act 1958 (Vic), Part X, Division 2 & 5. SS 48-50, 56-60, 14G
LH Ch 3

1.     Standard of Care

2. What is negligent conduct?
             Blyth v Birmingham Waterworks Co LH 171

3.     The “Reasonable Person”


       3.1.1 Objective vs Subjective standard
                    Vaughan v Menlove LH 171
       3.1.2: Minors

                    McHale v Watson LH 209-11
       3.1.3 Disability

                    Adamson v Motor Vehicle Insurance Trust, LH 212

       3.1.4 Inexperience/Modified Duty/Consensual relations

                    Imbree v McNeilly LH 222-26
       3.1.5. Situations requiring no special skills – ordinary reasonable person

                    Blyth v Birmingham Waterworks Co, LH 171

       3.1.6: Defendant‟s special knowledge, skill and expertise

                    Phillips v Whiteley Ltd LH 227

3.2.   Time when defendant‟s conduct is judged

                    Roe v Minister of Health LH 200
3.3.   Foreseeability – what risks are reasonably foreseeable?
                    Wyong v Shirt LH 176-77
4.
5.     Calculus of Negligence

                    Wyong Shire Council v Shirt LH 176
                    Woods v Multi Sport Holdings Pty Ltd (2002) 208 CLR 460 (460-484)

4.1    Likelihood/Probability of risk occurring

                    Bolton v Stone LH 184



                                                                                        19
4.2   Gravity of Consequences186-7

                     Paris v Stepney Borough Council, LH

4.3   Burden of Taking Precaution/Conflicting Duties

      4.3.1 Cost & Practicality of taking alleviating action

                      Caledonian Colleries Ltd v Speirs LH 199

      4.4.2: Importance of Activity/ social utility

                      Watt v Hertfordshire County Council, LH 198
      4.4.3: Common Practice

                      Mercer v Commissioner for Road Transport & Tramways (NSW) LH
                      203
      4.4.4: Common Medical practice

                      Bolam v Friern Hospital Management Committee, referred to in
                      F v R, LH 219
                      Rogers v Whitaker, LH 215-18
                      Percival v Rosenberg HCA 2001 219-21
      2.4.5: Legislative Standards

                      Tucker v McCann, LH 547-8

5:    Proof of Negligence

      Burden of Proof

                     Holloway v McFeeters, LH 237-39
      Circumstantial evidence – Res Ipsa Loquitur

                     Schellenberg v Tunnel Holdings LH 240-43




                                                                                     20
     SEMINAR SIX – NEGLIGENCE – Causation, Remoteness of Damage,
                            Case Study
LH Ch 4 & 5

Wrongs Act 1958 (Vic), Part X, Division 3. S 51,S52.

Causation LH Ch4
1:     Causation – Tests – But For test

       Barnett v Chelsea & Kensington Hospital Management Committee, [1969] 1 QB 428
       March v Stramare, LH 251-55
       Chappel v Hart LH 256,259

1.1: Increased Risk

       McGhee v National Coal Board, LH 262
       Chappel v Hart, LH 259
       Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL, LH 262
1.2: Take Plaintiff as you find them

       Performance Cars Ltd v. Abraham, LH 268-9

1.3. Successive Injuries

       Baker v Willoughby LH 272

1.4 . The Vicissitudes Principle

       Jobling v Associated Dairy LH 273-6
       Faulkner v Keffalinos LH 276-7,285

2:     Novus Actus Interveniens

       Haber v Walker, LH 281-84
       Mahoney v Kruschich LH 287
       March v Stramare
       Bennett v Minister for Community Welfare (1992) 176 CLR 408 , LH 278,282


3. Remoteness of Damage
   Wrongs Act 1958 Vic), S 51(1)(b) & (4)
   LH Ch 5

3.1: Test – Reasonable foreseeability of the Same Kind of Harm

       Overseas Tankship (UK) Ltd v Morts Dock & Engineering, (Wagon Mound 1)
             LH 296-98
3..2: Reasonable Foreseeability

       Overseas Tankship (UK) Ltd v Morts Dock & Engineering, (Wagon Mound 2)
                  LH 301-2
3.3: Manner and Type of Harm


