Nick Dowse
Case Summaries
Case Summaries Case Name
Facts / Authority for...
Anne Annetts tts v Austr Australi alian an Stati Station ons s
Same Same as Tam Tame e v NSW. NSW.
Ball Ball v Conso Consolid lidate ated d Rutil Rutile e
The The econ economi omic c loss loss suff suffere ered d by the plain plaintif tiffs fs was was fore foresee seeabl able e by the defendant. But it could not be said that the defendant possessed the requisite knowledge of the fishermen to establish the element of proximity between itself and them and thus impose upon the defendant the duty to avoid economic loss to the plaintiffs by taking reasonable care in the construction of the sand dune to avoid slippage.
Bjelke-Peterson Bjelke-Peterson v Burns & ABC
Held, that in order to support a defence of fair comment under Defamation Act, the mere fact that there had been communications communications to the public by third parties respecting the plaintiffs did not entitle the defendant to comment on those communications and claim the protection of the section.
Bjelke-Pe Bjelke-Peterso terson n v Warburton Warburton
he plaintif plaintiff, f, who was the Premie Premierr of Queenslan Queensland, d, sued the the Leader of the Opposition for damages for defamation. The words complained of were "just as the tide turned against the dictator Marcos so too can Bjelke-Petersen Bjelke-Petersen and his corrupt Government be swept from office". The statement of claim alleged that those words in their ordinary and natural meaning meant, and were understood to mean, that the plaintiff was corrupt. The defendant demurred on the ground that the words complained of contained no imputation of corruption against the plaintiff. In a separate action all members of the Queensland Cabinet sued the Deputy Leader of the Opposition for damages for defamation. The words complained of were contained in a statement made to the media and which contained reference to "this Government's Government's corruption" and the words "which Ministers have their hands in the till". The defendant demurred upon the ground that the class of persons of whom the words were spoken was uncertain so that no one of the plaintiffs could fairly contend that the words were directed at him or her personally. The demurrers in the two actions were heard together. Held, overruling the demurrers: (1) The words said to have been used by the Leader of the Opposition were capable of bearing a meaning defamatory of the plaintiff as the view could reasonably have been taken that he was one of those who was corrupt, particularly because of the reference to "the dictator Marcos" whose name had become a byword for corruption. (2) The words said to have been used by the Deputy Leader of the Opposition were capable of bearing a meaning which was defamatory of any of the plaintiffs as they could have referred at least to the Ministers of the Government, and to say that some members of a narrow class were guilty of misconduct, without without saying which, was to cast a slur on all of them.
Bryan v Maloney
where the building contract was not detailed and contained no exclusion or limitation of liability, the relationship of proximity arose by virtue of the contract and the work to be performed under it. That relationship of proximity extended to
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Nick Dowse
Case Summaries economic loss by the client or subsequent purchasers of the house when the inadequacy of the footings became obvious.
Burnie Port Authority
Novel duties non-delegable duty factors include – control of D, vulnerability of the P, dangerous activity, policy factor
Byrne v Deane
(i) it is not defamatory to say of a man he has informed the police of a crime; (per Slesser and Greene LJJ) the words in the present case were not defamatory; (per Greer LJ) the words were defamatory, because they meant something more than the mere fact that the police had been informed of a crime. They meant that the plaintiff had been guilty of disloyalty to fellow-members of his club. It is clear that it is not defamatory to say of a man that he has informed the police of a crime. In this respect it matters not whether the crime be a serious one or one which some think ought not to be a criminal offence at all. The difference between the Lords Justices in the present case is only upon the meaning to be ascribed to the words used. Upon the publication question it would seem that it is the duty of the occupier of premises to remove any defamatory matter placed thereon by third persons, provided that it is readily removable. If the defamatory matter is in a permanent form, and can only be removed at great inconvenience and expense, its non-removal does not amount to publication.
Caltex Oil v Willemstad
Although as a general rule damages are not recoverable for economic loss which is not consequential upon injury to person or property, even if the loss is foreseeable, damages are recoverable in a case in which the defendant has knowledge or the means of knowledge that a particular person, not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence.
