Glendale Chemical Products Pty Ltd v Australian Competition & Consumer Commission & Anor [1998] FCA 1571 (10 December 1998).
http://www.austlii.edu.au/au/cases/cth/federal_ct/1998/1571.html
Sydney, Australia
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Category Archives: Negligence
Chappel v Hart [1998] HCA 55
ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html
A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.
Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure to do with the actual care provided.
The court also applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.
Per Gaudron J at [32]:
“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”
Per McHugh J at [23]:
“The question of causation is not resolved by philosophical or scientific theories of causation”
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Romeo v Conservation Commission of the Northern Territory [1998] HCA 5
ON 2 FEBRUARY 1998, the High Court of Australia delivered Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431; 151 ALR 263; 72 ALJR 208 (2 February 1998) .
http://www.austlii.edu.au/au/cases/cth/HCA/1998/5.html
Sydney, Australia
1300 00 2088
Pyrenees Shire Council v Day [1998] HCA 3
ON 23 January 1998, the High Court of Australia delivered Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330; 151 ALR 147; 72 ALJR 152 (23 January 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/3.html
The High Court rejected the “doctrine of general reliance” of Sutherland Shire Council v Heyman (1985) 157 CLR 424 (1985) 157 CLR 424.
Sydney, Australia
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Northern Sandblasting Pty Ltd v Harris [1997] HCA 39
ON 14 AUGUST 1997, the High Court of Australia delivered Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997).
http://www.austlii.edu.au/au/cases/cth/HCA/1997/39.html
A landlord has a duty to its tenants to use reasonable care and skill to provide safe premises. The obligation is limited to repair of defects which the landlord was or should have been aware. The landlord must reasonably respond to any information it receives as to the existence of any defect.
The court held that the rule in the English decision of Cavalier v Pope Cavalier v Pope [1906] AC 428 (a landlord is immune from liability in tort for defective premises causing injury) should no longer be followed in Australian law as it is inconsistent with the principles concerning of duty of care developed since Donoghue v Stevenson.
Sydney, Australia
1300 00 2088
Nominal Defendant v Gardikiotis [1996] HCA 53
ON THIS DAY in 1996, the High Court of Australia delivered Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 (24 April 1996).
McHugh J set out the principles for assessing compensatory damages for negligence:
“Principles
4. When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant’s negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred(5). The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, “in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation”(6). Consequently, when a plaintiff asserts that, but for the defendant’s negligence, he or she would not have incurred a particular expense, questions of causation and reasonable foreseeability arise. Is the particular expense causally connected to the defendant’s negligence? If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred? Those questions arise in the present case. Is the expense of fund management causally connected to the negligence of the defendant? If so, was the incurring of the expense a reasonably foreseeable consequence of the defendant’s negligence? If either of those questions is answered in the negative, the expense cannot be recovered from the defendant.
5. If a defendant’s negligence results in the plaintiff being so mentally or physically incapacitated that she is unable to manage day-to-day tasks, the basic principles of compensation for tortious conduct entitle the plaintiff to damages both for the disability and the expense of managing those tasks. The expense is just as much a product of the defendant’s negligence as is the disability. It is compensable therefore unless it is damage of a kind that a defendant could not reasonably foresee. Similarly, if a plaintiff can no longer manage her affairs with the same skill as before the accident, both the reduction in skill and any expense reasonably incurred in bringing the management of those affairs to the pre-accident level are compensable in damages. Likewise, if the defendant’s negligence has aggravated a pre-existing incapacity, the plaintiff is entitled to be compensated to the extent that the aggravation has increased the incapacity and caused expense to the plaintiff.
6. Damages may therefore be awarded for the expense of managing a plaintiff’s verdict moneys when the plaintiff’s disabilities prevent him or her from managing those moneys and the disabilities are the foreseeable consequence of the defendant’s negligence. Damages may also be awarded for the expense of investment advice where, as the result of the defendant’s negligence, the plaintiff is no longer able to make adequate decisions concerning his or her own financial affairs. In both cases, damages are payable by the defendant because the expense is the necessary product of the defendant’s negligence and is not the result of the free, informed and voluntary act of the plaintiff. The expenses have been brought about by the loss of the plaintiff’s ability to do what that person was capable of doing before the occurrence of the tort which gives rise to the claim for compensation.