                                                                                   21
       Hughes v Lord Advocate LH 305
       Mt Isa Mines v Pusey LH 311-12
       Tremain v Pike, LH 311-12
       Doughty v Turner, LH 311-12
       Nader v Urban Transit Authority, LH 316-17
       Versic v Connors, LH 306
3.4:   Extent of Harm – Thin Skull Rule

       Stephenson v Waite Tileman, LH 307-8


                             SEMINAR SIX– CASE STUDY

Allan, a wealthy businessman plans to host a big reception in his home for Marcello, who
has just won an Olympic gold medal for weight lifting (heavyweight division). He
commissions Rockwood, an architect to design a big stage to be erected on the front lawn
of his house. As part of the celebrations, Marcello will attempt a world record in
weightlifting on the stage.


Rockwood draws up the plans and specifications for the stage and submits them to the
Waverley Council for approval. Dillon, the Council‟s Building Inspector, passes the plans.
Dillon is a very overworked employee who lacks the relevant qualifications as a Building
Inspector. However, the Council, because of financial stringency, decides not to employ a
fully qualified inspector. A fully qualified inspector on a careful inspection of the plans and
specifications would have realised that the stage, when constructed, would not be able to
sustain the minimum weight per square metre as prescribed by the Council‟s by-laws.


After the stage has been built by the building contractor in accordance with the plans and
specifications, Rockwood visits and gives the stage a cursory examination. He then
informs Allan that he is very pleased with the structure. Dillon, because he is so
overworked, decides not to inspect the completed stage.


On the day of the celebrations, a number of local dignitaries, including Allan and Mayo, the
Mayor, are seated on stage to watch Marcello‟s attempt at the world record. On his first
attempt, Marcello stumbles and crashes to the floor and is pinned down under the weights.
The impact causes the stage to collapse. Mayo, after extricating himself from the
wreckage, tries to lift the weights to free Marcello. In the process, Mayo wrenches his back.
Allan suffers severe head injuries as a result of the collapse of the stage.


Mina (Marcello‟s wife), who is watching the live telecast of the celebrations in her home
(located 400 km away from Allan‟s house) suffers a nervous breakdown at the sight of her
husband pinned down under the weights.


Advise Allan, Mayo and Mina as to whether they have any causes of action in tort, and if so,
against whom they should bring proceedings.




                                                                                              22
  SEMINAR SEVEN– NEGLIGENCE – VICARIOUS LIABILITY AND NON-
                DELEGABLE DUTIES OF CARE

1. Vicarious Liability / Wrongs Act 1958 (Vic), Part X, Division 5. s 61

1.1.   Master-Servant/Employer – Employee relationship

             Hollis v Vabu LH 807
             Mersey Docks & Harbour Board v Coggins & Griffiths LH 817
1.2.   Scope of Employer's Responsibility – For what acts of the employee is the employer
       responsible?
       1.2.1. Performance of tasks in an unauthorised/prohibited manner

             Bugge v Brown LH 819
             Beard v London General Omnibus LH 821
             Limpus v London General Omnibus Co, LH 821
       1.2.3. Servant commits assault

             Deatons Pty Ltd v. Flew LH 824
             Bazley v Curry,
             NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4, LH 828
       1.2.5. Dishonesty by employee

             Lloyd v Grace Smith & Co LH 829-32
             Morris v. C.W. Martin & Sons Ltd SM 4
             Paine, T., „Employer‟s Vicarious Liability‟ (2003) Plaintiff 23
             White, S., & Orr, G., „Precarious Liability: The High Court in Lepore, Samin
             and Rich on school responsibility for assaults by teachers‟ (2003) 11 Torts
             Law Journal 101
             Wangmann, J., „Liability for Institutional Child Sexual Assault: Where does
             Lepore leave Australia?‟ (2004) 28 MULR 169

2. Personal „Non-Delegable‟ Duties
2.1.   General principles - Employer's non-delegable duty to employee

             Kondis v. State Transport Authority LH 851-3
2.2.   School‟s non-delegable duty to its students
             Commonwealth v Introvigne LH 854
             NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4, LH 854-5
2.3.   Occupier‟s non-delegable duty to neighbours

