SAMPLE WORKED ANSWERS

Sample One:

Annie forced her way into Bernie's house and was helping herself to the silverware when Bernie discovered her. She drew a knife on Bernie and told him to leave her to it. Bernie grabbed a heavy silver candlestick and struck her over the head causing a serious injury.1. Does Annie have any action in tort against Bernie?2. Does Bernie have any action in tort against Annie? If so, what damages (if

any) will be recoverable?

1. Annie v Bernie

Bernie has struck Annie with an object.

The elements of the tort of battery are:(i) an act (not an omission): Holmes v Mather;(ii) that is direct: Hutchins v Maughan;(iii) the act is intentional or careless: Williams v Holland;(iv) and causes physical contact with the plaintiff: Collins v Wilcock;(v) without the plaintiff's consent: In Re F.

Contributory negligence is no defence to the intentional torts: Horkin v Nth Melb Football Club Social Club. Necessity is a defence to battery: In Re F. The facts that must be proved by the defendant in order to fully rely on the defence are:

(i) that there existed a situation of imminent danger or, at least, what a reasonable person would consider so; and

(ii) the steps taken by the defendant in the light of the facts must have been reasonably necessary: Southwark LBC v Williams.

Self defence and defence of property - an application of the minimum force necessary to protect one's self or property is a defence to the intentional torts: Hall v Fonceca.

It is currently uncertain as to whether the defendant must disprove the elements of a non-highway battery (McHale v Watson) or whether the plaintiff must prove the elements of the tort. In Platt v Nutt, Kirby P. said that the principle, s/he who asserts must prove, ought to apply in non-highway trespasses so that these torts are brought in line with all the other torts. Justices Hope and Clarke, however, agreed that on the facts before them the plaintiff ought to have proved the elements of the tort, particularly that the defendant's conduct caused the plaintiff's injuries, but their Honours declined to express views in relation to burden of proof.

The standard of proof is proof on the balance of probabilities.

Bernie striking Annie was a positive act. That act was direct and was done intentionally by Bernie. He meant to do it. Contact with Annie's person occurred and it can be inferred that Annie did not consent to the act.

On the facts given, Bernie will not be liable to Annie for battery if he can prove self defence or defence of property. It is doubtful though that his life was imperilled (Annie wielded a knife, not a gun) and so the defence of necessity may not apply.

If for some reason the defence of self defence and defence of property fails (for example, that the force used was excessive), it is clear that Bernie was provoked in his actions. Therefore, whereas compensatory damages awarded to Annie will not be reduced for her provocation of Bernie (Fontin v Katapodis), aggravated or exemplary damages claimed by her may be reduced. It is submitted, though, that on these facts they ought not be claimed and should not be awarded (cf. Myers Stores v Soo; Lamb v Cotogno).

2(a). Bernie v Annie

Annie entered and remained upon Bernie's land; she attempted to take his silverware and she waved a knife at him. These facts give rise to the following tort actions:

(a) Trespass to LandThe elements of trespass to land are:

(i) The defendant intentionally or carelessly: William v Holland;(ii) Enters or remains on or directly causes any physical matter to come

in contact with(iii) Land in the possession of the plaintiff: Rodriguez v Ufton.

Annie intentionally entered Bernie's land. On the facts she is liable for this tort.

(b) Trespass to goodsThe elements to trespass to goods are:

(i) a direct: Hutchins v Maughan, and(ii) intentional or careless: Williams v Holland(iii) interference with goods in the possession of the plaintiff: Penfolds

Wines v Elliot.

Annie 'helping herself' to Bernie's goods comprises a direct and intentional interference with his goods. On the facts she is liable for this tort.

(c) AssaultThe elements of an assault are:(i) an act (not an omission): Holmes v Mather(ii) that is direct: Hutchins v Maughan(iii) the act is intentional or careless: Williams v Holland(iv) and causes the plaintiff to apprehend contact to its person: Barton v

ArmstrongThe first three elements of the assault are proven by Annie intentionally wielding the knife (not a gun) at Bernie. On the facts given, it is not possible to tell whether upon that event occurring Bernie apprehended contact to his person. If he did, then Annie is liable for this tort.

(d) ConversionConversion is an intentional dealing with goods inconsistent with the possession or the immediate right to possession.

Annie intended to 'help herself' to the goods in Bernie's house. Annie's act of 'helping herself' is a sufficient dealing for the purposes of conversion. It is neither here nor there that Annie may not have managed to take the goods. These goods are deemed to be in Bernie's possession and, if not, then he has an immediate right to possession of them. Annie is liable to Bernie in conversion. Bernie, however, has not suffered any loss or damage. Conversion is not trespass and therefore is not actionable per se.

2(b) Damages

It is unclear if Bernie has suffered any harm or loss in his altercation with Annie. If no harm or loss was suffered then as trespass is actionable per se, he will be awarded damages for trespass.

