CHAPTER LEARNING OBJECTIVES

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LEARNING OBJECTIVES

At the end of this chapter you should be able to: — define a ‘tort’ and distinguish a tort from a crime

— explain the elements that must be proved to make out the tort of negligence — explain the amendments made to the common law of negligence by the civil

liability statutes

— list the circumstances where courts have held that a duty of care is owed by one person to another and when that duty will be regarded as having been breached

— explain how the law of negligence applies to motor vehicle accidents — explain the obligations an occupier owes to persons entering their premises — explain the defences of contributory negligence and voluntary assumption of

risk

— describe the following torts against persons: assault, battery and false imprisonment

— describe the elements needed to prove torts against chattels—in particular, trespass against goods, conversion of goods, and detinue

— define the tort of ‘nuisance’ and distinguish a public nuisance from a private nuisance

— explain the rule in Rylands v. Fletcher

— define the tort of ‘defamation’ and describe the defences that can be raised against such an allegation

— explain changes to the law of defamation in Australia by the enactment of uniform defamation legislation

— explain the doctrine of ‘vicarious liability’.

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INTRODUCTION

A tort is a civil wrong as opposed to a criminal wrong. The law of torts protects individuals against infringements of their rights. These infringements may be against another’s property, reputation or their person. The law of torts provides rules of conduct that regulate how members of society interact, and provides remedies if the rules are breached and damage is suffered. The law of torts is very relevant to the business world. In this chapter we will examine the aim of the law of torts and those torts that are relevant to businesses. We will discuss the matters that must be proved to make out a tort. We will also consider the remedies available to a person who suffers as a result of the commission of a tort, and the defences that may be raised to a tort.

THE LAW OF TORTS

KEY TERMINOLOGY

THE FOLLOWING TERMS ARE USED THROUGHOUT THIS CHAPTER:

assault a tort that occurs when the act of one person causes another to believe they are going to be physically harmed by that person

battery a tort that involves the intentional application of force to another person

chattel any property, other than land

contributory negligence negligence that occurs when a plaintiff can be held to be partly to blame for a loss

conversion of goods an act in relation to goods that constitutes an unjustified denial of a person’s right to goods defamation publication of a statement that tends to lower a person’s estimation in the eyes of the public

detinue the wrongful retention of another person’s goods

false imprisonment a tort that occurs when a person is restrained so that they have no reasonable means of escape licence an interest in land that permits a person to do something on land that would otherwise be

a trespass

negligence a failure to take reasonable care

private nuisance an unlawful interference with a person’s use or enjoyment of land

public nuisance an act that interferes with the enjoyment of a right to which all members of the community are entitled

tort a civil wrong

tortfeasor a person who commits a tort

trespass against goods the wrongful interference with a person’s enjoyment of possession of goods trespass against land a direct interference with a person’s right to possession of land

vicarious liability where one person is held responsible for the actions of another

voluntary assumption of risk a complete defence to a claim of negligence, where a person has voluntarily assumed the risk of negligence

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DEFINITION OF A TORT

A tort is a civil wrong, and must be distinguished from a crime. A crime is a wrong against society that results in an offender being punished. When a crime is detected, it is the responsibility of the police or prosecuting authority to prosecute an individual for the commission of the crime.

The law of torts provides a mechanism whereby individuals can protect their rights and, if these rights are infringed, take action against the wrongdoer. The aim of the law of torts is different from the aim of the criminal law. The criminal law seeks to punish wrongdoers while the law of torts aims to compensate those who have suffered as a result of a tort. An individual can sue another for committing a tort. The action does not have to be commenced by the government. Another difference between the law of torts and the criminal law is that a crime requires there to be a mental element, whereas a tort may not. For most crimes, a person must have intended to commit the crime before they can be convicted. This is not necessary in the law of torts. For the majority of torts, all that is required is the commission of the act. Generally, the intention of the person committing the tort is not relevant.

It is possible that one action may amount to both a tort and a crime. For example, an assault against a person is both a crime and a tort. A person may be charged with assault by the police and, if found guilty, will be punished by the courts. In addition, the wrongdoer may also be sued by the victim for the tort of assault. The remedy of damages could be claimed by the person assaulted as compensation for injury, pain and suffering.

A person who commits a tort is called a tortfeasor. The law of torts is common-law based, so we must look to case law for the law in this area. We will not examine every tort, but will concentrate on the more common torts that are relevant to the business world.

CRIME TORT

Aims to punish Aims to compensate

Action commenced by government Action commenced by individuals

Mental element usually required Mental element may not be required

Outcome is conviction or release of offender Outcome is a remedy for plaintiff Perpetrator called an offender Perpetrator called a tortfeasor

THE TORT OF NEGLIGENCE

Negligence is one of the better-known torts. This term will be defined, and the elements that must be satisfied to prove negligence will be examined. The remedies available to the person suffering loss, and the defences to such an action, will be considered.

DEFINITION OF ‘NEGLIGENCE’

In certain situations the law imposes a duty on a person to act with care towards others. If this duty exists and there is a failure to act carefully and another suffers loss, then the tort of negligence is committed. Three prerequisites must be present before the tort of negligence can arise:

• a duty of care must be owed by one person to another • there must be a breach of that duty of care

• damage must have been suffered as a result of the breach of duty.

The parties to a civil action are the plaintiff and the defendant. The duty of care must be owed by the defendant to the plaintiff. It must be the defendant who breaches the duty and the plaintiff who suffers loss.

