LAW OF TORTS

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• LAW OF TORTS
• WEEKEND LECTURE 2A
• Lecturer Greg YoungContact greg.young_at_lawyer.co
  m
• NEGLIGENCE
• Duty of care Breach Civil Liability Act
• Damage
• PURE ECONOMIC LOSS
• VICARIOUS/CONCURRENT LIABILITY

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IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF
CARE

• The Civil Liability Act 2002 together with the
  Civil Liability Amendment (Personal
  Responsibility) Act 2002 govern the law of
  negligence in NSW.
• The Civil Liability Act 2002 was enacted 28th
  May 2002 and received assent on 18 June 2002
• Rationale behind the legislation
• to limit the quantum of damages for personal
  injury and death in public liability instances
  resultantly lowering insurance premiums.
• to discourage over litigation, by the
  imposition of restrictions and obligations and
  responsibilities upon plaintiffs and counsel

3
Torts Law Reform Stage 1

• The 1st stage aimed both at the number of claims
  as well as at the cost of claims
• restriction of legal advertising, minimising the
  promotion of claims and a restriction on the
  amount recoverable for legal costs
• capping damages, applying a higher discount rate
  to the final lump sum figure, and the abolition
  of punitive damages

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Torts Law Reform Stage 2

• The 2nd Stage reforms include a range of
  broad-based tort reform measures, including a
  fundamental re-assessment of the law of
  negligence
• addressing the concept of reasonable
  foreseeability in the law of negligence
• protection of good samaritans who assist in
  emergencies
• waivers for risky activities
• statutory immunity for local government public
  authorities which fail to exercise their powers
  will not breach any duty
• changing the test for professional negligence to
  one of 'peer acceptance'
• abolishing reliance by plaintiffs on their own
  intoxication preventing people from making
  claims where they were injured in the course of
  committing a crime
• provide a wider range of options for damages
  creating a presumption in favour of structured
  settlements.

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Claims excluded from operation of the Civil
Liability Act s3B(1)

• a) an intentional act that is done with intent to
  cause injury or death or that is sexual assault
  or other sexual misconduct. Note Part 7 does
  apply to intentional torts done with intent to
  injure.
• (b) dust diseases under the Dust Diseases
  Tribunal Act 1989
• (c) personal injury damages where the injury or
  death concerned resulted from smoking or other
  use of tobacco products
• (d) actions governed by Part 6 of the Motor
  Accidents Act 1988 and Chapter 5 of the Motor
  Accidents Compensation Act 1999 except the
  provisions that subsection (2) provides apply to
  motor accidents
• (e) Workers Compensation Act 1987, Workers
  Compensation (Bush Fire, Emergency and Rescue
  Services) Act 1987, Workers Compensation (Dust
  Diseases) 1942, Victims Support and
  Rehabilitation Act 1996 or Anti-Discrimination
  Act 1977 or a benefit payable under the Sporting
  Injuries Insurance Act 1978

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THE CIVIL LIABILITY AMENDMENT (PERSONAL
RESPONSIBILITY) ACT

• Part 1A Division incorporates statutory reform to
  the law of negligence in Sections 5A to 5T
• Commenced 6/12/02, except Section 5N applies to
  breaches of warranties which occur after 10/1/03
• 5A scope of application
• The part applies to any claims in negligence
  regardless of whether the claim is brought in
  tort, contract, under statute or otherwise

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Duty of Care

• S 5B(1) A person is not negligent in failing to
  take precautions against a risk of harm unless
• (a) the risk was foreseeable (that is, it is a
  risk of which the person knew or ought to have
  known), and
• (b) the risk was not insignificant, and
• (c) in the circumstances, a reasonable person in
  the persons position would have taken those
  precautions.
• (2) In determining whether a reasonable person
  would have taken precautions against a risk of
  harm, the court is to consider the following
  (amongst other relevant things)
• (a) the probability that the harm would occur if
  care were not taken,
• (b) the likely seriousness of the harm,
• (c) the burden of taking precautions to avoid the
  risk of harm,
• (d) the social utility of the activity that
  creates the risk of harm.

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Duty of Care commentary

• Section 5B(1) provides a person is not negligent
  unless (b) the risk was not insignificant.
• Wyong Shire Council v Shirt (1980) 146 CLR 40
  risk must be real in the sense that a
  reasonable person would not brush it aside as
  far-fetched or fanciful.
• It is unclear whether not insignificant in
  Section 5B(1)(b) is more restrictive than not
  far-fetched or fanciful in Wyong Shire Council v
  Shirt

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Duty of Care s.5B(1) (2)

• Waverley Council v Ferreira 2005 NSWCA 418
• Facts
• 15 December 2000 12 yr old boy died when he
  fell to the ground through a skylight in the roof
  of a building known as the Community Centre in
  Kimberley Park
• - The boy was throwing a soft dart with a friend
  and mistakenly threw it onto the roof. He gained
  access to the roof by climbing a mesh fence
  attached to the building and undergrowth. The
  fence and undergrowth made it relatively easy for
  children to climb onto the roof. The fence had no
  utilitarian purpose as it had a gate without a
  lock.

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s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 34 The initial element to be determined under
  s5B(1) is whether the risk was foreseeable. As
  s5B(1)(a) makes plain, that involves inquiring
  whether the risk in question is one of which the
  defendant knew or ought to have known. The
  relevant risk in relation to the removal of the
  fence and undergrowth was the risk that children
  might use the fence and undergrowth to facilitate
  their access to the roof and, when on the roof,
  might fall to the ground.
• 35 There can be no doubt that the Council knew or
  ought to have known that children frequently
  climbed on to the roof of the Community Centre.
  Children playing at the park were often seen on
  the roof. Mr Ferreira said that he saw children
  on the roof sometimes twice a week. Martins
  friend, Dima, said that on a few occasions he
  himself had climbed onto the roof. Some of Dimas
  friends had also climbed on to the roof as had
  other children. A witness testified that maybe
  weekly you could see at least one person up
  there.

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s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 39 It was reasonably foreseeable that, once on
  the roof, a boy might be attracted to the
  skylight and stand on it or otherwise in some way
  rest his weight upon it.
• 41 ... Irrespective of whether the Council knew
  or ought to have known of the condition of the
  skylight it was reasonably foreseeable to the
  Council that a child who climbed on to the roof
  might come to serious harm by falling to the
  ground. Such a fall might be caused by an
  infinite variety of circumstances, impossible to
  identify in advance.

