Torts final exam – Semester 1 2004
Mark: 83
Question 1A
Dave v Substance Safety Board
Duty
The relevant question here is, did the Substance Safety Board, being a statutory authority, owe Dave’s class of persons a positive [√]duty to make orders for the seal gun to be removed, and carry out increased monitoring of substance safety standards, to guard against injury to him? In cases involving statutory authorities, the law does not ordinarily [√] impose liability for a failure to exercise statutory obligations (Crimmins), however use of the Crimmins test can demonstrate whether a public body should be liable for such nonfeasance.
Firstly, in this case it was clearly reasonably foreseeable that a failure to act in relation to recalling seal-gun equipment if it was deemed to not comply with safety standards, could result in injury to persons in the area where it was being used. Equally, it is clear that the Board had the requisite statutory powers [√] and control to prevent this reasonably foreseeable harm from occurring. The Act specifies that the Board has the power to make orders about any safety issues in relation to work practices, systems and equipment. Indeed, the Act lays the powers of investigating and maintaining safety standards squarely with this Authority, and thus it was clearly in control [√] of the equipment legally available for commercial use, sch as the gel gun, and the regulation of such equipment. Dave, as an employee engaging on his employer’s business in close proximity to where the seal gun was being used, was evidently vulnerable [√] to the Board in that he had no control over which working equipment could be used by CAA workers. He relied [√] completely on this authority to make sure that safe standards were maintained while he was going about his profession.
Fourthly, the knowledge available to the Board about the gel gun’s safety was significant. Although Barclay Oysters [√√] demonstrates that mere knowledge of a risk is not enough to found a duty, in this case the Board knew from reliable industry feedback that expert opinion deemed the gel gun unsafe. A fifth important issue is whether imposing a duty of care upon the Board in relation to their failure to ensure the gun’s removal from working environments, would impose liability in relation to its ability to make policy decisions. [√] On the facts, the gel gun was not removed because of the failure of its ‘Industry Educators’ to respond to this piece of equipment’s potential dangers. This was because the Board’s organization of their work only permitted them to provide advice and assistance and make orders where users and companies themselves have identified problems. Imposing a duty on the Board would not restrict its capacity to allocate resources according to policy decisions, [√] as the incident occurred due to a purely operational incompetency of the ‘Industry Educators’ organization. A duty here would simply demand that inspectors comply further with industry standards and professional opinion [√ Good] (signifiers of operational issues: Heyman) by providing more general safety advice to the body of companies with which it associates, rather than demanding that the Board restructure its resource allocation [√]. As there are no other supervening policy reasons to deny a duty here (in that imposing a duty would encourage further compliance with the Board’s statutory scheme of protecting safety standards [√], rather than creating statutory inconsistencies as in Sullivan v Moody), the Board owed Dave a duty of care.
Breach
On the facts, it is reasonably foreseeable that the Board’s failure to ensure the removal of unsafe equipment in workplaces could endanger persons near the areas where the equipment was being used (Wyong) [√]. The issue here is whether, with regard to the Board’s budgetary constraints and discretionary ambit of powers, it did not meet the ordinary standard of care of a reasonable statutory authority (Crimmins) [√]. Obviously, with regard to the Board’s knowledge of the gel gun’s dangers, the gravity of the risk of it causing harm was high, and even though such a risk had not manifested itself in 3 years [√], Wyong and Wagon Mound 2 show that even if risks are small or appear remote, action can be required in a reasonable person would deem it not to be a fanciful possibility. [√]
In terms of the difficulty and impracticality of alleviating the risk, there are several factors to consider. Firstly, removing the use of the gel gun may seem impractical from the facts, [√] which state that the gel gun was an easier piece of equipment to use compared to the alternative. Equally, users [√] of the gun had not up to that point had any reason to doubt the safety of the gel gun. However, the law states that if the gravity of a potential risk is hight enough, [√] then even means that seem impractical must be taken to alleviate it (Caledonian Collieries) [√√], and this is clearly the case when balancing out the known risks of the gun with the trivial practicality consideration of speedy equipment. Furthermore, the principles of Mercer [√], where it was denied that an impractical safety method should be implemented because of the lack of evidence of its effectiveness, do not apply here, because the Board knew of the validity of the safety concerns due to expert opinion. In light of the above, despite the fact that the Board was on a tight budget, [√] it breached its standard of care by not addressing the safety concerns of the gel gun even though it was consistent with its powers for this authority to take alleviating action. [√]
Causation
The Board was clearly the factual cause of Dave’s harm because, using common sense and the ‘but for’ test, his burns stemmed from its omission to remove unsafe equipment (M v S). [√]
Remoteness
Physical harm is clearly not too remove a consequence of the Board’s omission (WM1).
