LAWS1012 Torts Supplementary Materials 2023 Page 1 of 49
TORTS SUPPLEMENTARY MATERIALS
This section contains the supplementary materials, listed below, which are part of the basic
reading.
1. Ollier v Magnetic Island Country Club [2004] QCA 137
2. “One hack shot, two torn lives and golf in chaos”, Sydney Morning Herald, 27 Nov 2004
3. Engert v Sydney Ferries Corporation [2009] NSWSC 1400
4. The origin of the action on the case
5. Stephens v Myers (1830) 172 ER 735
6. Bahner v Marwest Hotel Co Ltd (1969) 6 DLR (3d) 322
7. Janvier v Sweeney [1919] 2 KB 316
8. Wainwright v Home Office [2004] 2 AC 406
9. A quick history of recovery for negligently inflicted psychiatric injury
10. Simon v Condran (2013) 85 NSWLR 768
11. Blake v Galloway [2004] 1 WLR 2844
12. Moon v Whitehead (2015) 10 ACTLR 309
13. Hunter and New England Area Health Authority v A [2009] NSWSC 761
14. X v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294
15. Second Reading Speech, New South Wales Legislative Assembly, 23 October 2002
16. Carrier v Bonham [2002] 1 Qd R 474
17. Zhang v Hardas (No 2) [2018] NSWSC 432
18. South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513
19. Doubleday v Kelly [2005] NSWCA 151
20. Russell v Edwards (2006) 65 NSWLR 373
21. Table of assessment of damages in claims by living plaintiff
22. Woodland v Swimming Teachers Association [2014] AC 537
23. Table of claims by third parties where victim injured or killed
24. Franklin v The South Eastern Railway Company (1858) 157 ER 448, 1 WCA 418
LAWS1012 Torts Supplementary Materials 2023 Page 2 of 49
Ollier v Magnetic Island Country Club
[2004] QCA 137 (Queensland Court of Appeal)
On 28 August 1994, almost ten years before the hearing of the present appeal, the plaintiff
(respondent), Glenn Ollier, and the second defendant (appellant), Mark Shanahan, were
participants in an amateur charity golf competition held on the first defendant’s golf course on
Magnetic Island, north Queensland.
The plaintiff, who was standing on a fairway, suffered severe brain damage when he was struck in
the head by a ball driven by the second defendant who was with a group of following players. The
trial judge in the Supreme Court of Queensland found that the second defendant had been
negligent in failing to look ahead properly before playing the shot which struck the plaintiff. The
trial judge gave judgment for the plaintiff against the second defendant for the sum of
$2,610,795.72 but dismissed the plaintiff’s claim in negligence against the first defendant (the club).
In reaching this conclusion, the trial rejected the second defendant’s contention that the plaintiff
had voluntarily assumed the risk of being hit by a golf ball as an inherent risk of participating in the
competition. The Queensland Court of Appeal, after reviewing the evidence, particularly the
witness testimony concerning visibility at the relevant time, which was nine years before the trial,
dismissed the second defendant’s appeal from the judgment of the trial judge.
An application by the second defendant for special leave to appeal was refused by the High Court
of Australia: Shanahan v Ollier [2005] HCATrans 169. At the conclusion of the hearing of the
special leave application, Hayne J observed that the case turned on its particular facts and raised
no point of general principle.
Notes:
1. What does a case like Ollier tell us about tort law as a compensation mechanism for
accidental personal injury? First, liability requires the plaintiff to prove a negligent act (or
omission) on the part of the defendant which was a cause of the plaintiff’s injury. Secondly,
there must be no relevant ground of defence, such as the plaintiff’s voluntary assumption of
risk. Thirdly, as a practical matter, the effectiveness of tort law as a compensation
mechanism depends on the defendant having, or having access to, a “deep pocket” i.e.
sufficient personal assets or liability insurance to pay the damages awarded to the plaintiff.
In Ollier, the plaintiff succeeded in proving negligence on the part of the defendant and the
defendant failed to establish any relevant defence. However, according to a report in The
Sydney Morning Herald on 27 November 2004 (see below), Mark Shanahan’s “personal
assets do not amount to much” and he was uninsured. The outcome of the case in human
terms: a seriously injured accident victim required to rely on the social security and health
care systems, charity and the gratuitous assistance of family and friends. Are there more
rational, fairer and efficient means for dealing with accidental personal injury (and death) than
fault-based tort law? In this regard, note the substantial time between the date of the accident
in Ollier and the final disposition of the litigation (for which there may be a satisfactory
explanation, eg, waiting for the plaintiff’s level of permanent disability to stabilise).
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2. The plaintiff’s claim in Ollier was founded on negligence. However, in principle, the plaintiff’s
claim might have been framed in terms of trespass to the person. In this regard, note the
following observations by McPherson JA in the Queensland Court of Appeal (at [9]):
“The outcome has been tragic for all concerned. But the defendant cannot escape liability
for the injuries which the plaintiff sustained. On one view of the facts and the law, there was
no need for the plaintiff to have undertaken the burden of proving negligence. In McHale v
Watson (1964) 111 CLR 384, 388, Windeyer J doubted if, in an action for trespass to the
person “based upon a battery by a blow or a missile”, the plaintiff is required to aver and
prove that the defendant’s act in delivering the blow or the missile is either intentional or
negligent. As recently as 1988 this was still considered an open question in New South
Wales: see Platt v Nutt (1988) 12 NSWLR 231, 248-249 [Cases, p 12]. The question does
not arise here because, as Mr Baulch SC for the plaintiff acknowledged on appeal, the trial
in this case had been conducted on the basis that the defendant had been negligent.”
3. The Queensland Court of Appeal in Ollier agreed with the conclusion of the trial judge that
there had been no voluntary assumption of risk by the plaintiff. In particular, the risk of being
struck by a ball driven by a following player was not a risk inherent in a game of golf. In this
regard, White J cited the judgment of Barwick CJ in Rootes v Shelton (1967) 116 CLR 383
(Cases, p 458).
LAWS1012 Torts Supplementary Materials 2023 Page 4 of 49
One hack shot, two torn lives and golf in chaos
By Mark Todd in Townsville
November 27, 2004
(from https://www.smh.com.au/news/Golf/One-hack-shot-two-torn-lives-and-golf-in-
chaos/2004/11/26/1101219751272.html)
It was a shot heard around the world. It ruined one man's life, almost ended another and is
sending shivers up the spines of golfers from Sydney to Scotland's St Andrews.
The man who hit the ball, Mark Shanahan, 49, is facing a $2.6 million damages claim he cannot
afford. The man he struck, Glenn Ollier, 56, suffered severe brain damage, is paralysed down
one side, cannot make new memories and needs constant care.
"It has certainly changed my life dramatically," said Mr Shanahan, who insists he did not see Mr
Ollier's group when he fired off from the tee 10 years ago at a goat track course on Magnetic
Island, in far north Queensland.
"Most days I think about it. But it's very difficult to talk about my problems when you look at Glenn
Ollier."
Before the tragedy Mr Shanahan was not what you would call a keen golfer - he was one of an
estimated 880,000 social players in Australia, many of whom are uninsured. The Australian Golf
Union warns that not all club players, and there are about 500,000 of them, are insured, although
many mistakenly believe they are.
Mr Shanahan usually played once a year at most, never owned a set of golf clubs and was only
playing on August 28, 1994 to help raise money for the local ambulance service.
Now he has lost his appetite for the sport.
He rarely goes near the Magnetic Island Country Club, even though his travel agency business is
just down the road. He is clearly not comfortable walking the fairways again, and only does so to
tell a cautionary tale to warn other golfers and to promote a fund-raiser he is planning to help the
Olliers with their massive medical expenses.
Last year Mr Shanahan was ordered by the Supreme Court to pay Mr Ollier damages.
He is seeking to appeal against the ruling in the High Court next year, but, win or lose, Mr Ollier
is unlikely to receive anything like the money he needs for care. Mr Shanahan was uninsured at
the time, and after a broken marriage and a decade of legal bills his personal assets do not
amount to much.
"I'm doing it because it's the right thing to do," Mr Shanahan said of the fund-raiser. "It's the only
avenue Glenn will have to get the money he needs."
LAWS1012 Torts Supplementary Materials 2023 Page 5 of 49
When asked if he was motivated by a sense of responsibility, he paused then said: "There are
many other reasons ..." before tailing off, unable to finish.
The Australian Golf Union has promised it will look at ways to raise the money once the court
proceedings have run their course.
Sue Ollier does not much like the idea of having to rely on charity to support her husband, who in
his career as a professional musician once played with the Wild One, Johnny O'Keefe. But that
"stupid, silly accident" has taken away a lot, including the choices she has available to her.
"That money has to look after Glenn for 20 years," she said. "I've got to think of Glenn because if
something happens to me and I can't take care of him then at least he's financially secure."
Mrs Ollier, like Mr Shanahan, often wonders how life might have been kinder, and whether
anything positive has come out of that one wayward shot.
"We've been married for 30 years, and the last 10 years have been with Glenn disabled and in
hospital," she said.
"I have to shower him, cut up his food, dress him ... They always say things happen for a reason,
but I can't see why this had to happen. Maybe it's supposed to be a warning to people to be more
careful when they go on golf courses in the future."
The programs manager for the Australian Golf Union, Kevin Tangey, said the ruling against Mr
Shanahan "sent shockwaves through the sport".
"It was a wake up call for the industry to look at exactly who is covered."
Mr Tangey said fewer golfers were venturing out with personal liability insurance. It used to be
that hackers were protected from injury claims by their home contents insurance, but insurers are
increasingly excluding sporting events from policies.
Club golfers are not necessarily in the clear either, although many mistakenly believe they are
automatically covered by their annual subscription fees. Some clubs opt for very specific policies
- if they have them at all - that only cover players at their home course. Mr Tangey said: "There's
a lot of people with no cover who would be liable if they cause an injury."
LAWS1012 Torts Supplementary Materials 2023 Page 6 of 49
Engert v Sydney Ferries Corporation
[2009] NSWSC 1400 (Supreme Court of New South Wales)
On 28 March 2007, a ferry, the “Pam Burridge”, owned and operated by, Sydney Ferries
Corporation, collided with another vessel, the “Merinda”, on Sydney Harbour. In this accident, four
persons on the “Merinda” were killed and seven other persons were injured. One of the injured
persons on the “Merinda” was the plaintiff, Janice Engert. Her son, James, was one of the persons
killed.
In respect of her personal and psychological injury suffered in the accident, the plaintiff commenced
a negligence action against Sydney Ferries Corporation (on the basis of its vicarious liability for the
conduct of the master and crew of the ferry) and against the owner and helmsman of the “Merinda”.
As legal personal representative of her deceased son, the plaintiff also commenced an action
against each of these defendants under the Compensation to Relatives Act 1897 (NSW).
Although the plaintiff’s statement of claim was filed within three years after the accident (the
limitation period generally for personal injury and fatal accident claims), the plaintiff’s solicitor was
unaware that there is a shorter and “very specific” limitation period (two years) for personal injury
and fatal accident claims arising out of a maritime collision where the plaintiff’s claim is against the
owner of a vessel on which the plaintiff (or the deceased represented by the plaintiff) was not a
passenger at the time of the accident (Limitation Act 1969 (NSW) s 22(2)). As the statement of
claim was not filed within two years after the accident, the plaintiff’s claims against Sydney Ferries
Corporation (but not her claims against the owner and helmsman of the “Merinda”, the vessel on
which the plaintiff and her son were passengers at the time of the accident) were statute barred.
Fortunately for the plaintiff (and the plaintiff’s solicitor and his professional indemnity insurer), the
Court (Rein J), in the exercise of a discretion conferred by the Limitation Act 1969 (NSW) s 22(4)(a),
extended the limitation period for the plaintiff’s claims against Sydney Ferries Corporation to the
date on which the statement of claim was filed. However, this discretion was exercised in the
plaintiff’s favour only after a hearing in which the plaintiff was called upon to demonstrate that the
justice of the case required the extension of time. In respect of this hearing, the plaintiff’s solicitor
was ordered to pay the costs of all parties, including the plaintiff.
Notes:
1. A legal practitioner who fails to commence a client’s claim within the relevant limitation period
is exposed to liability (in tort and contract) for professional negligence and to an award of
damages equal to the damages the client would have recovered if the client’s claim had been
commenced within the limitation period.
2. The shorter limitation period in Limitation Act 1969 (NSW) s 22(2) and its capricious operation,
which depends on whether the plaintiff was on the defendant’s vessel or on another vessel at
the time of the accident, is not easily justified in modern law. Section 22(2) would appear to
be an historical relic of a protectionist policy, intended to encourage the building and ownership
LAWS1012 Torts Supplementary Materials 2023 Page 7 of 49
of ships, dating from the Responsibility of Shipowners Act 1733 (Imp), enacted in the reign of
George II.
3. As Rein J noted in Engert (at [34]), Sydney Ferries Corporation already had been joined as
defendant in nine other personal injury and property damage claims arising out of the collision
between the “Pam Burridge” and the “Merinda”. The potential complexity of tort litigation which
follows an accident of this kind is compounded by the fact that individual plaintiffs may have
more than one basis of claim. For example, Janice Engert was claiming damages in
negligence for both “physical” and “psychological” injury as well as bringing, in a representative
capacity, a fatal accident claim in respect of her son’s death. The elements of these claims,
such as duty of care, breach of duty, compensation for personal injuries and compensation to
relatives of fatal accident victims, are considered in this course. A further source of potential
complexity in a case like Engert is the existence of several defendants and the issue of
vicarious liability. These matters, including contribution between concurrent tortfeasors (the
apportionment of liability as between the defendants), proportionate liability in respect of
property damage and the course of employment (relevant to whether an employer is
vicariously liable for the conduct of an employee), are considered in Torts and Contracts II.
Ross Anderson, 2012
LAWS1012 Torts Supplementary Materials 2023 Page 8 of 49
The origin of the action on the case
In the 13th and 14th centuries "trespass" did not have a narrow or technical legal meaning. A
contemporary lawyer would have described any civil wrong as a trespass.