Any damage or loss caused by Annie in the commission of the above torts will be met by an award of compensatory damages. The aim of compensatory damages is to put the plaintiff in the position s/he would have been in but for the tort. If Bernie can show that Annie acted with contumelious disregard of his rights then he may seek and be awarded exemplary damages: Lamb v Cotogno.

Sample Two:

Cathy borrowed a book from the Dunswood Library on a thirty-day loan. Edward who wanted the book urgently took it from Cathy's briefcase the day after she borrowed it. Does the library have any rights against Edward?

A book owned by a library has been removed from the borrower by a third party during a thirty day lending term. Whether or not the library has any rights against the third party will depend on whether or not the borrower breached the lending terms and also on when the library attempts to bring an action.

During a bailment for a term a bailor has no rights against a third party converter of or trespasser to the goods: Wertheim v Cheel, unless the bailee has done some act to revoke the bailment: Penfolds Wines v Elliot. In the latter case the bailment for a term reverts to a bailment at will and the bailor acquires the immediate right to possession it enjoys in any bailment at will.

A third party who takes goods may be liable in:

(A) conversion, which involves an intentional dealing with goods inconsistent with the rights of the person in possession of the goods or the person in a position to assert a right to immediate possession of the goods.

(B) trespass to goods, which involves:1. a positive act and not an omission: Holmes v Mather2. that is direct: Hutchins v Maughan3. and intentional or negligent: Williams v Holland; Williams v Milotin4. and causes an interference with goods: Kirk v Gregory5. in the possession of the plaintiff: Penfolds Wines v Elliot.

(C) detinue, which involves a wrongful detention of goods after a demand for their return has been made by the person with an immediate right to possession.

If Cathy as borrower/bailee has dealt negligently with the book then the Library as lender/bailor accrues an immediate right to possession of the book when the bailment is breached. Hence the Library can sue Edward in conversion and trespass to goods: Penfolds Wines v Elliot.

If, on the other hand, Cathy as borrower/bailee has not breached any term of the bailment then the Library as lender/bailor in a bailment for a term has no title to sue Edward: Wertheim v Cheel, until the term of the bailment is over. That is, after the thirty day period has elapsed. Only then when the Library acquires an immediate right to possession of the book, can it sue Edward in conversion and trespass to goods.

In an action by the Library for conversion, the damages are assessed at the date of the conversion: The Mediana. Trespass is actionable per se and damages are assessed at the date of the trial.

On the facts as given there is insufficient basis on which to found a cause of action in detinue.

In conclusion, the library as bailor only has rights against Edward in circumstances where:1. the bailment has been breached during the term by the bailee, or2. the bailment for a term is over after thirty days and has reverted to a bailment at will.

Sample Three:

Gay called in to see her next-door neighbour Freda. She found Freda lying unconscious on her kitchen floor. Freda had suffered an electric shock while probing a power point with a screwdriver. Gay, in her haste to get to a telephone to dial for help, tripped over a rug and injured her leg. Does Gay have any action against Freda for her injury?

Gay visited Freda's house and found her lying unconscious on the floor after negligently interfering with a power point. While hastening to the phone, Gay tripped on a floor rug and injured her leg.

To succeed In an action in negligence the plaintiff must prove that:1. the defendant owed the plaintiff a duty to take care: Chapman v Hearse; Bernie

Port Authority v General Jones, and 2. the defendant has breached that duty: Wyong Shire Council v Shirt, by failing to

deliver the minimum standard of conduct necessary to avoid a breach of duty: Cook v Cook, and

3. this breach of duty has caused the plaintiff to suffer harm that is reasonably foreseeable duty that is not too remote: March v Stramare; Wagon Mound No.1

In circumstances where a defendant can prove that the plaintiff failed to take adequate measures to preserve their own safety, a defence of contributory negligence will be successful. As a result damages will be apportioned in accordance with where the negligence lies: s10(1) Law Reform (Miscellaneous Provisions) Act 1965 (LRMPA65)

The duty owed by Freda to Gay comes from two sources. Freda is an occupier of premises and so owes a duty to take care when doing dangerous activities to avoid harm to those who enter the premises: Burnie Port Authority. Freda is also an injured negligent person and on the authority of Chapman owes her rescuer a duty to take care.

The content of the duty is that Freda, either as an occupier or as an injured negligent person, must do all that is necessary to avoid visitors to her home or rescuers from sustaining harm that is reasonably foreseeable. The risk of someone sustaining an injury from slipping on a floor rug, though improbable, is nevertheless neither far-fetched nor fanciful. Hence, it must be a real risk and therefore reasonably foreseeable. Whether that risk is so great that the reasonable person would banish floor rugs can only be decided an balancing the factors of the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action: Wyong Shire Council v Shirt. It is unreasonable to expect people to eliminate floor rugs altogether but it is reasonable to expect them to use inexpensive tapes to secure them to the underlying surface, especially where that could comprise polished boards. On balance, it is submitted that the presence of the floor rug does not of itself breach Freda's duty as an occupier or as an injured person requiring rescue. However, a failure to ensure that the rug is fixed could constitute such a breach of duty.