Thus, Dave would most likely succeed.
Damages
Special
-would receive pecuniary compensation for medical expenses etc. before trial [√]
General
Pecuniary (future)
-Courts would provide compensation for lost earning capacity [√] on the basis of individual circumstances (Planet Fisheries) [√], with 3% discount imposed (T v W)
-hospital & medical future expenses would be provided at market rates, even if family member was going to provide nursing care voluntarily (Kars v Kars) [√√]
Non-pecuniary
-Nominal amount, taking into account his subjective circumstances (Skelton v Collins)
Question 1B
Jim v CAA
Duty
The CAA’s duty to Jim is uncontroversial here, as it falls into the established category of an occupier of land [√] owing a duty to neighbours to guard against risks stemming from the safety of the occupier’s premises (Modbury [à]; Zaluzna).
Breach
On the facts, it was clearly reasonably foreseeable that the negligent explosion on the CAA’s land would cause damage of some kind to an adjoining neighbour (Wyong). Equally, it is clear that the CAA did not fulfil the standard of care demanded of a reasonable occupier of land to guard against the occurrence of such explosions, stemming from negligence in their workplace. The gravity and probability of unsafe use of this equipment is high in this instance, as the CAA obviously recognised due to their provision of a cooling system for the seal gun in the hangar. In relation to whether they did everything a reasonable occupier and employer could have done, taking into account the minimal inconvenience of a bigger emphasis on compliance with safety standards, it clearly did not. Although the CAA provided Mike with a cooling system, it did not enforce his use of this, and its attitude to the need for speedy work over and above anything else resulted in its failure to take reasonable steps to ensure that its workers made safety a priority. Thus, the CAA breached its duty of care because its response to the risk was insufficient when balancing out its gravity with the practicalities that alleviating action demanded (WM2). [√]
Causation
Using the March v Stramare ‘but for’ test, it is evident that ‘but for’ the CAA’s negligence in failing to stop the explosion, the damage to Jim’s house and consequent damage to his health would not have occurred. Using a common sense analysis (M v S), the CAA is also the factual cause of Jim’s harm, as the intervening event of water damage to Jim’s adjoining hangar cannot be regarded as a novus actus interveniens because it was exactly the kind of thing likely to result from the CAA’s original negligence, ie the explosion (M v S) [√].
Thus, the CAA is the factual cause of Jim’s harm.
Remoteness
It now needs to be asked whether Jim’s kind [√] of harm, ie physical illness, was one that was a reasonably foreseeable outcome of the negligent explosion (WM1). It could be argued that, in the same way as in Wagon Mound 1, the particular kind of damage sustained by Jim was not a reasonably foreseeable consequence of an explosion – property damage would be, but not physical illness [√] of Jim’s kind. However, the key question of remoteness is whether it is fair to impose liability on the defendant (Rowe), which it clearly is in this case as the CAA caused the harm, and in that Jim was an adjoining neighbour, there are no apparent risks of indeterminate liability. [√] Furthermore, Versic and Kavanagh v Akhtar demonstrate that if each step is reasonably foreseeable, then so is the end result. Here, the property damage was a reasonably foreseeable result of the explosion, and Jim’s harm incurred from dampness was a reasonably foreseeable result of the property damage. [√]
Thus, Jim’s damage was not too remote, and he would most likely succeed.
Question 1C
Wayne v Susan (à Ambulance ACT)
Duty of care
This issue is uncontroversial – Susan owed Wayne a duty of care as a fellow road user, and it was reasonably foreseeable that her negligence could injure him, as demonstrated by their direct physical impact (Heyman). [√]
Breach
It is also evident, firstly, that it was reasonably foreseeable that her un-necessary speeding and carelessness could injure Wayne (Wyong), and secondly, that she failed to meet the objective standard of care of a reasonable and competent driver [√] (Cook v Cook) by not taking the easy alleviating action of slowing down and being more careful in response to the gravity of the risk of a road accident (Wyong).
