NEGLIGENCE Incremental approach (Sutherland Shire Council v Heyman)
STEP 1: Identify the parties (P and D)
STEP 2: Identify the injury (personal/physical injury – spinal
injuries), wrongdoing (failure to warn/failure to avoid/failure
to move)
STEP 3: Definition of negligence: A legal duty to take care
and breach of that duty by the D causing damage to the P:
Lonchgelly
STEP4: Element of negligence: 1) D owes P a duty of care
(DOC); 2) Breach of DOC; 3) Causation
1) Duty of Care - The defendant must take reasonable care
to avoid acts or omissions which they can reasonably foresee
may injure another. (Donoghue v Stevenson)
a) Neighbour principle – person so closely affected by the act
that ought to have them in contemplation (Donoghue)
b) Established categories: Relationship between D & P will
always give rise to reasonably foreseeable risk of harm due to
D’s negligent conduct. Categories of scope includes;
* road users to others road users (Imbree v McNeilly) –
duty of care owed by every road user to every other road user
as well as to persons and property adjacent to the road.
Pedestrian (Davies v Tomkins).
* Person in control of others – scope of duty is to prevent
intentional damage/risk to others by their child
* Legal practitioners to clients – owe a duty of care to
clients to exercise reasonable care in carrying out terms of
retainer and to skill and provision of professional advice
(Hawkins v Clayton)
* Occupiers to entrant – occupiers owe a DOC to entrants
onto those premises to take reasonable care for the safety of
those entrants. (shop/uni/resort)
* Manufacturers (Donoghue) – all reasonable precautions
to prevent injuries to any person it can reasonably be foreseen
could use the product without intermediate inspection.
* Employer & employees (Bankstown Foundry)
c) Special Rules – there are some relationship between P’s
and D’s have special rules relating to DOC. We will consider
1. Pure Economic loss
2. Negligently inflicted mental harm
* Types: 5Q Pure mental harm – occurs when the only
injury suffered by P is mental harm (Tame v NSW)
* Elements of mental harm; i) suffered a psychiatric illness;
ii) it was reasonably foreseeable they would suffer harm and
iii) suffered a sudden shock
Consequential mental harm – is mental harm which is a
consequence of physical harm. For example, if P suffers
personal injury in an accident and then develops depression
as a result of being in the accident.
* Duty of care for mental harm - S 55 (1) D does not owe a
duty of care to P to take care not to cause P mental harm
unless D ought to have foreseen that a person of normal
might suffer a recognised psychiatric illness if reasonable
were not taken.
S 55 (3) for the purpose of the application of this section in
respect of consequential mental harm, the circumstances of
the case include the personal injury suffered by P.
S 5T A court cannot make an award of personal injury
damages for pecuniary loss for consequential mental harm
unless the harm consists of a recognised psychiatric illness.
(Wicks v State rail Authority)
Operation of the CLA test is in s 5S(1); to paraphrase, D does
not owe a DOC unless:
* Foreseeability
* Circumstances of the case
* a person of normal fortitude
* might suffer a recognised psychiatric illness
d) Novel Categories – is P one of a class of persons who
would reasonably be at risk if P failed to take reasonable care
of? * Reasonable foreseeability *Limiting factor
approaches
A novel fact situation a similar category of established duty
must be recognised and an argument by analogy is made as to
why a novel fact situation should give rise to a DOC.
Salient features approach (Perre v Apand)
Takes consideration of relevant salient features to determine
if there is a sufficiently close relationship to give rise to
DOC. SF include; 1) P’s Vulnerability, autonomy and
reliance on D, 2) D’s control over situation, 3) Assumption
of responsibility by D, knowledge of D.
ANSWER: For this element, a general duty to take care
needs to be owed by D to P under the neighbour principle in
common law. The duty owed in these circumstances is the
established category of employer and employee as __(name)
is a cleaner working for the defendant (Bankstown).
