LAWS1203

Torts

Semester 1 2013
Possible court cases which arise from the fact scenario are given below:

1)BEN v CANCONCERT

Duty of Care (DOC): If Canconcert were occupiers of the concert venue[as] established duty (occupiers duty) would be owed to Ben, however if Canconcert’s role was equipment set-up only duty will still be owed using the ‘multi-faceted inquiry’ adopted by Spigelman CJ which considers foreseeability, control, assumption of responsibility and vulnerability.[1] It’s clear Canconcert had significant control over the risk of harm to Ben(Canconcert constructed the seating stand) and could reasonably foresee that unsafe seating stands could injure concert-goers (class of plaintiffs). Moreover, vulnerability and assumption of responsibilityis present as concert-goers have no ability to protect themselves from the collapse of seating areas and rely on Canconcert to provide safe seating areas.

Breach: Can be particularized as failure to ensure structural safety of temporary seating area. It’s not contentious Canconcert breached their duty to Ben.

Causation and Scope of Liability (C&SOL): Factual causation is established as Canconcert’s carelessness is ‘a necessary condition’ of the harm –if safety of seating stand was checked and determined to be unsafe the stand would be fixed thus no injury would occur to Ben.[2] There is also no issue in extending liability to Canconcert as Ben’s leg injury due to the collapse of the seating area was reasonably foreseeable therefore ‘the damage [was] of such a kind as the reasonable man should have foreseen’.[3]

Conclusion:Canconcert [are]liable in negligence to Ben.

[We are told they have admitted liability. You do not need to include this discussion!]

2)MICHELLE v CANCONCERT

DOC: Duty is problematic as Michelle suffers pure mental harm. To determine DOC the court should consult s 34(1) which states that the defendant owes a duty if a reasonable person in the defendant’s position could reasonably foresee: 1) a person of normal fortitude in the plaintiff’s position might suffer mental harm, and 2) such mental harm is a recognized psychiatric illness.[4] In this case, the second requirement is satisfied (depression is a recognized psychiatric illness) but further consideration of s 34(2) is needed to satisfy the first requirement.[5] It is likely s 34(2)(a) and s 34(2)(b) which consider whether Michelle suffered the mental harm as a result of ‘sudden shock’ and whether she witnessed, at the scene, a person being killed, injured or put in danger respectively will be contentious.[6][tick]Relevant authority from Wicks v State Rail Authority (NSW) states that ‘it may be readily inferred that someone who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages’ by rescuers.[7][tick]Thus Michelle is likely to successfully argue that in the process of releasing trapped people from the fallen seating area injured people were still effectively being ‘injured’ and thus she satisfies s 34(2)(b).[8][tick]In relation to whether Michelle suffered ‘sudden shock’,[9] Michelle could easily argued this was sustained when she ultimately discovered Ben with his leg trapped but as stated inWick’s casethe lack of a ‘singular shocking event’ does not preclude DOC[best not to abbreviate this in this way] being owed.[10] Even if Michelle suffered shock from the entirety of her rescues this is also sufficient to satisfys 34(2)(a).[11] The court will also consider Michelle’s relationship with Ben(friendship) per s 34(2)(c),[12] in addition there was also no significant pre-existing relationship between Michelle and Canconcert per s 34(2)(d).[13] Therefore, considering these four factors in s 32(2) the court is likely to decide duty to Michelle is owed.[14][tick]

Breach: Same as that described and provenCase 1.

C&SOL[again, I’m anti-abbreviation in this way]: No difficulty in establishing causation as ‘but for’ the careless construction of the seating area Michelle would not have suffered mental harm (she would not be engaged in rescue). Similarly, the court should find Michelle’s mental harm to come within Canconcert’s SOL.[why?]

Conclusion:Canconcert liable for negligence to Michelle. [tick]

3)FIONA v CANCONCERT

DOC: The duty owed to Fiona stems from the duty owed to Ben and is explicit in s 36(1)(a) which states that a defendant’s liability for an injury caused by a wrongful act or omission to another person includes liability for injury of mental shock received by the parent of the injured person.[15] As previously noted, depression is a recognized psychiatric illness, therefore Canconcert owes Fiona a DOC.[s 36 works differently to s 34, it extends liability]

Breach: Same as that described and proven Case 1.