Causation
Susan is clearly the factual cause of Wayne’s harm (M v S).
Remoteness
Wayne’s physical injuries were a clearly foreseeable result of Susan’s negligent driving (WM1).
Contrib. neg.
Wayne could be held to the standard of a child of his age (Kelly), and on the facts he didn’t appear to breach this.
Vicarious liability – Ambulance ACT
If Susan was an employee acting in the course of her employment at the time of the accident, then Ambulance ACT is vicariously liable for her negligence.
Employee
On the facts, this is uncontroversial. [√]
Course of employment
The law states that for an employee to be acting in the scope of their employment, their act must be authorised, or an unauthorised mode of an authorised act (Salmond Test in Bazley). [√] Susan’s act, in driving the ambulance after her shift to sell hospital equipment, was not in the course of her employment as it was a ‘frolic of her own’ (Century) [√] clearly unrelated to her employer’s business – it was done after her shift and for her own purposes, as in Chaplin v Dunstan.
Thus, Ambulance ACT would not be liable for Susan’s actions. [√√]
Wayne’s mother (WM) v Susan
Duty
The question here is, did Susan owe a duty to guard against WM’s nervous shock incurred as a result of her collision with her son? The law now treats duty of care in nervous shock cases in accordance with ordinary principles of negligence (Annetts) [√], and in this case it was reasonably foreseeable that a parent of an injured boy would suffer psychiatric harm as a result [√] (similar to facts in Annetts). Although WM was not of normal fortitude before the accident, this is relevant only in relation to reasonable foreseeability (Annetts) [√], and given the close relationship between the mother and child, her nervous shock [√] is clearly foreseeable. Thus, Susan owed WM a duty.
Breach, causation & remoteness
The same as in Wayne v Susan, because the duty to WM and surrounding factors are “coextensive” [√] with the duty/ breach of duty to Wanye (Gifford v Strang).
Wayne’s Uncle (WU) v Susan
Duty
WU would also be owed a duty by Susan for the same reasons as for WM, and because his relationship with Wayne was akin to that of a parent (an allowance supported by the CLWA s31).
Breach, causation & remoteness
As above.
Thus Wayne, WM & WU would most likely succeed against Susan.
Question 2 choice (b): vicarious liability
Vicarious liability is a concept strongly rooted in policy considerations. [√] It differs from standard liability in that liability is imposed on a ‘no fault’ basis [√], whereby employers are indirectly liable for their employees’ negligent acts even though they themselves committed no wrong. The three most important components of the vicarious liability policy rationale are the adequate compensation [√] of a victim of an employee’s negligence, the deterrence [√] of future harm, and the maintenance of justice in not foisting undue burdens on business enterprises (explored in Bazley) [√]. Each of these concerns has helped to shape the criteria that vicarious liability has developed over the years. [√] Firstly, in terms of adequate compensation, the courts recognise that it is often only employers who have the funds to provide plaintiffs with the remedies they need. This is reflected in the fundamental legal concept of an employer’s liability for employees’ acts, as demonstrated through the case of Hollis v Vabu, where liability for injury caused by the courier-employee was laid with the employer. Equally, it is recognised that employers have the power to implement safe work practices, and finding their liability is a means of ensuring this. This is also exemplified in Hollis [√], where the employer’s knowledge of the unsafe practices of his employees was taken into account when deciding on his liability. However, it is also recognised that unlike in the C19th, employers do not have complete control [√] over their workers anymore, so cannot be invariably [√] liable for their actions. From this concern have developed the two-pronged criteria for vicarious liability: that the tortfeasor must have been an employee (not an independent contractor in control of the nature of their work and their actions, as in Brodribb), and that the act they committed must have been committed while engaged on the employer’s business and in the scope of their employment. [√] The court’s willingness to maintain fairness to the employer with respect to this latter criterion can be seen in Chaplin v Dunstan, where a truck-driver engaging on business for his own satisfaction at a hotel pub was found to be acting outside his scope of [√] employment.