Employers owe employees a duty to take reasonable care in
conducting business in a manner which avoids their
employees suffering foreseeable and prevented risk of
harm. The duty under the employer category is non-
delegable, so even if another employee is at fault the
employer will still be liable under vicarious liability (Kondis
v State transport authority)
BREACH
5B General Principle: (1) a person is not liable for harm
caused by that person’s fault in failing to take precautions
against a risk of harm unless; a) the risk was foreseeable; b)
the risk was not significant; c) a reasonable person in the
person’s position would knew or ought to have known.
For the second element, establishing that a breach of the duty
of care occurred is needed. Alderson B described breach as:
an omission to do something which a reasonable person,
guided upon those considerations which ordinarily regulate
the conduct of human affairs, would do, or doing something
which a prudent and reasonable person would do. The civil
liability act 2002 (WA) (CLA) s 5B test for breach involves 2
keys factors;
a) Foreseeability risk (Wyong Shire Council v Shirt)
- s 5B (1)(a) The defendant will not liable for harm caused by
that person’s fault in failing to take precautions against a risk
of harm unless the risk was foreseeable.
- The requirement is whether or not a reasonable person in
their position would have taken precautions not whether the
defendant was aware.
b) Reasonableness of Precautions
- s 5B (1)(b) The court will consider whether a reasonable
person in the position of the defendant would have taken
precautions against a risk of harm.
- Dean J described a reasonable person as being a
hypothetical Bondi tram. (Papatonakis v Australian
Telecommunications Commission).
REASONABLE PERSON
- The standard approach to determine whether D has
breached is to ask how a reasonable person would have acted:
a) Children (McHale v Watson)– D’s infancy will lower the
standard of reasonableness; b) Mentally ill – D’s mental
illness will not affect reasonableness; c) Professionals
(Rogers v Whitaker) – D’s claim to be exercising a special
kill with attract higher standard of care; d) Consenting
Plaintiff – if P consents to driving with inexperienced driver,
inexperienced D will be judged against object standard of
care.
In the case at hand, outlining possible precautions which
needed to be taken to remove the risk of harm was ( ).
Some of the precautions could include; (_)
Calculus of negligence;
In determining whether a reasonable person would have
taken precautions against a risk of harm , the court is to
consider this following:
i) probability of harm occurring if care were not taken
- CLA s 5B (2)(a), It is likely that establishing liability in
negligence when the likelihood of risk is low, so there needs
to be a likely risk of injury occurring. (Bolton v Stone)
ii) Likely seriousness of harm
- CLA s 5B (2)(b) if the seriousness of harm is low, it will be
unlikely that the defendant will be liable. For establishing
liability, the higher seriousness of harm, holding it to a higher
standard of care. (Paris v Stepheny Borough Council). The
likely seriousness of harm for __ (name) is extremely high
because ___, even resulting in death.
iii) Burden of taking precautions – CLA s 5B (2)© showing
that a reasonable person would have taken practical steps to
avoid the risk causing the plaintiff to suffer injury and that
the steps were practical is vital for the element. (Romeo v
Conservation Commission)
* Some of the steps which could been taken to avoid the risk
which would be burdensome due to cost, time, practicality;
hiring employees who have trained, moving the chairs to
better place.
iv) Social Utility – CLA s 5B (2)(d) Social utility is when the
activity causing the breach has social implications and is seen
as having positive effects on society, it then justifies the harm
suffered by the plaintiff. (E v Australian Red Cross)
In this case it could possibly argued that leaving fire open
door benefits the public and tenant as they could walk
through with trolley.

CAUSATION
General Principle s 5C (1) a determination that the fault of a person caused particular harm comprises the following elements; 1)
factual causation & 2) scope of liability
a. Factual causation
* Necessary Condition test: s 5C(1)(a) that the fault was a necessary condition of the occurrence of harm (Adeels v Moubarak)
* Onus of proof – s 5D ‘ In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the
onus of proving, on the balance of probabilities, any fact relevant to the issue of causation’(Amaca v Ellis)
* Res lpsa loquitor – can be relied on when 1) absence of explanation for injury 2) occurrence of this kind does not usually occur
without negligence; 3) instrument or agency causing the injury was under control of D.
