Law of tort

Answer all the question using the following method.

1.briefly outline the elements of the tort concerned, citing one or two major authorities from which the elements are derived;

2.discuss whether there is a prima facie case for commission of the tort, by analysing each element and how it is represented in the facts you have been given; (This should be by far the largest part of your answer.)

3.Having done that, consider whether there are any possible defences available to the tort concerned. (Note the difference between elements of the tort and defences: a failure to make out one of the elements of the tort means that the plaintiff has not even got a prima facie case; defences assume that there may be such a case but the law allows the defendant to bring forward an excuse of some sort.)

4.If you have been asked to consider remedies, then discuss what sort of damages might be available, whether an injunction might be possible, or other possible remedies. (You may not be asked this.)

Hence the outline of an answer will look something like this:

 (i) Plaintiff 1

a.Defendant 1

i.Possible tort 1

1.Overall statement of e

2.Detailed consideration of elements and how they relate to the facts

a.Element 1

b.Element 2 … etc

3.Possible defences

a.Defence 1

b.Defence 2… etc

4.Remedies (if asked)

ii. Possible tort 2 … (as above)

iii.Possible tort 3 … etc

b.Defendant 2 … as above, etc

(ii) Plaintiff 2 … as above, etc

 Of course, if a problem only contains one plaintiff and one defendant and one tort then the above approach can be greatly simplified (effectively just use steps 1-4):

 1. Overall statement of etc

2.Detailed consideration of elements and how they relate to the facts

a.Element 1

b.Element 2 … etc

3.Possible defences

a.Defence 1

b.Defence 2… etc

4.Remedies (if asked)

 Some other notes on the above scheme:

• Notice there is no separate discussion of “material facts.” This is deliberate, because we are dealing with an artificial set of facts you have been given. The examiner will be as familiar with the set of facts as you are, and so there is no need to repeat them. The facts should be mentioned, but only at the point where you are discussing whether the elements of a particular tort are satisfied. You may find it helpful to have an introductory paragraph outlining the general situation- that is OK, but don’t waste words by simply repeating the question. Summarise and then move quickly on to the body of the answer.

•Don’t forget to mention possible defences. Sometimes we will have covered defences when dealing with the particular tort (eg in defamation, or in discussing statutory authority in nuisance); sometimes you will need to consider whether one of the general defences we discussed may be applicable. There is no need to mention every defence every time, but if there is one that is at least “plausible” or “possible” you should note it, even if you conclude it doesn’t apply (in which case you should spell out why.)

•Sometimes a defence that is relevant to one tort will also be relevant to others. Or perhaps matters that are relevant to trespassory torts in general (eg directness, actionable per se) will be relevant to a couple of the torts you are discussing. In those cases you don’t need to repeat material. Insofar as they are the same, you can just refer back to the previous discussion; eg “the elements of self-defence were noted above at X”; “as a trespassory tort the tort of Z will share the characteristics of all trespassory torts as noted above”. But be careful- in applying the law to different plaintiffs or defendants you will need to note where the facts may differ, if they do.

•Occasionally in discussing a possible tort action you will conclude at an early stage that there is no liability, because one of the first elements is not satisfied.

 Problem Question comment on any issues arising from the tort of negligence, including duty of care, breach, causation, defences, joint tortfeasor liability, and remedies; all of the above both under common law and with reference to the relevant statutory regimes. (Not all of these issues will necessarily be in the exam, but they might)However, you will not be required to comment onAlternative (non-tortious) compensation schemes; orMathematical details of how to calculate amounts of damages awards.It is possible that some of the questions may raise issues in the area of vicarious liability or non-delegable duty), please make comments about those Mr Matthew Glen Gardens claims damages for personal injury received in a work accident at the Glen Valley Gold Mine located in the Central West of NSW. The first defendant is Mt Newo Pty Ltd (“Mt Newo”), the proprietor and occupier of the mine. The second defendant is Heroic Helpers Enterprise Pty Ltd (“Heroic”) engaged in the business of providing mining services including the hire of its workers’ labour. Matthew was, at the material time, employed by Heroic and when injured, his labour and that of other Heroic employees had been hired by Mt Newo.Matthew was injured when engaged in servicing a mining machine alongside other employees of Heroic, including a Mr Kamp, who was working as the driver of the machine. The machine, in accordance with the usual practice in the mine, was being operated while maintenance was happening, and Mr Kamp carelessly “revved” the engine at one point, causing Matthew to fall off and suffer serious harm.Both Mr Kamp and Matthew had been working at the Glen Valley Mine for some time, Mr Kamp for three years, Matthew for 6 months. They worked under the direct supervision of Mr Williams, a full-time senior employee of Mt Newo. The risk assessment and safety documents, which set out the system of work to be followed, were Mt Newo’s documents, not Heroic’s. It was Mr Williams, Mt Newo’s supervisor, who signed off on or approved of the crew’s consideration and adoption of the Mt Newo safety documents.Matthew is considering taking an action in common law negligence against both Heroic and Mt Newo.