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s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 43 In my opinion, the relevant risk of injury was
  that a child such as Martin might fall to the
  ground once he had climbed on to the roof. In my
  opinion, that was a foreseeable risk in terms of
  s 5B(1)(a). It was a risk of which the Council
  knew or ought to have known. It is immaterial
  that the Council might not have been able to
  foresee the precise mechanism that caused Martin
  to fall.

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Duty of Care

• 5C Other principles
• In proceedings relating to liability for
  negligence
• the burden of taking precautions to avoid a risk
  of harm includes the burden of taking precautions
  to avoid similar risks of harm for which the
  person may be responsible , and
• the fact that a risk of harm could have been
  avoided by doing something in a different way
  does not of itself give rise to or affect
  liability for the way in which the thing was
  done, and
• the subsequent taking of action that would (had
  the action been taken earlier) have avoided a
  risk of harm does not of itself give rise to or
  affect liability in respect of the risk and does
  not of itself constitute an admission of
  liability in connection with the risk.

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Assumption of risk

• Injured persons presumed to be aware of obvious
  risks
• 5G Injured persons presumed to be aware of
  obvious risks
• In determining liability for negligence, a person
  who suffers harm is presumed to have been aware
  of the risk of harm if it was an obvious risk,
  unless the person proves on the balance of
  probabilities that he or she was not aware of the
  risk.
• For the purposes of this section, a person is
  aware of a risk if the person is aware of the
  type or kind of risk, even if the person is not
  aware of the precise nature, extent or manner of
  occurrence of the risk.

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s5G Obvious Risk

• Falvo v Australian Oztag Sports Association
  Anor 2006 NSWCA 17 (2 March 2006)
• The plaintiff injured his knee while playing
  Oztag (touch football) on the defendant council's
  field. The field had several sandy patches where
  the council had topped up' wear to the grass and
  the injury was suffered when the plaintiff
  stepped in one of these. Ipp JA, in his leading
  judgment, upheld the trial judge's finding that
  the field was in a fit condition and that the
  defendant was not liable. He found that the risk
  from the condition of the field was one
  substantially similar to many other fields used
  for amateur sport, and that the risk was obvious
  to all.

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s5G Obvious Risk

• Eutick v City of Canada Bay Council 2006 NSWCA
  30 (3 March 2006)
• The plaintiff was a pedestrian who tripped over
  the ridge of a gully or depression in a roadway.
  In the leading judgment, Campbell AJA held that
  the risk was very obvious', as part of the
  normal incidents of life', and that it did not
  pose a significant risk. This was held to be the
  case in spite of the fact of the injury and the
  amount of traffic on the roadway which was said
  to have added to the risk. His Honour held the
  defendant council was entitled, having regard to
  the obviousness of the risk, and the limited
  nature of the hazard posed by it, to expect that
  the exercise of reasonable care for their own
  safety by pedestrians would obviate the need for
  any further response' to the risk.
• His Honour added that s5(1)(b) CLA put the onus
  of proving that the risk was not insignificant'
  on the plaintiff, and that she had not discharged
  this.

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Assumption of risk

• 5H No proactive duty to warn of obvious risk
• A person ( "the defendant" ) does not owe a duty
  of care to another person ( "the plaintiff" ) to
  warn of an obvious risk to the plaintiff.
• This section does not apply if
• (a) the plaintiff has requested advice or
  information about the risk from the defendant, or
  
• (b) the defendant is required by a written law
  to warn the plaintiff of the risk, or
• (c) the defendant is a professional and the risk
  is a risk of the death of or personal injury to
  the plaintiff from the provision of a
  professional service by the defendant.
• (3) Subsection (2) does not give rise to a
  presumption of a duty to warn of a risk in the
  circumstances referred to in that subsection.

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Assumption of risk

• 5I No liability for materialisation of inherent
  risk
• A person is not liable in negligence for harm
  suffered by another person as a result of the
  materialisation of an inherent risk.
• An "inherent risk" is a risk of something
  occurring that cannot be avoided by the exercise
  of reasonable care and skill.
• This section does not operate to exclude
  liability in connection with a duty to warn of a
  risk.

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s5I Inherent Risk

• Lormaine Pty Ltd v Xuereb 2006 NSWCA 200
• The NSW Court of Appeal has held that a shipowner
  was liable for a woman's injuries when she was
  washed from the bow by a rogue wave'. One of the
  defences raised by the shipowner was that the
  waves were an inherent and obvious risk of
  dolphin-watching. However, the shipowner was
  unable to prove that the risk was obvious because
  the brochure had given the impression of a gentle
  cruise. Also, the ship's presence in a known
  wave zone' meant that the risk was avoidable,
  not inherent. The woman's damages were reduced,
  however, because the trial judge had not
  considered pre-existing conditions and the
  plaintiff had failed to alleviate the symptoms by
  losing weight.

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Recreational activities

• 5M No duty of care for recreational activity
  where risk warning
• A person ( "the defendant" ) does not owe a duty
  of care to another person who engages in a
  recreational activity ( "the plaintiff" ) to take
  care in respect of a risk of the activity if the
  risk was the subject of a risk warning to the
  plaintiff.
• If the plaintiff is an incapable person, the
  defendant may rely on a risk warning only if
• (a) the incapable person was under the control
  of or accompanied by another person (who is not
  an incapable person and not the defendant) and
  the risk was the subject of a risk warning to
  that other person, or
• (b) the risk was the subject of a risk warning
  to a parent of the incapable person (whether or
  not the incapable person was under the control of
  or accompanied by the parent).

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Recreational activities

• 5M No duty of care for recreational activity
  where risk warning
• The fact that a risk is the subject of a risk
  warning does not of itself mean
• (a) that the risk is not an obvious or inherent
  risk of an activity, or
• (b) that a person who gives the risk warning
  owes a duty of care to a person who engages in an
  activity to take precautions to avoid the risk of
  harm from the activity.