Christopher v Fiji Gas
Proximity as a test is the relevant criterion by which a duty to avoid economic loss is to be ascertained. The loss of the crew was not economic loss from their use of the vessel as such but their loss of wages from the owners of the Antonia which they had a capacity to earn while employed on board discharging the function of a crew member engaged in fishing activity. Finally there was no reliance on the part of the crew nor acceptance of responsibility on the part of the master or defendant owner, for the latter to take care to avoid or prevent economic loss or damage to the crew.
DIS&L v Long
Duty under statute must be cast squarely on the defendant not the actual person in control or some other person.
Esanda v PWH
In pure economic loss, what is required is an allegation and proof that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff for a purpose likely to lead the plaintiff to enter into a transaction of the kind entered into, such entry being likely to be due to reliance on the information or advice.
Fortuna Seafoods
P & D were closely related by company so therefore could be members of an ascertainable class.
Gifford v Strang Patrick Stevedoring
Father killed. Children applicants. CL psychiatric injury does not need to be perceived or in direct aftermath. Relationships of P, D & V may give rise to
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Case Summaries reasonable foreseeability of harm.
Graham Barclay Oysters v Ryan
Lists factors court will consider in a novel duty with a PA: degree and nature of control of P, the vulnerability of the D, consistency b/w duty of care and the terms, scope and purpose of statutes creating the public authority. For a PA, the co-existence of knowledge of a risk of harm and power to avert or minimise that harm, does not, without more, give rise to a duty of care at common law. The totality of the relationship between the parties, not merely t he foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised.
Griffiths v Kerkemeyer
A person who was permanently disabled as the result of the negligent act of another was awarded damages which included a sum representing the value of services rendered and to be provided for him by his fiancee and members of his family. The services had been provided for him gratuitously. Held: (1) The sum in question was recoverable as damages even though the plaintiff was under no legal liability to pay for the services; by Stephen and Mason JJ, because the plaintiff's loss was not the legal liability to pay for the services but the loss of capacity which occasioned the need for t hem, and by Gibbs J, because as a general rule the value of necessary services provided gratuitously for an incapacitated person by a relative or friend does not reduce the damages recoverable for negligence causing the incapacity. (2) The value of such services in general should be calculated by reference to their standard or market cost, and not by the loss suffered by the person who provides them.
Hargrave v Goldman
Defines private nuisance as “an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it.
Harriton v Stephens
Claims for wrongful life are not actionable in Australia. For a claim in negligence to succeed the damage would be a retarded life and this is repugnant to morality.
Hedley Byrne v Heller
A negligent, though honest, misrepresentation, spoken or written, may give rise to an action for damages for financial loss caused thereby, apart from any contract or fiduciary relationship, since the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care, and that party knew or ought to have known that reliance was being placed on his skill and judgment. If there is a disclaimer, it will not be implied.
Hill v Van Erp
(1) The solicitor owed a duty of care to the intended beneficiary which rendered her liable in negligence. (2) Where a plaintiff sues in negligence to recover pure economic loss, she must establish more than foreseeability of loss. (3) The solicitor's duty to the client cannot be tempered by the existence of a duty to any third person whose interests in the transaction are not coincident with the interests of the client. However, the interests of a client who retains a solicitor to carry out testamentary instructions and the interests of an intended beneficiary are coincident. (4) A case of this kind did not create a precedent for claims
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Case Summaries of indeterminate liability for economic loss, as the claimant was identifiable and the claim was strictly limited to the consequences of the solicitor's failure to carry out work which she was contractually bound to perform.
Hollis v Vabu
(1) (by Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) In general, an enterprise is liable for the cost of injury to a third party if the tortious conduct of a person representing that enterprise may fairly be said to be characteristic of that enterprise. (2) The classic "control" test is not conclusive of the nature of an employment relationship. "Control" is only one relevant factor in determining the nature of an employment relationship. Other matters that are expressive of the fundamental concerns underlying the doctrine of vicarious liability are also relevant. (3) In the present case, the considerations regarding economic independence and freedom of contract were not determinative of the nature of the relationship between the bicycle couriers and the respondent. The Court of Appeal erred in putting too much weight on the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. (4) The relationship between the respondent and the bicycle courier was that of employer and employee. Therefore, the respondent was vicariously liable for the negligence of the bicycle courier.
Hollywood Silver Fox Farm v Emmett
Defendant's motive or malice will be taken into account when deciding if the interference is unreasonable.
