Brew Basics: Torts (Part 2)

8 mins

We take a look at some unforgettable cases from the land of torts and the principles they stand for. (P.s. You’ll never see oysters in the same way again.)

Last week, we covered how tort law isn’t a free-for-all smorgasbord (unlike what you think happens in the USA or on Judge Judy). As mentioned, you have to satisfy a number of tests or thresholds before you can claim damages.

This includes considering:

  1. Duty of care
  2. Breach of duty
  3. Causation
  4. Damages (and remoteness)
  5. Defences.

Let’s step through each one.

#1. Duty of care

Law students spend a fair bit of time in first-year Torts covering off the first question—whether the defendant owes the plaintiff a “duty of care”. I recall our lecturer spent the first 9 out of 12 weeks covering duty of care. Towards the end, we realised (collective groan) that we hadn’t covered very much else and the exams were only three weeks away.

Why is the duty of care so important, might you ask?

This is because if there is no duty of care, you don’t even have a case.

Established categories

Sometimes, it’s easy to find a duty of care where there is a line of cases (a.k.a. precedent) telling us that a duty exists. They include the following categories:

  • Manufacturer of products and Consumer
  • Employer and Employee
  • School and Pupil
  • Doctor and Patient
  • Occupier of premises and Entrant
  • Landlord and Tenant
  • Road users
  • Local government authority and facility/park/beach users.

Then there are a few categories that occupy a grey zone. This includes the category of builders/engineers/inspectors and subsequent purchasers.

In Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, the plaintiff (a subsequent owner of a commercial building) sued the engineer for failing to carry out soil tests on the building which resulted in unstable foundations.

The plaintiff lost the case because they were not “vulnerable” in the sense that they could have discovered the issue before buying the building. The High Court also found that the case was a matter of “pure economic loss”—involving a building defect requiring rectification rather than actual injury to person or property—that no damages could be awarded in this case.

Salient features

If there is no obvious relationship between the plaintiff and defendant, then you have to work out the “scope of duty”. In other words, whom does the defendant owe a duty to? For some time, there were two camps of thought about when a duty of care would arise. Does it arise when:

(1) there is a level of closeness in the relationship two parties, such that one of them is under a duty of care not to cause harm to the other, also known as “proximity”; OR

(2) there are a bunch of features, also known as “salient features”, in the relationship which give rise to a duty of care between the parties?

Anyway, all this is pretty theoretical, but for your purposes, the High Court of Australia decided that No. 2 was the winning test.

The salient features analysis involves looking at features that link the parties, or show how there is a pathway by which one party can cause damage to the other. This includes:

  • P’s vulnerability or reliance on D
  • D’s assumption of responsibility (e.g. Council warning signs)
  • D’s knowledge
  • D’s control over the situation
  • Proximity (might creep in a bit).

But it doesn’t stop there. The salient features analysis also involves considering policy arguments, for example:

  • Would finding a duty impose indeterminate liability on D (as in, an obligation to an indeterminate class of people, like the world at large)?
  • Would you end up constraining the future autonomy of D if you find a duty of care? (For example, noting how different doctors can have differing medical opinions.)
  • Would finding a duty cause a diversion of resources?

To understand more about how “salient features” work, we need to look into the case of contaminated oysters.

What happens when you put oyster loving people and heavy rainfall together? You get a class action!

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 is a landmark Australian High Court case. It involved oyster consumers who contracted hepatitis A. This happened after they ate contaminated oysters from a NSW lake following a heavy rainfall which caused sewage pipes to overflow. (Yum.) The consumers sued the oyster growers/suppliers, the local council, and the State of NSW. They claimed that the Council negligently failed to exercise its environmental protection and planning powers to reduce or eliminate sources of contamination in the lake, and that the State negligently failed to ban the harvesting and sale of contaminated oysters.

The oyster lovers ultimately lost their negligence claim. The leading High Court judgment found that duty of care is not established merely by showing that a public authority had knowledge of a risk of harm and a power to minimise that risk. The High Court looked at a bunch of factors, in other words, the salient features—and found that on balance and given the statutory scheme around oyster harvesting (which was about industry self- or co-regulation), neither the State nor Council had “control” over the oyster industry and levels of fecal pollution in the lake, or any knowledge of any particular risk to consumers.

#2. Breach of duty

Once we work out that a duty of care exists, then you need to figure out if it has been “breached”. This involves assessing whether the incident was “foreseeable” and what reasonable precautions the defendant could have taken to protect against that risk. In other words, a defendant cannot be liable for failing to take precautions against an unforeseeable risk. The assessment involves weighing up the following questions, that is—what was:

(a) … the probability that the harm would occur if care was not taken?