             Burnie Port Authority v. General Jones Pty Ltd LH 848

2.4.   Occupier‟s non-delegable duty inapplicable to entrants
            Jones v Bartlett LH 856, 120

       Wrongs Act 1958 (Vic); s61, Liability based on non-delegable duy



                                                                                            23
4   Principal and Agent

          Sweeney v Boylan Nominees Pty Ltd LH 843-6




                                                       24
                   SEMINAR EIGHT– NEGLIGENCE : DEFENCES
                                  LH Ch 6
1. Contributory Negligence

                Wrongs Act 1958 (Vic) , ss. 25-26, SS 62-63 Part X, Division 7
                Froom v. Butcher LH 327
                Caterson v Commissioner for Railways LH 332
                Pennington v Norris LH 329


2. Voluntary Assumption of the Risk: Volenti Non Fit Injuria / Wrongs Act 1958 (Vic),
Part X, Division 4. SS53-55

                Scanlon v American Cigarette Company Overseas Pty Ltd LH 344
                Imperial Chemical Industries Ltd v. Shatwell LH 347
                Kent v. Scattini LH 350
                Insurance Commissioner v Joyce LH 348

2. Illegality
                Wrongs Act 1958 (Vic), S 14G
                Henwood v. Municipal Tramways Trust (S.A.) LH 456
                Gala v. Preston LH 149
                Italiano v. Barbaro LH 437

3. Volunteers and Good Samaritans
            Wrongs Act 1958 (Vic), ss31A, 31B, 33-40

4 Limitation of Actions
                 Limitations of Action Act (Vic) 1958, ss 5(1), 5(1AA)


5.Contribution & Indemnity between Tortfeasors

A defendant‟s right of contribution is not actually a defence against the plaintiff‟s
claim, but rather a claim by a defendant against another co-defendant(s) aimed at
apportioning part of the blame (and responsibility for damages) onto other defendants.
This right arises under statute law : see Wrongs Act (Vic) 1958 ss 23B,24




                                                                                         25
                              SEMINAR 8 - CASE STUDY

Jack is fourteen years old and too young to hold a driver‟s licence. He has, however,
extensive driving experience and is a competent driver. He has demonstrated his driving
competence to his fourteen year old friend Ben. Jack‟s sister lets Jack drive her taxi in
return for cleaning it. One day Jack and Ben decided to take the taxi to their local suburban
hotel and together consumed twelve bottles of beer each over two hours. They staggered
from the hotel unsteadily holding each other up and singing silly songs. Jack stumbled into
the driver‟s seat and the taxi weaved down the road to be hailed by Mrs Jones, who was
shepherding home her intoxicated husband.


Mrs Jones gave her address to Jack through the car window to which Jack strangely
replied, „I‟ll take you to the stars‟. She looked at him more closely, noticing that he looked
very young, dishevelled and smelt faintly of alcohol. But Mr Jones had already stumbled
into the car oblivious of everything. A car accident ensued with injuries to
Mr and Mrs Jones.


The Joneses were pulled from the car by bystanders. A police siren was heard. „Let‟s get
out of here‟, shouted Ben as a police vehicle converged upon them. Jack accelerated as
the police car signalled that they pull over. „Faster‟, shouted Ben, and Jack accelerated
further. The car skidded off the road, crashed into a tree and Ben sustained head injuries.


Jack admits that his negligence in driving under the influence of alcohol caused the
accidents. Both Jack‟s and Ben‟s blood alcohol levels were found to be 0.1% at the
relevant time.


Advise Jack:
(i)   who may bring negligence actions against him and in respect of which conduct; and
(ii)  what defences he may raise to any negligence actions brought against him.




                                                                                                 26
           SEMINAR NINE – SPECIAL DUTY CATEGORIES


1. Nervous Shock –Wrongs Act 1958 (Vic), Part XI
      LH 7.11

         Mount Isa Mines v Pusey, LH 445
         Tame v NSW; Annetts v Australian Stations Pty Limited [2002]HCA 35, LH
         445-52
         Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.