Hunter v Canary Wharf
No right to TV reception.
Koehler v Cerebos Ltd
A reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the employee. Not only look at reasonable foreseeability when assessing negligence claims.
Kondis v State Transport Authority
During the manual extension of the jib of a crane, which was operated by the independent contractor of an employer, part of the crane fell on an employee. The contractor had deliberately dropped the part and was found to have failed to keep a proper look out or to have warned of his intention to drop the part. The employee's foreman had not instructed him not to stand under the jib during the extension operation. Held, that the employer was in breach of his duty to provide a safe system of work, by Mason, Brennan, Deane and Dawson JJ, on the ground that the foreman had failed to direct the employee not to stand under the jib of the crane during the extension operation; and by Mason, Brennan, Deane and Murphy JJ, on the ground, that the contractor's failure to adopt a safe system of work constituted a failure by the employer to satisfy a non-delegable duty to provide a safe system.
Krakowski v Eurolynx
Test is on the balance of probabilities and not higher for fraudulent misrepresentation. The sense in which a representation is understood by the representee is relevant to the question whether the representation induced the representee to act upon it. The sense in which the representor intended the representation to be understood is relevant to the question whether the representation was
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Nick Dowse
Case Summaries made fraudulently.
Kriz v King
The Civil Liability Act 2003 Qld, s 59(1)(c) , should be interpreted in the way which least diminishes a claimant's common law rights to damages for gratuitous services. Giving the words their ordinary meaning, s 59(1)(c) has the effect that damages for gratuitous services are not to be awarded unless the services have been provided, or are to be provided, for both six hours per week and for at least six months: once that threshold is met, damages for gratuitous services can be awarded even if the services thereafter are provided, or are to be provided, for less than six hours per week.
Leichhardt MC v Montgomery Court should exercise caution when extending non-delegable duty categories. Lepore v NSW
The deliberate physical or sexual abuse of a student is so far removed from the standard duties of teachers that school authorities cannot reasonably be held to be vicariously liable for such actions. Such assaults are a predatory abuse of the teacher's authority in deliberate breach of a core element of the contract of employment.
Lisle v Brice Magill v Magill
At least one necessary integer of deceit was not made out. The Court of Appeal had correctly held that it was not reliance on the falsehoods proven that induced the husband to act to his detriment. The husband's belief in that he was the father owed more to an absence of disclosure to the contrary than to the evidenced misrepresentations, but silence does not sound in deceit and no other basis exists for imposing a duty of disclosure as to paternity on a party to a marriage. This state of affairs instanced the inherent difficulty of establishing deceit as to paternity.
Malec v Hutton
In assessing damages where questions arise as to the future or hypothetical effect of physical injury or degeneration, the degree of probability of the occurrence of associated future or hypothetical events will be evaluated by the court (except in the extreme cases of mere speculation or of practical certainty). Where proof is necessarily unattainable, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability, leading to an increase in or decrease of the amount of damages otherwise to be awarded.
MLC v Evatt
It is not necessary for a D to actually possess a skill in the giving of information just that they hold themselves out to possess the information. Needs to be a serious business situation.
Mulligan v Coffs Harbour CC
No duty to erect signs when there is obvious swimming danger. The appellant failed to prove that it was unreasonable for the respondents not to erect a sign warning of a risk that is generally present to the mind of swimmers. Nothing in the present case suggested that the respondents were dealing with a situation presenting dangers that were different from those confronting any swimmer who dives forward in a creek or river. (Per McHugh J)
Munro v Southern District
One night's sleep can amount to a substantial private
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Nick Dowse
Case Summaries
Dairies
nuisance. Doesn't matter how long they have been committing the wrong or whether the P has come to the nuisance.
Nguyen v Nguyen
Damages for loss of domestic services need not be used for that purpose if awarded.
O'Shaugnessy v Mirror Newspapers
Fair comment is a question of fact for the jury.
Perre v Apand
Duty owed by neighbouring potato growers not to inflict economic loss. Where a person knows or ought to know that his or her acts or omissions may cause the loss or impairment of legal rights possessed, enjoyed or exercised by another, whether as an individual or as a member of a class, and that that latter person is in no position to protect his or her own interests, there is a relationship such that the law should impose a duty of care on the former to take reasonable steps to avoid a foreseeable risk of economic loss resulting from the loss or impairment of those rights.