The two avenues of legal redress for trespasses (civil wrongs) were the royal courts (King's Bench
or Common Pleas), in which the king's or, later, queen's justices presided, and the local (or county)
court, in which the sheriff presided. The correct jurisdiction for legal redress in respect of a
particular trespass depended on whether the trespass involved breach of the peace, e.g., breach
of the peace would be involved where the trespass consisted of one person's physical attack on
another, but not where the trespass consisted of an innkeeper's failure to provide adequate security
for a guest's goods against third party theft.
Until the 1360s there was a jurisdictional requirement that no trespass was actionable in the royal
courts unless breach of the peace was involved. However, in the 1360s this jurisdictional
requirement was relaxed with the effect that legal redress for trespasses not involving breach of
the peace became possible in the royal courts. This jurisdictional change is the origin of the action
on the case.
The name "action on the case" gradually came into use as a generic expression for trespass
actions, not involving breach of the peace, which were maintainable in the royal courts. The name
derives from the recitation in the writ of the particular circumstances or special facts which
constituted the plaintiff's case. Where the trespass involved breach of the peace, eg, battery, the
writ was in stereotypical form because little factual explanation was called for in respect of mainly
physical wrongs.
It may be conjectured that the 18th century misunderstanding of the medieval origin of the action
on the case (see Reynolds v Clarke (1725) 92 ER 410; Scott v Shepherd (1773) 96 ER 525) may
have come about because a common element in battery, assault, false imprisonment, trespass to
goods and trespass to land – all medieval trespasses involving breach of the peace – was the
directness in causal sequence between defendant's act and plaintiff's injury. If, as 18th century
lawyers believed, there was a substantive difference between trespass and actions on the case, it
was plausible to suggest that the difference was to be explained in terms of causation.
References
J H Baker, An Introduction to English Legal History (Butterworths, 4th ed, 2002) ch 4 (pp 60-64)
S F C Milsom, Historical Foundations of the Common Law (Butterworths, 2nd ed, 1981) ch 11 (pp
300-313)
R C Palmer, English Law in the Age of the Black Death 1348-1381: A Transformation of Law and
Governance (University of North Carolina Press, 1993)
LAWS1012 Torts Supplementary Materials 2023 Page 9 of 49
Stephens v Myers
(1830) 172 ER 735 (Court of Common Pleas)
Where the defendant threatens the plaintiff with immediate violence and, at the time of the threat,
possesses the means or apparent means of carrying it out, this will constitute assault even although
the defendant is restrained before he or she has an opportunity to carry out the threat.
The declaration stated, that the defendant threatened and attempted to assault the plaintiff. Plea
- Not guilty.
It appeared, that the plaintiff was acting as chairman, at a parish meeting, and sat at the head of a
table, at which table the defendant also sat, there being about six or seven persons between him
and the plaintiff. The defendant having, in the course of some angry discussion, which took place,
been very vociferous, and interrupted the proceedings of the meeting, a motion was made, that he
should be turned out, which was carried by a very large majority. Upon this, the defendant said,
he would rather pull the chairman out of the chair, than be turned out of the room; and immediately
advanced with his fist clenched toward the chairman, but was stopt [sic] by the church warden,
who sat next but one to the chairman, at a time when he was not near enough for any blow he
might have meditated to have reached the chairman; but the witnesses said, that it seemed to them
that he was advancing with an intention to strike the chairman. ...
TINDAL CJ, in his summing up, said - It is not every threat, when there is no actual personal
violence, that constitutes an assault, there must in all cases, be the means of carrying the threat
into effect. The question I shall leave to you will be, whether the defendant was advancing at the
time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately
have reached the chairman, if he had not been stopt [sic]; then, though he was not near enough
at the time to have struck him, yet if he was advancing with that intent, I think it amounts to an
assault in law. If he was so advancing, that, within a second or two of time, he would have reached
the plaintiff, it seems to me it is an assault in law. If you think he was not advancing to strike the
plaintiff, then only can you find your verdict for the defendant; otherwise you must find it for the
plaintiff, and give him such damages as you think the nature of the case requires.
Verdict for the plaintiff – Damages one shilling
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Bahner v Marwest Hotel Co Ltd
(1969) 6 DLR (3d) 322 (British Columbia Supreme Court)
WILSON CJSC. [323] The plaintiff sues all defendants [Marwest Hotel Co Ltd and a police officer,
Constable Muir] for damages for false imprisonment. …
The plaintiff … took two friends … to dinner at a restaurant operated by the defendant
Marwest … The plaintiff, as host, ordered a bottle of wine to accompany the dinner …
[324] At 11:30 the party had consumed the main part of their dinner and about half their
wine. Their waiter … then asked the plaintiff if he would like another bottle of wine. The plaintiff
said that he would and at 11:35 pm a bottle was brought, opened and left in a receptacle on or by
the table. The plaintiff and guests continued their dinner and by 11:50 had consumed the wine left
in their first bottle but had not touched the second bottle. At this time the waiter … came to their
table and told the plaintiff that he must, as provided by provincial law, consume the entire contents
of the second bottle of wine before twelve midnight as after that hour it was illegal to drink wine in
the restaurant. The plaintiff said “We can’t drink a bottle of wine within ten minutes without getting
drunk.” The waiter said “You will have to pay for the wine anyway.” The plaintiff refused to do so.
The waiter then called the manager, Harvey Chinn, who came to the plaintiff’s table … .
The following dialogue ensued:
Chinn: You ordered the wine and must pay for it.
Plaintiff: There is not enough time. I was not told I must finish it. I refuse to pay
for it. If I have to pay for it, then since there is no time to drink it here, I will
take it and drink it elsewhere.
Chinn: You can’t take it away from here. That also is against provincial law.
I state here that I have little doubt that the waiter and the manager were correct in their
statements as to the effect of the liquor laws and regulations of this Province and that to those of
us brought up under and enured to those aboriginal edicts there might be nothing astonishing about
the unreasonable demands made upon the plaintiff. But one can easily imagine the effect on a
person accustomed to more tolerant customs [the plaintiff was a German immigrant to Canada] of
a demand to pay for a bottle of wine he could neither drink nor take with him.
It may be that the plaintiff was wrong and that he was under a civil liability to pay the hotel
for wine he could neither [325] consume on the premises nor take away with him. But, even if this
is conceded, it can by no stretch of the imagination be conceived that he was guilty of any criminal
act. He had made no false pretence, he had used no force, he had simply, as all of us are entitled
to do, refused to pay a sum he did not think he owed. The fact that he may have been wrong was
irrelevant where the refusal to pay was made as here in honesty and in good faith.
There followed more talk between the plaintiff and the manager. It culminated in this
exchange:
Manager: If you don’t pay for the bottle of wine I am going to call the police.
Plaintiff: I am not going to pay for the bottle of wine.
The plaintiff then offered to give the manager his name and address.
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At this point there appeared on the scene another actor, a security officer, so-called, who
must have been summoned by the manager. This gentleman was employed by Pinkerton’s
Detective Agency, which agency was in turn engaged by the hotel company to provide security
services for the hotel. He has since left Canada and cannot be found; nothing is known of him
save that he bore the formidable nickname “Rocky”.
This person told the plaintiff he was a security officer. There was some talk in which Rocky
explained the position taken by the hotel management to the plaintiff, and the plaintiff reiterated
his refusal to pay for the wine. Rocky then said “You must pay for the wine or I will call the police.”
The plaintiff paid his dinner bill … but he did not pay for the second bottle of wine.
Next the plaintiff and his guests got up from their table and commenced to leave the hotel.
When the plaintiff reached the exit for which he was headed he found it blocked by the security
officer who said “You cannot leave.” There was more talk, the plaintiff still refusing to pay. The
security officer said “I am going to call the police.” Since he was not permitted to leave, the plaintiff
sat down at another table nearer the door and his guests joined him.
I cannot take very seriously the argument of counsel for the hotel company that there were
other exits from the cafe unbarred and that the plaintiff might have escaped through one of them.
The plaintiff, commanded by a security officer to stay, and prevented by that officer from leaving
by the ordinary exit, [326] behaved with admirable restraint in making no forcible attempt to pass
the security officer. After what the officer had said and done he could reasonably expect to be
restrained by force if he tried to leave by any exit and he was not required to make an attempt to
run away. …
[Two police officers subsequently arrived at the hotel and one of them, Constable Muir,
who also was a defendant in this action, placed the plaintiff under arrest for refusing to pay for the
second bottle of wine.]
[327] It seems to me that there were here two false imprisonments. When Rocky, the
Pinkerton man, barred the exit from the cafe and told the plaintiff he could not leave, there was
false imprisonment by the defendant Marwest Hotel Co Ltd. When Muir, without a warrant took
into custody and gaoled the plaintiff, who was not committing an offence, and whom the constable
had no reasonable cause to believe to be guilty of an offence, there was a second false
imprisonment. …
[Wilson CJSC assessed damages to be awarded against the hotel defendant at $3,500 and against
the police officer defendant at $2,500, including exemplary and aggravated damages.]
Judgment for the plaintiff
Note: In this case the court did not refer to or discuss Balmain New Ferry Co v Robertson (1906)
4 CLR 379; affd [1910] AC 295. Clearly, however, the court in Bahner was dismissive of the
argument that a person’s liberty may be restrained in order to compel payment of a debt.
An appeal by the defendants was dismissed by the British Columbia Court of Appeal: Bahner v
Marwest Hotel Co Ltd (1970) 12 DLR (3d) 646. Tysoe JA, with whom Maclean and Robertson JJA
agreed, expressed “complete agreement” with Wilson CJSC’s reasons for judgment.
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Janvier v Sweeney
[1919] 2 KB 316 (English Court of Appeal)
The principle in Wilkinson v Downton [1897] 2 QB 57 should be followed. Accordingly, it is a tort
in the form of an action on the case, if the defendant, by false statements and unlawful threats,
made to the plaintiff, intentionally causes the plaintiff to suffer psychiatric injury.
Background and disposition
The events in this case occurred in England during the First World War. The plaintiff, a
Frenchwoman, was employed in a domestic capacity in a house in London where she lived. The
plaintiff also was engaged to be married to a German citizen who had been interned by the British
authorities on the Isle of Man where the plaintiff corresponded with him by letter. The defendants
were two private detectives who were anxious to inspect some letters in the possession of another
person living in the same premises as the plaintiff. With the object of inducing the plaintiff to show
them the letters, one of the defendants, as agent for the other defendant, called at the premises
and identified himself as a police officer representing the military authorities. He said to the plaintiff:
“You are the woman we want, as you have been corresponding with a German spy.” In answer to
questions put to them by the primary judge (Avory J) at the trial of the plaintiff’s action on the case
to recover damages, the jury found that the defendants’ statements were “calculated to cause
physical injury to the plaintiff”, were made maliciously, “that is, with the knowledge that they were
likely to cause such injury” and that the “severe nervous shock” which the plaintiff suffered was
caused by these statements. The jury awarded the plaintiff £250 damages. The defendants’
appeal to the English Court of Appeal was dismissed.
BANKES LJ. ... [321] Mr Turrell [counsel for one of the defendants] contended that no action would
lie for words followed by such damage as the plaintiff alleges here. In order to sustain that
contention it would be necessary to overrule Wilkinson v Downton [1897] 2 QB 57. In my view
that judgment was right. It has been approved in subsequent cases [such as Dulieu v White &
Sons [1901] 2 KB 669]. It did not create any new rule of law, though it may be said to have
extended existing principles over an area wider than that which they had been recognized as
covering, because the court there accepted the view that the damage there relied on was not in
the circumstances too remote in the eye of the law. ...
[324] In my view of the present state of the authorities it is impossible to suggest that Wilkinson …
is not good law or that it ought to be reversed. ...
[Duke LJ and AT Lawrence J agreed with Bankes LJ. Duke LJ, although agreeing with “every
word” of Bankes LJ’s judgment, added the following observation at 326: “This is a much stronger
case than Wilkinson v Downton. In that case there was no intention to commit a wrongful act; the
defendant merely intended to play a practical joke upon the plaintiff. In the present case there was
an intention to terrify the plaintiff for the purpose of attaining an unlawful object in which both the
defendants were jointly concerned.”]
Appeal dismissed
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Wainwright v Home Office
[2004] 2 AC 406 (House of Lords)
Is it correct that with the benefit of hindsight, the facts of Wilkinson v Downton [1897] 2 QB 57
may comfortably be accommodated in the modern tort of negligence? Consider the case below
and Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 (Cases, p 37).
[The plaintiff, Alan Wainwright, suffered humiliation and distress as the result of being strip-
searched (i.e. required to undress) while visiting a relative in prison. Although the conduct of the
prison officers (for whom the defendant, the Home Office was responsible) in requiring the plaintiff
to undress was in good faith, it was not protected by statutory authority.
The questions for the House of Lords were whether damages were recoverable by the plaintiff for
the tort of invasion of privacy or under an extension of the Wilkinson v Downton [1897] 2 QB 57
principle (the plaintiff’s argument being that the prison officers’ conduct was calculated to cause
him distress). The House of Lords answered both questions in the negative and dismissed the
plaintiff’s appeal from the Court of Appeal. The House of Lords held that, in the English common
law, there is no general tort of invasion of privacy apart from specific remedies such as trespass,
nuisance, defamation and the equitable action for breach of confidence. The House of Lords also
held that the Wilkinson v Downton principle does not provide a remedy for distress which does not
amount to psychiatric injury. In any event, there was no actual intent (imputed intent being
insufficient in this context) on the part of the prison officers to cause distress to the plaintiff.
Lord Hoffmann, with whom the other members of the House of Lords (Lord Bingham of Cornhill,
Lord Hope of Craighead, Lord Hutton and Lord Scott of Foscote) agreed, discussed Wilkinson v
Downton and later developments.]
