Actions on the case:

Differs from trespass:

1. act may be indirect
2. actual damage (physical/mental) must be proven
3. P bears onus of proof
1. Nervous shock caused by indirect intentional statements calculated to inflict harm
Defined: D wilfully did the act calculated to cause harm to P.
Case: Wilkinson v Downton: D came to Ps house and lied to P that her husband had been in accident and
broken both his legs, as practical joke. P suffered nervous shock and became seriously ill.
Elements:
1. D wilfully did the calculated act:
a. Wilful as malicious: actions which are foreseeably likely to produce actual nervous shock.
b. Calculated as imputed intention: not necessarily an intention to harm, but since likelihood of
harm is high then intention can be imputed. Thus, distinguished from negligence, as there is
intention.
2. Causing nervous shock
a. severe emotional stress that can be the starting point of a lasting disorder of the mind or body
(Mount Isa Mines v Pusey).
b. Does not include sorrow or mere fright (Mount Isa Mines v Pusey).
Later cases:
Janvier v Sweeney: Ps fianc (German descent) and P worked as maid. Ps employer investigated, D
(detective) threatened P by accusing her of corresponding with German spy in order to get her to help him
investigate employer. P suffered nervous shock and rashes. Held: D liable, applying Wilkinson v Downton.
Bunyan v Jordan: P worked with D in general store. P overhead D saying he was going to kill himself and
had revolver and poison. D discharged firearm in closed office, P overhearing, but P did not know D was
faking to put the wind up his sons. P suffered emotional distress. Held: D not liable.
Shock suffered must be reasonable (P was unusually sensitive).
Ds statement must be calculated reasonable risk of harm resulting as consequence of statement.
2. Physical injury caused by indirect intentional acts intended to inflict harm
Case: Bird v Holbrook: D placed spring gun in his garden, after theft of valuable plants. Had wires attached
to it around around. There were no warning signs. P, chasing a strayed pea fowl, entered Ds garden and
discharged gun which severely injured Ps knee. Held: D liable.
Elements:
1. The act
2. Intention to do injury with it
3. P suffered injury

Duty of care
P must prove that D owes a DOC
Is there an established DOC (manufacturer-consumer) etc? If not, read below.
Jaensch v Coffey: Dean J:
1. Reasonable foreseeability
2. Proximate relationship between parties
3. Absence of any law which precludes imposition of duty
1. Reasonable Foreseeability:
1. P prove that reasonable person would recognise the negligent behaviour may cause injury to another
person.
2. Test is very general: manner of injury need not be precise, but a consequence of the same general
character and P as one of a class a person who might be injured. Chapman v Hearse: C drove
negligently and crashed. Dr Cherry stopped to offer medical assistance and was on road when run over
by H.
3. Defined as not unlikely (Chapman v Hearse) undemanding test.
Unforeseeable plaintiffs
Palsgraf v Long Island Railroad: P standing on one end of platform. 2 employees of D helped tardy
passenger onto train, knocking a parcel out of his hand. It contained fireworks and exploded, which
caused some scales near P to fall and injure. Held: not RF.
Chester v Waverley Municipal Council: P suffered nervous shock when she saw drowned body of her
son recovered from water-filled trench which had been left inadequately fenced by council employees.
Held: not RF. Decision has been criticized for being product of its time and not understanding
psychological injury.
Bourhill v Young: P got off train, motorcyclist negl. caused collision and died. She did not see the event,
only heard and saw blood/debri. Held: not RF as she did not see. P cannot rely on wrong to someone
else and DOC is not to world at large.
Levi v Colgate Palmolive: P got dermatitis from sample. Held: not liable as unusual P.
Haley v London Electricity Board: blind person fell into hole. Held: liable as 1/500 are blind in London.
Caterson v Commissioner of Railway: P jumped off train that was leaving, as his son was still on the
platform.
2. Proximity:
Defined:
1. Term: such close and direct relations between P and D that the act complained of directly affects a
person (Lord Atkin in Donoghue v Stevenson). Must take reasonable care to avoid acts/omissions
which you can reasonably foresee would likely injure your neighbour.
a. Eg. Home Office v Dorset Yacht: escaping prisoners may damage personal property in their
escape, but only DOC to those who owned property in close physical proximity to escape point
b. Agar v Hyde: admin of sport has no DOC to participants.
c. Voli v Inglewood: architect of collapsed stage held liable.
2. Two stage approach: Anns v Merton:
a. Establish sufficient relationship of proximity where carelessness should be reasonably
contemplated to injure.
3. Broad general principle: the notion of nearness or closeness and embraces physical proximity (in the
sense of space and time)circumstantial proximity such as an overriding relationshipand causal
proximity. Jaensch v Coffey per Deane J wife saw aftermath of husband after negligent motorcyclist.

