Lewis v The Council of Mosman [2001] NSWSC 1144 (13 December 2001).
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/1144.html
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Category Archives: Negligence
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
ON 14 September 2001, the NSW Court of Appeal delivered Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001).
The common law rules regarding the admissibility of opinion evidence were summarised by Heydon JA as follows:
- An expert has a duty to provide the trial court with criteria to allow the evaluation of the validity of the expert’s conclusions (at [59]).
- The trial court is to decide whether or not to accept the conclusions.
- The intellectual basis or essential integers of the expert opinion must be explained to the trial court to allow it to arrived at an independent assessment of the opinions and their values (at [68], [71] and [79]).
- The trial court must give weight to the opinions in the same way as for the evidence of non-expert witnesses (at [82]).
- The expert’s opinion is to be based on facts, either proved by the expert or disclosed as assumptions of fact that form the basis of the opinion [at 64].
- the opinion will be admissible and material if other admissible evidence establishes that the assumptions are sufficiently likely even though not completely precise.
- The expert witness is not an advocate. The paramount is to be impartial to the court. This duty overrides its obligation to the engaging party. The expert witness is not an advocate (at [77]).
- The expert witness is to assist the trial court in determining a matter in issue, but the court must weigh and determine the probabilities of the fact on the whole of the evidence (at [67]).
- The expert’s particular expertise is to be applied to the assumed or proven facts in order to come to his or her opinion (at[59]).
Per Heydon JA (at [85]):
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414 (at 428), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.”
Sydney, Australia
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Hollis v Vabu Pty Ltd [2001] HCA 44
ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).
http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html
The plaintiff was a pedestrian who was injured on a footpath by a bike courier. The defendant was the courier company who engaged the cy list. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.
The High Court allowed an appeal by the cyclist, holding that the cyclist was not an independent contractor because:
- no discretion to accept or reject work.
- stringent roster system.
- clear rules on taking annual leave.
- little or no scope for freelancing.
- no special skills.
- cyclists were identified with the company with uniforms and a dress code.
- pay and conditions were consistent with an employment relationship.
- no scope for bargaining of rates.
- the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
- the exercise of control by the company over the courier’s activities.
The relevant considerations for determining whether or not a person is an independent contractor include:
- Who owns the business?
- Who controls the operation/work?
- Who owns the office space?
- Who owns the tools?
- Who does the contractor provide duties to?
- Does the independent contractor bear a risk of profit or loss?
- Is there a creation of goodwill?
- How is the independent contractor paid?
Sydney, Australia
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Brodie v Singleton Shire Council [2001] HCA 29
ON 31 MAY 2001, the High Court of Australia delivered Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council[2001] HCA 29; (2001) 206 CLR 512.
The ruling abolished the common law immunity of highway authorities from liability for injury, loss or damage caused by their own non-feasance in Australia.
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Heydon v Nrma Ltd & Ors [2000] NSWCA 374
ON THIS DAY in 2000, the NSW Court of Appeal delivered Heydon v Nrma Ltd & Ors; Bateman & v Nrma Ltd & Ors; Morgan & Ors v Nrma Ltd & Ors [2000] NSWCA 374 (21 December 2000).
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2000/374.html
http://www.austlii.edu.au/au/legis/nsw/consol_act/poteoa1997455
Sydney, Australia
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Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61
ON 23 NOVEMBER 2000, the High Court of Australia delivered Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; 176 ALR 411; 75 ALJR 164 (23 November 2000).
http://www.austlii.edu.au/au/cases/cth/HCA/2000/61.html
The High Court held that the owner/occupier of a shopping centre did not breach its duty of care to an employee of a tenant who was attacked in the unlit shopping centre car park.
Per Gleeson CJ:
“That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent from conduct, including criminal conduct, of third parties.” at [17]
“The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship …, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. … Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable.” [at 35]
Sydney, Australia
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Jones v Bartlett [2000] HCA 56
ON 16 NOVEMBER 2000, the High Court of Australia delivered Jones v Bartlett [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1 (16 November 2000).