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Recreational activities

• 5N Waiver of contractual duty of care for
  recreational activities
• Despite any other written or unwritten law, a
  term of a contract for the supply of recreation
  services may exclude, restrict or modify any
  liability to which this Division applies that
  results from breach of an express or implied
  warranty that the services will be rendered with
  reasonable care and skill.
• Nothing in the written law of New South Wales
  renders such a term of a contract void or
  unenforceable or authorises any court to refuse
  to enforce the term, to declare the term void or
  to vary the term.

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Recreational activities

• 5L No liability for harm suffered from obvious
  risks of dangerous recreational activities
• (1) A person ( "the defendant" ) is not liable in
  negligence for harm suffered by another person (
  "the plaintiff" ) as a result of the
  materialisation of an obvious risk of a dangerous
  recreational activity engaged in by the
  plaintiff. (2) This section applies whether or
  not the plaintiff was aware of the risk.

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s5L Dangerous Recreational Activities

• Fallas v Mourlas 2006 NSWCA 32 (16 March 2006)
• The plaintiff was holding a spotlight from a
  vehicle, while others shot the kangaroos. He was
  accidentally shot by the defendant when the
  defendant tried to unjam his weapon, despite
  having given the plaintiff assurances that the
  weapon was not loaded. The defendant argued it
  was an obvious risk in the course of a dangerous
  recreational activity (s5L CLA).
• The court held unanimously (Ipp JA, Tobias JA and
  Basten JA) that spotlighting was a dangerous
  recreational activity'. Ipp JA and Tobias JA held
  that for the risk to be significant' (s5K) it
  must have been a somewhere between a trivial
  risk and a risk likely to materialise'. Ipp JA
  held that in determining whether a recreational
  activity was dangerous involved particularising
  and segmenting the activity where necessary.
• The court held by majority (Ipp JA, Basten JA)
  that the risk that eventuated was not an obvious
  risk' (s5F) in the course of a dangerous
  recreational activity because of the defendant's
  assurances that the gun was not loaded. It
  therefore ruled in favour of the plaintiff.

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Recreational Activities Trade Practices Act

• Recreational Activities Sections 5J to N
• - The NSW Govt could not exclude the operation of
  the Trade Practices Act 1974, although the
  Federal Govt has done so by passing The Trade
  Practices Amendment (Liability for Recreational
  Services) Act 2002 proclaimed on 19/12/02

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Professional negligence

• Sections 5O 5P
• Peer professional opinion (or Bolam) test for
  determining the appropriate standard of care
• Rogers v Whitaker (1992) 175 CLR 479
• Cases involving a risk of injury or death arising
  from a professional service, community standards
  and other considerations may be applied by the
  court in determining the appropriate standard of
  care to be exercised.

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Professional negligence

• 5O Standard of care for professionals
• A person practising a profession ( "a
  professional" ) does not incur a liability in
  negligence arising from the provision of a
  professional service if it is established that
  the professional acted in a manner that (at the
  time the service was provided) was widely
  accepted in Australia by peer professional
  opinion as competent professional practice.
• However, peer professional opinion cannot be
  relied on for the purposes of this section if the
  court considers that the opinion is irrational

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Mental harm

• 27 Definitions
• In this Part
• "consequential mental harm" means mental harm
  that is a consequence of a personal injury of any
  other kind.
• "mental harm" means impairment of a persons
  mental condition.
• "negligence" means failure to exercise reasonable
  care and skill.
• "personal injury" includes
• pre-natal injury,
• impairment of a persons physical or mental
  condition, and
• disease.
• "pure mental harm" means mental harm other than
  consequential mental harm.

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Mental harm

• 30 Limitation on recovery for pure mental harm
  arising from shock
• (1) This section applies to the liability of a
  person ("the defendant) for pure mental harm to
  a person ("the plaintiff") arising wholly or
  partly from mental or nervous shock in connection
  with another person ("the victim") being killed,
  injured or put in peril by the act or omission of
  the defendant.
• (2) The plaintiff is not entitled to recover
  damages for pure mental harm unless
• the plaintiff witnessed, at the scene, the victim
  being killed, injured or put in peril, or
• the plaintiff is a close member of the family of
  the victim. (eg Waverley Council v Ferreira
  2005 NSWCA 418)

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Mental harm

• 32 Mental harmduty of care
• A person ("the defendant") does not owe a duty of
  care to another person ("the plaintiff") to take
  care not to cause the plaintiff mental harm
  unless the defendant ought to have foreseen that
  a person of normal fortitude might, in the
  circumstances of the case, suffer a recognised
  psychiatric illness if reasonable care were not
  taken.
• Codifies the common law test for foreseeability
  of risk of mental harm in Tame v NSW Annetts v
  Australian Stations Pty Ltd 2002 HCA 35

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Mental harm

• 33 Liability for economic loss for consequential
  mental harm
• A court cannot make an award of damages for
  economic loss for consequential mental harm
  resulting from negligence unless the harm
  consists of a recognised psychiatric illness.

32
Part 1A Duty of Care more commentary

• Section 5B(1) provides a person is not negligent
  unless (b) the risk was not insignificant.
• Wyong Shire Council v Shirt (1980) 146 CLR 40
  risk must be real in the sense that a
  reasonable person would not brush it aside as
  far-fetched or fanciful.
• Is not insignificant in Section 5B(1)(b) more
  restrictive than not far-fetched or fanciful in
  Wyong Shire Council v Shirt ?

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Part 1A Duty of Care more commentary

• Recreational Activities Sections 5J to N
• Issues of concern
• Is the commercial incentive for the safe
  provision of recreational commercial activities
  gone?
• What real bargaining power do consumers have in
  negotiating a contractual waiver?
• Definition of recreational activity is broad and
  ambiguous.

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Part 5 Liability of Public Other Authorities

• Proclaimed on 6/12/02 Sections 40 to 46
• Provides specific additional protection for
  public authorities including
• the Crown
• Government departments
• Local councils
• Other prescribed bodies

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Part 5 Liability of Public Other Authorities

• Section 42 sets out the principles to apply in
  determining whether a public or other authority
  has a duty of care or has breached a duty of care
  including
• the functions required to be exercised by the
  authority are limited by the financial and other
  resources that are reasonably available to the
  authority for the purpose of exercising those
  functions,
• the general allocation of those resources by the
  authority is not open to challenge,
• the functions required to be exercised by the
  authority are to be determined by reference to
  the broad range of its activities (and not merely
  by reference to the matter to which the
  proceedings relate),
• the authority may rely on evidence of its
  compliance with the general procedures and
  applicable standards for the exercise of its
  functions as evidence of the proper exercise of
  its functions in the matter to which the
  proceedings relate.