TABLE 3.1

Comparison of a tort and a crime

Elements of negligence Law of torts allows individuals to sue one another

Law of torts is common-law based

Duty of care imposed in certain circumstances

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A good definition of the tort of negligence is provided by Winfield and Jolowicz in W. V. H. Rogers, Winfield and Jolowicz on Tort (Sweet and Maxwell, London, 1994) as follows: ‘Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.’

The law of negligence has its origins in the common law. We will consider the development of the tort at common law. More recently there have been major changes to the law of negligence by the passage of legislation. In recent years in Australia damage awards for personal injuries have increased to unsustainable levels and the cost of liability insurance has risen accordingly. This had been termed the ‘tort law crisis’. Civil liability legislation has been enacted in each jurisdiction to deal with this crisis. This is discussed in more detail later in this chapter. (See p. 84 for the discussion and Table 3.2 for a list of the relevant statutes.)

In this chapter the common law of negligence will be considered and then the relevant civil liability legislation will be discussed if that alters the common law in any way.

HISTORICAL ORIGINS OF THE LAW OF NEGLIGENCE

The development of the modern law of negligence has taken place over time. A decision of the House of Lords in the following case was very important in the development of this area of law, as it was the first real attempt by the courts to define the concept of a duty of care.

Donoghue v. Stevenson [1932] AC 562

FACTS: In this case a ginger beer manufacturer sold a bottle of ginger beer in an opaque bottle to a retailer. The retailer

then resold it to a customer who purchased the bottle for a friend to drink. Unfortunately for the friend, the bottle contained not only ginger beer but also a badly decomposed snail! This unwelcome guest had found its way into the bottle at the factory. The woman who drank the contents became ill and sued the manufacturer for negligence.

DECISION: The court held that the manufacturer owed her a duty of care to ensure that the bottle did not contain matters

capable of causing harm, even though she had not bought the drink herself and had no contractual relationship with the manufacturer. The defendant had acted negligently and was obliged to compensate the plaintiff.

The Donoghue v. Stevenson case is very important for the reason that the court discussed the concept of when a duty of care arises. A principle was developed in the case that has become known as the ‘neighbour principle’. This indicates to whom this duty of care applies. This principle was developed by Lord Atkin and is explained in the following quotation, taken from the decision of the case Donoghue v. Stevenson at 580:

… in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general public

breach of duty of care duty of care owed

defendant damage suffered plaintiff CASE EXAMPLE Definition of negligence Importance of Donoghue v. Stevenson FIGURE 3.1

Elements of the tort of negligence

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sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called in question.

When does the neighbour principle apply?

One way to determine when the neighbour principle applies is to list the types of situation in past cases where a duty of care has been held to exist. Some circumstances giving rise to the duty are expected while others are surprising. Before the law will say a duty of care exists, foreseeability must exist.

Foreseeability

For a duty of care to exist it must be shown that it was foreseeable that the action of the defendant could have caused harm to the plaintiff. The test is one of reasonable foreseeability: an objective test. The question to be asked is whether a reasonable person would foresee that damage may result from the defendant’s action. You do not ask whether the defendant believed damage would ensue.

Hay or Bourhill v. Young (1943) AC 92

FACTS: A motorcyclist driving in a negligent manner collided with a vehicle and was killed. Just prior to this, the plaintiff

was standing some 10 metres away from the point of impact on the far side of a stationary tramway car. She was unloading a basket from the tramway platform. She suffered nervous shock as a result of hearing the noise of the collision and seeing its aftermath.

DECISION: The court held that it was not reasonably foreseeable to the cyclist that the plaintiff would be injured as a

result of his careless riding. She was outside the area of foreseeable danger.

Wyong Shire Council v. Shirt (1980) 146 CLR 40

FACTS: The plaintiff council had dredged a channel in the south lake of Tuggerah Lakes. The lake was normally very

shallow. The council erected signs that stated ‘Deep Water’. An inexperienced water-skier fell near one of the signs and suffered serious injury. The water was only 3.5 to 4 feet (approx. 1.0 to 1.2 m) deep in that area. The skier sued the council for damages, alleging negligence.

DECISION: The sign was ambiguous and a reasonable person might conclude that the area beyond the sign was also

deep water. A skier might be induced to ski in the area believing the water to be deep. It was therefore reasonably foreseeable that damage or injury may occur. The plaintiff’s claim was successful.

Ratcliffe v. Jackson [1994] Aust Torts Repts 81–284

FACTS: The plaintiff alighted by the rear driver’s side door of a car driven by the defendant. As she closed the door,

part of her clothing caught in the door. The defendant drove off slowly about two seconds after hearing the door close. He had checked his mirrors for other traffic before moving off but did not check whether the plaintiff was clear of the vehicle. The plaintiff ran alongside the car for about 20 metres before she fell to the ground and was dragged a further distance before the defendant stopped the car after hearing her screams. The plaintiff sued for damages for the injuries sustained.

DECISION: The plaintiff did not succeed in her claim. The court said the risk of injury was not proved to be reasonably

foreseeable. The chance of the plaintiff remaining attached to the car was very remote and there were no special circumstances that should have alerted the defendant to this possibility.

CASE EXAMPLES Establishing a duty of care

Test of reasonable foreseeability

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It is not necessary to foresee the actual damage that will occur. It is enough if it can be shown that some type of damage could arise as a result of the defendant’s conduct. This point is well illustrated in the following case example.