2. Rescuers
      LH 7.10
        Haynes v Harwood, LH 442
        Chapman v Hearse LH 130




                                                                                  27
                         SEMINAR NINE – CASE STUDY
1.   Sweet-Pea nagged her father, Popeye, for months to allow her to go on a camping
     expedition. Eventually Popeye begrudgingly agreed. The trip is organised by
     Outdoor Leadership Inc – a group whose objective is to cultivate leadership qualities
     in young people by teaching them outdoor survival skills. Sweet-Pea is 12, but
     under federal law, the legal age at which children are permitted to go on trips run by
     OLA and similar groups is 13. The organiser of the trip tells Popeye to state that
     Sweet-Pea is 13 on the application form, so that there are no problems with the age
     requirement.

     Due to the negligence of the expedition organisers, Sweet-Pea becomes separated
     from the group and goes missing. A major aerial and land search is initiated and live
     television coverage broadcasts footage of the rugged terrain and says that the
     weather conditions are worsening by the minute. The broadcasts also show library
     footage of another search that had been conducted in the same area the year
     before, with the (dead) body of the lost person being carried out of the forest covered
     in a blanket. Popeye is so distraught by the whole affair that he does not pay
     attention when the “library footage” note comes up on the screen and he thinks they
     have found Sweet-Pea dead. Popeye falls into a dissociative and depressive state
     as a result of the shock of seeing the dead body on the stretcher and because he
     feels so guilty about having allowed Sweet-Pea to go on the trip. His condition lasts
     10 months. Sweet-Pea is missing for a total of four days but is eventually found
     completely unharmed.

     Can Popeye sue the Outdoor Leadership Adventures Inc?




                                                                                          28
                      SEMINAR TEN– NEGLIGENCE: Special Duty Categories

Omissions - Duties of Affirmative Action – LH 7.7

1 Creation of danger
2
     1.1 Defendant has control of the situation

          Goldman v Hargrave LH 413

       1.2. Reasonable reliance, Dependency & Assumption of Responsibility
                           Wrongs Act 1958 (vic), SS79, 82-83
              Sutherland Shire Council v Heyman LH 408

2. Special relationship between P & D, eg doctor/patient

       2.1.   Schools

              Geyer v Downs, LH 417

       2.2 Parent/Child

              Robertson v Swincer LH 418-20

3.     Assumption of responsibility and control

                Smith v Leurs, LH 422
                Carmarthenshire CC v Lewis, LH 424

Occupiers Liability - LH 7.5 / Liability of Public Authorities, Wrongs Act 1958 (Vic),
Part XII
1.    Liability to entrants

       Australian Safeway Stores Pty Ltd v Zaluzna, LH 387
       Wrongs Act 1958 Vic Part IIA

2.     Liability to neighbours – non-delegable duty for dangerous substances & activities

       Burnie Port Authority v General Jones Pty Ltd LH 848

2.3    Liability for Unauthorised Acts of Third Parties

       Modbury Triangle Shopping Centre v Anzil LH 395-97

Defective Products & Structures –
1.1.   manufacturers, builders, designers

       Donoghue v Stevenson,
       Grant v Australian Kniting Mills Ltd, LH 374
       Bryan v Maloney (1995) 182 CLR 609
       Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515




                                                                                            29
1.2.   intermediate examination

       Voli v Inglewood Shire Council, LH 119,139
1.3.   statutory alternatives
       Trade Practices Act 1974 (Cth), Pt V, Div 2A and Pt VA, LH 377




                                                                        30
                              SEMINAR TEN– CASE STUDY
Bayside City Council is the local authority for an area adjacent to Port Phillip Bay. Recently, a
number of roller blade skaters have begun to use the footpaths and cycle paths along the foreshore
in bayside. The Council also lays a new concrete path along the foreshore in Bayside. The Council
is concerned that pedestrians may be injured by speeding blade skaters, so it puts up signs along
the paths by the foreshore, that state “Pedestrians Only: No Roller Skaters of Bicycles”

The Council also lays a new concrete path around Yellow Box Park, which is near the Bay. Signs
reading “Pedestrians Not permitted: Roller Skaters and Bicycles Only” are erected around the paths
and spray-painted on its surface.