* But for - P must prove the negligent act resulted in the harm, the harm would not have occurred but for. (Barnett)
* Injury must not have occurred but for: otherwise D’s act will be a possible but not probable cause.
* P must show ‘but for’ the absence of precaution on the part of D the injury would not have occurred
* Other methods to find causation – s 5C(3)(a) ‘the matter is to be determined by considering what the injured person would have
done if the tortfeasor was not a fault.
b. Scope of liability (McKiernan v Manhire)
- s 5C(1)(b) of CLA that it is appropriate for the scope of the tortfeasor’s liability extend to the harm.
- s 5C(4), The court is considered whether and why responsibility for harm should imposed on tortfeasor.
The main mechanisms for dealing with scope considerations include:
* Novus Actus Interveniens – D will successfully avoid liability if demonstrate P’s injuries were caused by a subsequent event that
was not RF (Haber v Walker; March v Stramare)
* Remoteness – If P’s injuries are too remote from D’s negligent conduct, it will not be appropriate for the scope of liability to
extend to DP was a reasonably foreseeable consequence of the D’s breach (Oversea Tankship v Mort’s Dock)
- for an intervening act to sever connection it must be: (i) human voluntary act; (ii) independent event.
* Egg-Shell skull rule – D must accept P as they find them, even if they have a weakness
ANSWER: In section 5C (a & b) of the CLA, final element to establish liability is to determine whether or not the harm suffered
by the plaintiff was the fault of the person who caused the harm. The plaintiff needs to establish factual causation. The fault must
be a necessary occurrence of harm and it must be appropriate for the scope of the tortfeasor’s liability to extend to the harm so
caused. P , (name), must prove (D name) negligence was a necessary condition of the occurrence of the loss, meaning he must
prove but for (__)’s negligence the chance that he would not have been harmed was greater than 50%. He must also prove that
the harm was in the scope of ( _ )’s liability.

DEFENCES TO NEGLIGENCE * SOC might be modified for these P’s: a) Children b)

1) CONTRIBUTORY NEGLIGENCE s 5K
ELEMENTS: 1) Breach; 2) Causation; 3) Apportionment
1) BREACH
Standard of contributory negligence s 5K (2) (a & b)
* The principles applicable in determining whether a person
is liable for harm caused by the fault of the person also apply
to the person who suffered harm has been contributory
negligent in failing to take precautions against the risk of that
harm. (Consolidated Broken Hill v Edwards; Carey v Lake)
* P has failed to take reasonable care for his own safety,
suffered harm from a foreseeable risk of injury.
*s 5K (2)(a) the standard of care required of the person who
suffered harm is that of a reasonable person in the position of
that person; and
* s 5K (2)(b) ‘To be determined on the basis of what P knew
or ought to have known at the time’
employees; c) intoxication
Children – SOC reduced to that of a reasonable person the
same age as P.
Employees – the CL applied SOC more leniently where the P
is an employee of D’s.
Intoxication s 5L (McLean v Tedman)
* Presumed intoxicated P was CN unless P establishes
intoxication did not contribute to harm s 5L (3).
2) CAUSATION - 5C applies
* P’s negligence must have contributed to injuries; not
necessarily to the incident causing injuries.
*Intoxicated P can be CN if P’s intoxication was the cause of
his harm (Russell v Edwards)
3) APPORTIONMENT
* Compare the degree to which P and D were each negligent
then compare the degree to which each departed for the SOC
expected of them. (Pennington v Norris)
 2) VOLUNTARY ASSUMPTION OF RISK
a) Actual knowledge of risk
* D needs to demonstrate P has actual knowledge of risk.