Chapman v. Hearse and Another (1961) 106 CLR 112

FACTS: Chapman was injured when a motor vehicle he was driving had an accident and Dr Cherry stopped to assist

him. While he was attending to Chapman’s injuries on the road he was struck by a car driven by Hearse and killed. Dr Cherry’s estate sued Hearse for damages in negligence. Hearse claimed that Chapman had also been negligent and was partially responsible for Dr Cherry’s death. For Hearse’s argument to succeed he needed to show that Chapman owed a duty of care in his driving to Dr Cherry.

DECISION: The court said that Chapman owed a duty of care to Dr Cherry. Even if he couldn’t be expected to foresee the

precise chain of events that led to Dr Cherry’s death, he could reasonably be expected to foresee that someone might come to his aid if he had an accident, and that if that person was assisting him on the roadway, that the person themselves might be injured or killed.

The court held Hearse was liable in negligence to Dr Cherry’s estate, but that Chapman was also liable, and ordered Chapman to contribute 25 per cent of the damages to Hearse.

Chapman brought an action against Hearse, contending that he was not negligent and should not contribute damages to Hearse. The court held that both Chapman and Hearse were liable in negligence, and the appeal was dismissed.

Good Samaritans

It is appropriate at this point to mention ‘good Samaritans’, those who go to the aid of another. Often this occurs after a motor vehicle accident has occurred.

The civil liability legislation encourages and protects ‘good Samaritans’ like Dr Cherry by providing that they will not incur personal civil liability when they are assisting an injured person in an emergency as long as they are acting in good faith and in some jurisdictions exercising reasonable skill or care. A good Samaritan is a person who acts without expecting payment or reward who comes to the aid of a person and may include a medical practitioner.

In relation to volunteers the legislation exempts them from liability if they are acting in good faith while undertaking community work.

In concluding the discussion of foreseeability, it should be said that where damage is reasonably foreseeable it is thereby preventable and consequently avoidable.

Proximity no longer relevant in determining if duty of care exists

Historically, before a duty of care was held to exist the courts would look for the presence of another factor in addition to forseeability. That factor was proximity which required some relationship between the parties and proximity that required care to be taken. Proximity is no longer regarded as an essential factor in establishing a duty of care at common law.

Duty of care under the civil liability acts

The legislation has changed the test that is applied to determine if there is a duty of care when there is a risk of personal injury. A three-step test is now applied to determine whether a person will be negligent for not taking precautions against risk.

Section 32 of the Civil Liability Act 1936 (SA), formerly referred to as the Wrongs Act, is illustrative. It provides as follows:

32—Precautions against risk

(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

CASE EXAMPLE

Preventable and avoidable damage

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(c) in the circumstances, a reasonable person in the person’s 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 precautions 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.

THE DUTY OF CARE, AND CASES OF PURE ECONOMIC LOSS

In some cases the defendant’s negligence will cause no physical damage or injury to the plaintiff or their property, but the plaintiff will suffer financial loss as a result of the defendant’s actions. The courts have allowed the plaintiff to recover for economic loss in a number of situations; for example, where:

• the defendant has made a negligent misstatement

• the plaintiff’s loss has flowed from damage to the property of a third party • the plaintiff has suffered loss as a result of a defective product or structure • the plaintiff has suffered loss as a result of professional negligence.

Negligent misstatement

The tort of negligence has been applied to the giving of advice. Negligent misstatement is a tort. This topic is discussed in some depth in Chapter 8. (See page 249 for a detailed discussion of the elements required to bring an action for negligent misstatement.) The following newspaper article from the United Kingdom deals with the liability of professionals (solicitors) for negligent advice.

Compensation for financial loss may be awarded

Earl’s ex-wife sues divorce law firm

LONDON

ASSOCIATED PRESS

The former wife of Earl Spencer, the late Princess Diana’s brother, filed a £2 million ($A5 million) negligence suit today against a law firm that advised her before her divorce.

The lawsuit by Countess Spencer said that she hired the attorneys to ‘contain the distress’ of the divorce proceedings, which she wanted to be over ‘as quickly and privately as possible’.

But because of their negligence, ‘one of the most public divorce hearings ever recorded took place, with the world’s press in general and the British press in particular covering every detail of the proceedings’, the suit alleges.

The former model Victoria Lockwood, who was married to Earl Spencer for eight years and bore him four children, is

suing the London-based Family Law Consortium.

Another firm took over in May and won her a £1.8 million settlement during the couple’s divorce hearing in Cape Town.

But she contends she missed out on a much bigger figure by reaching the agreement in South Africa rather than in London, where she claims the courts would have awarded her a lump sum of about £3.4 million.

The couple, already estranged, both moved to Cape Town in 1995 and set up separate homes within a few streets of each other.

Lady Spencer’s suit said the Family Law Consortium took so long to prepare some of the divorce-related paperwork that her husband reached the 12-month residency mark in South Africa, which entitled him to commence divorce proceedings there.

Lady Spencer, 32, who has acknowledged suffering from eating disorders and drug and alcohol problems in the past, said if the proceedings had taken place in England, they would have been held in private, without access for the press.

A spokeswoman for the Family Law Consortium said the firm had not yet seen the suit and would have no comment.

During the proceedings in Cape Town, Lady Spencer alleged the Earl was a serial adulterer who had 12 mistresses.

He maintained she was mentally unstable and unable to handle the large sum of money she was seeking in the divorce.

SOURCE: The Age, 25 January 1998, News/

International News Section, p. 11

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Loss to the plaintiff flowing from damage to person or property suffered by a third party

In the following cases the plaintiffs were entitled to recover for economic loss despite the fact that no physical injury was suffered.