LORD HOFFMANN. 36. … [Wilkinson v Downton [1897] 2 QB 57] is a case which has been far
more often discussed than applied. Thomas Wilkinson, landlord of the Albion public house in
Limehouse, went by train to the races at Harlow, leaving his wife Lavinia behind the bar. Downton
was a customer who decided to play what he would no doubt have described as a practical joke
on Mrs Wilkinson. He went into the Albion and told her that her husband had decided to return in
a horse-drawn vehicle which had been involved in an accident in which he had been seriously
injured. The story was completely false and Mr. Wilkinson returned safely by train later that
evening. But the effect on Mrs Wilkinson was dramatic. Her hair turned white and she became so
ill that for some time her life was thought in danger. The jury awarded her £100 for nervous shock
and the question for the judge on further consideration was whether she had a cause of action.
37. The difficulty in the judge’s way was the decision of the Privy Council in Victorian Railway
Commissioners v Coultas (1888) 13 App Cas 222, in which it had been said that nervous shock
was too remote a consequence of a negligent act (in that case, putting the plaintiff in imminent fear
of being run down by a train) to be a recoverable head of damages. Wright J distinguished the
case on the ground that Downton was not merely negligent but had intended to cause injury. Quite
what the judge meant by this is not altogether clear; Downton obviously did not intend to cause
LAWS1012 Torts Supplementary Materials 2023 Page 14 of 49
any kind of injury but merely to give Mrs Wilkinson a fright. The judge said, however, at p 59, that
as what he said could not fail to produce grave effects “upon any but an exceptionally indifferent
person”, an intention to cause such effects should be “imputed” to him.
38. The outcome of the case was approved and the reasoning commented upon by the Court of
Appeal in Janvier v Sweeney [1919] 2 KB 316. During the First World War Mlle Janvier lived as a
paid companion in a house in Mayfair and corresponded with her German lover who was interned
as an enemy alien on the Isle of Man. Sweeney was a private detective who wanted secretly to
obtain some of her employer’s documents and sent his assistant to induce her to co-operate by
pretending to be from Scotland Yard and saying that the authorities wanted her because she was
corresponding with a German spy. Mlle Janvier suffered severe nervous shock from which she
took a long time to recover. The jury awarded her £250.
39. By this time, no one was troubled by Victorian Railway Commissioners v Coultas. In Dulieu v
White & Sons [1901] 2 KB 669 the Divisional Court had declined to follow it; Phillimore J said, at
p 683, that in principle “terror wrongfully induced and inducing physical mischief gives a cause of
action”. So on that basis Mlle Janvier was entitled to succeed whether the detectives intended to
cause her injury or were merely negligent as to the consequences of their threats. Duke LJ
observed, at p 326, that the case was stronger than Wilkinson v Downton because Downton had
intended merely to play a practical joke and not to commit a wrongful act. The detectives, on the
other hand, intended to blackmail the plaintiff to attain an unlawful object.
40. By the time of Janvier v Sweeney therefore, the law was able comfortably to accommodate
the facts of Wilkinson v Downton in the law of nervous shock caused by negligence. It was
unnecessary to fashion a tort of intention or to discuss what the requisite intention, actual or
imputed, should be. Indeed, the remark of Duke LJ to which I have referred suggests that he did
not take seriously the idea that Downton had in any sense intended to cause injury.
41. Commentators and counsel have nevertheless been unwilling to allow Wilkinson v Downton to
disappear beneath the surface of the law of negligence. …
44. … In Wilkinson v Downton Wright J wanted to water down the concept of intention as much as
possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v Sweeney, that the
plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the
Victorian Railway Commissioners case prevented him from saying so. So he devised a concept
of imputed intention which sailed as close to negligence as he felt he could go. …
Appeal dismissed
LAWS1012 Torts Supplementary Materials 2023 Page 15 of 49
A quick history of recovery for negligently inflicted psychiatric injury (‘nervous shock’)
Lynch v Knight (1861) 9 HLC 577, 598: Lord Wensleydale speaks of mental pain or anxiety as
something which the law cannot value and does not pretend to redress.
Blakeney v Pegus (No 2) (1885) 6 NSWR 223, 231-232 (cited by Gummow and Hayne JJ in
Annetts at [179]) in the New South Wales Full Court, denying liability for the mis-delivery of a
telegram which caused "nervous shock": "no erroneous statement is actionable unless it be
intentionally false. ... For mere negligence no action will lie."
Victorian Railways Commissioner v Coultas (1888) 13 App Cas 222, 225: “…nervous or mental
shock cannot… be considered a consequence which, in the ordinary course of things, would flow
from the negligence of the [defendant’s employee].”
Dulieu v White & Sons [1901] 2 KB 669: liability recognised if caused by fear of physical injury to
the plaintiff.
Hambrook v Stokes Bros [1925] 1 KB 141: recovery by person outside the area of potential danger
for shock caused by injury or near injury to another.
Chester v Waverley Municipal Council (1939) 62 CLR 1: the High Court of Australia denied
recovery to a mother who did not see her 7 year old child drown (in the trench dug by the Council
and negligently left unguarded in the street where it filled with water and posed a threat to children
playing in the street) but was present when his body was found. Liability would only be recognized
to one who witnessed the accident. Evatt J delivered a famous dissent.
Bourhill v Young [1943] AC 92: case of the “pregnant fishwife” who suffered shock after hearing a
motor cycle accident 15 yards away in which person killed, and seeing blood on the road. The first
negligence case on “nervous shock” in House of Lords. HL held that she could not recover because
shock to her was not foreseeable – not within the area of potential danger.
Law Reform Miscellaneous Provisions Act 1944 (NSW) Part 3, ss 3-4: created a statutory liability
for “nervous shock” (undefined) to specified relatives of victim. Did not require spouse or parent
to witness the event, but other relatives did need to witness or hear the event. Not followed in other
states, only in NT and ACT. (Repealed by CLA 2002 as to negligently inflicted nervous shock but
– NB (see Clause 11 of Schedule 1 of the Civil Liability Act 2002 (NSW)) it still applies (“despite its
repeal”) to cases involving intentional injuries committed with intent to cause injury to the victim-
i.e. where s 3 B(1)(a) of the CLA applies.)
Mt Isa Mines v Pusey (1970) 125 CLR 383 – employee recovered for nervous shock after going to
assistance of fellow employee who had been fatally burnt in an industrial accident. Windeyer J:
“Sorrow does not sound in damages. A plaintiff in an action for negligence cannot recover damages
for “shock’, however grievous, which was no more than an immediate emotional response to a
LAWS1012 Torts Supplementary Materials 2023 Page 16 of 49
distressing experience sudden, severe and saddening. It is however, today a known medical fact
that severe emotional distress can be the starting point of a lasting disorder of mind or body, some
form of psycho-neurosis or a psychosomatic illness. For that, if it be the result of a tortuous act,
damages may be had.” (at 394)
“…the law marching with medicine but in the rear and limping a little” (at 395)
“The idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and
more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact.
Waller J referred to this in Chadwick v British Railways Board. His Lordship said ‘The community
is not formed of normal citizens, with all those who are less susceptible or more susceptible to
stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying
susceptibilities.’”
Jaensch v Coffey (1984) 155 CLR 549 (on appeal from SA) per Gibbs CJ: “…the court is not
necessarily constrained to follow earlier decisions when they appear out of accord with
contemporary principles… the decision [in Chester] should no longer be followed.” The Court
allowed Mrs Coffey to recover – she witnessed the immediate aftermath of the accident when she
saw her critically injured husband at the hospital.
What is “nervous shock”? Brennan J: “The notion of psychiatric illness induced by shock is a
compound, not a simple, idea. Its elements are, on the one hand, psychiatric illness and on the
other, shock which causes it.”
Alcock and Chief Constable of South Yorkshire [1992] 1 AC 310 (Hillsborough Football Stadium
disaster): The House of Lords agreed with the HCA from Jaensch v Coffey that three elements are
essential to recovery for nervous shock at common law:
- Proximity in time and space between accident and the mental harm
- A very close (usually family) relationship with the victim
- Seeing or hearing the accident or aftermath with one’s own senses (e.g. not in this case via
television at home).
Campbelltown City Council v Mackay (1989) 15 NSWLR 501: claimants had not suffered a sudden
shock and could not recover as nervous shock but they were able to claim their damages for their
distress as a foreseeable consequence of their property damage claim.
The HCA in Annetts v Australian Stations (2002) 211 CLR 317 (Cases, p 247) (heard and decided
together with Tame v NSW) is the latest High Court authority on the pure common law (no impact
of statute) of negligently inflicted psychiatric harm. (It will not necessarily be the last word on the
common law as the Queensland Civil Liability legislation does not include a mental harm section.)
The Civil Liability Act 2002 (NSW) repealed the 1944 Act with regard to negligently inflicted
psychiatric harm or nervous shock and now sets out a number of restrictions on liability. It restricts
liability or duties of care in ss 30 and 32, sets out some relevant factors for determining a duty of
LAWS1012 Torts Supplementary Materials 2023 Page 17 of 49
care in s 32, but does not create a statutory liability (as the 1944 NSW Act did). Claimants will
bring a common law cause of action. Therefore cases like Annetts and Tame still have relevance
to the determination of duty of care, to the extent that they are not overruled by the statute.
Note:
• the CLA refers to “mental harm” not “nervous shock”, so that sudden shock is no longer
an absolute requirement.
• s 31: pure mental harm must consist of a recognised psychiatric illness.
• The CLA applies not just to relatives but to others who witness an event.
• s 30 applies to restrict claims in three-party situations.
• s 32 applies to any claim for mental harm. Note that it does not create a liability like the
1944 Act, it merely limits liability. Cause of action will be a common law action in
negligence.
• s 32 expressly requires reasonable foreseeability that a person of “normal fortitude”
might suffer a recognised psychiatric illness in the circumstances before a duty will be
owed. What does ‘normal’ mean in this context? (Note Windeyer J’s comments in MIM
v Pusey above). Is satisfaction of s 32 enough to establish a duty of care?
• The CLA raises a number of questions of interpretation.
On recovery by rescuers, compare English cases of Chadwick v British Transport Commission
[1967] 2 All ER 945 (recovery by rescuer allowed) with White v Chief Constable of South Yorkshire
Police [1999] 2 AC 455 (rescuer can only recover if he was himself put in danger). See now the
CLA, s 30 and Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 (Cases, p 259)
on what it means to “witness, at the scene, a person being killed, injured or put in peril”. Note that
in this judgment, the High Court discusses the effect of the civil liability provisions more broadly.
Did the High Court determine whether a duty was owed?
In King v Philcox (2015) 255 CLR 304, the High Court interprets South Australian legislation which
is in different terms to s 30 of the NSW Act. What does it mean to be “witness the accident at the
scene when the accident occurred”?
Barbara McDonald, 2015
LAWS1012 Torts Supplementary Materials 2023 Page 18 of 49
Simon v Condran
(2013) 85 NSWLR 768 (New South Wales Court of Appeal)
Applying settled principles, necessity as a defence to trespass may not be relied upon by a
person whose negligence created or contributed to the necessity.
Background
The plaintiff (appellant), Shari Simon, and the defendant (respondent), Deborah Condran, were
occupiers of adjoining residential properties. Both parties owned dogs which were not on friendly
terms and needed to be kept apart.
The plaintiff’s dog escaped from her unfenced backyard and entered the defendant’s property
where the plaintiff’s dog became involved in a fight with the defendant’s dog. In entering the
defendant’s property for the purpose of retrieving her dog, the plaintiff was bitten on the hand by
the defendant’s dog.
In the context of a claim for damages by the plaintiff against the defendant based on the Companion
Animals Act 1998 (NSW), the issue was whether the plaintiff was “not lawfully” on the defendant’s
property at the time she was bitten by the defendant’s dog.
For reasons which are not explained (see Leeming JA at [32]), the plaintiff did not argue that she
had an implied licence to enter the defendant’s property for the purpose of retrieving her dog.
Rather, the plaintiff sought to invoke the defence of necessity as justifying what otherwise would
be trespass to land on her part.
Disposition
Although the Court acknowledged (per Leeming JA at [33] with whom Macfarlan JA and Sackville
AJA agreed) that the common law recognises a defence of necessity to conduct which otherwise
would constitute trespass (citing Proudman v Allen [1954] SASR 336, Esso Petroleum Co Ltd v
Southport Corporation [1956] AC 218 and Rigby v Chief Constable of Northamptonshire [1985] 2
All ER 985), the Court also acknowledged that negligence on the part of the person creating or
contributing to the necessity will negative the defence (citing the observation of Taylor J in Rigby,
at p 995, that a “defence of necessity is available in the absence of negligence on the part of the
defendant creating or contributing to the necessity”).
In the present case, the negligence of the plaintiff in failing to prevent her dog escaping from her
property created the necessity to enter the defendant’s property to retrieve the dog. Accordingly,
the plaintiff was a trespasser and, as such, “not lawfully” on the defendant’s property at the time
she was bitten by the defendant’s dog. This negatived the liability of the defendant to the plaintiff
under the strict liability provisions (s 25) of the Companion Animals Act 1998 (NSW).
Appeal dismissed
LAWS1012 Torts Supplementary Materials 2023 Page 19 of 49
Blake v Galloway
[2004] 1 WLR 2844 (English Court of Appeal)
In respect of a blow (or missile) received by the plaintiff in the course of an informal game, consent
will negative battery provided that the blow (or missile) was in accordance with the tacit
understandings or conventions of the relevant activity.
[The plaintiff (claimant) and the defendant, both about 15 years of age, and three other friends the
same age, were engaged in “high-spirited and good natured horseplay” while taking a break from
music practice. The “general messing around” involved the participants throwing pieces of bark
chipping at each other. The plaintiff threw a piece of bark chipping 4 cm in diameter at the
defendant which struck him on the lower body. The defendant, without intending to cause harm,
threw this piece of bark chipping at the plaintiff, striking him in the eye and causing “a significant
injury”.
The plaintiff commenced proceeding against the defendant for battery and/or negligence. Although
the primary judge in the Plymouth County Court found in favour of the plaintiff on both counts,
subject to reduction of damages on account of the plaintiff’s contributory negligence, the Court of
Appeal allowed the defendant’s appeal.]