* s 5N (1) P assumed to know obvious risks unless show
otherwise
* s 5F(1) Obvious risk to a reasonable person
* s 5)(1) No duty to warn of obvious risks
b) Full Appreciation of Risk
* s 5N (2)Where risk is obvious, P will be presumed to fully
appreciate risk.
*P must have fully appreciated the nature & extent of risk,
not merely the existence of danger
c) Free consent to risk
* Just because P continued (working) does not mean he took
on the risk of harm. (Smith v Bakers & Sons)
* P must have accepted voluntarily that there was a risk of
injury and a risk that reasonable care would not be taken by
D.
(3) ILLEGALITY – a high level of criminality is necessary
occupied with some venture
* Under CL, P’s illegality will not necessarily preclude the
recovery of damages (Henwood v Municipal)
(4) CLA STATUTORY DEFENCES
CLA s 50 – no duty to warn of obvious risks
CLA s 5P – no liability for harm from inherent risk
CLA s 5H – no liability for harm from obvious risks of
dangerous recreational activities
CLA s 5AD and 5 AE – Good Samaritans
REMEDIES
Type of common law damages – monetary sum awarded to P
a. Compensatory – to place P in the same position as if he
had not suffered the tort. (Butler v Egg)
* Indemnity principle
* Egg-shell skull rule – D must take the P as they find them
* Lump sum rule – unless any statutory modification, P must
be paid in one lump sum.
* Once and for all rule – P is only entitled to one award of
damages, to pay all future losses
* Duty to mitigate – if P fails to mitigate their harm/loss then
D is not liable to compensate for any loss it causes.
b. Aggravated – Compensates P for injury to ‘feeling ny
insult, humiliation (Myer stores v Soo)
c. Punitive – do not compensate P, they punish D
d. Nominal -in case of no damages, nominal damages stand
as a record that P’s right were infringed.
COMPENSATORY PERSONAL INJURY DAMAGES
1) PECUNIARY/ECONOMIC LOSS
a. Out of pocket expenses
* Medical expenses capped by CLA s 12
b. Loss of expected earnings – Court must consider income
tax P would have had to pay
2) NON-PECUNIARY
* CLA (WA) ss 9,10,10A and 11 places can only amount and
determine appropriates amounts.
*Three types
a. Pain/suffering – where P is distressed/subjective to
circumstances giving rise to injury and distress caused by
treatment.
b. Loss of Amenity – Compensates deprivation of the P’s
ability to participate in normal activities and enjoy life to the
fullest: (Murray v McMurchy)
c. Loss of expectation life – Token sum to acknowledge P’s
life expectancy has decreased: (Sharman v Evans)
3) COMPENSATORY DAMAGES HARM TO PROPERTY
a. Actual damage – Restoration value based on cost to
restore to conditions before tor (Adams v Mayor)
b. Consequential damage – Lost earning due to property
damage
EQUITABLE REMEDIES
1) Injunction
* Court order compelling lawful conduct by D
*Type of injunction
a. Prohibitory – compel D to refrain from doing something
b. Mandatory – Compel D to do something
c. Permanent – Prevent the operation of something (Luna
Park)/ Final award of injunction at end of hearing
c. Interlocutory – Prevent any further harm during
proceeding
Quia Timet – NOT really suited to negligence because
negligence involved an actual, not threatened, injury. Ordered
to restrain a threatened future nuisance.
2) Equitable Damages
* Court must have jurisdiction to Supreme Court Act s 25
* Granted in Lieu of, or in addition injunction
* Granted if CL damages are not available
3) Declaration
* A court order starting legal rights
CONCLUSION
( P ) may be able to establish negligence against (D) as he
can prove the three elements of duty of care, breach of the
duty and that the breach caused the injury. The possible
contentious issues would be whether or not a reasonable
person would have taken reasonable precautions or whether it
was found to be a matter of social utility.