Caltex Oil (Aust.) Pty Ltd v. The Dredge Willemstad (1976) 136 CLR 529

FACTS: Caltex Oil suffered economic loss when a pipeline owned and operated by Australian Oil Refinery Pty Ltd was

damaged as a result of the respondent’s negligent navigation. The pipeline carried oil products from the refinery at Kurnell to the Caltex Oil terminal on the opposite shore. Due to the damage, the pipeline could not be used for some time, and Caltex incurred considerable expense in transporting oil by an alternative route.

DECISION: Caltex Oil was entitled to recover the economic loss suffered. Perre v. Apand Pty Ltd (1999) 198 CLR 180

FACTS: The defendant provided potato seed to a potato grower in the South Australian Riverland to grow an

experimental crop for the purpose of making potato crisps. The seed was ‘non-certified’ and came from a part of Victoria where it was possible that it may have been infected with a disease called bacterial wilt. The seed produced a crop but it was infected with bacterial wilt.

As a result of quarantine laws, the neighbours (including the plaintiff) could not export their potatoes interstate because they had been grown within 20 km of an outbreak of bacterial wilt. They sued the defendant for economic loss flowing from their inability to export.

DECISION: The court held the defendant had breached its duty of care to prevent economic loss to the potato grower’s

neighbours when it supplied the non-certified seed to the potato grower. The court said it was not necessary for the plaintiff to show physical harm before an action in negligence for economic loss could succeed.

Loss as a result of a defective product or structure

If a defective product has been supplied, the economic loss resulting could be the cost of repairing the product or the cost of replacing it.

Junior Books Ltd v. Veitchi Co. Ltd [1983] 1 AC 520

FACTS: The respondents negligently laid floors in the appellant’s factory. There was no physical injury suffered by the

factory owner but the defects in the floor meant the owner would have high maintenance costs that would reduce profits. The maintenance costs were greater than the cost of replacing the floor.

DECISION: The respondent was liable for the economic loss resulting from the negligent laying of the floor. The appellant

was permitted to recover the cost of replacing the floor together with the consequential costs involved in its replacement—for example, the profits lost while the business was closed in order to have the floor replaced.

Bryan v. Maloney (1995) 182 CLR 609

FACTS: Mrs Maloney purchased a house, which had been built seven years earlier by Bryan. Six months after

purchasing the house, cracks started appearing in the walls due to inappropriate footings. Mrs Maloney sued for the reduction in the value of her house, which was a purely economic loss. Mrs Maloney won her case and Bryan appealed.

DECISION: The High Court of Australia found in Mrs Maloney’s favour. The majority of the court held that there was a

strong causal proximity between the parties, because Bryan’s negligent work was the cause of the financial loss. The court said there was enough proximity between the parties to establish a duty of care. Bryan had assumed responsibility to build a house free of defects, and the purchaser had relied upon him to do this.

N E W S P A P E R D I S C U S S I O N Q U E S T I O N S

1. Who is the plaintiff in the action? 2. Who is the defendant?

3. Why did the defendant owe the plaintiff a duty of care?

4. Identify how the defendant is alleged to have been negligent. 5. What remedy is the plaintiff seeking?

CASE EXAMPLES

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Recovery of economic loss

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Woolcock Street Investments Pty Ltd v. CDG PTY Ltd (2004) 216 CLR 515

FACTS: The respondents were consulting engineers who had designed the foundations for a warehouse and offices in

Townsville. The appellant purchased the building from the owner who had constructed the building. Approximately a year later there was evidence that the building was suffering structural distress. The new owner (the appellant) sued the constructing engineer alleging negligence.

DECISION: The High Court of Australia held that the defendant engineers involved in the construction of a commercial

building did not owe a duty to take reasonable care to avoid pure economic loss to a later owner. The loss being the cost of repairs and consequential losses.

The court distinguished the case of Bryan v. Maloney on the basis that:

• There was no evidence of reliance, dependence or assumption of responsibility by the original owner on the defendant

• There was no evidence of the plaintiff being vulnerable to the economic consequences of any negligence of the defendant in its design of the building

• The plaintiff could have discovered defects in the foundations by having an expert inspect the building prior to purchase.

Professional negligence and economic loss

Professionals need to be very careful as they may find they are liable for economic loss suffered by their clients as a result of their negligent actions.

Pullen v. Gutteridge, Haskins & Davey Pty Ltd [1992] Aust Torts Repts 81–170

DECISION: An engineer was held liable to his client for economic loss suffered as a result of the engineer’s negligent

design of a swimming pool.

Professionals may also be liable to third parties who use their advice. The following case examined the situation in which professional advisers owe a duty of care to third parties.

Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords [1997] Aust Torts Repts

81–209

FACTS: Peat Marwick Hungerfords audited the accounts of X company. Later this company went into receivership.

Esanda lent money to X on the basis of the audited accounts. It sued the auditors for negligence.

DECISION:Based on the pleadings (they did not say the auditors knew or ought to know that Esanda would rely on the audited statements) no duty of care was owed by the auditors to Esanda. The court said the plaintiffs were able to protect themselves, as they were sophisticated investors.

The court did however establish a test to use to determine when a duty of care is owed to a third party. It is not enough to show that a statement made by an adviser might be relied on by a third party. The court said three factors were required to be established:

1. The adviser knew or should have known that the information given to the client would be communicated to a third party.

2. The information or advice would be given for a purpose that would be very likely to lead a third party to enter a transaction of the kind that the third party did enter.