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Part 5 Liability of Public Other Authorities

• Section 43 an act or omission by an authority
  does not constitute a breach of a statutory duty,
  unless the act or omission so was unreasonable in
  the circumstances that no authority having the
  functions in question could properly consider the
  act or omission to be a reasonable exercise of it
  function.

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Part 5 Liability of Public Other Authorities

• Section 44 Removes the liability of public
  authorities for failure to exercise a regulatory
  function if the authority could not have been
  compelled to exercise the function under
  proceedings instituted by the Plaintiff.
• Section 45 Restores the non-feasance protection
  for highway authorities taken away by the High
  Court in Brodie v Singleton Shire Council
  Council Ghantous v Hawkesbury City Council
  (2001) 206 CLR 512

38
S45 Hwy Immunity

• Porter v. Lachlan Shire Council 2006 NSWCA 126
• The appellant suffered a fractured right ankle
  when he accidentally put his foot into a hole in
  the nature strip between the made footpath and
  the gutter of a street in Condobolin.
• The primary judge held that, but for s45 of the
  Civil Liability Act 2002, he would have found the
  Council liable on the ground that it should have
  known about the hole but he was not satisfied
  that the Council had actual knowledge of it.

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s45 - Porter v. Lachlan Shire Council

• 45 Special non-feasance protection for roads
  authorities(1) A roads authority is not liable
  in proceedings for civil liability to which this
  Part applies for harm arising from a failure of
  the authority to carry out road work, or to
  consider carrying out road work, unless at the
  time of the alleged failure the authority had
  actual knowledge of the particular risk the
  materialisation of which resulted in the
  harm....
• (3) In this section carry out road work means
  carry out any activity in connection with the
  construction, erection, installation,
  maintenance, inspection, repair, removal or
  replacement of a road work within the meaning of
  the Roads Act 1993.roads authority has the same
  meaning as in the Roads Act 1993.

40
s45 - Porter v. Lachlan Shire Council

• Hodgson JA (Beazley JA Giles JA agreeing)
• 34 In my opinion, this case does come within s45,
  on either of two bases. 35 First, where that
  part of a road used for pedestrian purposes has
  been altered by the installation of a footpath
  and a gutter, leaving what may be called a nature
  strip in between, it is in my opinion an unduly
  narrow view of what constitutes a road work to
  say that, while the made footpath is a road work
  and the gutter is a road work, the nature strip
  between them is neither a road work nor part of a
  road work. In my opinion the better view is that
  the whole of the area for pedestrian purposes,
  comprising the made footpath, the nature strip
  and the gutter, comprises a road work.

41
s45 - Porter v. Lachlan Shire Council

• Hodgson JA (Beazley JA Giles JA agreeing)
• 36 Second, in any event, where there is a hole in
  that part of a road which is a nature strip
  within the area used for pedestrian purposes, it
  would be road work to fill and make good that
  hole. That view is not in my opinion precluded by
  the use of the words constructed and
  installed in the definition of road work in the
  Roads Act, which, unlike the relevant definition
  in s45 of the Civil Liability Act, is an
  inclusive definition and not an exhaustive
  definition. Once it is accepted that to fill and
  make good the hole would be road work, then the
  question would arise whether failure to do this
  would be failure to carry out any activity in
  connection with the construction, erection,
  installation, maintenance, repair or replacement
  of a road work within s45(3). In my opinion, it
  would be although the words construction and
  installation, and the indefinite article a in
  front of road work, could be taken as inapt for
  the filling and making good of a hole, on balance
  I think it would be too narrow an approach to
  hold that the words do not extend to such
  activity.

42
s45 - Porter v. Lachlan Shire Council

• Hodgson JA (Beazley JA Giles JA agreeing)
• 37 On either basis, s45 applies on the first
  basis, the allegation would be that the
  respondent failed to maintain a road work, and on
  the second basis, it would be that the respondent
  failed to construct or install a road work.

43
s.45 Actual KnowledgeNorth Sydney Council v-
Roman 2007 NSWCA 27

• Ms Roman was injured at night when she fell in a
  pothole half a metre wide and about four to five
  inches deep in Princes Street, McMahons Point on
  16 October 2001. She brought proceedings against
  the Council, alleging that it had been negligent
  in failing to maintain the road by repairing the
  pothole. The Council defended the proceedings on
  the basis that it did not have actual knowledge
  of the pothole as required by s.45 of the CLA.
  The evidence established that Council street
  sweepers regularly swept the gutters in Princes
  Street in the vicinity of the subject hole. The
  street sweepers were instructed as part of their
  induction to identify hazards which needed
  attention and report them to their supervisor. Ms
  Roman argued at trial that the street sweepers
  actual knowledge of the pothole could be inferred
  from the regularity of those duties and from
  their obligation to identify hazards which needed
  attention. She also argued that their knowledge
  was attributable to the Council.

44
s.45 North Sydney Council v- Roman

• The appellant did not call a street sweeper. It
  did call evidence from their supervisor and from
  people responsible for repairing potholes. All
  said they had not known of the pothole. They said
  that if they had they would have regarded it as a
  hazard. By the time of the trial the pothole had
  been repaired. None of the appellants witnesses
  was aware of how it had come to be repaired, nor
  did the appellant produce any records relating to
  its repair. The primary judge inferred the street
  sweepers had actual knowledge of the pothole and
  that, for the purposes of s.45, their knowledge
  could be attributed to the appellant. She also
  found the appellant had breached its duty of care
  by leaving the pothole in a place where a person
  getting into or out of a car might reasonably be
  expected to step. She awarded the respondent
  475,485 damages.

45
s.45 North Sydney Council v- Roman

• On appeal the appellant submitted that to find
  actual knowledge for the purpose of s.45 it was
  necessary that there be a connection between the
  person with actual knowledge of the particular
  risk and the person able to, but who failed to,
  carry out the roadwork which would have avoided
  the harm which materialised. It argued that even
  if it was assumed a street sweeper had actual
  knowledge of the pothole, such knowledge was not
  sufficient because street sweepers did not carry
  out repairs.