C&SOL: Canconcert may argue that they’re not liable for Fiona’s mental harm as she did not sustain these injuries through directly perceiving Ben get injured, instead suffered depression after Michelle told her over the phone that Ben could not be found. However, this argument can easily be rebutted by referring to authority in Annetts v Australian Stations Pty Ltdwhich states ‘neither the lack of the applicants[parents] direct perception of her son’s death or its immediately aftermath… is fatal to [their] claim’.[16]The judges reasoned liability is imposed in Annetts because the parents could not protecting themselves against the risk of psychiatric harm as the control over the risk of harm to their son and consequently the risk of mental harm to his parents was held largely by the respondent.[17] Based on the same premise, Fiona has a strong argument to find Canconcert liable given the significant control Canconcert has as discussed in Case 1.

Conclusion: Canconcert is liable in negligence to Fiona.

4)BEN v CHRISTOPHER/ALEX

DOC: Duty is not an established category (novel case) but is made outon the ‘neighborhood principle’ explicated in Donoghue v Stevenson,[18]which wasextended by Deane J who observed it’s typically sufficient if ‘loss or injury to another… [was] caused by the direct impact of positive act’.[19][tick]It’s clear Ben sustained a cut on his head directly from Christopher’s carelessness in his positive act of installing the fan, thus duty is owed to Ben.[This sounds like causation?]

Breach:Can be particularized as failure to adequately secure[the] fan to[the] ceiling. There is no doubt foreseeability of the risk in s 43(1)(a) and whether the risk was not insignificant in s 43(1)(b) is satisfied and the court should hold that it was foreseeable hazardous installation of fans could cause injury.[20] Therefore, Christopher breached his duty.[We are told he is careless = breach]

C&SOL: No issue exists with establishing factual causation as Christopher’s breach (hazardous fan installation) was a ‘necessary condition’ for the fan collapsing and striking Ben on the head.[21] There is also no contention that Ben’s injury comes within the appropriate scope of liability. [Which injury? Poisoning?]

Vicarious Liability: It is proven that Christopher was negligent but whether Ben can hold Alex vicariously liable for Christopher’s carelessness depends on the nature of work engagement between Christopher and Alex as the general rule is ‘an employer is vicariously liable for the tortious acts of an employee but that a principal is not liable for the tortious acts of an independent contractor’.[22][other elements?] While traditionally control was the primary distinguishing factor, it is now apparent control forms only part of a holistic multi-factor assessment as seen inVabu.[23]Such factors in Vabu which are relevant to this case include:[24]

  1. Ability to delegate work

In Vabu the High Court noted that the bicycle couriers were not ‘able to delegate any of their work… or work for another courier operator in addition to Vabu’ which indicated an employer/employee relationship.[25] Ben may seek to draw this comparison with Christopher’s work conditions given Alex required Christopher to do the work himself and to work exclusively for him for the duration of the job.[tick]

  1. Type of labour provided

To advance his case Alex should raise that inVabu, the court emphasized that the bicycle couriers were not providing ‘skilled labour or labour which requires special qualification’ and consequently were unlikely to have ‘an independent career’.[26] However, Alex can argue Christopher performs a specialized skill,as fan installation requires training and possibly a license unlike the low skill (predominantly cycling) required by the bicycle couriers.[tick]

  1. Supply of tools/equipment

The judges in Vabu emphasized that they considered the couriers to be employees despite their obligation to supply a bicycle as the ‘capital outlay was relatively small and because bicycles are not tools that are inherently capable for use only for courier work’.[27] Alex can contrast the limited cost and versatile function of a bicycle, to the range of tools Christopher supplies to install a fan whichis likely to be more expensive and specialized to his field of work.[tick]

  1. Control (manner of work)

Alex should differentiate that in Vabu the judges noted ‘couriers had little control over the manner of performing their work’ as they had a work roster and sign-in by 9am policy.[28] In this case, Christopher has flexible working hours (limited by a setcompletion date) which indicates Christopher was likely an independent contractor. However, Ben may seek to highlight that Christopher was made to comply with Alex’s OH&S policies which points to Alex having considerable control over Christopher’s manner of work. The assessment of control will be contentious, but the court should be inclined to find the control Alex has over Christopher’s manner of work is limited and not as significant as the control seen in Vabu.[29]