3. It would be very likely that the third party would enter that transaction in reliance on the advice and risk economic loss if the advice were wrong.

SITUATIONS IN WHICH A DUTY OF CARE APPLIES

The first element required to prove negligence is that a duty of care must be owed by one person to another (see Figure 3.2 opposite).

This list is not to be regarded as exhaustive but simply as illustrative of the situations in which a duty of care exists. The courts are constantly adding to the list of situations in which a duty of care applies. CASE EXAMPLE CASE EXAMPLE Barron_CH03.indd Sec1:72 Barron_CH03.indd Sec1:72 11/9/08 8:35:11 AM11/9/08 8:35:11 AM

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SAMPLE

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The class of persons to whom a defendant owes a duty of care to avoid infliction of personal injury can extend beyond those persons who were alive at the time the negligent act of the defendant took place. In Hawkins v. Clayton (1988) 164 CLR 539 the High Court stated that a duty of care to avoid physical harm can be owed to a person who is not yet born. This case concerned the builder of a maternity hospital and the court said a duty of care was owed by the builder to infants who would be born and housed there in the future.

Positive duty to prevent harm

If there is an established category of duty, it is possible to show that a person has a positive duty to act to prevent harm occurring. An example would be where there is a continuing professional relationship between the parties. The relationship may be between solicitor and client, accountant and client or doctor and patient.

In the following case example a doctor was held to have a positive duty to help someone who was not his own patient.

Lown v. Woods [1992] Aust Torts Repts 81–375

FACTS: While on holidays a boy suffered an epileptic fit. The holiday unit at which he was staying was near a general

practitioner’s surgery. The boy’s sister went to the surgery to get help for her brother. The doctor had not started consulting for the day and no patients had arrived at his surgery. The doctor had at the surgery drugs and equipment that could have been used to treat the child. He refused to attend the holiday unit to treat the child and the boy suffered brain damage, which it was alleged was preventable, had the doctor assisted.

A duty of care applies in the following situations:

• A duty of care applies to negligent misstatements. If a person is giving advice in a professional capacity or holding themselves out as an expert, they owe a duty of care to the person being advised. This topic is dealt with in some detail in Chapter 8 on contract law. See particularly the case ofL. Shaddock & Associates Pty Ltd v. Parramatta City Council (No. 1) (1981) 150 CLR 225

(p. 249).

• A road user owes a duty of care to other road users. The duty is owed to the other persons’ property and to their persons.

• A school authority owes a duty of care to students to maintain the safety of the students under their care. See Horne v. Queensland (1995) Aust Torts Reports 81–343 where a school was held liable for allowing students to make their own way to tennis courts for sporting activities by either cycling or walking. The plaintiff borrowed a bicycle and was injured when she fell under the wheels of a semi-trailer.

• The occupier of premises owes a duty of care to persons entering the premises against dangers posed by their premises.

• A bailee of goods owes a duty of care to the bailor while goods are in the bailee’s possession. Bailment is discussed in some detail in Chapter 10 (see pp. 341–49).

• Suppliers of goods and services owe a duty of care to the persons they are supplying.

• A local council owes a duty of care to persons to whom the council provides information regarding zoning. (Note that this may not be the full extent of their duty.)

• A cigarette company owes a duty of care to potential customers to warn of the dangers of smoking when advertising its product.

• A solicitor holding a will made on the instructions of a client owes a duty of care to the executor named in the will to inform them of the client’s death.

• A dog owner owes a duty of care to others in respect of a dog that has a propensity to bite people.

FIGURE 3.2

Situations in which a duty of care applies

CASE EXAMPLE

DISCUSSION QUESTIONS

1. How far should the courts go in extending the situations in which a duty of care applies? 2. What are the implications

for the courts of extending the situations in which a duty of care is owed by one person to another?

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DECISION: It was held by a majority of the court that as a result of proximity the doctor owed the boy a duty of care. There was

physical proximity given the distance of the surgery from the holiday unit. There was circumstantial proximity as there was nothing preventing the doctor from attending the boy. The court held there was causal proximity as intravenous Valium would have stopped the fitting and prevented the brain damage.

BREACH OF THE DUTY OF CARE

The second element required to prove negligence is that a duty of care has been breached. How will it be ascertained whether such a breach has occurred?

Before it can be said that there has been a breach of a duty, there must be an expected standard of care that has been breached. The standard of care is the amount of care that must be taken in particular circumstances. The standard required is that of a reasonable person. The question that must be asked is whether a reasonable person would have foreseen harm in the circumstances and would have taken steps to prevent it. The defendant will be in breach of their duty if reasonable steps are not taken to prevent foreseeable harm. It is immaterial that the defendant did not foresee harm, if a reasonable person would have foreseen harm. The test is an objective one—what a reasonable person thinks.

In Blyth v. Birmingham Waterworks Co. (1856) 11 Ex 781, unprecedented frosts caused water mains to burst, despite all reasonable precautions being taken by the defendant. The defendant was not liable for the loss suffered by the plaintiff as the court said that a person was not required to take unreasonable precautions to prevent damage. The court said that a person must guard against the normal phenomena of nature, but not against the unusual ones. At 784, Alderson B says of the standard of care:

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

The question as to whether a duty of care has been breached is a question of fact, not of law. In comparison, the question of whether a duty of care exists is one of law. In determining whether there has been a breach, a number of factors must be taken into account. They include:

• likelihood of injury

• gravity of injury, if injury did occur

• amount of effort required to remove the risk of injury • social utility (i.e. benefit) of the defendant’s conduct.