The facts indicate that Gay slipped on the rug when hastening to the telephone. It could be argued that but for Gay' s haste she would not have tripped on the rug at all. This raises the question of what caused Gay to trip on the rug - the rug itself and the way it was secured to the floor, or Gay' s failure to take care of her own safety when hastening to the phone. A common sense approach is adopted: March v Stramare.

That Gay's leg injury is foreseeable and not too remote a consequence of slipping on the rug is not disputed: Wagon Mound No.1

So, does Gay have an action against Freda? if it is found that a poorly fixed rug constitutes a breach of Freda's duty to Gay, then Gay can sue Freda in Negligence. However, Gay must be advised that in that action Freda can raise the defence of contributory negligence, which, if proved, could lead to the reduction and apportionment of damages awarded to Gay in accordance with the LRMPA65. Given that Gay was affecting a rescue and that Freda's negligent conduct put Gay in a position where she conducted herself reasonably although in a manner that caused her harm, then it is submitted that a defence of contributory negligence would probably fail: Chapman v Hearse; Caterson v Commissioner for Railways.

Sample Four:

Wife and husband, Freda and George, ran a successful art gallery in which Freda's pottery and George's sculptures were sold along with works by other artists. The gallery business was operated through a private company, Hands On Pty Ltd, jointly owned by Freda and George, who divided the gallery hours between them, for which they were each paid a salary by the company. Freda was badly burnt in a fire caused by a defect in her potters' kiln which had been negligently manufactured by Indiana Products Ltd. After one month under intensive care in hospital she died from the burns. During that month her salary was paid by Hands On Pty Ltd as sick pay. As a result of Freda's death, the business has suffered, partly because her pottery is no longer available, partly because her replacement in the gallery is not as successful in effecting sales. George continued to live in the apartment which he rented with Freda but now he has to meet all his living costs out of his salary instead of their two salaries combined.

What actions would George, who is the executor of Freda's estate, and/or Hands On Pty Ltd have against Indiana Products Ltd and what damages would be recoverable in those actions?

A. George as Executor v Indiana Products Pty Limited (IP)

George as executor of Freda's estate acquires the right to claim damages for her death under the Law Reform (Misc Prov) Act 1944 Part 2. The damages payable are outlined in s.2 of that Act and are as follows:

(i) pecuniary losses such as hospital and medical expenses incurred in the time period between the accident and the death

(ii) cost of a funeral: s.2(2)(c).

As Freda received sick pay in the relevant period then George cannot claim loss of income: Graham v Baker.

Damages for pain and suffering, bodily and mental harm and loss of expectation of life are not payable: s.2(2)(d).

B. George as husband v IP

As a husband, George is entitled to bring an action under the Compensation to Relatives Act 1897 (CRA) s.4(1), providing the conditions stipulated in s.3 are met. Those conditions are:

(i) that the death was caused by the "act, neglect or default" of the defendant: Woolworths v Crotty; and

(ii) that the deceased, if she had lived, would have had an action against the defendant for her injuries: Harding v Lithgow Council.

As the kiln was negligently manufactured by IP and Freda suffered injuries as a result then it is submitted that both these conditions are met.

Emotional losses were recoverable for the children upon the death of a parent in Swan v Williams Demolitions. If these damages were available to a spouse then George may recover them.

George will be compensated for his having to pay Freda's share of the rent.

The courts take into consideration the value, if any, to George of the opportunity to remarry: Jones v Schiffman.As George and Freda were each paid a salary by Hands On then it is unlikely that George had any valid expectation of financial support from Freda. Such an expectation is essential to recovery: Davies v Taylor.

C. Hands On (HO) v IP

Action for loss of services. HO can seek recovery of the sick pay paid to Freda when she was in hospital: Graham v Baker.

No compensation will be paid for the profits lost when Freda is replaced by a person less successful in effecting sales than Freda.

No damages for the death are recoverable: Swan.

Sample Five:

Regulations under the Employees' Safety Act require sawmillers to fence circular saws in order to contain timber ends propelled by the blades. In Ron's sawmill one of the circular saws was not fenced as required and a timber end propelled from the saw struck Sam, Ron's employee, on the head, causing serious injury. Tina, Sam's fiancée, entered the work area just before the accident although she knew that the area was restricted to employees. Seeing Sam collapse from the blow, she suffered nervous shock. Ron claims that he had strictly instructed all his employees, including Sam, to wear a helmet when working near the unfenced saw. A helmet would have avoided serious injury.

Discuss Ron's liability in tort to both(i) Sam and(ii) Tina,

including any defences which may be raised in either case.