  1. Financial control

Alex should emphasize the lack of financial control in his work arrangement with Christopher unlike the finding in Vabu that ‘Vabu superintended the courier’s finances’ as Vabu had the ability to withhold pay for outstanding charges and deduct entire payments of jobs under certain circumstances.[30] There was no such control possessed by Alex who paid Christopher $40 per/hour which was not subject to any stringent conditions/limitations.

  1. Insurance, taxes and leave arrangements

To support his case Alex should refer to the judgement of McHugh J in Vabu which noted it’s not ‘traditional employment relationship’ for Vabu to undertake the provision of insurance and deduct the cost of insurance from courier’s wages.[31] This is very similar to Alex’s requirement that Christopher pay for his own insurance which indicates Christopher is not an employee. Moreover, Christopher is required to provide for his own leave arrangements (no assigned/provision of leave) and deduct taxes himself which support the argument that Christopher is an independent contractor.

  1. Deterrence/Policy Considerations

Liability was imposed in Vabu partlydue to the deterrence function of vicarious liability as Vabu knew that couriers routinely cycled dangerously in their deliveries but failed to implement precautions.[32] There is no deterrence consideration in this case as Christopher had a reputation for reliability and good workmanship.[tick]

Conclusion: On balance of the factors discussed above, the court is likely to find Christopher was an independent contractor, thus Alex is not vicariously liable for Christopher’s negligence to Ben.[You could, given it’s a close run, go on to consider the other elements on the basis of court finding in the alternative]

5)BEN v LISA

DOC: While ‘the common law imposes no prima facie general duty to rescue’ once Lisa decides to rescue Ben, DOC is owed.[33][tick]

Breach: Ben should particularize breach as administering harmful medical treatment (poison). [tick] It’s not contentious that risk of harm created by administering poison is both foreseeable and not insignificant.[34] There is a possible social utility consideration as Lisa was acting kindly to rescue someone who was unconscious, however the court should find Lisa to have breached her duty owed giventhat the harm (stemming from the risk) was very serious and highly probable.[35][We know she’s careless]

C&SOL: No issue of causation, treating Ben with poison was a ‘necessary condition’ for Ben to suffer further injuries to his cut.[36] However,Lisa may try to shiftliability for her injuries to Ben onto the Christopher who inflicted the initial cut. Such liability has been recognized in Mahony v J Kruschich (Demolitions) Pty Ltdwhere the court held ‘when an injury is exacerbated by medical treatment… the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable’.[37] Obviously the degree of carelessness in Lisa’s medical treatment requires further examination; nevertheless the court should find Christopher partly liable[or wholly? This needs closer discussion and in Christopher’s matter] for the further injuries Ben sustained from subsequent negligent medical treatment.

Defences: If the court happens to find Christopher not liable for negligent medical treatment, Lisa will need to resort to statutory defences to mitigate her liability.[tick] Although Lisa is a volunteer she doesn’t qualify for the defence for volunteers as when she treats Ben she is not ‘carrying out community work for a community organization’ as she has arrived home after her shift at St. Johns.[38][tick] However, Lisa qualifies as a good Samaritan as she is acting ‘without expectation of payment’ and has come to the aid of a person who is ‘injured or at risk of being injured’.[39] The court will also consider s 5(1)which questions whether Lisa’s act was made ‘honestly and without recklessness…’.[40]It should be easily established that Lisa acted honestly as her intent was to disinfect Ben’s wound (no malicious intent). Furthermore, the court probably won’t deem Lisa’s behaviour as ‘reckless’ as it wasn’t grossly negligent, but more akin to ordinary negligence in her haste to treat Ben. Therefore, the protection of good Samaritan (complete defence) should apply to Lisa thus Lisa is not liable for Ben’s injuries.

[On the right track, but we need to consider recklessness more closely here]

6)DARRYL v SARAH

DOC: Established duty case (Sarah owes occupiers duty to Darryl).[authority?]