7. But a different area is reached when the plaintiff seeks damages, not for expense necessarily incurred as the result of a disability caused by the defendant’s negligence, but for an expense arising merely from the size of an award of damages and the exercise of a choice by the plaintiff as to how to invest those damages. The expense of exercising that choice is not the consequence of the plaintiff’s injury. It is the result of the plaintiff’s decision to invest his or her money (usually in a professionally managed fund) rather than to spend it or to invest it in a fixed asset or some other form of investment. It is true that such an expense would not have been incurred but for the defendant’s negligence. But the common law of Australia has rejected the “but for” test as the legal test of causation although, “applied as negative criterion of causation, (that test) has an important role to play in the resolution of the question”(7).
8. Under the common law theory of common sense causation, a free, informed and voluntary act of the plaintiff or a third party, which builds on a situation resulting from the defendant’s tort and causes loss or damage to the plaintiff, negatives any causal connection between that tort and the loss or damage(8). That is so even though the act of the plaintiff or third party would not have occurred but for the defendant’s tort. Consequently, unless a defendant’s wrong has caused a disability that requires the plaintiff to obtain assistance in managing his or her verdict moneys, the cost of such assistance is not caused by the defendant’s negligence and is not recoverable as damages from the defendant. Nor, as we shall see, is it a factor such as income tax(9) which must be taken into account if the plaintiff is to receive a full indemnity.”
http://www.austlii.edu.au/au/cases/cth/HCA/1996/53.html
Sydney, Australia
1300 00 2088
Medlin v State Government Insurance Commission [1995] HCA 5
ON 16 FEBRUARY 1995, the High Court of Australia delivered Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322 (16 February 1995).
http://www.austlii.edu.au/au/cases/cth/HCA/1995/5.html
Per Deane, Dawson, Toohey and Gaudron JJ said at [6]:
“For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff …which constitutes a more immediate cause of the loss or damage. … If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant’s wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.”
Per McHugh J at [20]:
“However, the ultimate question is whether, as a matter of common sense, the financial loss that the plaintiff has suffered was caused by the plaintiff’s act in resigning his office rather than by the defendant’s negligence.”
Per McHugh J at [23]:
“The plaintiff’s complaints of pain and fatigue, his decreasing confidence in his own abilities, his belief that he was no longer teaching as well as he was before the accident and his inability to find time for research combine to make a strong case for concluding that his early retirement was not unreasonable. A defendant cannot reasonably require a plaintiff to remain in employment for the purpose of reducing the damages that the defendant would otherwise have to pay if to do so would interfere with the plaintiff’s reasonable enjoyment of life. The doctrine of mitigation of loss was not intended to turn injured plaintiffs into economic slaves.”
Sydney, Australia
1300 00 2088
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13
ON 24 MARCH 1994, the High Court of Australia delivered Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520; (1994) Aust Torts Reports 81-264; (1994) 120 ALR 42; (1994) 68 ALJR 331 (24 March 1994). The rule in Rylands v Fletcher was abolished so that the determination of liability for harm caused by dangerous substances or activities on premises comes under the principles of negligence rather than strict liability.
http://www.austlii.edu.au/au/cases/cth/HCA/1994/13.html
Sydney, Australia
1300 00 2088
Nagle v Rottnest Island Authority [1993] HCA 76
ON 21 APRIL 1993, the High Court of Australia delivered Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; (1993) Aust Torts Reporter 81-211; (1993) 112 ALR 393; (1993) 67 ALJR 426 (21 April 1993).
http://www.austlii.edu.au/au/cases/cth/HCA/1993/76.html
Nagle became a quadriplegic after diving into a swimming hole and striking his head on a submerged rock. It was known to Rottnest that visitors engaged in this activity.
Rottnest was liable to pay Nagle damages as it had breached its duty of care to Nagle to warn him of the risk of submerged rocks.
The risk was foreseeable: “Whether small or not, the risk was certainly not far-fetched or fanciful.”
The accident was cased by a failure on the part of Rottnest to erect a sign.
The Civil Liability Acts have since altered the obligations and responsibilities of public authorities and occupiers in such situations.
Sydney, Australia
1300 00 2088
Rogers v Whitaker [1992] HCA 58
ON 19 NOVEMBER 1992, the High Court of Australia delivered Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992).
http://www.austlii.edu.au/au/cases/cth/HCA/1992/58.html
Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.
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