(i) Sam v Ron

A. Breach of Statutory Dutv.

The elements of this tort are:1 The statute imposes a duty and not merely a discretion: Galashields. The Act

in question "requires", which is interpreted as an obligation and not a power.2. The statute must fix a duty upon the defendant. The Act here imposes a duty

on sawmillers and Ron is a sawmiller.3. The statute must allow a personal action in tort: O'Connor v Bray; Abela v

Giew; Tassone v MWSB. In circumstances where the words of the statute do not expressly provide a private right to sue in tort, the High Court in O'Connor said that where the Act in question is one dealing with safety and where the facts also give rise to a duty to take care owed by the defendant to the plaintiff in the tort of Negligence, then the court will find that a private right to sue exists unless the words of the statute clearly show a contrary legislative intention.

4. The harm suffered must be within the risk guarded against: Gorris v Scott. Sam sustained an injury from a propelled timber end - thus he suffered harm contemplated by the statute.

5. The plaintiff is one of the persons protected by the statute: Knapp v The Railway Executive. Sam is an employee and so is protected by a statute entitled Employees' Safety Act.

6. The defendant failed to do what was required by the statute. Ron failed to fence a circular saw as required.

7. The breach of duty must have caused the plaintiff's harm: Bonnington Castings v Wardlaw; Sherman v Nymboida Collieries. A failure to fence the saw has allowed the timber end to hit Sam's head.

Subject to the statute giving Sam a private right to sue, it is submitted that he can sue Ron in this tort. Even if element 3 above is not satisfied then Sam can rely on his proof of the remaining elements of the breach of statutory duty as evidence of a breach of duty of care in Negligence: Tassone.

Contributory Negligence as a defence to personal injury as a result of breach of statutory duty is unavailable by virtue of s.2 of the Statutory Duties (Contributory Negligence) Act 1945.

B. Negligence

The elements of this tort are:1. the defendant owes the plaintiff a duty to take care: Kondis v STA,2. the defendant has breached the duty: Wyong SC v Shirt, by failing to deliver

the minimum standard of care expected: Cook v Cook, thereby causing: March v Stramare,

3. the plaintiff to suffer harm that is reasonably foreseeable and not too remote: Wagon Mound No. 1.

Ron as employer owes Sam as employee a duty to keep the workplace safe. Ron has failed to fence a circular saw. This involves a real (not far-fetched or fanciful) risk and therefore a reasonably foreseeable risk that a person may be injured by a propelled wood end. When examining the magnitude of the risk (a head injury), the probability of the risk occurring (significant) and the cost of taking alleviating action (low) then it is apparent that the reasonable person would have fenced the saw. As Ron's conduct has fallen short of what the reasonable person would have done, then Ron has breached his duty of care to Sam by failing to fence the circular saw. This failure has caused Sam to suffer harm that is reasonably foreseeable and not too remote.

Sam has contributed to his own harm (Froom v Butcher) by failing to wear a helmet. He has suffered injury within the risk to which he exposed himself: Jones v Livox Quarries. Therefore a defence of contributory negligence, if raised by Ron, would be successful. Damages would then be apportioned according to where the fault lay: s 10(1) Law Reform (Misc Prov) Act (LRMPA) 1965.

In order for a defence of voluntary assumption of risk to be successful, Ron must prove that Sam consented to the saw being unfenced and to being hit in the head with the wood end: Joseph Smith v Charles Baker. Further, Ron must show that Sam had full appreciation and knowledge of the risk: ICI v Shatwell. It is submitted that on the facts this defence would not be made out. If, however, it were made out, then it would be a complete defence.

(ii) Tina v Ron

Nervous Shock.(i) Under the s.3 of the LRMPA44 Tina may have a cause of action if she lives

with Sam on a bona fide domestic basis: s.4(5).(ii) At common law: Jaensch v Coffey. Tina must prove the elements of the tort

of Negligence outlined above. Ron owes all entrants a duty of care, even trespassers: Hackshaw v Shaw. The standard of care owed to a trespasser could be quite low so that Ron may not have breached his duty to Tina. Tina's suffering nervous shock is not too remote a consequence of a (if any) breach of duty. If Ron is liable in negligence, then he can raise the defences of contributory negligence and voluntary assumption of risk, outlined above.

(iii) As Tina is not an employee she derives no protection from the Employees' Safety Act and could not sue for breach of statutory duty.

Sample 6:

Harold took his valuable Swiss watch to Jane, a jeweller, for cleaning. Jane, who was in pressing financial circumstances, took the watch, intending to use it as security for a loan from a pawnbroker. On her way to the pawnbroker, she called in to Karla's sandwich shop to buy lunch. As she was leaving Jane inadvertently left the watch on the shop counter and took two packets of chewing gum from a counter stand without paying. Karla saw Jane take the gum, but, seeing the watch on the counter called out: "you can have this back when you pay for the gum". Jane ran from the shop and into Lionel who was walking along the footpath outside the entrance to the shop. Both Jane and Lionel were injured.

Harold has traced the watch to Karla but she refuses to hand it over until she has been paid for the gum.

Discuss the causes of action in tort arising out of the above, without regard to any questions of contribution.