46
s.45 North Sydney Council-v- Roman

• Held, allowing the appeal, per Basten JA (Bryson
  JA agreeing)
• 1. For the purposes of s.45 actual knowledge must
  be found in the mind of an officer within the
  council having delegated (or statutory) authority
  to carry out the necessary repairs.
• 2. The evidence demonstrated that no Council
  officer at a decision-making level had actual
  knowledge of the particular pothole and
  therefore the appellant did not have such
  knowledge. Accordingly, the exception to s.45 was
  not engaged and the statutory immunity prevailed.
  Per McColl JA (dissenting)

47
Parts 8 9 Good Samaritans Volunteers

• Proclaimed on 6/12/02 Sections 55 to 66
• Parts 8 9 operate to protect Good Samaritans
  and volunteers.
• Section 58 no protection if the Good Samaritan
  is under the influence of alcohol, impersonating
  a police officer or falsely representing that
  they have skills or expertise in providing
  emergency assistance.

48
Parts 8 9 Good Samaritans Volunteers

• Section 60 Defines community work to mean work
  that is not for private financial gain and that
  is done for a charitable, benevolent,
  philanthropic, sporting, educational or cultural
  purpose. It excludes community service orders
  imposed by a court.
• Section 61 No civil liability for a volunteer
  doing community work but does not extend to
  criminal acts, acts whilst intoxicated, a
  volunteer failing to exercise reasonable care and
  skill, actions outside the scope of the
  charitable organisation or contrary to
  instructions, where the volunteer is required by
  State law to be insured or motor vehicle
  accidents.

49
Breach of Duty General Principles

• Wyong Shire Council v Shirt (1980) 146 CLR 40 per
  Mason J
• In deciding whether there has been a breach of
  the duty of care the tribunal of fact must first
  ask itself whether a reasonable man in the
  defendants position would have foreseen that his
  conduct involved a risk of injury to the
  plaintiff If the answer is in the affirmative,
  it is then for the tribunal of fact to determine
  what a reasonable man would do The perception of
  the reasonable mans response calls for a
  consideration of the magnitude of the risk and
  the degree of the probability of its occurrence,
  along with the expense, difficulty and
  inconvenience of taking alleviating action and
  any other conflicting responsibilities which the
  defendant may have.

50
Breach of Duty Civil Liability Act

• Civil Liability Act does not apply to claims
  excluded by Section 3B (eg. dust diseases, use of
  tobacco products, workers compensation)
• Section 5B(2) In determining whether a reasonable
  person would have taken precautions against a
  risk of harm, the court is to consider the
  following (amongst other relevant things)
• (a) the probability that the harm would occur if
  care were not taken,
• (b) the likely seriousness of the harm,
• (c) the burden of taking precautions to avoid the
  risk of harm,
• (d) the social utility of the activity that
  creates the risk of harm.

51
s.5B(2) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 45 The matters set out in s5B(2), in substance,
  are a reiteration of Mason Js remarks in Wyong
  Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
  ...
• 51 Section 5B(2) provides a framework for
  deciding what precautions the reasonable person
  would have taken to avoid the harm and involves
  weighing the factors set out in ss5B(2)(a) and
  (b) against those in ss5B(2)(c) and (d) (subject,
  of course, to each being applicable in the
  particular circumstances of the case).
• 52 In my opinion, the probability as to whether a
  reasonable person would have taken precautions
  against a risk of harm (referred to in s5B(2)(b))
  must be considered objectively by reference to
  the particular circumstances of the case (and the
  state of mind of the defendant is not relevant to
  this inquiry).

52
s.5B(2) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 53 ... s5B(2)(a) requires consideration to be
  given to the objective probability of harm
  occurring if care were not taken. In my view,
  there was a reasonable possibility of harm
  occurring if the fence and undergrowth were not
  removed and children were not prevented from
  using the fence or the undergrowth as a stepping
  stone to gain access to the roof. By s5B(2)(a),
  this possibility must be taken into account.
• 54 The likely seriousness of the harm, should the
  risk materialise, was severe injury or death (s
  5B(2)(b)) (that is, in consequence of falling
  from the roof to the ground).

53
s.5B(2) - Waverley Council v Ferreira

• 55 Garling DCJ found that the fence served no
  practical purpose and in my view he did not
  thereby err. There was a gate in the fence and
  the gate had no lock. It would not have been
  difficult to climb over the fence. There is
  nothing to suggest that there was a reason to
  retain the undergrowth. Both the fence and the
  undergrowth served no apparent utilitarian or
  aesthetic purpose and the burden of removing them
  would have been small (s 5B(2)(c)).

54
s.5B(2) - Waverley Council v Ferreira

• 56 I have already mentioned that s5B(2)(d) (the
  social utility of the activity that creates the
  risk of harm) is not relevant in this case.
• 57 Weighing the factors set out in ss5B(2)(a) and
  (b) against those in s5B(2)(c), I conclude that a
  reasonable Council would have taken the
  precautions of removing the fence and the
  undergrowth and Garling DCJ did not err in so
  holding.

55
Breach of Duty Likelihood of Injury

• Section 5B(2)(a) the probability that the harm
  would occur if care were not taken
• Bolton v Stone 1951 AC 850

56
Breach of Duty Seriousness of Risk

• Section 5B(2)(b) the likely seriousness of the
  harm
• Adelaide Chemical Fertilizer Co. v Carlyle
  (1940) 64 CLR 514
• Paris v Stepney Borough Council 1951 AC 367

57
Breach of Duty Cost of Avoiding Harm

• Section 5B(2)(c) the burden of taking precautions
  to avoid the risk of harm
• Caledonian Collieries Ltd v Speirs (1957) 97 CLR
  202

58
Breach of Duty Utility of the Act of the
Defendant

• Section 5B(2)(d) the social utility of the
  activity that creates the risk of harm.
• South Australian Ambulance Transport Inc. v
  Walhdeim (1948) 77 CLR 215