(b) … the likely seriousness of that harm?

(c) … the burden of taking precautions to avoid the harm?

(d) … the social utility of the risk-creating activity?

This brings to mind the memorable but rather morbid High Court case of Chapman v Hearse (1961) 106 CLR 112, on what is “foreseeable”. One dark and stormy evening, Mr Chapman was flung out of his car onto the road after he negligently hit another car. A good Samaritan, Dr Cherry, comes to his aid. While both men were on the road, Mr Hearse (not kidding) ran Dr Cherry over.

Dr Cherry’s estate, via his widow, sued Mr Hearse—whose insurance company in turn roped in Mr Chapman, claiming that he was the reason why Dr Cherry was on the road in the first place. One of the questions was, “Would a reasonable man foresee that harm caused by passing traffic would be suffered by persons rendering aid in a motor accident?”

The High Court answered in the affirmative—that “there can be little doubt that it was reasonably foreseeable that subsequent injury by passing traffic to those rendering aid after a collision on the highway would be by no means unlikely … by no means improbable and was, in our view, ‘reasonably foreseeable’.”

#3. Causation

Causation involves the attribution of responsibility and where to draw the line. In short, the defendant’s wrongful act must have caused or materially contributed to the harm for which the plaintiff seeks damages.

The relevant test is the “but for” test—which simply means, “but for (i.e. if not for) the defendant’s wrongful action, the plaintiff would not have suffered the harm”.

Another case comes to mind. March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 involved a question of how to attribute responsibility.

In the early hours of one morning, a very drunk Mr March crashed his speeding car into the rear of a truck outside an Adelaide wholesale fruit and vegetable store. The truck was parked in the middle of the road, with parking lights on, so that it could be loaded with fruit and vegetables.

The High Court found that both parties were to blame in some way—that but for Mr March driving while drunk and speeding, and but for the vegetable truck parked in the middle of the road—the accident would not have happened.

The split? 70% to Mr March, and 30% to the truck’s owner.

#4. Damage and remoteness

Damages. It’s what tort cases are about. Before you get there, you must prove loss. But what sort of loss is acceptable?

What is the price of human life?

Cattanach v Melchior (2003) 215 CLR 1 was a controversial case about a sterilisation procedure gone wrong. Could parents of an “unintended child” (due to medical negligence) seek damages from the doctor for the cost of raising a healthy child? The majority of the High Court found that, yes, you could award financial damages. Two judges dissented, stating that having a child was not a real disadvantage and could not be quantified in financial terms. This case remains a fascinating one even today.

Then there is the concept of “remoteness”, or what some people might know as the Eggshell Skull rule. If you had an unusual skull which was as thin as eggshells, could you claim damages for personal injury, even if it was a minor tap to the head? The answer is yes.

Do you have an eggshell skull?

In Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501, the plaintiff was a 10-year-old boy who had struck his head on a bus stop pole while alighting from a slowly moving bus. He developed a rare psychological condition known as Ganser Syndrome. He sued the bus authority, who in turn argued that the illness resulted from his family’s overprotectiveness in response to the accident.

The Court of Appeal of the NSW Supreme Court found that you must take your victim as you find them, and it was not necessary to foresee the precise kind of harm to the plaintiff—it was sufficient to see that harm would come to the plaintiff in a general way. As McHugh JA explained:

“… the defendant must take the plaintiff with all his weaknesses, beliefs and reactions as well as his capacities and attributes, physical, social and economic.”

#5. Defences

For defendants who realise the jig is (kind of) up, they might throw in a couple of defences for why they might not be 100% responsible. One delightful case involved two drunk friends who got into a car (you might have noticed a trend here). The sorry facts are described in one of the judgments in Joslyn v Berryman (2003) 214 CLR 552:

“When Sally Inch Joslyn noticed that the first respondent, Allan Troy Berryman, was falling asleep at the wheel of the vehicle in which they were travelling, she insisted that she drive the vehicle. Shortly after Ms Joslyn commenced to drive, the vehicle overturned causing injury to Mr Berryman. The accident occurred at about 8.45am. The driving capacity of both parties was affected by their intoxication. They had been drinking at a party until about 4.00am. The vehicle also had a propensity to roll over, and its speedometer was broken.”

Berryman suffered severe injuries and sued Joslyn. A key finding was that Berryman had let Joslyn drive his car. In this case, Joslyn’s defence was that Mr Berryman was contributorily negligent because a reasonable person would have known or ought to know of a foreseeable risk of an accident (by letting another drunk person drive)—which the High Court agreed with.

So there you go—that’s torts in a nutshell!

📸 Photo credit (main) // Bruce Chapman on Unsplash