 a. Assuming Matthew was an employee of Heroic, would that company owe him a duty of care in the common law of negligence in relation to the injury suffered?

b. Again, assuming Matthew was an employee of Heroic, would the company Mt Newo also owe Matthew a duty of care in relation to this injury? 

c. Explain which legislative regime would govern each of the common law actions noted above.

d.Take the facts of question 5, above, and consider a possible action brought by Matthew Gardens against his employer, Heroic Helpers Enterprise Pty Ltd. Assuming there was a duty of care owed, evaluate the issues that will be raised concerning Heroic’s breach of its duty of care to Matthew in an action for negligence based on the common law. (For the purposes of this question, you do not need to discuss the impact of the CLA 2002 or the WCA 1987).

e. Consider a possible action in negligence brought by Matthew Gardens against Mt Newo Pty Ltd (“Mt Newo”), the proprietor and occupier of the mine. Assume that Mt Newo owed Matthew a duty of care.Evaluate the issues which will be raised in terms of breach of duty in relation to this possible action. (You need not discuss any “causation” issues.) Consider both the situation at common law and the situation under the Civil Liability Act 2002. Breach of Duty- Specific situations, CLA 2002 Case for Discussion Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022

f.Consider the facts outlined above in questions 5 and 6. Assume that Mt Newo and the ambulance company owed a duty of care to Matthew, and that both these duties were breached. Discuss whether a court would be likely to find that causation was established against either company in relation to

(1) The further injury to his leg caused by Paul’s carelessness;

(2) The injury caused by the bullet.March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

g.Eve Riccardo was on a pleasure cruise in Port Stephens with friends as part of Melbourne Cup celebrations and had had a number of alcoholic drinks over a long lunch. Suddenly her hat was blown into the water by the prevailing strong wind, and immediately she dived into the water to retrieve it. Whilst re-boarding the vessel using a fixed ladder at the stern, her left lower leg and knee became injured when she came into contact with the submerged propeller of the vessel’s outboard motor.The vessel was owned and operated by, and under the control of, Daniel Paine, a sole trader trading under the business name Port Stephens Pontoons Pty Ltd.Eve takes an action in negligence against Paine, claiming that when he saw her dive into the water, he should have positioned the boat so that she could re-enter it where she would not be in danger of being hit by the propellor.Assuming for current purposes that duty, breach and causation could be established, discuss any defences that Paine would have in this action for negligence. (You should consider defences both at common law and under the CLA 2002).Miller v Miller (2011) 242 CLR 446; [2011] HCA 9Cases

Donoghue v Stevenson extract from LH9

Donoghue v Stevenson from 9th ed LH Book_Final.pdfDownload Donoghue v Stevenson from 9th ed LH Book_Final.pdf

SA v Lampard-Trevorrow extract

SA v Lampard-Trevorrow for casebook.pdfDownload SA v Lampard-Trevorrow for casebook.pdf

Perre v Apand Pty Ltd

Perre v Apand Pty Ltd for Week 4.pdfDownload Perre v Apand Pty Ltd for Week 4.pdf

Czatyrko v Edith Cowan University extract

Czartyrko extract(1).pdfDownload Czartyrko extract(1).pdf

Rogers v Whitaker (1992) 175 CLR 479 - see LH9 [3.2.20C]

Week 7: C.A.L. No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board [2009] HCA 47, (2009) 239 CLR 390

CAL No 14 Pty Ltd v Motor Accidents Insurance Board-1(1).pdfDownload CAL No 14 Pty Ltd v Motor Accidents Insurance Board-1(1).pdf

Wyong Shire Council v Shirt (extra for week 8 if needed)

Wyong Shire Council v Shirt extract (1980)_146_CLR_40.pdfDownload Wyong Shire Council v Shirt extract (1980)_146_CLR_40.pdf

 RTA of NSW v Dederer (2007) 234 CLR 330,  LH9 [3.1.25C]

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022)

Tapp v Australian Bushmens edited for workshops.pdfDownload Tapp v Australian Bushmens edited for workshops.pdf

 Tabet v Gett [2010] HCA 12, (2010) 84 ALJR 292

Tabet v Gett extract(1).pdfDownload Tabet v Gett extract(1).pdf

 Chapman v Hearse (1961) 106 CLR 112

Chapman v Hearse extract(1).pdfDownload Chapman v Hearse extract(1).pdf

 Miller v Miller (2011) 242 CLR 446

Miller v Miller (2011)_242_CLR_446 edited.pdf

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