DYSON LJ. [His Lordship found that, in the circumstances, there had been no breach of any
relevant duty to take reasonable care.] …
Battery
20. It is trite law that a battery is the intentional and direct application of force to another person,
and that where there is consent there is no battery. The question of what amounts to consent in
the context of games and sport is not always easy to determine. Consent is rarely given expressly:
it can be, and usually is, implied from conduct. Thus it can obviously be inferred from the act of
taking part in a boxing match or other contact sport that a participant consents to being subjected
to a degree of force. I would accept as an accurate statement of the law the following passage at
para 13-08 of Clerk & Lindsell on Torts (18th edition):
“The claimant cannot claim compensation for the consequences of an act which he has freely
invited, or in respect of which he has assumed the risk. The footballer cannot allege that a
legitimate tackle is a battery. Thus, when the defendant maintains that the claimant consented to
the force used against him, the key question becomes whether that consent extended to the degree
or type of force employed against him. The claimant’s consent need not be specific to the alleged
act of battery. He may be volenti to the general harm envisaged in a fight or in a sport.”
21. In a sport which inevitably involves the risk of some physical contact, the participants are taken
impliedly to consent to those contacts which can reasonably be expected to occur in the course of
the game, and to assume the risk of injury from such contacts. …
LAWS1012 Torts Supplementary Materials 2023 Page 20 of 49
23. So how should these principles be applied in the present case? It was conceded on behalf of
the defendant before the [primary] judge that, but for the issue of consent, he would be liable in the
tort of battery. …
24. … By participating in this game, the claimant must be taken to have impliedly consented to the
risk of a blow on any part of his body, provided that the offending missile was thrown more or less
in accordance with the tacit understandings or conventions of the game. … [T]his is indeed what
happened. There is no basis for holding that the claimant impliedly withheld his consent to the risk
of being struck by a piece of bark thrown in accordance with those understandings or conventions
and without negligence. The question of the extent of the claimant’s implied consent is a matter
for the court to determine in the light of all the surrounding circumstances. There is nothing in
those circumstances which indicates that the claimant’s consent was restricted to the risk of being
struck by objects being thrown at the lower part of his body. The game was played on the basis
that the objects were thrown at no particular part of the body. It follows that an object thrown in the
general direction of a participant, without negligence and without intent to cause injury, but which
happened to hit him in the face, was being thrown in accordance with the understandings and
conventions of the game, and in a manner to which the participants had consented. …
[Clarke LJ and the Vice-Chancellor agreed with Dyson LJ.]
Appeal allowed
Comment:
Dyson LJ at [15] stated that no authority had been cited to the court “dealing with negligence in
relation to injury caused in the course of horseplay, as opposed to a formal sport or game.” His
Lordship might have been referred to the decision of the English Court of Appeal in Mullin v
Richards [1998] 1 All ER 920 where the plaintiff and the defendant, both 15 year old schoolgirls,
were fencing with plastic rulers during class. The plaintiff suffered a serious injury when one of the
rulers snapped and a fragment of plastic entered her eye. The court, referring with approval to the
decision of the High Court of Australia in McHale v Watson (1966) 115 CLR 199, dismissed the
plaintiff’s claim in negligence on the ground that, taking into account the age of the defendant, the
risk of the injury suffered by the plaintiff was not reasonably foreseeable.
LAWS1012 Torts Supplementary Materials 2023 Page 21 of 49
Moon v Whitehead
(2015) 10 ACTLR 309 (Supreme Court of the Australian Capital Territory, Court of Appeal)
Where it is proved (or not in contention) that the defendant committed a trespassory act against
the plaintiff, the onus is on the defendant to prove the plaintiff’s consent to the trespassory act. In
this context, the defendant must prove, on the balance of probabilities, that the plaintiff in fact
(subjectively) consented to the trespassory act. It is not material that (objectively) a reasonable
person in the position of the defendant would have believed that the plaintiff had given his or her
consent to the trespassory act.
Background
The plaintiff, Sharon Whitehead, and the defendant, Michael Moon, were Australian government
employees based in Canberra, ACT. The parties had a history of consensual “intimate activity”
(per Murrell CJ and Burns J at [5]) not involving sexual intercourse. In this regard, the plaintiff had
made it plain to the defendant that she did not wish to have sexual intercourse with him.
In August 2007, the plaintiff and the defendant attended a two-day work-related conference in
Sydney, NSW. As agreed between the parties, they shared a two-bedroom apartment. On the
first night, after the parties had “spent time looking through a number of sex shops in Oxford Street”
(per Murrell CJ and Burns J at [8]) and had returned to their apartment, the defendant entered the
plaintiff’s bedroom and, despite the plaintiff repeatedly telling him to “get out”, the defendant had
sexual intercourse with the plaintiff.
Disposition
The conduct of the defendant constituted the tort of battery. In this regard, the defendant had failed
to prove, on the balance of probabilities (the onus of proof being on the defendant) that the plaintiff
in fact (subjectively) had consented to sexual intercourse.
Murrell CJ and Burns J (with whom Penfold J agreed) observed, at [21]-[22], that in battery, as in
other intentional torts, such as trespass to land (Basely v Clarkson (1681) 83 ER 565) and false
imprisonment (Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR
714), the defendant is not excused from liability on the basis of reasonable mistake. Accordingly,
consent as a defence to battery is not determined objectively by reference to the criterion of
whether a reasonable person in the position of the defendant would have believed that the plaintiff
had given his or her consent to the trespassory act.
Defendant’s appeal dismissed
LAWS1012 Torts Supplementary Materials 2023 Page 22 of 49
Hunter and New England Area Health Service v A
[2009] NSWSC 761 (Supreme Court of New South Wales)
Background
In August 2008, the defendant Mr A, who was then of full legal capacity, signed a document
described as an “advance care directive” which stated in clear language his refusal at anytime in
the future to undergo kidney dialysis. In July 2009, Mr A was admitted to the emergency department
of the plaintiff’s hospital suffering septic shock and respiratory failure. Although he was given all
appropriate treatment, Mr A developed renal failure which required kidney dialysis for preservation
of his life.
Disposition
On application of the plaintiff, McDougall J granted a declaration that the plaintiff would be justified
in complying with Mr A’s wishes as expressed in the “advance care directive” even although the
likely consequence was Mr A’s death.
After referring with approval to the reasoning of the Ontario Court of Appeal in Malette v Shulman
(1990) 67 DLR (4th) 321, McDougall J made the following observations (at [40]):
“A person may make an “advance care directive”: a statement that the person does not wish to
receive medical treatment, or medical treatment of specified kinds. If an advance care directive is
made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it
must be respected. It would be a battery to administer medical treatment to the person of a kind
prohibited by the advance care directive… .
“It is not necessary, for there to be a valid advance care directive, that the person giving it should
have been informed of the consequences of deciding, in advance, to refuse specified kinds of
medical treatment. Nor does it matter that the person’s decision is based on religious, social or
moral grounds rather that upon (for example) some balancing of risk and benefit. Indeed, it does
not matter if the decision seems to be unsupported by any discernible reason, as long as it was
made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable
adult.”
LAWS1012 Torts Supplementary Materials 2023 Page 23 of 49
X v Sydney Children’s Hospitals Network
(2013) 85 NSWLR 294 (New South Wales Court of Appeal)
Although a mentally competent adult has the right to refuse consent to life-saving medical treatment
(as in Malette v Shulman (1990) 67 DLR (4th) 321), the Court, in the exercise of its inherent
jurisdiction, may, in the best interests of the welfare of a mature minor, override his or her refusal
to consent to treatment of this kind. In such a case, the carrying out of the medical treatment on
the mature minor will not constitute trespass to the person.
Background
X, aged 17 years and 8 months, suffered from an aggressive cancer. According to specialist
medical opinion, a blood transfusion was necessary to prevent serious damage to X’s health. On
account of his understanding and intelligence, X was competent to give consent to this treatment.
However, X (and his parents) refused to consent to the treatment on the ground that, as Jehovah’s
Witnesses, a blood transfusion was forbidden.
Disposition
Even although X was a mature minor in the sense that he was competent to give consent to a
blood transfusion, this did not deprive the Court of its inherent jurisdiction to override his refusal of
consent. In the circumstances, the best interests of the welfare of X indicated that the respondent
hospital be authorised to administer blood transfusions to X when the hospital believed that this
was necessary to prevent serious damage to X’s health. However, this authorisation was to cease
when X attained the age of 18 years.
Appeal dismissed
LAWS1012 Torts Supplementary Materials 2023 Page 24 of 49
Second Reading Speech, Civil Liability (Personal Responsibility) Act 2002 New South
Wales Legislative Assembly, 23 October 2002 (Hansard)
Mr CARR (Maroubra—Premier, Minister for the Arts, and Minister for Citizenship): I move:
That this bill be now read a second time.
The introduction of this bill today is a triumph for commonsense. Personal responsibility will rightly
assume a much higher profile in our law thanks to these reforms. Simple pleasures enjoyed by the
community will be able to continue because of them. But, regardless of the commonsense of these
reforms, we recognise that Parliament will be debating some of the most fundamental changes to
the law of negligence ever made. Thanks to the historic joint sitting last month and the assistance
of four eminent speakers, I am sure that we will all have a much better appreciation of how the law
of negligence has developed. I am hopeful the seminar will mean that this debate is of a high
calibre. Honourable members might also be interested in the Senate economics committee report
on public liability and professional indemnity insurance released only yesterday. The bill I am
introducing today is different to the consultation draft I released in early September. The
consultation draft opened up some authentic consultation and the Government has listened.
However, most of the changes implement or draw on the recommendations by the expert panel,
which released its final report, "The Review of the Law of Negligence", late last month. That report
became known as the Ipp report after the Chair of the panel, Justice David Ipp. The New South
Wales Government has taken the lead in responding to the recommendations in the report, and
the need for New South Wales to move quickly has been recognised by the other States, Territories
and the Commonwealth who noted that the particular hardships faced by the New South Wales
community, the most litigious in Australia, deserved prompt attention. That is what we have done.
We are further down the road than any other jurisdiction in Australia.
However, the Government acknowledges that national consistency is desirable to some reforms in
this area. For that reason we have modelled many of the new provisions in the bill following the
original exposure draft on those recommendations in the Ipp report that are more likely to have a
national impact on the Law of negligence. I stress, however, that not all reforms in the bill or in the
Ipp report need to be made in other jurisdictions or in exactly the same terms. But it would be
helpful to the community and the courts if those reforms dealing with basic principles of the law of
negligence were consistent. That is why we have been so ready to change the draft bill. I
understand that the Queensland Government also proposes to introduce further reforms by the
end of the year, and is considering this approach. I am confident that we now have a more
comprehensive and finely honed bill to debate.
Our stage one and proposed stage two reforms have already led to announcements by the
insurance industry that new public liability insurance products will be made available to New South
Wales community organisations. But I emphasise that these reforms are not only a response to
the current problems regarding insurance. It is important to remember that these reforms are not
only about reducing premiums. The insurance crisis served to highlight just how far the law has
LAWS1012 Torts Supplementary Materials 2023 Page 25 of 49
drifted away from the concept of personal responsibility. This is the Americanisation of our legal
system. I want this Parliament to seize the opportunity to wind back this culture of blame. If we do,
we will help to preserve the community's access to socially important activities. Our community
deserves our best efforts to preserve the Australian way of life. That is what it is about.
I turn now to the detail of the bill. The bill modifies particular aspects of the common law. It does
not establish a complete code. We have adopted the approach in the Ipp report to the duty of care
and causation. A risk has to be not insignificant before a court can find it was reasonably
foreseeable. This will send a clear message to the courts that, under the current common law,
liability for insignificant risk is too easily imposed. Our new formulation will emphasise the
community's reasonable expectation that people should have to guard only against risks that are
a real possibility. A court will not be able to rely solely on the benefit of hindsight, on evidence of
subsequent remedial action by the defendant or the mere fact that a risk was easily avoidable.
Although people might argue that these considerations are already the law, putting them in this bill
will help to curtail the willingness of some courts to find a creative way around them. The bill will
also deal with causation. Its intention is to guide the courts as they apply a commonsense
approach. The rules for factual causation are set out, including the very limited exception to the
"but for" test. This exception was developed by the court for those rare cases, often in the dust
diseases context, where there are particular evidentiary gaps. By including this exception in the bill
it is not intended that the bill extend the common law in any way. Rather, it is to focus the courts
on the fact that they should tread very carefully when considering a departure from the but for test.
It is only for the most limited and exceptional circumstances where any departure can be justified.
The bill will limit claims that arise from an inherent or obvious risk, or from the plaintiff's own
contributory negligence. There will be a presumption that a person is aware of obvious risks, as
was recommended in the Ipp report. Similarly, there will be no duty to warn of an obvious risk,
providing that no written law requires such a warning in the particular case. Nor will there be any
liability for the obvious risks of particularly dangerous sports and other risky activities. The bill will
also codify the current law so that there is no liability for the materialisation of inherent risks.
Inherent risks are those risks that no amount of reasonable care and skill can avoid or minimise. If
a person has a duty under the common law to warn of an inherent risk that is not obvious, that duty
will not be affected by the bill. The bill also refers to the common law position that plaintiffs cannot
be found 100 per cent responsible for their own injury. If plaintiffs acted with such little regard for
their own safety that they should not recover, the court will be able to find them 100 per cent
contributory negligent. As was the case under the consultation draft of the bill, there will be no
liability for injury, death or property damage resulting from the risk of recreational activity in respect
of which a risk warning has been given.
Risk warnings will be effective for children and disabled people in certain circumstances. It is
important because it would be unreasonable that a recreational service provider should not be able
to rely on warnings given, for example, to parents before their child goes horse riding. You cannot
expect potential defendants to take better care of a child than the child's own parents would take.
LAWS1012 Torts Supplementary Materials 2023 Page 26 of 49
It is also important to note that risk warnings will be effective if given in such a way that most people
would understand. It will not matter that particular individuals say they did not see the sign, or could
not read English, or could not understand clear symbols. The courts will have to apply an objective
test about the effectiveness of the warning.