Jones was an adult who received serious injuries when he walked through an interior glass door at the house where he lived with his parents. The house was rented from Bartlett and another by the plaintiff’s parents.
Jones sued Bartlett for damages, alleging negligence, breach of statutory duty and breach of contract. The District Court awarded Jones damages, holding that Bartlett was negligent. The Full Court of the Supreme Court of Western Australia allowed an appeal. Jones then appealed to the High Court, who dismissed his appeal.
The High Court found that the premises were not defective and held that there was no negligence, breach of statutory duty or breach of duty of care on the part of Bartlett.
A landlord’s duty to take reasonable care to avoid foreseeable risk of injury does not require it to make residential premises as safe as reasonable care could make them: per Gaudron J at [87]. The duty owed to the tenants concerns what a reasonable person would do in response to a foreseeable risk of injury.
Per Gleeson CJ:
“There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness.” at [57].
“There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality.The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. ” at [23].
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Perre v Apand Pty Ltd [1999] HCA 36
ON 12 AUGUST 1999, the High Court of Australia delivered Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180; 64 ALR 606; 73 ALJR 1190 (12 August 1999).
http://www.austlii.edu.au/au/cases/cth/HCA/1999/36.html
Apand was a potato crisp manufacturer who caused a South Australian potato farmer’s potatoes to be infected by supplying him with infected seeds. Neighbouring farms were prohibited from exporting their potatoes to the lucrative Western Australian market for a period of 5 years by reason of being located within 20km of the infected farm.
Pere and his neighbours sued Apand for the economic loss resulting from the loss of access to the Western Australian market.
Five of the judges (Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ) held that Apand owed a duty of care to all the plaintiffs; the others (McHugh and Hayne JJ) held that only some of the plaintiffs were owed a duty of care.
The court (apart from Kirby J) rejected the idea that proximity is the determinant or “unifying criterion” of the duty of care.
The decision contains seven judgments with four different tests for determining a duty of care for pure economic loss.
Gleeson CJ, Gummow J, Callinan J, Hayne J, in separate judgments, took the view that the duty of care is to be identified by looking at the salient features of the case. They offer a flexible approach that avoids a strict formulation.
Gaudron J found that a duty of care arose in the context of defendant being in a position of control and being able to affect the plaintiff’s legal rights and the plaintiff’s dependence on the defendant.
McHugh J favoured the incremental approach, which identifies the following features as being relevant to a duty of care:
- reasonable foreseeability.
- indeterminacy of liability.
- unreasonable burden on individual autonomy in the market.
- vulnerability of the plaintiff.
- the defendant’s knowledge of the risk to a particular plaintiff.
Kirby J favoured foreseeability, proximity and policy, adopting the three stage English test in Caparo Industries Plc v Dickman [1990] 2 AC 605.
The court affirmed it’s earlier decision in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” that there is no absolute exclusionary rule for the recovery of damages for pure economic loss and it is therefore possible for a plaintiff to recover for pure economic loss when “the defendant has knowledge…that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence.”
The court rejected the notion that pure economic loss may only be recovered in circumstances of negligent misstatement as in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd.
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Kenny & Good Pty Ltd v MGICA [1999] HCA 25
Kenny & Good Pty Ltd v MGICA [1999] HCA 25; 199 CLR 413; 163 ALR 611; 73 ALJR 901 (17 June 1999).
http://www.austlii.edu.au/au/cases/cth/HCA/1999/25.html
Sydney, Australia
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Denzin and Ors v Nutrasweet and Ors [1999] NSWSC 106
Denzin and Ors v Nutrasweet and Ors [1999] NSWSC 106 (22 February 1999).
http://www.austlii.edu.au/au/cases/nsw/NSWSC/1999/106.html
Sydney, Australia
1300 00 2088
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