4. Incrementalism: too broad. Should develop law in incremental steps with the use of precedent and
analogy of established categories, rather than by the application of broad general rules. Sutherland Shire
Council v Heyman per Brennan J.
5. The 3-stage approach: Used in Caparo v Dickman (1990). Adopted by Kirby J in Pyrenees Shire
Council v Day (1998). Rejected by HC in Sullivan v Moody (2001): not law in Australia
a. reasonable foreseeability
b. relationship characterised by the law as one of proximity or neighbourhood
c. is it fair, just and reasonable
6. Rejection of notion of proximity: Hill v Van Erp negligently prepared will, held liable.
a. Court concluded that proximity was not universal determinant of DOC, but then how could DOC
be resolved without the proximity test?
b. Dawson J/Toohey J: 3 stage enquiry for DOC:
1. Is harm RF? Note: more than RF alone is required according to category of case (prox).
2. Where new category suggested, examine established categories by way of analogy to
achieve incremental development.
3. Determine whether incremental development is justified by policy considerations.
7. After rejection, different approaches adopted eg. in Perre v Apand.
a. Identification of Salient Features: Gleeson CJ and Gunnow J
b. Recognised Legal Rights of P and whether rights should be protected by DOC: Gaudron J
c. Three Stage Caparo v Dickman Test: Kirby J
d. Incremental Approach: Mchugh & Hayne JJ
e. Factors in combination and Incremental: Callinan J
Relevant factors in determining duty in purely economic loss cases:
1. Vulnerability of the P (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby & Callinan JJ)
2. Control of D (Gleeson CJ, Gaudorn, McHugh, Gunmmow & Callinan JJ)
3. Ds Knowledge (Gleeson CJ, Kirby, Hayne and Callinan JJ)
4. Physical Propinquity between parties (Gleeson CJ, Kirby and Callinan JJ).
8. Vulnerability of P and control of D:
a. Decisive factors of DOC in Crimmins v Australian Stevedoring Industry Finance Committee.
b. Relevant but not decisive in Ryan v Great Lakes Council - sick from eating oysters.
c. Held: relevant factors, but not definitive of determining DOC.
9. Current approach: incremental approach based on identification of salient features: Perre v Apand
a. Sullivan v Moody: looked at similar cases (incremental) and considered factors which were
influential in resolution of those earlier cases.
b. Viewed category of case as general characterisation of TYPE of case rather than fixed pigeon
hole which case must fit.
c. Thus, HC moves away from notion of proximity as emphasised by Deane J in Jaensch v Coffey.
Gleeson J in Tame v NSW, Annetts v Australian Stations: categorisation is a useful means of
formulating a legal principlebut sooner or later a case is bound to arise that will expose the
dangers of inflexibility.
d. Proximity may still be applied eg. Modbury Triangle Shopping Centre v Anzil
3. Public Policy:
In certain types of cases, there are particular policy considerations which are relevant.
Advocates immunity:
Immunity of legal advocates from suit in negligence in respects of acts/omissions in conduct of cases
in court and any out of court work closely related to conduct of case in court. Giannarelli v Wraith.
o Administration of justice depends on advocates acting in ethical manner, putting duties to
court above duty to clients.

o Allowing advocate to be sued by client would require another civil court to review a decision
of another court.
Immunity abolished in 2000: Arthur J S Hall & Co v Simons, Barratt v Ansell, Harris v Schofield
Roberts and Hill.
Reaffirmed in DOrta-Ekenaike v Victoria Legal Aid: appellant, charged with rape, sued legal aid for
continuing loss and damage. A advised to plead guilty even though he claimed he was innocent. Was
later acquitted at a retrial and claimed losses for time in between.

Criminal investigations by police:

Police investigating crime do not owe DOC to individuals of public in failure to apprehend a
dangerous criminal. Hill v The Chief Constable of West Yorkshire: P claimed police negligent in
capturing the Yorkshire Ripper in time to avoid death of her daughter.
Immunity is not absolute:
o Ansett Transport Industries (Operations) v States of NSW: police who take control of
accident scene owe DOC to road users.
o Cran v State of NSW: negligent prosecution by DPP and police still did not owe DOC to
prisoner, who complained of stress etc from delay.
Auditors:
Do auditors have a DOC to third parties that suffer economic loss from relying on audited accounts? No.
Esanda Finance Corp v Peat Marwick
Statutes already assign civil/criminal liabilities to auditors
To increase auditors liabilities would only aggravate the admin of justice, the cost of auditing
services and etc.
Primary cause of loss would be collapse of company that P invested in. Auditors role/responsibility
is usually relatively minor.
Child protection agencies:
Do child welfare officers, social workers, doctors investigation child abuse have DOC towards parents
to conduct investigation carefully to avoid psychological injury to them? No. Sullivan v Moody;
Thomspon v Connon.
o Intersected across other legal principles eg. defamation law
o DOC would be incompatible with the duty to uphold childrens interests as paramount
o Liability is indeterminable not limited only to parents of children.
Hillman v Black: father investigated for child abused, argued psychological trauma. Held: no DOC.
Armed services in wartime:
Armed services do NOT owe DOC in respect of damage caused by them during an active engagement
against the enemy in wartime. Shaw Savill & Albion v Commonwealth:
o Definite limit to immunity: actual operations against enemy distinguished from other activities.
o Groves v Commonwealth; Mulchay v Ministry of Defence: immunity principle applied.
Joint illegality:
DOC owed by partners in joint criminal enterprise?
o Gala v Preston: drunken driver of stolen car DOC to drunken passenger? Held: no reason for
illegality to automatically negate DOC. But, in circumstances DOC would be denied. Civil law
cannot condone breaches of the criminal law.