A participant in a recreational activity will also be able to assume responsibility for an injury received
and waive the implied contractual requirement that services be provided with due care and skill.
The Commonwealth has recognised that, for many recreational service providers, the right to
assume such a risk under a contract also requires amendments to the Trade Practices Act. That
amendment is before the Senate. Naturally, the new protections for risk warnings and waivers will
be subject to compliance with the safety laws of the Commonwealth and the State. Shoddy
operators will not be able to escape liability if they are in breach of specific safety laws.
The bill will clamp down on plaintiffs who are injured while they are intoxicated. A defendant will
not owe a plaintiff a higher standard of care simply because the plaintiff was intoxicated. Nor will
personal injury damages be available for an intoxicated person unless the accident was likely to
have occurred even if the person had not been intoxicated. If the accident is likely to have occurred
anyway, the intoxicated person's damages will be reduced on a presumption of contributory
negligence of 25 per cent, or more if appropriate, unless the person's intoxication played no part
in the accident.
Very importantly, the bill will limit people claiming damages for injuries received while committing
a crime. The general rule under the bill will be that no damages are payable if the injured person
was engaged in conduct constituting a serious offence. Serious offences include a very wide range
of crimes: entering a dwelling house, breaking and entering, and escaping lawful custody. People
who engage in such criminal conduct should not sue for slipping over while they do so. Nor will any
damages be available if the criminal was injured through reasonable self-defence. Also, no
damages will be payable if the criminal was injured through excessive self-defence, unless the
court considers the circumstances are exceptional.
No damages will be available at all for pain and suffering for a criminal injured through self-defence.
The bill also creates an additional defence to alleged professional negligence if the professional
acted in a manner that was widely accepted in Australia by pure professional opinion as competent
professional practice. This reflects the Ipp report. A court will still be able to find that peer opinion
was irrational, where warranted. Irrationality is not the same as unreasonableness. We are making
it much harder for the court to disregard experts in the field.
We have ensured, however, that there is no change to any common law duty of a professional to
advise, inform or warn about the risks of personal injury in the provision of the services. Obviously,
the most important application for this carve-out will be for medical practitioners. The carve-out is
quite reasonable because patients—and clients of other professionals, where relevant—need to
have enough information about the risk of personal injury to decide whether to proceed to obtain
the service. The common law rule in the case of Rogers v Whitaker will, therefore, continue to
apply in relation to any duty to warn in such situations. The bill will also provide, as recommended
LAWS1012 Torts Supplementary Materials 2023 Page 27 of 49
by the Ipp Report, that non-delegable duty claims will be subject to the reforms contained in the
bill.
Proportionate liability will also be introduced for claims for economic loss or property damage, other
than in personal injury claims. This means that a person jointly responsible with some other person
or persons will be liable only to the extent of their responsibility. The bill will make important
changes to the way that courts deal with claims against public authorities. These changes simply
recognise that services provided to the community by public authorities are not provided for
commercial gain but for the public good. The bill will not, therefore, sanction a public authority to
act in a negligent or unsafe way. It will, however, require the courts to take into account principles
relating to the financial and other resources available to the authority, the general responsibilities
of the authority, and its compliance with general practices and applicable standards.
The bill will also protect regulatory and roads authorities if they could have done something to avoid
a risk but did not do so. It is more than reasonable that functions performed by a public authority
are treated differently under the law. Public authorities carry out what is often a limitless task with
necessarily limited resources. We must ensure, therefore, that it is not left to the courts to determine
a public authority's expenditure on its tasks. In keeping with this approach, the bill will also provide
immunity for a public or other authority for breach of statutory duty, unless it has acted irrationally.
An authority that has not exercised a regulatory function—such as a power to close a fishery—will
also not be liable unless it could have been compelled by a court to exercise that power. A "roads
authority" that has not exercised a discretionary power to mend, for example, a pothole will not be
liable unless it actually knew about the particular risk that led to the injury. This will reintroduce a
protection for certain "non-feasance" on the part of roads authorities. If a roads authority did know
about the particular risk, it will still be able to rely on the general "resources" protection in the bill
for public authorities.
The bill will also protect the good faith actions of good Samaritans who come to the assistance of
a person in danger. This will mean no liability for voluntary rescue organisations, such as surf life
saving clubs, if a person is injured in the course of or in connection with a rescue. Individual
volunteers will also be protected from law suits where their actions were done in good faith. It is
not intended to alter the potential liability of a community organisation by providing the individual
members with immunity. The Ipp Report recommended codifying the law in relation to mental harm.
The bill follows these recommendations.
Instead of using the imprecise term "nervous shock", the bill will provide that damages are only
recoverable for a recognised psychiatric illness. The bill also provides that the only people who can
recover for mental harm are victims of the negligence, people present at an accident scene, or a
family member of a victim. This eliminates the relatives of criminals making a bid for $10,000 to
compensate for the nervous shock they sustained. That is an unbelievable situation and is, in
essence, why this legislation is required. An apology by or on behalf of the defendant will also not
constitute an admission of liability and will not be relevant to the determination of fault or liability in
connection with civil liability. Injured people often simply want an explanation and an apology for
LAWS1012 Torts Supplementary Materials 2023 Page 28 of 49
what happened to them. If these are not available, a conflict can ensue. This is, therefore, an
important change that is likely to see far fewer cases ending up in court.
The bill will facilitate structured settlements by providing that the courts must give a further
opportunity to parties to negotiate a structured settlement. Lawyers will also have to notify parties
about the availability of such a settlement. The Ipp Report recommends that personal injury actions
should not be brought more than three years after the date of "discoverability". The new time period
will run against every injured person, with three exceptions: first, if the person is a child or a disabled
person without a capable parent or guardian to look after his or her interests; second, if an injury
to a child was caused by a person in a close personal relationship with the child or the child's
parents; and third, if a child's parents "irrationally" fail to bring a claim on the injured child's behalf.
The new discoverability test should provide more certainty and limit applications for extensions of
time.
This bill is one of the most important pieces of legislation to be put before this Parliament in recent
years. We need to get it right. That is why we had public consultation and took notice of what came
out in Canberra's Ipp Report. It is fair to say that we have held public consultation and we have
looked carefully at the Ipp Report. Now it is time for this House to debate a proposal for the most
important reform of the laws of negligence in 70 years. I commend the bill to the House.
LAWS1012 Torts Supplementary Materials 2023 Page 29 of 49
Carrier v Bonham
[2002] 1 Qd R 474; (2001) QCA 234
Mental illness is not a defence to liability in tort in negligence. What reasoning underlies the legal
principles?
[The facts are set out in the judgment of McPherson JA]
[1] McMURDO P. I agree with McPherson JA generally, for the reasons he has given, that the
appellant was liable to the respondent in negligence despite his mental illness. I wish only to add
the following brief comments.
[2] The criminal law recognises that a person is not criminally responsible for acts or omissions
done without capacity because of mental illness or mental disability …
[3] In negligence involving children, the High Court has recognised that whilst the standard of care
is objective, the standard is the objective standard to be expected of an ordinary child of
comparable age: McHale v Watson (1966) 115 CLR 199, 209-211, 215, 230-231.
[4] There is initial attraction in the view taken by some academics that, as for criminal wrongs,
those suffering from a diagnosed mental illness affecting their capacity, like children, should not be
liable for their civil wrongs.[3] For example, in Trindade and Cane, The Law of Torts in Australia
[2nd ed, Oxford University Press, Melbourne, 1993], the learned authors note:
"Children are not and are not expected to be as responsible as adults. Adults who are suddenly
attacked by illness or bees can be forgiven because and to the extent that they have no chance to
exercise responsible control over their actions. On this basis the insane should be excused too,
unless we see insanity as some sort of wages of sin."
[5] The courts have taken a different view. Denning LJ considered this interesting question in White
v White [1949] 2 All ER 339, 350-351:
"In my opinion, both on principle and authority, the effect of insanity is to be regarded differently in
the civil courts from what it is in the criminal courts. ...
... innocent third persons may have been injured by the sufferer. He may have made contracts and
broken them, or he may have committed civil wrongs ... If he is a man of wealth or is insured, are
not the injured persons to be compensated from his estate? If the matter were free from authority
I would say that they clearly are. ...
I venture to think that the authorities support these views. In the case of ordinary contracts it is
settled law that a person of unsound mind is liable on his contract unless the other party, at the
time of the making of the contract, was aware of his incapacity: see Molton v Camroux [1849] EngR
659; [1849] 4 Exch 17 and Imperial Loan Co v Stone [1892] 1 QB 599. In the case of torts such as
trespass and assault it is also settled that a person of unsound mind is responsible for wrongful
conduct committed by him before he was known by the injured person to be of unsound mind, even
though it has since become apparent that such conduct was influenced by mental disease which
was unrecognised at the time, and this is so even if the mental disease was such that he did not
know what he was doing or what he was doing was wrong. The reason is that the civil courts are
concerned, not to punish him, but to give redress to the person he has injured. This was laid down
LAWS1012 Torts Supplementary Materials 2023 Page 30 of 49
long ago, not only by the Full Court in Weaver v Ward 1616, Hob 134; 33 Digest 141, 187; in
Canada (Taggard v Innes (1862) 12 CP 77; 33 Digest 141; and in New Zealand (Donaghy v
Brennan (1901) 19 NZLR 289 where all the English authorities are collected). I am aware that
these rules of law have been criticised by some jurists who would make responsibility in contract
depend on real consent, and liability in tort depend on blameworthiness, but I venture to think that
this criticism is somewhat out of date. Recent legislative and judicial developments show that the
criterion of liability in tort is not so much culpability, but on whom the risk should fall. ... I can
understand, of course, that where a specific intent is a necessary ingredient of the wrong, a man
may not be responsible if he was suffering at the time from a disease which made him incapable
of forming that intent, e.g. Public Prosecutions Director v Beard [1920] AppCas 479. But the cases
which I have cited show that assault and trespass, to which I would add negligence, do not fall
within that exception."
[6] Wolff SPJ, in Adamson v Motor Vehicle Insurance Trust (1955-57) WALR 56 [at 67] also
seemed to favour this view:
"... there is much to be said in support of the theory that a lunatic should be responsible for his
tortious acts. The ancient rule of liability, based on the good of the community, which seems to
have been part of the ratio decidendi in the case of William v Hayes has much to commend it."
[7] The appellant intentionally jumped in front of the bus, intending to harm himself but did not turn
his mind to the reasonably foreseeable potential effect of his actions on others. Impulsive acts of
suicide or attempted suicide are common amongst those, like the appellant, who are diagnosed as
suffering from chronic schizophrenia.
[8] Whilst a child's actions in a negligence claim can be judged by the objective standard to be
expected of an ordinary reasonable child of comparable age, the action of an adult lacking capacity
because of mental illness in a negligence claim cannot be similarly judged by any objective
standard of an ordinary reasonable person suffering from that mental illness; if the mental illness
has deprived the person of capacity then the person has also been deprived of rationality and
reasonableness. The standard of care must be the objective standard expected of the ordinary
person.
[9] On the facts of this case, the appellant was liable to the respondent in negligence. …
[18] McPHERSON JA: On 10 January 1996 Keith Carrier was driving a City Council bus along
Bowen Bridge Road when John Bonham stepped out in front of it. He applied the brakes but was
unable to stop it from hitting Bonham. As a result Bonham sustained some physical injury; but it
was Carrier who in the end suffered more. Because of his experience on that occasion he now has
an adjustment disorder, which compelled him to give up bus driving. As a result he has sustained
both personal injury and economic loss, in respect of which he brought this action for damages in
the District Court.
[19] The action was instituted by Carrier as plaintiff against Bonham as first defendant and the
State of Queensland as second defendant. The State was joined as defendant because it was
responsible for the nearby Royal Brisbane Hospital from which Bonham had escaped. He was then
what is termed a regulated patient, some 45 years of age, who had a long history of chronic
schizophrenia, which had first been diagnosed when he was 26 years old, and on the evening in
LAWS1012 Torts Supplementary Materials 2023 Page 31 of 49
question, he absconded from the hospital with the intention of committing suicide. The plaintiff
failed in his claim against the State because the trial judge found that, although the incident was
foreseeable, those in charge of Bonham had not been negligent. There has been no appeal against
that decision, but Bonham has appealed against the judgment at trial holding him liable for the
plaintiff's loss, which was quantified in money terms at $113,061.00.
[20] The appeal squarely raises the question whether a person of unsound mind is capable at
common law of being legally liable in negligence for conduct by someone with the mental condition
of Bonham that causes injury and loss to another. At the trial his Honour held that Bonham's actions
did not amount to either a battery or an assault on Carrier. That conclusion has not been challenged
on appeal, and we are not here concerned with it. However, on the question of negligence, the
learned judge decided that, being a person of unsound mind, Bonham was not liable for the injury
inflicted on Carrier.
[21] Essentially his Honour's reason for reaching that conclusion was that, for the purpose of the
law of negligence, the legal position of a person of unsound mind ought to be equated with that of
an infant; that Bonham was not capable of assessing the effect of his actions on someone else;
and that his conduct was therefore not to be judged by the objective standard of the ordinary
person. In respect of that conclusion, a notice of contention was filed by the plaintiff. Among the
matters contested by the plaintiff on the appeal are his Honour's findings that:
(d) the first defendant's mental condition had an effect on the standard of care owed by him to the
plaintiff;
(e) his mental condition had an effect on his liability in negligence; and
(g) his attempted suicide did not constitute a breach of his duty of care to the plaintiff.
[22] Having, however, determined the matter of liability in negligence against the plaintiff, the
learned judge went on to hold that the first defendant was liable to the plaintiff on the authority
of Wilkinson v Downton [1897] 2 QB 57. That is the well known case in which the defendant as a
practical joke told the plaintiff's wife that the plaintiff had been seriously injured in an accident, with
the consequence that she suffered shock and illness, pain and suffering. Saying that the defendant
would be liable for having "wilfully done an act calculated to cause physical harm to the plaintiff",
and which had in fact done so, R S Wright J held that the defendant's act was "so plainly calculated
to produce some effect of the kind which was produced that an intention to produce it ought to be
imputed to the defendant" ([1897] 2 QB 57, 58-59). He added that it was no answer in law to say
that more harm was done than was expected or anticipated "for that is commonly the case with all
wrongs".