Yellow Box Park gets its name from it many yellow box trees, and the new concrete path passes
beneath the branches of several of them. Yellow Box trees are known by foresters as “window-
makers” because of their tendency to drop branches even in clam windless conditions.

Harry loves to roller-skate on blade skates. Early one morning, he goes to Yellow Box Park to skate
around the new path. A branch has fallen from one of the yellow box trees and it is lying on the path.
Harry is skating at full speed, and he does not see the branch until it is too late to stop. His skates
hit the branch and he falls and hits his head. He now suffers from epilepsy as a result of his head
injuries.

Harry was not wearing a crash helmet. His skull was fractured in the fall and he has now suffered
brain damage.

Advise Harry.




                                                                                                    31
       SEMINAR ELEVEN – NEGLIGENCE – Special Duty Categories
Pure Economic Loss
LH Ch 16

1. Action in deceit – LH 757-59

2.     Negligent Misstatements –

2.1.   General Duty Criteria

              Hedley Byren v Heller, LH 759-62
              MLC v Evatt, LH 821, LH 763,765
              Shaddock & Associates v Parramatta City Council LH 764
              San Sebastian Pty Ltd v Minister, LH 766

2.2.   Third Party Recovery – Beyond Immediate Recipient of statement

              San Sebastion LH 766-767
              BT Australia Ltd. V Raine & Horne Pty Ltd LH 768
              Esanda Finance v Peat Marwick Hungerfords, LH 776-779

2.3.   Statutory alternatives

              Trade Practices Act 1974 (Cth), ss52, 53, 53A, 82
              Fair Trading Act 1999 (Vic) ss9-11, s159-160

2. Pure Economic Loss by Negligent Acts – LH Ch 16.3

3.1.   Third Party Property Damage

              Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstad”, LH 783
              Perre v Arpand LH 784-92
              Johnson Tiles Pty Ltd v Esso Australia Pty Ltd, LH 792

3.2.   Third Party Breach of Conttract/Undertaking

              Hawkins v Clayton LH 770
              Van Erp v Hill (1997) LH 772-76




                                                                            32
                         SEMINAR ELEVEN– CASE STUDY
Question One

In June 1999, John Scrooge – a businessman – was negotiating a large business deal with
XYZ Company. XYZ asked Scrooge for independent information about his financial
credibility, whereupon Scrooge showed them a credit report from his banker (Progress
Bank) and an audit report of his company by ABC, a leading audit firm. The bank‟s credit
report issues “To Whom It May Concern”, stated that Scrooge was „a long standing and
good business customer‟ but added „this report is issues without responsibility on our part‟.
ABC‟s audit report showed that Scrooge‟s company was earning good profits. Scrooge had
arranged for XYZ to telephone the Progress Bank, and they told XYZ that they confirmed
the credit report they had given Scrooge. XYZ did not contact ABC.

Acting on both the bank‟s report and ABC‟s audit report, XYZ entered into business with
Scrooge but very soon lost $2 million because of Scrooge‟s insolvency. Another company
– Alpha Ltd – which had heard about the Progress Bank‟s and ABC‟s favourable reports
about Scrooge, had also done business with Scrooge and Alpha has lost $1 million also
because of Scrooge‟s insolvency. Both XYZ and Alpha now learn that both the bank‟s
report and the audit report had been carelessly prepared and at the time both reports were
issues, Scrooge and his company were almost insolvent.

About the same time, in another development, Wiz Samuel (45 years) who had been a
senior executive at Progress Bank for over 10 years left to start his own financial institution.
For this purpose he applied for a licence from the Commonwealth statutory body that had to
approve new financial institutions. The statutory body asked Progress Bank for a
testimonial about Wiz – their former employee. Progress Bank erroneously submitted an
adverse testimonial, a copy of which they had also posted to Wiz. Relying on that
testimonial, the statutory body refused Wiz the licence, as a result of which Wiz suffered
substantial financial loss. Expecting the licence, Wiz had also selected four employees to
work in his new firm. Now Wiz tells them „sorry you have lost your jobs because of
Progress Bank‟ and shows them the adverse testimonial.