The likelihood of injury

If the risk of injury is so small that a reasonable person would have disregarded it, then there will be no breach of the duty of care.

Bolton v. Stone [1951] AC 850

FACTS: The plaintiff was struck by a cricket ball that was hit from a cricket ground while a cricket match was being

played. The plaintiff was walking past the cricket ground. The ball passed over a fence and struck him.

DECISION: The court held that the defendant was not liable for damages caused by a ball struck out of the ground over a

high fence. This was because there was only a slight possibility of harm. Such a stroke had occurred at this ground only about twelve times in the previous thirty years. In the circumstances a reasonable person would have thought it right to ignore the risk.

Failure to take reasonable steps to prevent foreseeable harm

CASE EXAMPLE Whether a duty of care is

breached is a question of fact, not of law

Determining if a breach has occurred

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The reason for the decision in the above case is explained well by Lord Reid of the Privy Council in Overseas Tankship (UK) Ltd v. Miller Steamship Co. Pty Ltd (The Wagon Mound (No. 2)) [1967] 1 AC 617 (PC) 8. The reason for the decision was explained as follows:

What that decision did was to recognise and to give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.

The gravity of injury

Another factor taken into account when determining whether a breach of a duty of care has occurred is to consider the extent of injury that would result should a breach occur. If the activity in which the plaintiff is engaged is particularly dangerous, this requires warning. If the plaintiff has a pre-existing condition that makes them more susceptible to injury and this will increase the gravity of the risk, then this must be considered.

Paris v. Stepney Borough Council [1951] AC 367

FACTS: The plaintiff was employed by the defendant council. He had sight in only one eye. The employer, knowing of the

disability, failed to supply the plaintiff with protective goggles for work he was undertaking when there was a possibility of injury. The employee suffered an accident while working and lost the sight in his good eye.

DECISION: The defendant had acted negligently. The court decided that if an employer knows that the plaintiff is

suffering from a disability that would increase the gravity of injury, should an injury occur, then that is relevant to determining the precautions that should have been taken to fulfill the employer’s duty of care. The court said that this was the case even if the disability did not increase the likelihood of injury occurring, simply that the gravity of injury would be increased if an accident occurred.

Rogers v. Whitaker [1991] 23 NSWLR 600

FACTS: A doctor failed to advise a patient of the risks of an operation designed to improve the appearance of, and the

sight in, one of her eyes. The patient was almost blind in that eye while her other eye was good. The doctor did not tell her about a potential complication of such an operation known as sympathetic ophthalmia, which would occur in approximately one in 14 000 cases. The woman developed the complication and eventually became blind in the good eye.

DECISION: Notwithstanding the low risk of developing the complication, the surgeon should have warned the patient.

The patient had testified that, had she been warned of the complication, she would not have undergone the operation. The court found the doctor to be negligent: there had been a breach of the duty of care.

Liability of medical practitioners under the civil liability legislation

A medical practitioner will not be negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field unless the opinion is irrational.

Medical practitioners should inform/warn patients of the risk of death or of injury from medical treatment so a person can make an informed decision about whether to undergo the treatment.

The effort required to remove the risk of injury

Another factor relevant to determining whether the standard of care has been met is the amount of effort that would be required to eliminate the risk. It is necessary to consider the risk and balance that risk against the steps necessary to eliminate the risk. If it is relatively easy to remove the risk and would cause little expense and inconvenience, then this may be required. A failure to do so may result in a breach of a duty of care.

CASE EXAMPLE Some risks may not be ignored

Pre-existing condition

Balancing risk against steps necessary to eliminate risk

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Latimer v. AEC [1953] AC 643

FACTS: The defendant operated a factory. A flood took place and the floor of the factory was slippery. The occupiers of

the factory did all they could to remove the effects of the flood but they did not close the factory. The plaintiff was injured by slipping on the wet floor.

DECISION: The risk of injury created by the slippery floor was not so great as to require the defendant to close down the

factory. The court decided that the duty of care owed to the plaintiff by the defendant had not been breached.

Woods v. Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145

FACTS: The plaintiff was injured playing indoor cricket and sued the defendant for negligence alleging the defendant

should have provided the plaintiff with a protective helmet. At the time the injury occurred, protective headgear had yet to be designed and manufactured and the rules of indoor cricket did not allow for the use of helmets.

DECISION: The defendant was not negligent in failing to provide the plaintiff with a helmet. The critical issue in the court

determining whether it was reasonable to expect the defendant to provide the plaintiff with a helmet was the market availability of the helmet.

The social utility of the defendant’s conduct

The social utility of the defendant’s conduct must be assessed against the gravity of the risk of injury. In some cases, the benefit of the conduct may outweigh the risk of injury. A police car speeding to apprehend an armed bandit may outweigh the risk of major harm. In this case there may be no breach of duty.

In Watt v. Hertfordshire CC [1954] WLR 835, Lord Denning at 838 said:

… one must balance the risk against the measures necessary to eliminate the risks. It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved.

THE STANDARD OF CARE REQUIRED

The amount of care required may be able to be gauged by reference to standards set down by statute. If a statute prescribes a particular standard and this is met, it may mean there is no breach of a duty of care. However, it cannot be said that this will always be the case.