A. HAROLD V JANE

Harold as owner/bailor of his watch has entered into a bailment on the condition that it be cleaned by Jane as bailee. He parts with possession of his watch. At this point, Jane has already decided to use the watch as security for a loan from a pawnbroker. It could be argued that in these circumstances the bailment never crystallised and that Harold always retained a right to immediate possession of his watch. If, on the other hand the bailment is created, then it is surely breached when Jane treats the bailor's goods in a manner repugnant to the terms of the bailment, that is, by setting off to the pawnbroker's to fulfil her mal-intent. Such a bailment then reverts to a bailment at will and the bailor acquires an immediate right to possession: Penfold Wines v Elliott (1946) 74 CLR 204 ("Penfolds Wines").

(a) Trespass to goods

The elements of a trespass to goods are:1. a direct: Hutchins v Maughan [1947] VLR 131; and 2. intentional or careless: Williams v Milotin (1957) 97 CLR 465;3. interference with goods in the possession of the plaintiff: Penfold Wines.

Generally, only a person in possession of goods at the time of a trespass can sue in this tort. One exception is that a bailor with an immediate right to possession may sue a third party who wrongfully disposesses the bailee of the bailor's goods: Penfolds Wines. Jane is not such a third party and as such, Harold has no title to sue her in trespass to goods.

(b) Conversion

A conversion is an intentional dealing with goods inconsistent with the possession or the immediate right to possession of the plaintiff: Penfolds Wines.

Harold has title to sue in conversion. Jane's taking of the watch to the pawnbroker is evidence of an intention to deal with Harold's goods in a manner inconsistent with his rights to immediate possession of the goods. On the facts, Jane would be liable for this tort.

B. HAROLD V KARLA

(a) Trespass to goods

The elements of this tort are outlined above.

Karla's wrongful dispossession of Jane of the watch will render her liable to Harold in this tort. Had Karla's dispossession not been wrongful then she would not be liable: Penfolds Wines.

(b) Detinue

Detinue comprises a wrongful detention of goods after a demand for their return has been made by a person with a right to immediate possession of the goods.

Implicit in Karla's refusal to return the watch is Harold's request to do so. Therefore, on the facts, Karla will be liable for this tort.

(c) Conversion

That an unlawful detention of goods can comprise a conversion is stated in Howard E Perry v British Railways Board [1980] WLR 1375. On this authority, Karla will be liable to Harold for conversion as well.

C. KARLA V JANE

Jane has taken chewing gum from Karla without paying for it.

(a) Trespass to goods

The elements of this tort are outlined above. Jane taking the gum was a direct and intentional interference with goods in Karla's possession.

(b) Conversion

The elements of this tort are outlined above. Jane has intentionally dealt with the chewing gum in a manner repugnant to Karla's rights in the gum.

(c) Detinue

The elements of this tort are outlined above. It is submitted that this tort does not lie for goods of a common and essentially replaceable nature, and where a remedy of damages would be sufficient.

(d) Trespass to Land

The elements of a trespass to land are:1. the defendant intentionally or carelessly: Williams V Milotin (1957) 97 CLR

465:2. enters or remains on or directly causes physical matter to come in contact

with3. land in the possession of the plaintiff: Rodriguez v Ufton (1894) 20 VLR 539.

An implied licence exists for people to enter private land. The existence of such a licence is a question of fact: Hallidav v Neville (1984) 155 CLR 1. The occupier of land can, as a matter of fact, revoke the Iicence: Plenty v Dillon (1991) 171 CLR 635. Applying these cases to the facts at hand, it could be argued by Karla that she grants a licence to all customers who enter her shop with a genuine intention to buy goods there. When that intention changes to one of taking goods without paying, then Karla could show that the licence previously granted by her to the entrant is revoked, and the entrant becomes a trespasser. On this basis Jane would be liable for trespass to land.

D. LIONEL V JANE

(a) Assault

The elements of assault are:1. An act, not an omission: Holmes v Mather (1875) LR 10 Ex 2612. That directly: Hutchins v Maughan [1947] VLR 1313. And intentionally or carelessly: Williams v Milotin (1957) 97 CLR 4654. Causes the plaintiff to immediately apprehend unwanted physical contact to

their person: Barton v Armstrong [1969] 2 NSWLR 451

Jane running from the shop was a direct and intentional act to further her escape with the stolen chewing gum. She meant to do it. If Lionel can prove that he apprehended unwanted physical contact then Jane will be liable in this tort.

(b) Battery

The elements of battery are:1. An act, not an omission: Holmes v Mather (1875) LR 10 Ex 261;2. that directly: Hutchins v Maughan [1947] VLR 1313. and intentionally or carelessly: Willians v Milotin (1957) 97 CLR 465;4. causes contact with the plaintiff: Collins v Wilcock [1984] 1 WLR 11725. without the plaintiff's consent: In re F [1990] 2 AC 1

On the given facts Jane will be liable in battery.