Your advice is sought on whether a duty of care is owed in the following legal claims:

(i)     XYZ against Progress Bank and ABC;
(ii)    Alpha against Progress Bank and ABC;
(iii)   Wiz against Progress Bank; and
(iv)    the four „employees‟ against Progress Bank.




                                                                                              33
Question Two

Aqua Fisheries Pty Ltd (Aqua) leases premises in a Melbourne industrial estate to conduct
an indoor intensive aquaculture business. The business breeds specialty fish for human
consumption and sells direct to private customers and restaurants. Most of Aqua‟s
immediate neighboring businesses have been untroubled by minor fishy odors coming
from its factory and waste drainage points. However, Bop Pty Ltd, which operates a newly
established children‟s play centre 50 metres from Aqua‟s premises, is complaining of a loss
of customers due to the fishy odor. Aqua has done everything possible to minimize the
odors, but Bop is now threatening legal action.

Small amounts of fish-pond waste water have also been seeping underground from Aqua‟s
property into a low ground depressions in the front yard of their immediate neighbour, Reno
Corp, from which run-off during rain storms Reno‟s grass lawn is being partly discolored.
Despite complaints from Reno, Aqua is reluctant to fix the leak because of its minor nature
and the high cost of affecting repairs.

Most recently, Aqua‟s business suffered a major accident that killed 80% of its fish stock.
Investigations have revealed that (i) the fish were poisoned by a highly toxic chemical
contaminant that entered their fish food, (ii) the chemical came into contact with the food
without Aqua‟s knowledge when the food was stored in factory storage bins that had been
used to store the chemical during a previous tenancy, (iii) the chemical belonged to
Chemcorp, who arranged to have it stored at the premises with the permission of the prior
tenant, Ace Cleaners, and (iv) Chemcorp failed to clean all residue from the bins when it
removed the chemical on the understanding that Ace was to clean the premises completely
before vacating and (v) the presence of these chemical residues were difficult to detect by
simple visual inspection.

The true cause of the fish deaths remained unknown for several weeks. In the meantime,
Aqua destroyed all of the affected fish, with the exception of one fish that was inadvertently
sold to a private customer. This was eaten by the customer‟s father. Rex, who has
developed cancer as a result of consuming small amounts of the toxic chemical.

Aqua Fisheries now seeks your advice regarding:

   (a) its liability ( if any) to (i) Bop Pty Ltd, (ii) Reno Corp, and (iii) Rex.
   (b) (b) its right to claim damages from Chemcorp in relation to its poisoned fish.




                                                                                             34
SAMPLE EXAM QUESTION




                                 Monash University
                                   Trimester Three 2004
                                      Faculty of Law

EXAM CODES:                  LAW 7266
TITLE OF PAPER:              PRINCIPLES OF TORTS
EXAM DURATION:               120 minutes writing time
READING TIME: 30 minutes
                             (noting is permitted in this period and authorised material may be consulted,
                             but you may NOT write in your examination booklets until told to do so.)

THIS PAPER IS FOR STUDENTS STUDYING AT:( tick where applicable)
 Berwick          Clayton           Malaysia          Distance Education      Open Learning
 Caulfield        Gippsland         Peninsula         Enhancement Studies  Other (specify)
    Candidates are reminded that they should have no material on their desks unless its
               use has been specifically permitted by the following instructions.
AUTHORISED MATERIALS
CALCULATORS                                      YES          NO
OPEN BOOK                                        YES          NO
SPECIFICALLY PERMITTED ITEMS                     YES          NO
„Open Book‟ means a student is entitled to bring any specifically permitted items into the
       examination for use during the examination.
„Specifically permitted items‟ are legislation, books (including legal and general dictionaries)
       handouts, study guides, and personal notes. Such material may be highlighted or annotated.
       Items NOT PERMITTED are Monash University Library books, calculators, computers
       (including electronic dictionaries), or mobile phones.
INSTRUCTIONS TO CANDIDATES
1. The duration of the exam allows time for you to plan your answers, and you are strongly
   encouraged to do so.
2. The standard of expression, spelling, punctuation and grammar will be taken into account in the
   assessment of your answers in this examination.
3. Write your student ID number (but NOT your name), and your lecturer‟s name on the cover of
   each answer booklet used.
4. This examination consists of ONE question. All candidates are required to answer this question.
   You would be advised to spend approximately two hours on this question.