As stated earlier, the standard of care expected is that of a reasonable person. If a person is carrying on a trade or profession, the standard of care expected is that of a reasonably competent person carrying on that trade or profession (e.g. a reasonably competent land agent, plumber, carpenter, engineer, computer programmer, solicitor or accountant). If the defendant is a minor, this must be taken into account when assessing the standard of care expected. Minors are judged by infant standards and not by adult standards.

In some cases the standard of care required of a defendant may be reduced. This may be the case if the plaintiff professes to have special knowledge or skill. For example, a learner driver owes other road users the same duty of care owed by a reasonably competent driver. However, a learner driver owes their driving instructor a reduced standard of care. The following case example illustrates this point.

Cook v. Cook (1986) 162 CLR 376

FACTS:A learner driver who had never held a driver’s licence or a learner’s permit was driving her husband’s car for practice while her sister-in-law (the plaintiff) rode as a passenger. While attempting to drive between a parked car and a fence, the learner driver accelerated and hit a concrete pole, injuring the plaintiff. The driver was sued for negligence.

DECISION: The court said normally the standard of care required in this situation is the degree of care of an experienced

and competent driver. However, if there were special and exceptional circumstances that can transform the parties outside of their usual categories, then an alteration can be made to the ordinary standard of care.

CASE EXAMPLE

Benefit of conduct may outweigh risk of injury

Standard of care required is that of a reasonable person CASE EXAMPLE Barron_CH03.indd Sec1:76 Barron_CH03.indd Sec1:76 11/9/08 8:35:12 AM11/9/08 8:35:12 AM

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As the learner driver was encouraged to drive by the plaintiff, who undertook to supervise her, the special element of the relationship (experienced person and incompetent person) took it out of the ordinary standard of care. The standard of care required was that of an inexperienced driver.

Even though the reduced standard of care was applied, the learner driver’s actions in accelerating were still negligent.

Standard of care under the civil liability legislation

The standard of care for personal injuries caused by negligence is now defined by the legislation. Section 9(2) of the Queensland Civil Liability Act 2003 is illustrative. It provides:

In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among 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.

Certain professionals are protected by the new legislation if they provide treatment/advice in line with ‘peer professional opinion’. The standard of care will be that required of a person acting with due care based on the level of care that could be expected of a person with that skill.

DAMAGE MUST FLOW FROM BREACH OF DUTY OF CARE: CAUSATION

The third element that must be satisfied to prove negligence is that the damage that the plaintiff has suffered was caused by the negligence of the defendant. An issue of causation arises. Did the defendant’s act or omission to act cause the damage that has been suffered? Was the damage caused by some other person or circumstance?

The law has created a test that determines the issue of causation. The test is known as the ‘but for’ test. It is necessary to ask the following question: But for the conduct of the defendant, would the damage have been suffered? The test was explained well by Lord Denning in Cork v. Kirby Maclean Ltd [1952] 2 All ER 402 at 407, as follows:

effort required to remove risk no breach of duty of care risk so small a reasonable person would disregard it little effort required great effort

failure to remove risk failure to remove risk

damage sustained damage sustained

damage sustained likelihood of injury breach of duty of care no breach of duty of care FIGURE 3.3 Summary of factors considered when determining if there has been a breach of a duty of care

The ‘but for’ test

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If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage.

Lindeman Ltd v. Colvin (1946) 74 CLR 313

FACTS: A person was hospitalised following a work-related head injury. While he was in hospital he fractured his leg due

to a pre-existing brittle bone condition. This added to his period of hospitalisation and his expenses.

DECISION: The employer was not responsible for the injuries received while in hospital. The broken leg was a distinct

and separate injury from the head injury and it was due to a separate accident. The fact that this injury would not have occurred but for the sustaining of the earlier injury did not make it a result of the first injury.

In the above case the fractured leg was not caused by the employer. It was caused by a pre-existing bone condition.

Modbury Triangle Shopping Centre Pty Ltd v. Anzil (2000) 205 CLR 254

FACTS: Anzil was a shopping centre worker who was injured when he was attacked by assailants in the shopping centre

car park, which was unlit. He sued the shopping centre management for negligence.

DECISION: The High Court held that although poor lighting may have facilitated the assault the lack of lighting could not

be said to have caused Anzil’s injuries.

If there is more than one cause of the damage the ‘but for’ test will have limited application. In such cases the courts will use a ‘balance of probabilities’ test in determining causation. The following case example illustrates the use of such an approach.

Blackstock v. Foster (1958) SR NSW 341

FACTS: A driver was sitting in a stationary car when another car collided with the rear of the car. The driver was thrown

forward and his chest struck the steering wheel, causing minor injuries. It was discovered some time after the accident that the driver was suffering from a malignant inoperable growth in his chest. Medical evidence indicated that the growth would have been present at the time of the accident and the blow to the chest in the accident may have caused the growth to become malignant. A contrary medical opinion was that the growth was malignant at the time of the accident.

DECISION: The court said it was impossible for the driver to prove that it was more probable than not that the blow

sustained to his chest in the accident caused the growth to become malignant. Therefore, it was not possible to say the accident caused the growth to become malignant.

There are some events that may sever the link between the defendant’s conduct and the damage. As a result, the cause of the loss may not be attributable to the defendant and therefore the loss would not be recoverable from the defendant. There are two situations that may break the causal link: an act of God or the act of a third party. In these cases, the cause of the damage can only be attributable to this action and not to the defendant. An example of an act of God is a storm; while an example of interference by a third party is provided in the following case example.

Yates v. Jones [1990] Aust Torts Repts 81–009

FACTS:The plaintiff claimed that her heroin addiction was the result of pain and suffering after a motor vehicle accident. She claimed damages for the addiction from the defendant who was the driver of the other car.