[23] The decision has since been applied throughout the common law world on occasions too
numerous to mention. In Bunyan v Jordan (1936) 36 SR (NSW) 350, 353, Jordan CJ said:
"Whenever a person does an act which has the effect of causing physical injury to another in
circumstances which do not amount to trespass to the person, he is legally responsible if the act
was done negligently (that is, if it was done carelessly in circumstances which created a legal duty
to be careful) and the injury was attributable to the negligence."
LAWS1012 Torts Supplementary Materials 2023 Page 32 of 49
It was not a case involving unsoundness of mind on the part of the defendant, except perhaps in
the limited sense that, if there was madness, then as with Prince Hamlet there was method in it.
On appeal in Bunyan v Jordan (1937) 57 CLR 1, 10, Latham CJ said that if a person "deliberately
does an act of a kind calculated to cause physical injury ... and in fact causes physical injury to that
other person, he is liable in damages". In Northern Territory v Mengel (1995) 185 CLR 307, 347,
their Honours referred to Wilkinson v Downton as conceptually illustrative of "acts which are
calculated in the ordinary course to cause harm ... or which are done with needless indifference to
the harm that is likely to ensue". See also Khorasandjian v Bush [1993] QB 727, 735.
[24] The appellant Bonham seizes on the word "calculated" in these passages as demonstrating a
need to show an intention to cause, or at least actual foresight of the likelihood of causing, harm
of some kind. From there he submits that no such intention or foresight can, because of his mental
condition, be attributed or imputed to him. Dr Joan Lawrence, whose evidence on this matter was
accepted by the trial judge, considered that Bonham would not have been capable of being aware
of the fact that his actions might cause injury to people on the bus. She did not believe, she said,
that that would have been in his mind at all; he would have had absolutely no concept of what his
actions might do to someone else…..
[28] It follows, in my opinion, that if the defendant Bonham in this case was, because of his mental
condition, not legally responsible for the foreseeable consequences of his action in throwing himself
at or under the bus, he was no more liable under the decision in Wilkinson v Downton than he was
according to ordinary principles of the law of negligence. On either approach, he was, according
to the evidence accepted by his Honour, actually unable to foresee that harm might result to the
occupants of the bus, including the plaintiff Carrier, from his intentional act. Under Roman law, and
the legal systems of continental Europe derived from it, the rule is that a person of unsound mind
is not legally liable for his wrongs. There is a famous passage in the Digest (D 9.2.5.2) in which
Ulpian describes as "undoubtedly right" the opinion of another Roman jurist that there can be no
liability in such a person under the lex Aquilia; for how, he asks, can there be any "accountable
fault" in him who is out of his mind (Watson's translation (1985) vol 1, at 278-279). Under the lex
Aquilia, liability was recognised as arising either dolo or culpa, of which the latter did not precisely
mean negligence but rather conduct that was "blameworthy".
[29] It was typical of English law that it seldom asked itself theoretical questions like that, but
resolved them, often as narrowly as possible, only when they presented for determination in court.
An early case commonly quoted in this context is Weaver v Ward (1617) Hob 134; 80 ER 284,
where a member of a London trained band accidentally discharged his musket into the plaintiff
during military exercises. In the course of holding the defendant liable, the Court, rather
uncharacteristically, used the occasion to say that if "a lunatick hurt a man, he shall be answerable
in trespass", and that therefore "no man shall be excused of a trespass ... except it be judged
utterly without his fault". It was in reference to that dictum that in McHale v Watson (1964) 111 CLR
384, 388, Windeyer J said:
"The words 'utterly without fault' mean, as the context and later decisions make clear, not an
absence of all ground for blame and censure of any kind but an absence of any kind of such
negligence as constitutes fault at law".
LAWS1012 Torts Supplementary Materials 2023 Page 33 of 49
[30] If that is so (as I respectfully think it to be), then the principle embraced by Ulpian has no place
in our law. The decided authorities at common law are relatively few, but they lend support to a
different approach to the question. In Donaghy v Brennan (1900) 19 NZLR 289 a strong Court of
Appeal (Stout CJ, Williams, Edwards, and Martin JJ, affirming the decision of Connolly J) held that
unsoundness of mind was no defence to a civil action for assault and battery involving injury caused
by firing a loaded gun, in respect of which the defendant had already been convicted. The Court
distinguished the position taken by Roman law on the basis that it viewed an insane person in a
way that was quite different from English law and extended the same attitude to persons who were
drunk (19 NZLR 289, 300-301). In Morriss v Marsden [1952] 1 All ER 925, a defendant was held
liable for damages for battery although he was insane. The reasons of Stable J in that case, which
was not a reserved decision, proceeded on the basis that the tort was not one that required a
specific state of mind. In Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56, Wolff SPJ
held that the defendant, who like many of those considered in the reported cases, was
schizophrenic, was liable for negligence in driving a car into a pedestrian who was crossing the
road. The American and Canadian authorities are almost at one in holding persons liable for their
tortious wrongs even though they may be suffering from unsoundness of mind. Instances like
malicious prosecution may be exceptional. See Spenser Krause Gans, The American Law of Torts,
vol 1 §5:17; Prosser & Keeton on the Law of Torts (5th ed) §135; Restatement of the Law (2nd);
Torts §23B (1964). As observed by Wolff SPJ in Adamson's case, almost the only exception to this
general trend of decided authority is Buckley & Toronto Transportation Company v Smith Transport
Limited [1946] 4 DLR 721, where the Ontario Court of Appeal held a truck driver not liable because
he was suffering from delusions which deprived him of the ability to understand his duty to take
care and of his power to discharge it.
[31] Somewhat surprisingly, academic opinion seems, on the whole, to be the other way. Clerk &
Lindsell on Torts (16th ed. 1989), at 168, says that the liability of a person of unsound mind seems
to stand on the same footing as the liability of a young child., which was the view adopted by the
primary judge here. Winfield & Jolowicz on Tort (15th ed 1998), at 840, suggests that the question
is whether the defendant was possessed of the requisite state of mind for liability in the particular
tort. Professor GHL Fridman propounds a similar view in (1964) 80 LQR 84, 94, as does Brazier
in The Law of Torts (9th ed 1993), at 570. Compare Trindade & Cane, Law of Torts in Australia 206-
207, in which the authors are careful to relate the question to individual torts rather than treating it
as a matter of general principle. If some such test were to be applied, it is difficult to see why a
person should be liable for a battery or assault but not for ordinary negligence, which requires no
particular state of mind but only a departure in conduct from the objective community standard of
a reasonable person.
[32] One reason that seems to be suggested for abandoning the norm is that there are rare cases
in which it has been held or contemplated that a person might not be tortiously liable for injury
caused as a result, for example, of an unexpected epileptic fit or hypoglycaemic episode; but in my
view those decisions turn not on the state of mind of the defendant, but on the presence of a state
of automatism, with the result that the act or conduct in question is considered not to be the act of
the defendant at all, as with the behaviour induced by the bee sting in Scholz v Standish [1961]
SASR 123. It is more like what, in an earlier and more reverend age, was called an act of God, and
in the field of criminal law is now regarded as an unwilled or involuntary act: cf Falconer v The
LAWS1012 Torts Supplementary Materials 2023 Page 34 of 49
Queen (1990) 171 CLR 30. That was the view taken by Stable J in Morriss v Marsden [1952] 1 All
ER 925, 927-928; by McGregor J in Beals v Hayward [1960] NZLR 131, 138; and also by Neill J
in Roberts v Ramsbottom [1980] 1 WLR 823, 830-833. Such a condition is regarded in law as in a
different category from the states of mind that constitute insanity.
[33] What is in issue here is the significance of the defendant's mental incapacity to foresee that
his actions might cause injury to someone else. Ever since the decision in Vaughan v Menlove
(1837) 3 Bing (NC) 468; 132 ER 490, the established rule of our law has been that the standard
for judging negligence is "the conduct of a man of ordinary prudence" (Tindal CJ, at 474). The
decision is directly relevant here because the defendant who, against all advice, had risked
spontaneous combustion in his hayrick, obtained a rule nisi for a new trial on the ground (at 471)
that "he had acted bona fide to the best of his judgment; [and] if he had, he ought not to be
responsible for the misfortune of not possessing the highest order of intelligence". It also appears
from the report (at 472) that, a few years before, he had been successfully sued for burning weeds
so near the boundary of his land as to set fire to and destroy his neighbour's wood. The point being
made by the defendant there was that he was a man of reduced intelligence; but the rule nisi for a
new trial was nevertheless discharged by the Common Pleas. The decision has been "generally
recognised ever since" as having set an objective standard of conduct that is independent of the
idiosyncrasies of particular individuals: McHale v Watson (1964) 111 CLR 384, 396-397 (Windeyer
J).
[34] What remains to be considered is the analogy sought to be drawn with the tortious liability of
children. For Australia that question was settled in McHale v Walson (1966) 115 CLR 199, where
the Full High Court, affirming the decision of Windeyer J, but with Menzies J dissenting, held that
age was a relevant consideration which, in that instance resulted in the 12 year old male defendant
being held not liable in tort to another child for his action in throwing a metal dart which glanced off
a wooden post and struck her in the eye. In doing so, their Honours held that his conduct was to
be judged, not in terms of the foresight and prudence of an ordinary person, but of the foresight
and prudence of an ordinary boy of twelve. In explaining the principle involved, Kitto J referred to
a passage in the History of English Law, vol 8, p 376n, in which Holdsworth had spoken of
inherently "proper" acts, to which liability in law did not attach. His Honour continued (115 CLR
199, 213):
"In so far as 'proper' is an apt word to use in this connection it connotes nothing but conformity with
an objective standard of care, namely the care reasonably to be expected in like circumstances
from the normal person exercising reasonable foresight and consideration for the safety of others.
Thus a defendant does not escape liability by proving that he is abnormal in some respect which
reduces his capacity for foresight and prudence."
His Honour then went on to say:
"The principle is of course applicable to a child. The standard of care being objective, it is no answer
for him, any more than it is for an adult, to say that the harm he caused was due to his being
abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow
that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not
as being personal to himself, but as being characteristic of humanity at his stage of development
LAWS1012 Torts Supplementary Materials 2023 Page 35 of 49
and in that sense normal. By doing so, he appeals to a standard of ordinariness, to an objective
and not a subjective standard."
[35] The subsequent decision in Cook v Cook (1986) 162 CLR 376, which was concerned with the
duty of care in a relationship that was special, did not, in my view, disturb that general conclusion
but tends rather to confirm it. See the reasons of the majority at 162 CLR 376, 383. Sir Frank Kitto's
rationalisation of the special category into which childhood foresight falls makes it, to my mind,
clear that he would have regarded unsoundness of mind as an abnormality that did not attract
special exemption from the ordinary standard of foresight and care expected of other people.
Indeed, it could hardly be otherwise. Unsoundness of mind is not a normal condition in most people,
and it is not a stage of development through which all humanity is destined to pass. There is no
such thing as a "normal" condition of unsound mind in those who suffer that affliction. It comes in
different varieties and different shades or degrees. For that reason it would be impossible to devise
a standard by which the tortious liability of such persons could be judged as a class. As Baron
Bramwell once said, insanity is a misfortune and not a privilege. It attracts human sympathy but
not, at least in the case of negligence, immunity under the law of civil wrongs.
[36] In some of the discussions of the topic, there are appeals to the natural sentiment of sympathy
for the wrongdoer and his family or dependants. Without invoking similar feelings for the victim and
his family, it is relevant to mention the following point in the present case. Part at least of the reason
why the defendant Bonham was able to escape from the hospital from which he absconded is that
psychiatric practice no longer insists that persons in his condition be kept in strict custody. More
humane methods of treatment now prevail, under which greater liberty of movement is, for their
own perceived good, permitted to patients in this unhappy state. If in the process they take
advantage of that liberty to venture, even if briefly, into "normal" society, it seems only proper that,
in the event of their doing so, their conduct should be judged according to society's standards
including the duty of exercising reasonable foresight and care for the safety of others. If that
principle is not applied, then it is only a matter of time before there is reversion to the older and
less humane practices of the past in the treatment of mental patients.
[37] For these reasons I would, for the findings made by the learned trial judge, substitute findings
that the first defendant's mental condition had no effect on the standard of care owed by him to the
plaintiff, which, on the contrary, is to be judged by the standard of the ordinary and reasonable
person, and that it did not diminish or reduce his liability in negligence to the plaintiff.
[38] This has the consequence that, as to liability, the appeal must be dismissed….
[Moynihan J agreed with Macpherson JA]
Appeal dismissed
LAWS1012 Torts Supplementary Materials 2023 Page 36 of 49
Zhang v Hardas (No 2)
[2018] NSWSC 432 (New South Wales Supreme Court)
What is a “professional” for the purposes of s 5O of the Civil Liability Act 2002 (NSW)?
Ms Zhang sued Mr Hardas, a chiropractor, alleging that he had been negligent in treating her over
12 consultations between February and September 2007, causing her to develop a depressive
disorder. The case concerned Mr Hardas’ use of an “activator” device on Ms Zhang’s spine, which
delivered a significant force to the spine for the purpose of moving bones in the spine. Ms Zhang
alleged that the device had been applied hundreds of times to her cervical spine during each of the
consultations with Mr Hardas.
Justice Leeming in the NSW Supreme Court rejected this argument, with the evidence supporting
Mr Hardas’ position that the device had been used no more than a dozen times during each session
with Ms Zhang. Further, it was not reasonably foreseeable that a person of normal fortitude might
suffer a recognised psychiatric injury as a result of undergoing treatment with the activator device
when it was used no more than a dozen times on each occasion. However, Justice Leeming
considered whether s 5O would apply (as argued by the defendant), if his Honour was incorrect on
the point of whether the plaintiff owed the defendant a duty of care.