You are NOT permitted to remove this examination paper from the examination room.
                                           **********
Page 1 of 4




                                                                                                         35
                                          Question
Abe and his wife Betty, and their 2 children, Charlie (14), and Debbie (10), are holidaying at
the Family Fun Resort (The Resort). The Resort offers many activities, including horse
riding, canoeing, hiking and a range of other activities. It has special children‟s groups, giving
parents time out to enjoy themselves during the day.

The Resort also operates a stable for racing horses. The manager of the stable, Bruce, has
recently acquired an interest in one of the colts, called “Tortatious”. Another guest at the
Resort, Terry, is a keen racing enthusiast and hears about the new colt and becomes
interested in investing into the syndicate that owns Tortatious. He wanders down to the
stables and bumps into Bruce. He tells Bruce that he is interested in investing into the
syndicate, but wants to check out the horse first. Bruce tells Terry that he is also a horse vet
and offers to examine the horse and provide Terry with a veterinary certificate the next day.
Bruce is busy with the Resort for the rest of the day and does not have time to examine the
horse. The next day when Bruce sees Terry at the stables, feeling embarrassed for not
having examined the horse and not wanting to lose out on another investor, he says to
Terry:

       “Well, I have seen Tortatious and he seems fine to me. We all have great
       expectations that this horse is going to be a great champion – he will win lots of races
       and make lots of money”.

He then takes out a form headed “Certificate of Soundness”, completes the horse‟s details
on the form, signs it and hands it to Terry, noting that, in the circumstances, there would be
no charge. At the bottom of the certificate is the following statement:

       “Although every effort is made to report faithfully, some defects exist which are not
       apparent without an autopsy”.

Terry proceeds that same day to purchase one (1) share in the syndicate, in the amount of
$200,000. A week later, back home, he shows his mother Shirley the veterinary certificate,
and she gives him $200,000 to purchase a share in the syndicate in her name.

Two months later Tortatious runs his first race but collapses after crossing the finishing line
and has to be put down due to a serious heart disease. This disease could have been
detected up to 6 months earlier by listening to the horse‟s heart with a stethoscope, a
standard part of any veterinary examination.

Abe and his son Charlie are experienced canoeists. They decide to spend the afternoon
together canoeing down to a nearby waterfall. The weather is overcast and, after half an
hour it starts to rain, at times heavily. Visibility is poor. As they are paddling down stream,
they see a sign post in the channel ahead saying “Caution – Rocky Section - Remain in
Deep Channel “. Believing that this meant that the deep channel lay ahead of the sign, both
Abe and Charlie paddle on straight ahead. In fact, the deep channel was to the left of the
sign and a dangerous rocky channel lay beyond the sign. An arrow on the sign, pointing in
the correct direction of the deep channel had worn away during storms earlier in the month,
and with the poor conditions, was not easy to see. Abe and Charlie proceed beyond the sign
believing they are in the deep channel.

As they continued, they realised that they were in fact in a shallow rocky section of the river.
Both Abe and Charlie struggle to keep their canoes upright and soon both are thrown into
the cold water. Luckily for them, this is a narrow section of the river, near the golf course.
One golfer, Ross, sees Abe and Charlie struggling in the water and jumps in to try and help
                                                37


them. As he tries to reach Abe, the current pushes him up against some rocks, hitting his
head and cutting his leg.

A short time later, a rescue crew team from The Resort arrive. Abe and Charlie are taken to
shore, and are only a little shaken by the incident, but suffer no physical injuries. The rescue
team bundle Ross into a car and take him to the local Public Hospital. Upon arrival, Ross is
assessed as having a deep cut in his forehead, as well as on his leg, both of which require
stitches. Otherwise, he has no significant injuries. However, the surgical instruments used on
Ross had not been properly sterilised due to a recurrent fault with the Public Hospital‟s
sterilising machine which has not as yet been replaced. As a result, Ross contracts a rare
infection in the wound in his leg, and due to Ross‟s poor immune system, he develops
complications, and eventually, has to have his leg amputated below the knee. Ross was a
professional footballer with one of the Victorian teams, and has lost out on lucrative
sponsorship contracts. .