59
Proof of Negligence - General

• CIVIL LIABILITY ACT 2002 s.5E Onus of proof
• In determining liability for negligence, the
  plaintiff always bears the onus of proving, on
  the balance of probabilities, any fact relevant
  to the issue of causation.
• Holloway v McFeeters (1956) 94 CLR 470

60
Proof of Negligence Res Ipsa Loquitor

• The action/thing speaks for itself
• Nominal Defendant v Haslbauer (1967) 117 CLR 448

61
Damage in Negligence

Duty of care
Negligence
Breach
Damage
62
Damage in Negligence

Duty of care
Negligence
Breach
Damage
63
Damage in Negligence

• Damage is the gist of the action in Negligence
• The scope of actionable damage
• property
• personal
• mental
• pure economic loss
• Damage must be actual for compensation no cause
  of action accrues until damage
• Limitations period therefore begin from the time
  of the injurious consequences of a conduct not
  from when the conduct first occurred

64
Damage in Negligence

• For P to be successful in an action in
  Negligence, Ds breach of duty must cause damage
  to P or his/her property

65
CAUSATION 1
Duty of Care
breach
damage
Negligence
causation
There must be a causal link between Ds breach of
duty and damage to P or Ps property
66
CAUSATION 2 THE ELEMENTS

• Causation involves two fundamental questions
• the factual question whether Ds act in fact
  caused Ps damage causation-in-fact
• Whether, and to what extent D should be held
  responsible for the consequences of his conduct
  legal causation

67
CAUSATION-IN-FACT

• Causation in fact relates to the factor(s) or
  conditions which were causally relevant in
  producing the consequences
• Whether a particular condition is sufficient to
  be causally relevant depends on whether it was a
  necessary condition for the occurrence of the
  damage
• The necessary condition causa sine qua non

68
CAUSATION

• To be successful in a claim for a remedy, P needs
  to prove that the loss for which he/she seeks
  compensation was caused in fact by the Ds
  wrongful act
• Traditionally, the test whether Ds wrongful act
  did in fact cause the loss is the but for test

69
THE BUT FOR TEST

• But for the Ds conduct, the injury to P would
  not have happened
• Waller v James (Wrongful life IVF case with
  failure to test or advise about the dangers of
  the fathers AT3 deficiency)

70
THE FUNCTION OF THE BUT FOR TEST

• Two functions
• The primary (negative) function is to assist in
  eliminating factors which made no difference to
  the outcome
• The second (positive) function it helps to
  identify a condition or a factor which may itself
  then be subject to a test of legal causation

71
THE BUT FOR TEST IN THE HIGH COURT

• Fitzgerald v Penn ( 1954) 91 CLR 268
• Causation is all ultimately a matter of common
  sense.It is not susceptible of reduction to a
  satisfactory formula(per Dixon, Fullagar and
  Kitto JJ)
• March v E MH Stramare (1991) 171 CLR 506The but
  for test gives rise to a well known difficulty in
  cases where there are two or more acts or events
  which would each be sufficient to bring about the
  plaintiffs injury. The application of the tests
  gives the results, contrary to common sense, that
  neither is a cause. The application of the tests
  proves to be either inadequate or troublesome in
  various situations in which there are multiple
  acts or events leading to the plaintiff's injury
  (per Mason J)

72
THE BUT FOR TEST IMPLICATIONS OF A COMMON
SENSE APPROACH

• Bennett v Minister of Community Welfare (1992)
  176 408
• if the but for test is applied in a practical
  common sense way, it enables the tribunal of
  fact, consciously or unconsciously, to give
  effect to value judgments concerning
  responsibility for the damage. If ..the test is
  applied in that way, it gives the tribunal an
  unfettered discretion to ignore a condition or
  relation which was in fact a precondition of the
  occurrence of the damages

73
THE BUT FOR TEST IS NOT EXHAUSTIVE

• Bennett causation is essentially a question of
  fact to be resolved as a matter of common sense.
  In resolving that question, the but for test ,
  applied as a negative criterion of causation,
  has an important role to play but it is not a
  comprehensive and exhaustive test of causation
  value judgments and policy considerations
  necessarily intrude (per Mason CJ , Deane and
  Toohey JJ)

74
MULTIPLE CAUSES

• Where the injury or damage of which the plaintiff
  complains is caused by Ds act combined with some
  other act or event, D is liable for the whole of
  the loss where it is indivisible where it is
  divisible, D is liable for the proportion that is
  attributable to him/her

75
MULTIPLE CAUSES TYPES

• Concurrent sufficient causes
• where two or more independent events cause the
  damage/loss to D ( eg, two separate fires destroy
  Ps property)
• Successive sufficient causes
• Baker v Willoughby
• Faulkner v Keffalinos (1971) 45 ALJR 80
• Jobling v Associated Dairies Ltd 1982(dormant
  spondylotic myelopathy activated)
• Malec v Hutton 1990 169 CLR( possible future
  spinal condition)
• D2 is entitled to take P (the victim) as he finds
  him/her
• Where D2 exacerbates a pre-existing loss/injury
  (such as hasten the death of P) D2 is liable only
  for the part of the damage that is attributable
  to him

76
Causation Civil Liability Act

• Section 5D General principles
• (1) A determination that negligence caused
  particular harm comprises the following elements
  
• (a) that the negligence was a necessary condition
  of the occurrence of the harm ("factual
  causation"), and
• (b) that it is appropriate for the scope of the
  negligent persons liability to extend to the
  harm so caused ("scope of liability").

77
Section 5D Necessary Condition

• Woolworths Limited v Strong Anor 2010 NSWCA
  282 (2 November 2010)
• One level of the Centro Taree Shopping Centre
  contained 2 large retail shops separated by a
  common area, part of which operated as a food
  court. One of the large retail shops was Big W.
• On 24 September 2004 at around 1230pm Ms Strong
  was at the shopping centre with her friends.
• Big W had an exclusive right under its lease to
  conduct sidewalk sales within an area that was
  roughly square and extended 11 metres into the
  common area towards the food court from the
  frontage of the leased premises.