Justice Leeming considered whether Mr Hardas, as a chiropractor, could be said to be “practicing
a profession”. After reviewing the history of professionalisation, Justice Leeming stated that he
preferred the view “that the essential nature of practising a profession is closely linked to a partial
monopoly, justified by education and public benefit, and involving a measure of altruism distinct
from the drive for profit” ([144]). However, Justice Leeming did not express a conclusive view of
the meaning of the word “profession” for the purposes of s 5O, but instead confined his decision to
the narrower question of whether chiropractors practiced a profession.
Justice Leeming noted that at the time the incident occurred, chiropractors were regulated under a
series of acts, including the Chiropractors Act 2001 (NSW), the Health Care Complaints Act 1993
(NSW) and the Public Health Act 1991 (NSW). The Chiropractors Act established a Registration
Board that developed a code of professional conduct for chiropractors and also included definitions
of “professional misconduct” and “unsatisfactory professional conduct.” Public complaints could be
made to the board, and the Act also established a Chiropractors Tribunal that dealt with complaints
that could involve suspending or cancelling a chiropractor’s registration. The Public Health Act
provided that a person could not engage in spinal manipulation unless they were a registered
chiropractor.
Justice Leeming concluded that s 5O “was enacted in a context in which (a) it was plain that the
conventional medical profession was squarely within the mischief to which it was directed and (b)
legislation treated chiropractors in ways which were similar to medical practitioners”, including
through the creation of a tribunal dealing with instances of professional misconduct, combined with
statutory concepts of professional misconduct and unsatisfactory professional conduct ([169]).
LAWS1012 Torts Supplementary Materials 2023 Page 37 of 49
The Chiropractors Act 2001 also consistently treated chiropractors as professionals and “there is
every reason for the defined term ‘professional’ in s 5O to extend to occupations regarded by the
same Legislature as professional” ([169]). Accordingly, chiropractors could be regarded as
practising a profession for the purposes of the provision. Further, “the notion of a licensed
monopoly of people who practice spinal manipulation, with educational qualifications and
mechanisms for admitting and excluding those who meet or fail to meet those standards, also
appears to apply” ([170]).
Mr Hardas could establish that he had acted in a manner that was widely accepted in Australia as
competent professional practice as he had established that the “activator technique” was widely
accepted in Australia, and the fact that other chiropractors used different methods did not prevent
him from establishing that he had followed competent professional practice (s 5O(3)). Justice
Leeming left to one side the issue of whether s 5O required the defendant to establish that he or
she had followed “a practice” but noted that Mr Hardas’ conduct would have met this requirement
if necessary.
Belinda Reeve, 2018
LAWS1012 Torts Supplementary Materials 2023 Page 38 of 49
South Western Sydney Local Health District v Gould
(2018) 97 NSWLR 513 (New South Wales Court of Appeal)
When will peer professional opinion be considered “irrational” for the purposes of s 5O(2) of the
Civil Liability Act 2002 (NSW)?
The plaintiff, a young boy, slipped and fell on wet concrete and injured his thumb. He was
administered antibiotics at Campbelltown Hospital and a different antibiotic at Liverpool Hospital,
which he was transferred to in the evening on the day of the incident. However, gangrene
developed in his thumb after he was discharged and it was amputated. The plaintiff successfully
brought a claim in negligence against the health district responsible for Liverpool Hospital. The trial
judge found that the treating team at Liverpool Hospital had been negligent in failing to give the
plaintiff an additional course of a different antibiotic, and that the opinion of the defendant’s two
expert witnesses (that the additional course of antibiotics was not required) was irrational under s
5O(2).
On appeal to the NSW Court of Appeal, Justice Leeming (with whom Meagher J agreed) made a
series of comments on s 5O after considering the history, purpose, and statutory context of the
provision. Justice Leeming concluded that the ([96]):
“Text, context and purpose [of s 5O] all support the conclusion that it is a seriously pejorative and
exceptional thing to find that a professional person has expressed an opinion that is ‘irrational’ and
even more exceptional if the opinion be widely held. To consider a body of opinion to be ‘irrational’
is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer
professional opinion.”
Justice Leeming held that the trial judge had erred by conflating the process of resolving a conflict
between competing expert opinions “with the entirely different process required by s 5O(2) of
determining whether an opinion is ‘irrational” ([65]). It was also procedurally unfair for the trial judge
to find the evidence of the defendant’s witnesses irrational when this point had not been argued at
trial or raised with either party. Further, the evidence of the defendant’s witnesses was sufficient to
establish s 5O(1), and so the appeal was allowed.
Belinda Reeve, 2018
Note: In Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436 [2021] VSCA 72, the
Victorian Court of Appeal considered an equivalent (but differently worded) Victorian statutory
provision: see Cases, p 385 (note).
LAWS1012 Torts Supplementary Materials 2023 Page 39 of 49
Doubleday v Kelly
[2005] NSWCA 151 (New South Wales Court of Appeal)
In the context of s 5F (meaning of “obvious risk”) and s 5R (standard of contributory negligence) of
the Civil Liability Act 2002 (NSW), it is a relevant consideration that the person who has suffered
harm is a child.
Background
The plaintiff, a child aged 7, who was a guest in the defendants’ house, suffered personal injury
when she fell off a trampoline at a time when there was no adult supervision.
Disposition
In upholding an award of damages for negligence in respect of this accident, the New South Wales
Court of Appeal rejected the defendants’ contention that the plaintiff had been guilty of contributory
negligence by getting on the trampoline wearing roller skates. The court agreed with the primary
judge that this issue was to be determined by reference to the standard of care required of a
reasonable child aged 7, not the standard of care required of a reasonable adult. In this regard, s
5R(2)(a) of the Civil Liability Act 2002 (NSW) makes no change in the common law. At paragraph
26, Bryson JA (with whom Young CJ in Eq and Hunt AJA agreed) observed: “The characteristics
of a reasonable person in the position of the person who suffered harm include the characteristics
of being a child of seven years.”
Similarly, whether a risk is an “obvious risk” within the meaning of s 5F(1) of the Civil Liability Act
2002 (NSW) requires taking into account the circumstance of the plaintiff being a child aged 7. In
the present case, a reasonable child aged 7 would not have regarded the trampoline as an obvious
risk even although a reasonable adult might have so regarded it.
Note:
In Waverley Council v Ferreira [2005] NSWCA 418 the father of a 12 year old boy recovered
damages for “pure mental harm” (as defined in s 27 of the Civil Liability Act 2002 (NSW)) suffered
as the result of the boy’s death in an accident caused by the defendant’s negligence. The accident
involved the boy falling through a plastic skylight on the roof of a community centre occupied by
the defendant. The New South Wales Court of Appeal approved the reasoning in Doubleday v
Kelly (above) and held that a 12 year old child in the position of the defendant’s deceased son
would not have perceived the risks associated with climbing on the roof of the community centre
and sitting on the skylight. Accordingly, the damages recoverable by the father were not reduced
on account of any contributory negligence on the part of his deceased son: see 30(3) of the Civil
Liability Act 2002 (NSW).
LAWS1012 Torts Supplementary Materials 2023 Page 40 of 49
Russell v Edwards
(2006) 65 NSWLR 373 (New South Wales Court of Appeal)
Section 50 (“No recovery where person intoxicated”) of the Civil Liability Act 2002 (NSW) provides
a complete defence in a negligence action to recover damages for death, personal injury or
property damage “when it is established that the person whose death, injury or damage is the
subject of the proceedings … was at the time of the act or omission that caused the death, injury
or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill
was impaired” (s 50(1)). In such a case, no damages are to be awarded unless the court is satisfied
“that the death, injury or damage to property … is likely to have occurred even if the person had
not been intoxicated”: (s 50(2)).
Background
The plaintiff, Ashley Russell, aged 16 at the relevant time, was a guest at a party at the home of
the defendants, Mr and Mrs Edwards. The party, attended by about 30 people, was to celebrate
the 16th birthday of the defendants’ son. The defendants were aware that a large amount of alcohol
was being consumed by the young party guests. About 10.00 pm, Mr Edwards told the guests to
move into the pool area, which they did. Some of the guests, including the plaintiff, began
swimming. After spending about 20 minutes in the pool, the plaintiff got out and dived in again at
the shallow end of the pool. The plaintiff struck his head on the floor of the pool and sustained
severe injury.
Trial
In a negligence action against the defendants, the trial judge in the District Court found that the
defendants, as occupiers of the premises, owed the plaintiff a duty of care and that there had been
a breach of duty in failing adequately to supervise and control the party guests. However, the
evidence established that, at the time he dived into the pool, the plaintiff was intoxicated by alcohol
to such an extent that his capacity to exercise reasonable care and skill was impaired. The trial
judge also found that, in terms of s 50(2), it had not been established that the plaintiff’s injury was
likely to have occurred even if he had not been intoxicated. Accordingly, as required by s 50(2),
the court awarded the plaintiff no damages.
Appeal
An appeal by the plaintiff was dismissed by the New South Wales Court of Appeal which did not
find it necessary to decide whether the defendants owed the plaintiff a duty of care or whether the
defendants were guilty of a breach of duty. In any event, the defendants were not liable in damages
to the plaintiff on account of his alcohol intoxication.
First, the plaintiff’s alcohol intoxication was “self-induced” in terms of s 50(5). The word “self-
induced” in this context was to be equated with “voluntary”: Ipp JA at [21] (with whom Beazley JA
LAWS1012 Torts Supplementary Materials 2023 Page 41 of 49
and Hunt AJA agreed). It was not relevant that the plaintiff, a person with limited experience of
drinking alcohol, was ignorant of the quantity of alcohol required to make him intoxicated.
Secondly, the language of s 50(1) required the determination of a single act or omission that
caused the plaintiff’s injury: Ipp JA at [30]. As a matter of construction, s 50(1) must be read as
referring to the act or omission that directly (emphasis added) caused the death, injury or damage:
Ipp JA at [40].
In the present case, as found by the trial judge, the direct cause of the plaintiff’s injury was his
intoxication. Accordingly, the plaintiff was entitled to no damages in respect of any liability Mr and
Mrs Edwards otherwise might have had to him: Ipp JA at [43].
Note:
Section 50 of the Civil Liability Act 2002 (NSW), as interpreted in Russell, has elevated contributory
negligence to a complete defence where the relevant conduct of the plaintiff consists of self-
induced intoxication. This is a return to the common law rule in Butterfield v Forrester (1809) 103
ER 926 which was abolished by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW).
In Butterfield v Forrester, the defendant’s house was close to a public road. For the purpose of
making some repairs to his house the defendant put a pole across the road.
In the early evening, at a time when this obstruction was visible at a distance of one hundred yards,
the plaintiff, riding his horse, collided with the pole and was injured. In an action to recover
damages for personal injury based on the defendant’s negligence, the plaintiff’s lack of care for his
own safety was held to preclude him recovering any damages from the defendant.
The common law rule that contributory negligence is a complete defence was stated by Lord
Ellenborough CJ in these words:
“One person being in fault will not dispense with another’s using ordinary care for himself. Two
things must concur to support this action, an obstruction in the road by the fault of the defendant,
and no want of ordinary care to avoid it on the part of the plaintiff.”
LAWS1012 Torts Supplementary Materials 2023 Page 42 of 49
Table: Assessment of Damages for Personal Injury of Living Plaintiff
Injury Trial Expected Death “P.A.E.D.”
Special damages………..|
(Medical expenses
Loss of earnings)
General Damages
| Future economic loss comprising
loss of future earning capacity including in “the lost years”………||
and future medical expenses……||
(Paid as a lump sum
|capitalized to find present value of
|loss over period of relevant years assuming
|notional interest rate (“discount rate”)
Based on net loss after tax
Reduction for vicissitudes
Only where the loss was productive of financial loss
Include value of unpaid/gratuitous care.
Ignore gifts and self-insurance payouts etc )
|……………………..Pain and suffering (subjective)..........||
|……… Loss of amenities/enjoyment of life ………… ..||
(objective and subjective elements)
|| Loss of expectation of life
(“moderate amount only”)
(P.A.E.D. = pre- accident likely
date of death)
LAWS1012 Torts Supplementary Materials 2023 Page 43 of 49
Woodland v Swimming Teachers Association
[2014] AC 537 (United Kingdom Supreme Court)
The Supreme Court of the United Kingdom upheld an appeal against a judge’s decision to strike
out a claim against a school, based on breach of a non-delegable duty. The school, for which the
respondent council was responsible, had delegated the curriculum task of conducting the
swimming lessons, held at a local pool during school hours, to non-employees. The 10 year old
plaintiff suffered brain injury after nearly drowning. What is the rationale for characterising a duty
as non-delegable?
Lord Sumption (with whom Lord Clarke, Lord Wilson and Lord Toulson agreed):
1. This appeal arises from a tragic incident on 5 July 2000 at Gloucester Park swimming pool in
Basildon, Essex. The Appellant, then aged ten, was a pupil at Whitmore Junior School, for which
the Respondent education authority was responsible. The national curriculum, in its then form,
included physical training of a number of alternative kinds, one of which was swimming, and pupils
at the school had swimming lessons in normal school hours. What appears to have happened was
that the Appellant and other members of her class went to the pool, accompanied by a class
teacher, Mrs Holt. At the pool, the children were divided into groups. The group to which the
Appellant was assigned was taught by a swimming teacher, Ms Burlinson, with a lifeguard, Ms
Maxwell, in attendance. At some point, the Appellant got into difficulties, and was found (in the
judge’s words) “hanging vertically in the water.” She was resuscitated, but suffered a serious
hypoxic brain injury. The Appellant alleges (among other things) that her injuries were due to the
negligence of Ms Burlinson and Ms Maxwell. Neither of them was employed by the education
authority. Their services had been provided to the authority by Mrs Beryl Stopford. She was an
independent contractor who carried on an unincorporated business under the name of “Direct
Swimming Services”, and had contracted with the education authority to provide swimming lessons
to its pupils.