It is unclear whether this is a highway or non-highway battery. If it is the former, then the plaintiff must prove all the elements of the cause of action: Venning v Chin (1974) 10 SASR 299. If it is the latter, then the plaintiff must only prove unwanted contact by a direct act and it is then the burden of the defendant to disprove their intention or carelessness: Platt v Nutt (1988) 12 NSWLR 231.

E. JANE V KARLA

Jane inadvertently leaves the watch on Karla's shop counter. Karla then takes the watch and uses it as leverage against Jane to extract from her payment for the gum.

Under the common law a plaintiff (Jane) often succeeded in conversion even though the defendant (Karla) could show that a third party (Harold) had a better title to the goods than the plaintiff (Jane). Hence, under this rule, Jane retains a better possessory title to the watch than Karla, notwithstanding that Jane's possession, by her own dealings with the watch, became wrongful. For a fuller discussion of this area see Balkin & Davis, Law of Torts, Butterworths 2nd ed. 1996, page 72ff.

Sample Seven:

Windyshire Council is the owner of the Windyshire Olympic Pool complex. It has leased the pool complex to Poolworld Ltd which takes over the responsibility of maintaining and operating the pool. Windyshire Council is aware that the filter in the pool will soon need replacement. One aspect of the maintenance is the chlorination of the pool which requires the weekly application of large amounts of chlorine.

One morning, Scott, a Poolworld employee, carries out the weekly application of chlorine to the water. Due to a sudden fault in the filter system, the chlorine levels remain unsafe for swimming. At lunchtime a mate, Geoff, arrives for a swim and, in contravention of Poolworld's explicit standing instructions, Scott allows him to dive in before Scott has tested the chlorine levels of the water.

Geoff's eyesight is seriously affected.

Advise(a) Geoff on the appropriate defendants for any claim and the basis of their liability;

and(b) the defendants on possible contribution proceedings.

(a) APPROPRIATE DEFENDANTS

(i) Geoff v Scott

Negligence The elements of Negligence are as follows:

(i) the defendant owes the plaintiff a duty to take care to avoid causing personal injury: Donoghue v Stevenson [19321 AC 562; and

(ii) the defendant breaches that duty: Wyong Shire Council v Shirt (1980) 146 CLR 40 by failing to deliver to the plaintiff the minimum standard of care expected: Cook v Cook (1986) 162 CLR 376, thereby causing: March v Stramare (1991) 171 CLR 506

(iii) the plaintiff to suffer harm that is reasonably foreseeable and not too remote: Wagon Mound No 1 [19611 AC 388.

Scott owes Geoff a duty to avoid reasonably foreseeable harm. There is a real (not far-fetched or fanciful) and therefore a reasonably foreseeable risk involved in Scott allowing a person to swim in the pool without first ascertaining that the pool chlorine levels are safe. The magnitude of the risk is large (damaged eyesight), its probability high, and Scott cannot raise any competing factors in answer to his carelessness. In the circumstances, a reasonable person faced with this risk would check the chlorine levels and alert those persons either in charge of entry to the pool or those persons about to swim in the pool that it is unsafe to do so. Therefore, Scott's conduct falls short of that expected from a reasonable person delivering the minimum standard of care and so comprises a breach of the duty of care owed by him to Geoff. A failure to check the chlorine levels and report adverse findings has resulted in Geoff diving into the pool. There are no facts provided that support the contention that despite the warning Geoff would have dived in anyway. Therefore the cause, arrived at by an application of common sense, of Geoff's injury is Scott's careless conduct. The injury that has resulted is of a kind that could be reasonably foreseen.

On the facts given, it is submitted that Scott will be liable to Geoff in Negligence and therefore would be an appropriate defendant.

(ii) Geoff v Poolworld Ltd ("PW")

(a) Direct Liability

NegligenceThe elements of Negligence are stated above.

The legal basis of a duty owed by PW to Geoff is that of occupier to invitee: Australian Safeways Stores v Zaluzna (1987) 162 CLR 479. Additionally, PW in taking advantage of its occupation of premises to do something dangerous owes Geoff a duty to ensure that care is taken of his safety: Burnie Port Authority v General Jones (994) 179 CLR 520. Whether or not the operation of a pool is a dangerous activity is a matter for the court to decide.

PW specifically instructed its employee, Scott, to prevent entrants to the pool from swimming prior to Scott testing the chlorine levels of the water. If this is regarded as equal or more than what the reasonable pool operator would do then PW has not breached its duty to Geoff. If, however the reasonable person would have had a checking system in place so that the pool would not be opened to the public before the chlorine levels were known, or if there ought to have been more supervision of Scott's work, then PW will be in breach of its duty to Geoff.

If the operation of a pool can be regarded as a dangerous activity then evidence of PW's breach of its duty to ensure that care is taken is found in the fact that the pool has been made available for the use of swimmers when its chlorine levels are unsafe.