78
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• On the day in question there were two large plant
  stands with 3 or 4 racks on each stand in the
  common area outside Big W. There were pot plants
  on those racks. The stands themselves were about
  shoulder height. They were placed so as to create
  a corridor directly outside the Big W store, and
  leading directly to that store. The stands had
  been in that location from around 8am that day.
• Ms Strong had undergone an amputation above the
  right knee decades before the accident. By using
  crutches, she had been able to achieve a high
  degree of mobility. On the day in question, she
  and her friends were going towards Big W. They
  passed between the two plant stands. The corridor
  created by the plant stands was wide enough for
  the three women to walk alongside each other.

79
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• Ms Strong was actively involved in keeping pot
  plants. She said, I went to look at the plant
  stand on my right and just after Id gone in
  thats when I had my fall.
• The tip of her right crutch slipped from under
  her, and she fell heavily.
• The trial judge accepted that there was a chip on
  the floor, that some grease had come from it, and
  that Ms Strong slipped when the end of her crutch
  came in contact with either the chip or the
  grease.
• It is clear enough that the type of chip
  involved was a french fry, rather than a potato
  crisp or a small detached piece of flooring. The
  spot where Ms Strong fell was approximately 4
  metres from the entrance to the Big W.
• The trial judge found that the place where Ms
  Strong slipped was within the area where Big W
  conducted sidewalk sales and it was within the
  occupancy, care and control of Big W.

80
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• Campbell J (Handley AJA Harrison J agreeing)
• Before a court makes a finding that negligence
  caused particular harm, section 5D(1)(a) Civil
  Liability Act identifies, as one of the two
  elements that must usually be proved, that the
  negligence was a necessary condition of the
  occurrence of the harm. Negligence there has
  its defined meaning, arising from section 5 Civil
  Liability Act, of failure to exercise reasonable
  care and skill.
• The statutory test for causation thus usually
  requires a decision about whether failure to
  exercise reasonable care and skill was a
  necessary condition of the occurrence of the
  harm. The test for causation under section
  5D(1)(a) has some measure of continuity with the
  previous common law, because if A is a necessary
  condition for the occurrence of B, one can always
  say that B would not happen but for A.

81
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• Campbell J (Handley AJA Harrison J agreeing)
• When causation was decided according to the
  common law, it was held that a defendant having
  materially increased the risk of an injury of a
  particular type occurring is not the same as the
  defendant having materially contributed to (and
  thus, according to the common law, caused) a
  particular injury of that type that has occurred
  Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR
  307 at 316 per Mason P.
• It is only if the necessary condition test in
  section 5D(1)(a) is satisfied that there can be
  causation within the meaning of section 5D(1).
  That is because section 5D(1)(b) poses a further
  test (ie, that it is appropriate for the scope of
  the negligent persons liability to extend to the
  harm so caused), that is to be applied even if
  the necessary condition test is satisfied. In
  other words, section 5D(1)(b) operates as a means
  by which causation might not be found, even if
  the necessary condition test of section
  5D(1)(a) were to be satisfied.

82
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• Campbell J (Handley AJA Harrison J agreeing)
• The reasons of the trial judge do not engage
  in a process of deciding what it was that Big W
  failed to do that the taking of reasonable care
  required it to do, and then whether that failure
  to take reasonable care was a necessary condition
  of the occurrence of the particular harm that Ms
  Strong sustained.
• Thus, the trial judge has not decided the case
  in the way the statute requires. ... That the
  chip was able to be seen after the accident says
  nothing about whether the presence of one or more
  Woolworths employees in the area was adequate
  for the taking of reasonable care. To say it
  should have been removed is to express a
  conclusion, but not one arrived at by the type of
  reasoning the statute requires. ... This Court
  must examine the question of causation of damage
  for itself.

83
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• Campbell J (Handley AJA Harrison J agreeing)
• In circumstances where Big W had no relevant
  cleaning system at all, it is easy to conclude
  that it breached its duty of care to Ms Strong.
  However, it is not possible to decide whether the
  breach of duty was a necessary condition of the
  particular harm without giving consideration to
  what the minimum content of the obligation to
  take reasonable care to prevent patrons from
  slipping would have been.
• The present is not, however, a case in which
  proof of breach of duty in itself makes likely
  that, had the duty been performed, the damage
  would not have been caused. That is because there
  is no evidence that would justify a conclusion
  that taking reasonable care, in the present case,
  required the continuous presence of someone
  always on the lookout for potential slippery
  substances. Periodical inspections and cleanings
  were all that reasonable care required.

84
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• In my view, there is no basis for concluding, in
  the present case, that the chip had been on the
  ground for long enough for it to be detected and
  removed by the operation of a reasonable cleaning
  system. There was no evidence of there being
  anything about the physical appearance of the
  chip, such as it being dirty, that might provide
  the ground for an inference that it had been
  there for some time. There was no basis for
  concluding that the chip could have been dropped
  at any time of the day, or at least for
  concluding that it was more likely than not that
  it was not dropped comparatively soon before the
  First Respondent slipped. There was no basis for
  inferring whether the grease stain was
  something that had spontaneously oozed from the
  chip as it lay on the ground, or had fallen with
  it (in either case existing and being visible
  before the fall), rather than that it had been
  squeezed out of the chip as the crutch compressed
  and moved it.

85
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• There was no evidence concerning the temperature
  of the chip from any other witness. The fact that
  the cleaning contractor engaged a second cleaner,
  with special duties that included (but were not
  confined to) attending to the food court area
  from 1100am to 200pm provides some basis for
  believing that there was an increased risk of
  things being dropped in that area during the time
  period. The site of the accident was very close
  to the food court. The time the accident
  occurred, at 1230pm, fits comfortably within the
  range of time at which people ordinarily eat
  lunch. However, that fact does not assist in
  concluding how long it was likely to have been
  there.
• There was no evidence on the basis of which a
  judge could conclude that the taking of
  reasonable care to prevent physical injury to
  people within the sidewalk sales area involved
  any higher degree of diligence or vigilance than
  was applied immediately outside the perimeter of
  the sidewalk sales area.

86
Woolworths Limited v Strong Anor 2010 NSWCA
282 (2 November 2010)

• Campbell J (Handley AJA Harrison J agreeing)
• In the present case, if one were to ask whether
  the First Respondent would not have been injured
  if the Appellant had in place a reasonable system
  for detecting and removing potentially slippery
  substances, one can answer maybe. In my view
  the evidence does not enable the answer more
  likely than not to be given. In the
  circumstances, the First Respondent did not
  establish causation of damage.