Reader's Digest v Lamb
Hypothetical referee test.
Rich v QLD
The deliberate physical or sexual abuse of a student is so far removed from the standard duties of teachers that school authorities cannot reasonably be held to be vicariously liable for such actions. Such assaults are a predatory abuse of the teacher's authority in deliberate breach of a core element of the contract of employment.
San Sebastian
The general interest of an Australian local authority in encouraging the development of its area is not enough to support the existence of a duty of care on the part of the authority in relation to statements made in development plans so as to make the authority liable for negligent misstatement. The notion of proximity is of vital importance in a claim for pure economic loss.
Shaddock v Parramatta
Inquired about road-widening and was told by the council that there were no plans. There were in fact plans and the P suffered damage. Held that council owed a duty.
Sinclair v Bjelke-Peterson
In determining whether the appellant was actuated by any ill will towards the respondent or by any improper or wrong motive not connected with the privilege of the occasion, one should look at the occasion of publication from a broad and realistic point of view. There was no evidence which would establish malice or an improper motive on the part of the appellant; the language itself was not grossly exaggerated or excessive and in the circumstances the answer was fairly or broadly responsive to the question asked. One cannot infer malice from the fact that the words were spoken by a politician about a person with opposing political views or from that the appellant and the respondent held different political philosophies.
Skelton v Collins
For loss of expectation of life a moderate amount only may be awarded. A plaintiff who was rendered permanently unconscious by an accident can recover nothing for pain and suffering.
Sullivan v Moody
Suspected of sexually abusing children. No duty owed by state because it would cut across statutory protections for children and because reasonable foreseeability is not
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Case Summaries enough.
Tame v NSW
“Normal fortitude” is not necessarily required but should not detract from the central question of reasonable foreseeability.
Tepko v Water Board
To attract a duty of care in the case of negligent misstatement giving rise to economic loss, first, there must be known reliance and/or an assumption of responsibility on the part of the representor. Second, the circumstances must be such that it is reasonable for the recipient to accept and rely on the statement. Statement maker must know it would be used for a serious purpose. Actionable even if information volunteered.
Tucker v McCann
Breach of statutory duty is evidence of negligence not conclusive.
Vairy v Wyong SC
A reasonable response to the rock platform did not require the erection of a warning sign or a prohibition from diving. To mark out the platform as especially dangerous, and especially worthy of warning, was neither reasonably necessary nor appropriate. Further, neither the frequency with which people used the rock platform as a launching pad, nor its evident suitability for that use, sufficiently distinguished the place from others where there was a risk of spinal injury if a person dived or plunged into water that was too shallow (per Hayne & Gummow)
Waller v James
Claims for wrongful life are not actionable (as per Harriton v Stephens).
Waugh v Kippen
The defendant must actually be in breach of the statute.
Woolcock St Investments v CDG
Rule in Bryan v Maloney not available in commercial convext because they are better able to protect themselves.
Wynn v NSW Insurance
(1) Far from the likelihood that the appellant might not continue in employment, the evidence clearly supported the trial judge's inference that the appellant had "a real possibility" of promotion. Once that inference was drawn, the prospect of advancement had to be taken into account and balanced against any possible need to take maternity leave. The trial judge had, to that extent, appropriately fixed a discount of 5%, but he had failed to consider the question whether the appellant's original and aggravated injury would have affected her continued employment to retirement age. As the undisputed evidence established the possibility of degenerative change resulting in reduced earnings or early retirement it was appropriate that the discount figure (including the possibility of maternity leave) be 12½%. Observations on contingencies or " vicissitudes". (2) Outgoings which are deducted for the purpose of calculating economic loss are those necessarily incurred in or in connexion with the employment or undertaking by which earning capacity is realised. There is no basis for treating domestic help as necessary for the realisation of earning capacity, indeed the two have no relevant connection. It follows that the cost of child care (one of the various costs of having children) is essentially private or domestic in character and no more to be deducted when calculating loss of earning capacity than are other items of expenditure for
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Nick Dowse
Case Summaries personal amenity.
Youssoupoff v MGM
It is sufficient that a reasonably wide class of persons know of the facts that make the matter referable to the plaintiff.
Zunter v John Fairfax
Qualified privilege. Contextual truth.
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