Betty, although scheduled to play tennis that morning, decides instead to rest by the pool.
Another guest, Mary, wanted to try out Betty‟s new special tennis racket However, noticing
Betty asleep on the lounge-chair; she decides not to wake her up and simply takes Betty‟s
tennis racket, which was lying in her bag, intending to return it later in the afternoon.
However, later, on the tennis court, when running to get to a ball, Mary falls over, and the
racket hits the net post and snaps in two.

Meanwhile, Debbie is spending the day at the children‟s club, for kids under 12 years of age.
Part of the activities for the day is an afternoon hike, leaving at 3pm. There are 15 children
in the group, under the charge of one instructor, Ivan. Ivan is employed by The Resort on a
casual basis. He is paid on an hourly basis, being given a set fee for the number of hours
worked. Rosters are prepared by The Resort, which determines the work schedule, including
rostered days off. The Resort provides Ivan with weekly pay summaries, based on the
number of hours worked over the weekly period. Ivan works for other child care groups and
resorts in the area. Ivan does not wear the standard Resort uniform, except for a rain parker
and hat that is given to him by The Resort, with The Resort emblem and name on it.

Ivan heads off with the group after lunch, on one of the easier hikes to a waterfall.
Unfortunately, Ivan is not feeling too well as he had a number of drinks with mates over
lunch. Ivan is leading at a fast pace and although the rest of the group is keeping up, due to
poor visibility Debbie finds herself lagging behind. Soon she finds herself separated from the
rest of the group, and notices the weather getting worse and the wind and rain starts. She
stumbles across a large rock face and small cave, and manages to find shelter inside the
small cave.. Ivan decides to cut the hike short, given the sudden change in weather and
heads the group back to the Resort. Betty is waiting for the group to return and starts to get
hysterical when she notices that Debbie is not there. She asks Ivan, who indicates that he
had not realised that Debbie had gone missing; having failed to do a head count at both the
beginning and during the hike.

A search part is sent out that afternoon. Despite scouring the area, by the time it was dark,
some 2 hours later, there was still no sign of Debbie. Betty is terribly upset and did not sleep
all night. She turns on the television and sees a late news bulletin which reports that a 10
year old child had gone missing and, because of the inclement weather, there were grave
fears about finding her alive. Betty collapses, feeling guilty and blaming herself for letting her
daughter go on the hike. The next morning she is taken to the Public Hospital where she is
diagnosed as suffering from a nervous breakdown due to the shock and worry about her
daughter. Two days later after ongoing searches, Debbie is miraculously found alive. Betty
however, subsequently suffers a psychotic depressive illness.




                                                                                                37
                                             38


The Resort keeps its own supply of petrol, stored in a depot on The Resort. During recent
heavy rain, some of the drums cracked and petrol seeped out into the adjoining creek. It
eventually finds its way downstream onto the property of Tom Trout, a local fish farmer. The
petrol seeps into Tom‟s fish ponds, killing off all his fish and results in lucrative supply
contracts being cancelled. There is also a pungent smell pervading the property, forcing Tom
and his family to remain indoors, day and night. Tom‟s youngest son Sam suffers a serious
gastric illness as a result of being overwhelmed by the petrol fumes.

Your advice is sought on the following possible claims in tort (including possible damages):

   1. Claim by Terry against Bruce in relation to his investment in the horse syndicate,
      including any possible claim by his mother Shirley.
                                                                   18 marks


   2. Claim by Ross against the Resort and/or the Public Hospital.
                                                                18 marks


   3. Claim by Betty against the Resort.
                                                                      14 marks

   4. Claim by Betty against Mary in relation to her tennis racket.
                                                                      8 marks

   5. Claim by Tom Trout against the Resort, including any possible action for and on
      behalf of his son, Sam.




                                                                                           38

				
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