87
THE ELEMENTS OF CAUSATION
Causation
Legal
Factual (Causation in fact)
88
THE ELEMENTS OF CAUSATION
Causation
Legal
Factual (Causation in fact)
89
LEGAL CAUSATION

• Factual causation in itself is not necessarily
  sufficient as a basis for Ds liability
• To be liable, Ds conduct must be the proximate
  cause of Ps injury
• Ps harm must not be too remote from Ds conduct

90
REMOTENESS

• The law cannot take account of everything that
  follows a wrongful act it regards some matters
  as outside the scope of its selection. In the
  varied wave of affairs, the law must abstract
  some consequences as relevant, not perhaps on
  grounds of pure logic but simply for practical
  reasons Per Lord Wright Liebosch Dredger v SS
  Edison 1933 AC 449

91
Case Law on Remoteness

• Earlier position in Common Law
• Re Polemis- the directness element
• The current position
• The Wagon Mound (No. 1)
• The Wagon Mound (No. 2)

92
INTERVENING ACT

• An intervening act breaks the chain of causation
  and may relieve D of liability. To be sufficient
  to break the chain, it must either be a
• human action that is properly to be regarded as
  voluntary or a causally independent event the
  conjunction of which with the wrongful act in or
  omission is by ordinary standards so extremely
  unlikely as to be turned a coincidence ( Smith J
  Haber v Walker 1963 VR 339

93
INTERVENING ACT 2

• A foreseeable intervening act does not break
  the chain of causation
• Chapman v Hearse
• Negligent medical treatment subsequent to
  negligent injury would not necessarily remove
  liability for D1 unless the subsequent injury was
  inexcusably bad, so obviously unnecessary or
  improper that it fell outside the bounds of
  reputable medical practice
• (Mahony v J Kruschich Demolitions)

94
THE LAW OF TORTS

• PARTICULAR DUTY AREAS
• Products Liability(b) Defective Structures(c)
  Nervous Shock(d) Hoteliers/Clubs
• (e) Pure Eco Loss(f) Negligent Misstatement(g)
  Liability of Statutory Authorities

95
PRODUCT LIABILITY

• Common law
• Donohue v Stevenson 1932 AC 562
• Grant v Australian Knitting Mills 1936 AC 85

96
PRODUCT LIABILITY

• Relevant Statutes
• Sale of Goods Act 1923 (NSW)
• Pt 4 Performance of the Contract (ss.30 to 40)
• Pt 5 Rights of the Unpaid Seller Against the
  Goods (ss.41 to 50)
• Pt 6 Actions for Breach of the Contract (ss.51
  to 56)

97
PRODUCT LIABILITY

• Relevant Statutes
• Fair Trading Act (NSW)
• Pt 4 Consumer Protection (ss.38 to 40)
• Pt 5 Fair Trading (ss.41 to 60, including s.42
  Misleading or deceptive conduct and s.44 False
  representations)

98
PRODUCT LIABILITY

• Relevant Statutes
• Trade Practices Act 1974 (Cth)
• Pt V Div 1 Consumer Protection (ss.51AF to
  65A, including s.52 Misleading and deceptive
  conduct)
• Pt V Div 2A Actions against manufacturers and
  importers of goods (ss.74A to 74L)
• Pt VA Liability of manufacturers and importers
  for defective goods

99
DEFECTIVE STRUCTURES

• Professional negligence
• s.5O Civil Liability Act 2002 Peer professional
  opinion (ie. The UK Bolam test)
• S.5P Civil Liability Act 2002 Duty to warn
  remains (ie. Rogers v Whittaker)
• Builders
• Bryan v Maloney (1995) ATR 81- 320
• Architects
• Voli v Inglewood Shire Council (1963) 110 CLR
  74

100
DEFECTIVE STRUCTURES

• Councils Statutory Authorities
• Pt 5 Civil Liability Act 2002, especially s.42
  determining duty of care and breach of duty in
  relation to functions, allocation of resources,
  range of activities and reliance on general
  procedures/applicable standards
• Common law
• Heyman v Sutherland Shire Council (1985) 157 CLR
  424
• Shaddock v Parramatta CC No.1 (1981) 150 CLR
  424
• Parramatta CC v Lutz (1988) 12 NSWLR 293

101
NERVOUS SHOCK

• What is nervous shock
• An identifiable mental injury recognised in
  medical terms as a genuine psychiatric illness.
• The sudden sensory perception that , by seeing
  hearing or touching of a person, thing or
  event, which is so distressing that the
  perception of the phenomenon affronts or insults
  the plaintiffs mind and causes a recognizable
  psychiatric illness
• It is a question of fact whether it is reasonably
  foreseeable that the sudden perception of that
  phenomenon might induce psychiatric.
• Pt 3 Civil Liability Act 2002 Mental harm
  (ss.27 to 33), especially
• S.30 Limitation on recovery for pure mental harm
  arising from shock ie. Witness at the scene the
  victim being killed, injured or put in peril, or
  the plaintiff is a close family member of the
  victim
• S.32 Duty of care ie. Defendant ought to have
  foreseen that a person of normal fortitude might
  suffer a recognisable psychiatric illness if
  reasonable care were not taken.

102
Nervous ShockThe The Nature of the Harm

• The notion of psychiatric illness induced by
  shock is a compound, not a simple, idea. Its
  elements are, on the one hand, psychiatric
  illness and, on the other, shock which causes it.
  Liability in negligence for nervous shock depends
  upon the reasonable foreseeability of both
  elements and of the causal relationship between
  them
• Post-Traumatic Stress Disorder
• Pathological grief disorder

103
THE VICTIMS

• Primary victims
• What needs to be reasonably foreseeable ? Some
  personal injury, physical or psychiatric, to the
  primary victim
• Page v Smith 1996 1 AC 155 (HL) a victim of a
  road accident caused by another's negligence
  claimed damages solely for psychiatric illness
• Secondary Victims
• Close relationship
• Jaensch v Coffey
• S.30 Civil Liability Act Close member of the
  family and spouse or partner defined
• proximity/nearness to accident or aftermath
• Bourhill v Young
• Mount Isa Mines v Pusey