NUISANCE
Unreasonable interference by D, with enjoyment use or use
of P’s
STEP 1: Identify parties (P and D)
STEP 2: Injury (1 - sawdust damaging Aston Martin/2- noise
from the extractor fan), wrong doing (creating noise and
sawdust/ allowing the manufacture on the premises.
STEP 3: Definition of nuisance – a private nuisance is an
unreasonable interference by the D with the P’s use and
enjoyment of the land: Hargrave v Goldman
Element of nuisance: 1) unreasonable interference; 2)
proprietary right; 3) P has title to sue; 4) D is liable
(1) Unreasonable Interference
Walter v Selfe/ Halsey v Esso
a. Types of damage (Material v utility)
Material Excavation on D’s land displacing soil on P’s land.
Utility – Noise of truck, smells
b. Locality (nature & character of neighbourhood) P building
room near to kitchen, P seek action of nuisance because of
the smell and succeeds due to locality being in a fashionable
area. Sturges v Bridgman
c. Extent & Intensity – D grows mushroom causing strong
smell. P daughter become sick. Smell considered bad due to
the intensity of the smell. Feiner v Domachuk
d. Duration/Time/Frequency – P owed office in CBD, D was
doing excavation work next door causing noise. (Wherry v
KB)
e. Undue Sensitivity – Land used for unduly sensitive
purpose; not nuisance unless unreasonable to ordinary use of
land
f. Malice – D’s malice made his otherwise reasonable act
unreasonable (Hollywood Silver Fox)
(2) Interference with proprietary right – nuisance concerns
interference to proprietary right in land (Hargrave)
a. Occupation
b. Access to land
c. View of plaintiff’s land – racecourse, view of P’s is not a
proprietary right protected by nuisance. (Victoria Park
Racing)
d. View from the P’s land and structure of the D’s land
(3) Plaintiff’s has title to sue
* Owner’s –
* Non-owners with exclusive possession – P tenant of land
had title to sue for nuisance to land. (Robinson v Kilvert)
* Mere Licensees – traditional view

(4) D is liable – ‘Fault of some kind is almost always

necessary’ (Elston v Dore)
* Creators
- D will be liable if he created, regardless of D’s interest in
land.
- When D created nuisance he will bear some degree of
personal responsibility.
- Interference with P’s land is foreseeable consequence of
D’s conduct. Wagon Mound (no2)
* Non-Creator of nuisance adopting and continuing nuisance
- must have actual and knowledge of nuisance
- Permitting an offensive thing on his premises to continue to
offence is adopting. (Sedleigh v Denfield)
* Hiring premises/ Occupier
- D who hiring premises liable for nuisance caused during
hire of premises where special danger of nuisance occurring
(De Jager)

STEP 4: DEFENCES
Onus of proof is on D to prove the defences on the balance of
probabilities. Three categories;
(a) STATUTORY AUTHORITY – defence to prove legislation
has authorised nuisance but construed strictly. 2 elements
* Nuisance authorised by legislation (Souther Props)
* Nuisance could not be reasonable avoided
- nuisance could have been reasonably avoided as there were
alternative methods of construction available (York Bros)
(B) Contributory Negligence
* In WA, CN legislation applies to actions founded on
allegations of negligence; no statutory defence of CN for
nuisance applies.
C) PRESCRIPTION
* for private nuisance only (Matt v SHoolbred)
* if the interference has been occurring without complaint for
over 20 years, D may be able to acquire the right to commit
nuisance (Sturges v Bridgman)

REMEDIES (if needed)

(1) Injunction for interference (to stop)
- factors in favour for granting; D’s conduct and attitude,
interference is continuing in nature (Seidler v Luna Park),
common law damages do not compensate enough
(2) Common law compensatory damages
- P should be put in the position they would have been in had
the tort not occurred (Halsey v Esso)
- Damage to utility of land