The questions of causation and reasonably foreseeable harm were dealt with above.

Geoff is advised that PW could be an appropriate defendant.

(b) Vicarious liability

An employer is liable for the torts of their employees committed in the course of employment.

We are told that Scott is an employee. The question then becomes: is his contravention of PW's specific standing instructions in allowing Geoff to dive in prior to Scott's testing the water within the course of employment? The answer is a question of fact: Bugge v Brown (1919) 26 CLR 110. If Scott's conduct is in the course of employment then PW will be liable to indemnify him.

(iii) Geoff v Windyshire Council ("WSC")

NegligenceThe elements of negligence are stated above.

The legal basis of a duty owed by WSC to Geoff is that of landlord to one who makes the tenancy viable: Northern Sandblasting v Harris (1997) 146 ALR 572. The determination of the rights and responsibilities of WSC and PW in relation to the replacement of a faulty filter are probably dictated in the lease binding them. As such it is impossible to state that WSC's mere knowledge that the filter would soon need replacing and its failure to replace it sooner rather than later are sufficient to render it liable for a breach of duty to Geoff. Further, we do not know if the sudden fault in the filter was caused by its needing replacement. We have no evidence as to whether or not new filters can manifest this sudden fault that leads to high chlorine levels in the pool water.

WSC can argue that questions about the filter are unimportant because the faulty filter was not the cause of Geoff's injury. The real cause was Scott's failure to check the levels and exclude Geoff from using the pool. High chlorine levels, however caused, would probably not result in injury to those prevented from entering the pool.

Geoff is advised that WSC's carelessness (if any) in relation to the pool filter is probably not the cause of Geoff's injuries and therefore it will probably not be liable to him in Negligence. WSC will not, on this basis, be an appropriate defendant.

(B) CONTRIBUTION PROCEEDINGS

It is important to note that each of the damages awarded to Geoff will be for a total sum against each party. It is then up to the defendants to recover from each other under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 ("LRMPA 46").

Joint tortfeasors act in concert to cause the same damage. Several tortfeasors act independently to cause the same damage. Scott and PW, if liable, are joint tortfeasors whereas PW and WSC, if liable, are several tortfeasors.

(i) Scott v PWScott and PW are joint tortfeasors.

Providing the conditions of Section 5 of the Employees Liability Act 1991 are met, then under Section 3 of that Act, PW cannot seek to recover from Scott the damages it was ordered to pay out on his behalf.

If, on the other hand, Scott's torts cannot be regarded as being in the course of employment or else they were the result of wilful misconduct, then he and PW are treated as joint tortfeasors under the LRMPA and damages will be apportioned under section 5(2) of that Act. The existence of wilful misconduct is unlikely, though, given that Geoff is Scott's mate.

(ii) PW v WSC

Providing both parties are liable, then contribution proceedings between them will result in apportionment of damages pursuant to s.5(2) of the LRMPA46.

A party that is not liable will not be required to contribute damages: Bitumen and Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200.

CASE NOTE EXAMPLE

PENFOLDS WINES PTY LTD V ELLIOTT (1946) 74 CLR 204

FACTSPenfolds Wines Pty Limited ("Penfolds") was a wine producer and seller. Elliott was a licensed hotelier carrying on business at a hotel in NSW. Through embossing on their bottles and notations on their invoices Penfolds informed all those in possession of its bottles that they were to be used only for the purposes of retailing and consumption of Penfold's wines and further, that they always remained the property of Penfolds.

Penfolds asserted that Elliott, without its consent, had been receiving, collecting and handling their embossed bottles, using them in connection with his business and delivering to his customers liquids not manufactured or marketed by Penfolds. Penfolds sought an injunction to have the practice stopped.

TRIAL JUDGE'S DECISIONAt the trial, Nicholas CJ found that(a) Elliott filled two of Penfolds' bottles with wine other than Penfolds' wine and delivered

them to Moon for a sum of 8 shillings. The bottles were not sold to Moon.(b) Elliott had for years and once subsequently filled Penfolds' bottles with non Penfolds'

wine. Two of these filled bottles were delivered to Elliott's brother.(c) Elliott did not sell Penfolds' bottles.

Penfolds asserted that:(1) Elliott's activities described in (a) above involved an assumption of dominion over the

bottles which amounted to conversion, and (2) Elliott's activities described in (b) above amounted to a use of the bottles inconsistent

with the terms of delivery of the bottles.

The trial judge found that Elliott's conduct amounted to a trespass to goods. His honour refused to order an injunction because there was inadequate evidence that Elliott intended to sell the bottles or to keep them if asked by Penfolds to return them.

ISSUE/S ON APPEALPenfolds appealed to the High Court seeking an injunction.

THE HIGH COURTThe High Court comprised Latham CJ, Starke, Dixon, McTiernan and Williams JJ.