2. The issue on the present appeal arises out of an allegation in the Appellants’ pleadings that the
Council owed her a “non-delegable duty of care”, with the result that it is liable at law for any
negligence on the part of Ms Burlinson or Ms Maxwell. …
Non-delegable duties
3. In principle, liability in tort depends upon proof of a personal breach of duty. To that principle,
there is at common law only one true exception, namely vicarious liability. Where a defendant is
vicariously liable for the tort of another, he commits no tort himself and may not even owe the
relevant duty, but is held liable as a matter of public policy for the tort of the other: Majrowski v
Guy’s and St Thomas’s NHS Hospital Trust [2007] 1 AC 224. …
4. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense
that it only arises because there is none. On the footing that the local authority was not vicariously
liable for the negligence of Mrs Stopford, Ms Burlinson or Ms Maxwell, the question is what was
LAWS1012 Torts Supplementary Materials 2023 Page 44 of 49
the scope of the authority’s duty to pupils in its care. Was it a duty to take reasonable care in the
performance of the functions entrusted to it, so far as it performed those functions itself, through
its own employees? Or was it a duty to procure that reasonable care was taken in their performance
by whomever it might get to perform them? On either view, any liability of the education authority
for breach of it is personal, not vicarious.
5. The law of negligence is generally fault-based. Generally speaking, a defendant is personally
liable only for doing negligently that which he does at all, or for omissions which are in reality a
negligent way of doing that which he does at all. The law does not in the ordinary course impose
personal (as opposed to vicarious) liability for what others do or fail to do. This is because, as
Cory J observed, delivering the judgment of the majority in the Supreme Court of Canada in
Guardian ad litem of Lewis v British Columbia [1997] 3 SCR 1145, para 18, a common law duty of
care “does not usually demand compliance with a specific obligation. It is only when an act is
undertaken by a party that a general duty arises to perform the act with reasonable care.” The
expression “non-delegable duty” has become the conventional way of describing those cases in
which the ordinary principle is displaced and the duty extends beyond being careful, to procuring
the careful performance of work delegated to others.
6. English law has long recognised that non-delegable duties exist, but it does not have a single
theory to explain when or why. There are, however, two broad categories of case in which such a
duty has been held to arise. The first is a large, varied and anomalous class of cases in which the
defendant employs an independent contractor to perform some function which is either inherently
hazardous or liable to become so in the course of his work. The early cases are concerned with
the creation of hazards in a public place, generally in circumstances which apart from statutory
authority would constitute a public nuisance … In Honeywill and Stein Ltd v Larkin Brothers
(London’s Commercial Photographers) Ltd [1934] 1 KB 191, the principle was applied more broadly
to “extra-hazardous” operations generally. Many of these decisions are founded on arbitrary
distinctions between ordinary and extraordinary hazards which may be ripe for re-examination.
Their justification, if there is one, should probably be found in a special public policy for operations
involving exceptional danger to the public. But their difficulties do not need to be considered further
on these appeals, because teaching children to swim, while it unquestionably involves risks and
calls for precautions, is not is not on any view an “extra-hazardous” activity. It can be perfectly
satisfactorily analysed by reference to ordinary standards of care.
7. The second category of non-delegable duty is, however, directly in point. It comprises cases
where the common law imposes a duty upon the defendant which has three critical characteristics.
First, it arises not from the negligent character of the act itself but because of an antecedent
relationship between the defendant and the claimant. Second, the duty is a positive or affirmative
duty to protect a particular class of persons against a particular class of risks, and not simply a duty
to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that
relationship personal to the defendant. The work required to perform such a duty may well be
delegable, and usually is. But the duty itself remains the defendant’s. Its delegation makes no
difference to his legal responsibility for the proper performance of a duty which is in law his own.
In these cases, the defendant is assuming a liability analogous to that assumed by a person who
LAWS1012 Torts Supplementary Materials 2023 Page 45 of 49
contracts to do work carefully. The contracting party will normally be taken to contract that the work
will be done carefully by whomever he may get to do it: see Photo Production Ltd v Securicor
Transport Ltd [1980] AC 827, 848 (Lord Diplock). …
[Lord Sumption considered the emergence of the non-delegable duty by reference to the tort of
nuisance. He then discussed the employment cases and hospital cases in which a non-delegable
duty had been found, and four decisions of the High Court of Australia (Commonwealth v
Introvigne, Kondis v STA, Burnie Port Authority v General Jones, and NSW v Lepore.]
In what circumstances will a non-delegable duty arise?
22. The main problem about this area of the law is to prevent the exception from eating up the rule.
Non-delegable duties of care are inconsistent with the fault-based principles on which the law of
negligence is based, and are therefore exceptional. The difference between an ordinary duty of
care and a non-delegable duty must therefore be more than a question of degree. In particular, the
question cannot depend simply on the degree of risk involved in the relevant activity. The ordinary
principles of tortious liability are perfectly capable of answering the question what duty is an
appropriate response to a given level of risk.
23. In my view, the time has come to recognise that Lord Greene in Gold [v Essex County Council
[1942] 2 KB 293] and Denning LJ in Cassidy [v Ministry of Health [1951] 2 KB 343] were correct in
identifying the underlying principle, and while I would not necessarily subscribe to every dictum in
the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have
given rise to non-delegable duties of care. If the highway and hazard cases are put to one side,
the remaining cases are characterised by the following defining features: (1) The claimant is a
patient or a child, or for some other reason is especially vulnerable or dependent on the protection
of the defendant against the risk of injury. Other examples are likely to be prisoners and residents
in care homes. (2) There is an antecedent relationship between the claimant and the defendant,
independent of the negligent act or omission itself, (i) which places the claimant in the actual
custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant
the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain
from conduct which will foreseeably damage the claimant. It is characteristic of such relationships
that they involve an element of control over the claimant, which varies in intensity from one situation
to another, but is clearly very substantial in the case of schoolchildren. (3) The claimant has no
control over how the defendant chooses to perform those obligations, ie whether personally or
through employees or through third parties. (4) The defendant has delegated to a third party some
function which is an integral part of the positive duty which he has assumed towards the claimant;
and the third party is exercising, for the purpose of the function thus delegated to him, the
defendant's custody or care of the claimant and the element of control that goes with it. (5) The
third party has been negligent not in some collateral respect but in the performance of the very
function assumed by the defendant and delegated by the defendant to him. …
25. The courts should be sensitive about imposing unreasonable financial burdens on those
providing critical public services. A non-delegable duty of care should be imputed to schools only
LAWS1012 Torts Supplementary Materials 2023 Page 46 of 49
so far as it would be fair, just and reasonable to do so. But I do not accept that any unreasonable
burden would be cast on them by recognising the existence of a non-delegable duty on the criteria
which I have summarised above. My reasons are as follows.
(1) The criteria themselves are consistent with the long-standing policy of the law, apparent notably
in the employment cases, to protect those who are both inherently vulnerable and highly dependent
on the observance of proper standards of care by those with a significant degree of control over
their lives. Schools are employed to educate children, which they can do only if they are allowed
authority over them. That authority confers on them a significant degree of control. When the
school's own control is delegated to someone else for the purpose of performing part of the school's
own educational function, it is wholly reasonable that the school should be answerable for the
careful exercise of its control by the delegate.
(2) Parents are required by law to entrust their child to a school. They do so in reliance on the
school's ability to look after them, and generally have no knowledge of or influence over the
arrangements that the school may make to delegate specialised functions, or the basis on which
they do so, or the competence of the delegates, all of which are matters about which only the
school is in a position to satisfy itself.
(3) This is not an open-ended liability, for there are important limitations on the range of matters
for which a school or education authority assumes non-delegable duties. They are liable for the
negligence of independent contractors only if and so far as the latter are performing functions which
the school has assumed for itself a duty to perform, generally in school hours and on school
premises (or at other times or places where the school may carry out its educational functions). In
the absence of negligence of their own, for example in the selection of contractors, they will not be
liable for the negligence of independent contractors where on analysis their own duty is not to
perform the relevant function but only to arrange for its performance. They will not be liable for the
defaults of independent contractors providing extra-curricular activities outside school hours, such
as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control
over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which
children may be taken by school staff in school hours, to take some of the examples canvassed in
argument and by Laws LJ in his dissenting judgment …
LADY HALE (with whom Lord Clarke, Lord Wilson and Lord Toulson agreed):
40. I … agree with Lord Sumption that recognising the existence of a non-delegable duty in the
circumstances described above would not cast an unreasonable burden upon the service-
providers for all the reasons he gives. It is particularly worth remembering that for the most part
public authorities would have been vicariously liable to claimants who were harmed in this way until
the advent of outsourcing of essential aspects of their functions.
41. As Lord Sumption also explains, it is not particularly helpful to plead that the school is in loco
parentis. The school clearly does owe its pupils at least the duty of care which a reasonable parent
owes to her children. But it may owe them more than that. Children rarely sue their parents for the
LAWS1012 Torts Supplementary Materials 2023 Page 47 of 49
harm that they suffer at their parents’ hands save where that harm is covered by an insurance
policy. But that is not because the parents do not owe them a duty of care. Rather it is because
any damages recovered will normally reduce the resources available to cater for the needs of the
child and her family. The courts are also anxious not to impose an impossibly high standard of care
in an ordinary domestic setting, as was common ground between the judges in Surtees v Kingston-
upon-Thames Borough Council [1992] PIQR 101 (although speaking for myself, I share the
dissenting view of Beldam LJ that the judge’s factual findings were incomprehensible and the foster
parents had not discharged the burden of showing that the severe scalding suffered by their two
year old foster child had occurred without negligence on their part). But neither of those factors
applies to institutional carers including schools. As Lord Hutton explained in Barrett v Enfield
London Borough Council [2001] 2 AC 550, 588, when considering the liability of a local authority
for the exercise of its parental responsibility towards a child in its care: “I consider that the
comparison between a parent and a local authority is not an apt one in the present case because
the local authority has to make decisions of a nature which a parent with whom a child is living in
a normal family relationship does not have to make, . . . Moreover a local authority employs trained
staff to make decisions and to advise it in respect of the future of a child in its care, and if it can be
shown that decisions taken in respect of the future of a child in its care, and if it can be shown that
decisions taken in respect of the child constitute, in the circumstances, a failure to take reasonable
care, I do not think that the local authority should be held to be free from liability on the ground that
it is in the position of a parent to the child.” Both of those features apply as much to a school as to
a local authority having parental responsibility for a child and constitute reasons for imposing upon
it a responsibility which the law would not impose upon a parent.
42. Finally, it is of interest to consider the objections raised by Professor Glanville Williams in his
famous article “Liability for Independent Contractors” [1956] CLJ 180. I agree with Lord Sumption
that it was unfair to criticise the concept of the non-delegable duty on the ground that it was not
adequately explained. It has been. But his main criticism was one of policy – that liability should
rest solely with the person at fault. In his view “The argument from poverty hardly applies to
contractors, who are often far wealthier than their employers” (195) and “it may be questioned
whether the social evil of the occasional insolvent tortfeasant contractor is of sufficient gravity to
justify the somewhat complicated rules and the imposition of vicarious liability” (198). Such
arguments scarcely apply in today’s world where large organisations may well outsource their
responsibilities to much poorer and un- or under-insured contractors. Nor can it be an objection
that there may be more than one tortfeasor to hold liable. That, after all, is the situation in vicarious
liability, as Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 made clear.
43. Thus, for all those reasons, in agreement with Lord Sumption, I would allow this appeal and
set aside the judge’s order striking out the allegation of a non-delegable duty.
Appeal allowed
LAWS1012 Torts Supplementary Materials 2023 Page 48 of 49
Table: Claims by third parties (other than “mental harm/nervous shock” claims) where the
primary victim is injured or dies as a result of the defendant’s tort
Date of tort…………Actual Death……………………Pre-accident expected death
| |
”Survival claim” brought by
executor: cause of action of the victim
for his/her loss survives for estate
of plaintiff.
s 2 LR(MP)Act 1944
(see limits on
damages recoverable)
Arises whether or not
death is caused by defendant.
| General rule: rule in Baker v Bolton: no action arises out of the
death of a third party- see Barclay v Penberthy (HCA, 2012) |
| Exception: Compensation to Relatives Act 1897 claim
Claim brought by executor on behalf of eligible relatives for their
losses. Note requirements in Act:
1. Claimant a specified family member
2. Death “caused by” defendant’s wrong
3. The “condition precedent” satisfied
3. Loss as result of death (pecuniary or material)
|Action by employer ……| No action by employers for losses from employee’s
for loss of services of death due to rule in Baker v Bolton: (Barclay v
injured employee Penberthy (HCA, 2012)
(per quod
servitium amisit)
as a result of the D’s |
tort, only while employee is
alive
LAWS1012 Torts Supplementary Materials 2023 Page 49 of 49
Franklin v The South Eastern Railway Company
(1858) 157 ER 448 (Court of Exchequer)
In an action under the compensation to relatives legislation for the benefit of a member of the family
of a fatal accident victim, damages may be recovered (and recovered only) for the loss of a
reasonable expectation of pecuniary benefit which would have flowed to the family member if the
deceased had lived.
Background
Thomas Franklin, aged 21 and “earning good wages”, was a passenger on the defendant’s railway
when he was killed in a collision caused by the defendant’s negligence. He was survived by an
aged and infirm father (the plaintiff) who he had assisted financially to the extent of 3s 6d per week.
Disposition
In principle, a compensation to relatives action was maintainable under the English equivalent of
the Compensation to Relatives Act 1897 (NSW) for the benefit of the deceased’s father.
Pollock CB (who delivered the judgment of the court) observed (at 449) that, in a case such as the
present, damages were recoverable only in respect of pecuniary loss and “that mere injury to
feelings could not be considered”. The guiding principle was that the amount recoverable “should
be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise,
from the continuance of the life”. In the present case, the evidence established that the plaintiff
had a reasonable expectation of pecuniary benefit from the continuance of his son’s life.
New trial on the issue of damages