Breach: Breach is likely to be formulated in one of two ways: 1) failure to warn of gully, or 2) failure to fence off gully.[which will you examine?] The court will consider specific considerations in s 168(2) to determine whether Sarah has breached her duty as an occupier.[41] No issues exists in the circumstances of Darryl’s entry (invitee), his age (adult), the knowledge of the occupier of likelihood people will be present on premises (Sarah knew Darryl was on the land) and the gravity of the probable injury (moderate to high). The court should focus mostly on burden on the occupier to remove danger s 168(2)(g) and likelihood/probability of the harm s 168(2)(a).[42] Sarah can argue that the fencing the entire gully incurs a high burden depending on size of the gully and number of gullies on the property.[43]However, Darryl would probably argue that warning of the gully would not have been too burdensome (likely to be breach accepted by the court). Even so, the likelihood/probability of injury is contentious in this case and is dependent on the nature of the gully and obviousness of risk.[44] The High Court has recognized that there exists no ‘risk-free dwelling houses’ and in some cases given ‘the obviousness of the risk… reasonableness may require no response’.[45] Sarah could argue the obviousness of the risk absolves her obligation to warn especially since Darryl had the ‘ability to appreciate the danger’ and knew jumping the gully was ‘thrill-seeking’.[46] Thus it is possible no breach exists.[tick]

C&SOL: If the court decides Sarah breached her duty, Darryl may still have difficulty proving causation. In Thompsonit was stated that the premise of ‘warnings is that those who receive them will act carefully’,[47] therefore if Sarah can prove that despite being warned it’s probable (due to his thrill-seeking nature) Darryl would have jumped the gully anyway, factual causation will not be established.[& if the partic = fence issue?]

Conclusion: Given the hurdles at the breach and causation stages it’s unlikely/very difficult Sarah will be liable in negligence to Darryl.[tick]

7)JOHN v ALFRED

Damages:[tick]

  1. Past loss of earning capacity[tick]

Claims for loss[of] earning capacity are ‘awardable only to the extent that the loss has been or may be productive of financial loss’,[48] however John was paid 6-months of sick-pay while in hospital (incurred no financial loss), thus is unlikely to have a claim under this head.[on the facts he seems to?]

  1. Future loss of earning capacity

John can claim the difference in wages he would have earned as a rugby player and that he receives as a school coach [& talent scout] since his release from the hospital. This amount is subject to common law deductions for taxation that would be incurred to ‘earn’ this income,[49] and a discount rate[all future pec. losses?] of 3% as it is assumed John will invest this sum of money.[50] A 15% deduction for general vicissitudes might also apply, however this rate is variable and the court will probably consider the typically short-lived careers of athletes in their deduction.[tick] Alfred may argue that a deduction should also be made for the money John will receive from the Cavalry (collection of $5000). However, authority from Zheng v Cai states that the intention of the donor is important when assessing collateral benefits, ‘contrasting an intention to benefit[tick] the wrongdoer with an intention to benefit the victim’.[51] Since the collection is a charitable payment with the intent to benefit John it’s unlikely to be deducted from damages awarded.

  1. Past medical expenses

John will probably seek to claim costs he incurred while at hospital however in regards to ‘hospital and pharmaceutical benefits… if the plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so’.[52] Therefore John can only claim for medical costs that he actually paid for or contributed to.[tick]

  1. Future medical [& care] expenses

John will have a claim for ‘Griffith and Kerkemeyer’ damages,[53] however Elena quitting her cheer-leading job will not influence the amount recoverable as damages are ‘…made on the basis of commercial rate for live-in care provided by a non-medically trained carer and not on the basis of [carer’s] past earnings’.[54][tick] Thus damages will be calculated at the commercial rate of providing a carer 3hrs nightly for 1year. In relation to John seeking treatment in Canada, the defendant may raise authority from Sharman v Evans which states ‘costs of providing nursing and medical care for the plaintiff in the future is, no doubt matched against health benefits to the plaintiff’.[55][tick] Given that the cost of treatment in Canada is high, coupled with the speculative health benefits (not supported by medical authority in Canberra) the court will be reluctant to award damages for this treatment.[tick]