Latham CJPenfolds' branded bottles were bailed to persons who received them. By the terms of the bailment, the bailee was not entitled to use the bottles for another purpose than once only for retailing, consuming or using the plaintiff's wine contained in the bottles, and such a person has no right to authorise any other person to use them for any other purpose (at 213). A bailment is determined by any act of the bailee which is wholly repugnant to the holding as bailee, and at that point the bailor has an immediate right to possession. The delivery of bottles by Elliott's brother to Elliott to have them filled with wine other than Penfolds' was in breach of the express terms of the bailment. This ended the bailment and Penfolds as bailor acquired an immediate right to possession of the bottles (at 214).

A mere taking or asportation of a chattel may be a trespass without the infliction of any material damage. The handling of a chattel without authority is a trespass. Unauthorised use of goods is a trespass, eg using a bottle. The normal use of a bottle is as a container, and the use of it for this purpose is a trespass if it is not authorised by a person in possession or entitled to immediate possession.

As Elliott obtained the bottles from his brother with the latter's authority then there can be no trespass against his brother. [His honour then examines authorities that contend that a plaintiff suing in trespass must have been in possession of the goods at the time of the trespass, except where the trespass was against the plaintiff’s servant, agent or bailee under a revocable bailment.]

The possession of a servant is the possession of their master; the possession of an agent is the possession of their principal. In neither case is it "another's possession". Therefore, each is regarded as having actual possession (at 216). In relation to a revocable bailment, the bailor has neither possession nor an immediate right to possession so long as the bailment remains unrevoked. If the possession of a bailee holding under such a bailment is violated it is the bailee's possession and not that of the bailor which is violated. Hence, if the bailor may sue for trespass, then the bailor is suing for a violation to another's possession.

In this case the bailment expired when brought by Elliott's brother to Elliot to be filled with wine other than Penfolds'. Penfolds then became immediately entitled to possession of the bottles. Therefore, Penfolds could sue in trespass although logical argument tended against this view.

The use of the bottles by Elliott without any regard for Penfolds' rights for the benefit of Elliott and his brother was a conversion (at 218). Also, Elliott dealt with the bottles as being a person entitled to dispose of them to Moon, such a disposition being a conversion.

His honour ordered an injunction restraining Elliott from using Penfolds' bottles for any purpose other than that of containing liquids manufactured or placed there by Penfolds.

Starke JHis honour found that trespass did not lie but found conversion of Penfold's bottles. As Elliott's filling of the bottles was not a systematic practice then Penfolds ought to be left to their common law remedies of damages and an injunction ought not be awarded.

Dixon JThe facts reveal no trespass because there is, on Elliott's part, no infringement of another's possession (at 224).

An immediate right to possession is insufficient to support an action in trespass. If it were sufficient then conversion would have been an unnecessary remedy. The correct view is that the right to possession as entitlement for suing in trespass is merely a right in one person to sue for a trespass done to another's possession: and this right exists whenever the person whose actual possession was violated held as servant, agent or bailee under a revocable bailment for or on behalf of the person having the right to possession (at 227).

The determination of the bailment may enable the bailor to sue in conversion or detinue but not in trespass. Such determination revests the bailor's right to possession and therefore the bailor's immediate right to sue in conversion or detinue (at 227).

There is no conversion because on Elliott's part, there is no act and no intent inconsistent with Penfolds' rights to possession (at 224). The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who owns the goods. Use of a chattel is not conversion. An intent to do that which would deprive the "true owner" of their immediate right to possession or impair it is the essential basis of conversion (at 229). The re-delivery by Elliott of filled bottles to those who left them with him to be filled involved a transfer of possession but not for the purpose of conferring any right over the property in the bottles.

His honour found that there was no basis for an injunction.

McTiernan JHis honour concludes that the only wrong committed by Elliott is a conversion of two of Penfolds' bottles and that the case is not a proper one for an injunction (at 232).

Williams JThere was no violation by Elliott of his brother's possession of the bottles. There was therefore no asportation of the bottles from the person in actual possession and so Penfolds have no case against Elliott in trespass (at 242).

For Elliott to fill the bottles as he did knowing that they were the property of Penfolds amounted to a conversion (at 243).

His honour granted an injunction.

OUTCOME OF THE APPEALTrespass was found only by Latham CJ.Conversion was found by all except Dixon J.The appeal was dismissed by Starke, Dixon and McTieman JJ. The appeal was allowed by Latham CJ and Williams J.

IMPACT ON CURRENT LAWThe majority decision in Penfolds affirmed that only a person in possession can sue for trespass except where that person is the bailor, master or principal of a person who, having suffered a violation of actual possession, was a bailee under a revocable bailment or servant or agent of the former. Further, an unjustified use of goods will amount to a conversion provided there is an intention to exercise dominion over them.

The case is unfortunate in that there is conflict between opinions supporting an order. As such, its judicial force may be diminished as it is difficult to distinguish ratio from obiter: see Paton GW and Sawer G "Ratio Decidendi and Obiter Dictum in Appellate Courts" [1947] 63 LQR 461.