Category Archives: Torts

Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd (“Wagon Mound No 1”) [1961] UKPC 1 | 18 January 1961

ON 18 January 1961, the Judicial Committee of the Privy Council delivered Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd (“Wagon Mound No 1”) [1961] UKPC 1 (18 January 1961)

http://www.bailii.org/uk/cases/UKPC/1961/1.html

In cases of negligence, the defendant is not liable for damage just because it was a direct result of a negligent act. The Privy Council ruled that the “essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen” (at 426).

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Nader v General Motors Corporation 25 NY2d 560, 255 NE2d 647, 307 NYS2d 647, 1970 NY | 8 January 1970

ON THIS DAY IN 1970, the Court of Appeals of New York delivered Nader v General Motors Corporation 25 NY2d 560, 255 NE2d 647, 307 NYS2d 647, 1970 NY.

http://h2o.law.harvard.edu/cases/109

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Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 | 18 December 1906

ON 18 DECEMBER 1906, the High Court of Australia delivered Balmain New Ferry Co Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379 (18 December 1906).

http://www.austlii.edu.au/au/cases/cth/HCA/1906/83.html

A party who wishes to rely on a contractual term is required to show that it did all that was reasonable to bring term to the other party’s attention.

The plaintiff was not considered to have been falsely imprisoned by the ferry terminal’s turnstiles as he was considered to be free to leave the premises by water.

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Bugden v Rogers (1993) Aust Tort Reports 81-246 | 23 November 2003

ON 23 NOVEMBER 1993, the NSW Court of Appeal delivered Bugden v Rogers (1993) Aust Tort Reports 81-246.

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Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 | 10 November 2009

ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html

Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.

The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.

The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.

The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).

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CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47 | 27 October 1995

ON 27 OCTOBER 1995, the NSW Court of Appeal delivered CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47.

The plaintiff (CES) sought civil damages for the loss of opportunity to terminate a pregnancy arising from the defendants’ alleged breach of duty of care by failing to detect a pregnancy . Newman J of the Supreme Court of NSW found in favour of the defendants, not satisfied that the evidence justified a finding that termination of pregnancy would have been legal in accordance with Levine J’s test in R v Wald.

The NSW Court of Appeal upheld an appeal, ordering a new trial. The Court of Appeal held that the evidence did not justify a finding than a termination of pregnancy would have been illegal.

The Wald test, per Levine DCJ (at 29) provides:

“It may be that an honest belief be held that the woman’s mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s83 of the Act could be proved.”

Kirby P in CES and Anor v Superclinics (Australia) Pty Ltd and Ors said that the Wald test “allows a consideration of the economic demands on the pregnant woman and the social circumstances affecting her health when considering the necessity and proportionality of a termination.”

Kirby P said that there is “no logical basis for limiting the honest’ and reasonable expectation of such a danger to the mother’s psychological health to the period of the currency of the pregnancy alone.”

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Barclay v Penberthy [2012] HCA 40 | 2 October 2012

ON 2 OCTOBER 2012, the High Court of Australia delivered Barclay v Penberthy [2012] HCA 40 (2 October 2012)

1.It was confirmed that the rule in Barker v Bolton [1808] EWHC KB J92; (1808) 1 Camp 493 [170 ER 1033] continues to form part of the common law of Australia so that the death of a person does not in and of itself create a cause of action giving rise to a claim for damages. The court held that the employer who lost two employees in an aviation accident could not recover damages for their death even thought their death was caused by the negligence of others.

2.Confirmed that an action per quod servitium amisit (“per quod“) continues to form part of the common law of Australia so that an employer may be awarded damages for the loss of services of an injured employee. The court held that the employer could recover damages from the negligent pilot, his employer and aeronautical engineer for the market value of the loss of the services of its injured employees, calculated with reference to the cost of substitute labour less the wages no longer payable to the injured employees.

3.Held that the negligent pilot and employer owed a duty to the employer of the passengers no to cause it economic pure loss.

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Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 | 14 September 2001

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.”

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Junior Books Ltd v Veitchi Co Ltd [1982] UKHL 4 | 15 July 1982

ON 15 JULY 1982, the House of Lords delivered Junior Books Ltd v Veitchi Co Ltd [1982] UKHL 4 (15 July 1982).

http://www.bailii.org/uk/cases/UKHL/1982/4.html

Junior Books contracted with a business to lay a composite flooring in their factory. Veitchi was sub-contracted to do the work. The work was defective so Junior Books sued Veitchi, not the main contractor, for damages including the cost of replacing the floor and consequential business interruption. The claim was based in tort as there was no contractual relationship between Junior Books and Veitchi.

The House of Lords held that there was sufficient proximity between Junior Books and Veitchi to establish a duty of care and no reason to restrict that duty.

The House of Lords accepted that pure economic loss may be foreseeable when there is a sufficient degree of proximity between the parties.

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Malec v JC Hutton Pty Ltd [1990] HCA 20 | 26 June 1990

ON 26 JUNE 1990, the High Court of Australia delivered Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 (26 June 1990).

http://www.austlii.edu.au/au/cases/cth/HCA/1990/20.html

When assessing damages for events that would or would not have occurred, or might or might not have occurred, the approach is different to that events which have occurred.

A court determines on the balance of probabilities whether or not an event has occurred.  For events that would have or might have occurred, the court is to adjust the award of damages to reflect the degree of probability of that event occurring.

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