On 1 January 2007, Megabucks Ltd cleared a large area of land looking over a bay in which commercial prawn trawling was undertaken. The local council approved the development. Megabucks Ltd cleared trees and levelled the area, stockpiling all the debris (trees, sand and soil) at the edge of the land, adjacent to the bay. The approved plans said nothing about the removal of debris. However, under the relevant statutory powers the council could have made the removal of debris a condition.
The council’s officer had inspected the site and carelessly failed to notice the dangerous size of the pile. Had he done so the council could have ordered its removal under another statutory power.
About a month after the inspection, the pile of debris had become considerably larger and its sheer weight caused it to collapse. Tonnes of debris fell into the bay. The commercial prawn trawlers, who operated under licences issued by the council, sustained damage to their fishing gear while trawling the next day, and were unable to fish in the bay for 12 months.
(a) What action or actions in tort may the commercial prawn trawlers claim against Megabucks Ltd?
(b) What action or actions in tort may the commercial prawn trawlers claim against the council?
(c) What damages would the commercial prawn trawlers be entitled to from either the Council or Megabucks Ltd? Would either the Council or Megabucks have a defence?
1.
Maximum marks available: 20 marks.
2.
You should use the IRAC method to answer the question, and refer to the prescribed textbook, other academic materials, and relevant Acts and cases in your answer.
3.
Maximum word length is 2000 words.
HI5018 Introduction to
Business Law
Week 4
Law of Torts (
2
)
HI5018 Introduction to Business Law
Holmes Institute 2011
2
Occupier’s Liability
Occupier’s Liability
Occupiers must take reasonable care and owe a common law duty of care to ensure that anyone (even a trespasser) who comes onto those premises is not injured:
Hackshaw v Shaw (1984)
2
2
HI5018 Introduction to Business Law
Holmes Institute 2011
3
Occupier’s Liability
Who is an occupier?
An occupier is any person who has occupation or control, whether it is partial or whole, of land or a structure standing on the land:
Consolidated Broken Hill Ltd v Edwards [2005]
3
3
HI5018 Introduction to Business Law
Holmes Institute 2011
4
Occupier’s Liability
This tort is now part of negligence:
Australian Safeway Stores Pty Ltd v Zaluzna (1986)
Occupiers owe a duty of care to entrants to ensure they do not suffer injury on the premises.
Where the risk is obvious, the duty will be minimal.
4
4
HI5018 Introduction to Business Law
Holmes Institute 2011
5
Occupier’s Liability
To establish occupier’s liability, a plaintiff must prove:
The defendant has occupation or control of the land or structure; and
The defendant was negligent,— that is, there was a duty of care owed that was breached and damage was sustained by the plaintiff.
5
5
HI5018 Introduction to Business Law
Holmes Institute 2011
6
Categories of negligence
Product Liability
(Defective Products)
Manufacturer’s liability exists in both common law and statute.
The defect must be hidden and unknown to the consumer:
Grant v Australian Knitting Mills (1936)
HI5018 Introduction to Business Law
Holmes Institute 2011
7
Categories of negligence
Defective structures
Where the premises suffer a defect and it could be reasonably foreseen that a person could suffer injury as a result, the builder, architect or engineer may be liable if the plaintiff suffers damage as a result of the defect:
Bryan v Maloney (1995)
HI5018 Introduction to Business Law
Holmes Institute 2011
8
Categories of negligence
Negligent misstatements
“a statement of fact, advice or opinion made in business that is relied upon by another but which is inaccurate or misleading”
8
8
HI5018 Introduction to Business Law
Holmes Institute 2011
9
Categories of negligence
Negligent misstatements
Duty on the defendant to avoid making careless statements which cause harm.
Hedley Byrne v Heller (1964) established that the law will imply a duty of care in the making of statements.
9
9
HI5018 Introduction to Business Law
Holmes Institute 2011
10
Categories of negligence
Negligent misstatements
A duty of care extends not only to professional advisers but also to persons who provide information:
MLC v Evatt (1968)
This duty of care also extends to advice that is given in ‘serious circumstances’: Shaddock v Parramatta City Council (1981)
10
10
HI5018 Introduction to Business Law
Holmes Institute 2011
11
Categories of negligence
Negligent misstatements
A duty of care also arises and exists where there is a ‘special relationship’ between the parties:
San Sebastian v Minister Responsible for Administering Planning and Assessment Act (1986)
11
11
HI5018 Introduction to Business Law
Holmes Institute 2011
12
Categories of negligence
Negligent misstatements
An inadequate response can amount to a negligent misrepresentation if it is relied upon by the plaintiff:
Pyrenees Shire Council v Day (1998)
12
12
HI5018 Introduction to Business Law
Holmes Institute 2011
13
Categories of negligence
Negligent misstatements
A plaintiff must establish the following to recover damages:
A duty of care – professional relationship or causal;
A breach of duty – D ought to have known that P would rely upon the statement and was requested for a serious purpose; and
Damage – causal connection between D’s omission and the damage suffered – the causative element.
13
13
HI5018 Introduction to Business Law
Holmes Institute 2011
14
Employer liability
Employer liability or Vicarious liability
Vicarious liability is a form of strict liability which has the effect of making the employer an insurer of the employee.
14
14
HI5018 Introduction to Business Law
Holmes Institute 2011
15
Employer liability
Employer liability or Vicarious liability
An employer may be vicariously liable where an employee acting in the course of their employment injures another person:
Cassidy v The Minister (1951)
The action of the employee must be connected to the employment:
Deatons Pty Ltd v Flew (1949)
15
15
HI5018 Introduction to Business Law
Holmes Institute 2011
16
Employer liability
Employer liability or Vicarious liability
An independent contractor cannot make
an employer vicariously liable.
An employer who is vicariously liable
may have an action against the negligent employee for breach of a term of their contract of employment:
Lister v Romford Ice & Cold Storage (1957)
16
16
HI5018 Introduction to Business Law
Holmes Institute 2011
17
Intentional torts
Trespass
Trespass is a direct interference with the person or property of the plaintiff by the intentional or negligent actions of the defendant and is actionable per se (without proof of damage).
The defendant must have intended to do the harmful act.
17
17
HI5018 Introduction to Business Law
Holmes Institute 2011
18
Intentional torts
Trespass to land
Areas covered include:
entry upon land without permission;
remaining after permission has expired; and
leaving things on the land.
HI5018 Introduction to Business Law
Holmes Institute 2011
19
Defamation
What does defamation mean?
Defamation involves a false statement about a person that is likely to damage their reputation in the community.
19
19
HI5018 Introduction to Business Law
Holmes Institute 2011
20
Defamation
Defamation action – What is required?
Step 1: Is the material defamatory?
The material was defamatory according to its ‘ordinary and natural meaning’ and
Mirror Newspapers Ltd v Harrison (1982)
in the circumstances was defamatory
Morosi v Broadcasting Station 2GB P/L (1980)
HI5018 Introduction to Business Law
Holmes Institute 2011
21
Defamation
Defamation action – What is required?
Step 2: Does the material refer to P?
The statement referred to or identified the plaintiff – or it can be reasonably concluded that those who know P would conclude the statement is about P:
E Hulton & Co v Jones (1910)
HI5018 Introduction to Business Law
Holmes Institute 2011
22
Defamation
Defamation action – What is required?
Step 3: Was the statement published?
Made known to a third party capable of understanding the defamatory meaning.
Step 4: Does D have any defences?
HI5018 Introduction to Business Law
Holmes Institute 2011
23
Miscellaneous torts
Public Nuisance
An unlawful act which interferes with an enjoyment or right of the public, of which the plaintiff is a member, but one where the plaintiff can show that they have suffered special damage over and above that of the public.
The remedy for a plaintiff is usually damages and/or an injunction.
23
23
HI5018 Introduction to Business Law
Holmes Institute 2011
24
Miscellaneous torts
Private Nuisance
The person who has a legal right to actual possession (occupier) of the land can complain and must establish:
indirect interference with the use or enjoyment of their land by the defendant by things coming on to the land; and
damage — either physical damage to land, buildings or goods or an interference with the enjoyment of the land.
24
24
HI5018 Introduction to Business Law
Holmes Institute 2011
25
Miscellaneous torts
Private Nuisance
Remedies:
The usual remedy is an injunction to stop the nuisance.
Although an alternative remedy to going to court may be abatement.
25
25