The hospital had administered pain-killing pethidine for the first three to four days of her stay. She was visited in hospital by an acquaintance, after the hospital had ceased giving her pethidine. The friend injected her with heroin. She subsequently became addicted.

CASE EXAMPLE

CASE EXAMPLE Acts of God and third

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DECISION: The plaintiff failed in her claim because she could not establish a causal link between the defendant’s breach

of duty and the heroin addiction. The third party, by offering the heroin, was an independent cause of her addiction.

In order to establish a causal link, it is not necessary to show that the defendant’s actions were the sole cause of the damage. In Alexander v. Cambridge Credit Corporation Ltd [1987] 9 NSWLR 310, the court held that it was not necessary to show that the defendant’s breach was the sole cause or even the dominant cause of the damage. It was sufficient for the defendant’s actions to be a contributing cause along with other causes.

In some cases it is inappropriate to apply the ‘but for’ test: for example, where there is more than one cause, any of which would have been sufficient to bring about the plaintiff’s damage.

Causation under the civil liability legislation

The legislation makes it clear that the onus of proving causation is on the plaintiff and the standard of proof is ‘on the balance of probabilities’. The question to be asked will be: ‘on the balance of probabilities’ was the defendant’s negligence the cause of the plaintiff’s loss?

Remoteness of damage

There is a further limitation on the plaintiff’s ability to claim damages from the defendant. The defendant will not be liable for damages that are too remote. The law places a limit on liability. The defendant will not be liable for every act that is caused by their negligence. The test used to determine the limit of liability is one of reasonable foreseeability. If the damage was reasonably foreseeable by the defendant then liability will flow. The standard is an objective one: Would a reasonable person have foreseen the damage? The issue is not whether the defendant would have foreseen the damage.

Earlier in this chapter we discussed the concept of foreseeability in determining if a duty of care exists (see p. 68). Here we are discussing the concept of whether the defendant will be liable, having already established that a duty of care is owed to the plaintiff.

It can be noted that the law uses the concept of reasonable foreseeability often. In Chapter 9, (p. 295) there is a discussion of the assessment of damages for breach of contract. In contract law, damages for a breach of contract will be awarded only for losses that are reasonably foreseeable by the parties to a contract. This same principle applies to the recovery of damages for the commission of a tort.

Overseas Tankship (UK) Ltd v. Mort’s Dock and Engineering Co. Ltd (The Wagon Mound

(No. 1)) [1961] AC 388

FACTS:Mort’s Dock and Engineering owned a wharf in Sydney Harbour. Overseas Tankship (UK) Ltd chartered a ship called the Wagon Mound, which was moored in the harbour. Employees on the vessel allowed a quantity of fuel to spill into the harbour, and the fuel drifted some 200 metres towards the wharf. Employees of Mort’s Dock were working on the wharf using arc welders. Sparks from a welder set fire to cotton waste, which in turn ignited the oil slick and the wharf was damaged. The owners of the wharf sued the charterers for negligence.

DECISION: On appeal, Overseas Tankship (UK) Ltd was held to be not liable for the damage. It was too remote and was

not reasonably foreseeable. The court decided that it was not reasonable to assume that the act of spilling oil into the harbour would result in a fire on a wharf some distance away upon which workers were using arc welders.

The decision in the above case should be contrasted with the decision in the following case that arose from the same incident. This case involved the owner of the ship damaged in the case above suing the charterer of the ship.

Establishing a causal link

The damage must be reasonably foreseeable

CASE EXAMPLE

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Overseas Tankship (UK) Ltd v. Miller Steamship Co. Pty Ltd (The Wagon Mound (No. 2))

[1967] 1 AC 617 (PC)

FACTS: Miller Steamship Co. owned a ship called the Corrimal that was moored in Mort’s Dock at the time of the Wagon

Mound fire cited in the previous case. Miller Steamship Co. sued Overseas Tankship (UK) Ltd for negligence.

DECISION: The shipowner’s claim was successful and was upheld on appeal. The shipowner proved that the charterer

was aware that there was a real risk of fire as a result of the oil spill.

What is the difference between the first case and the second case? In the first case the wharf owners failed to prove that a reasonable person in the position of the charterer would foresee the risk of damage by fire as a result of the oil spill. They failed to satisfy an objective case. In the second case, the shipowner did prove that the damage that was caused to the ship was reasonably foreseeable.

Rowe v. McCartney [1976] 2 NSWLR 72

FACTS: The defendant asked the plaintiff whether he could drive her powerful car. The plaintiff agreed and was a

passenger in the car which the defendant drove negligently, striking a telegraph pole which resulted in the defendant becoming a quadriplegic. The plaintiff suffered minor physical injuries but suffered a mental illness as a result of feelings of guilt about allowing the defendant to drive the car.

DECISION: The court held that the mental illness suffered by the plaintiff was not reasonably foreseeable nor was it the

same kind or type of injury that was reasonably foreseeable in the circumstances. The court said the type of mental illness that would have been reasonably foreseeable was one arising from nervous shock from seeing or hearing about the injury of another or from the shock or worry about her own injury.

CASE EXAMPLE No (caused by another person) or by act of God Defendant will not be liable for the loss Defendant will be liable for the loss Defendant will not be liable

for the loss Damage flows from the breach Was the loss too remote?

Did the defendant's acts or omission cause the damage that has been suffered?

yes

no yes

FIGURE 3.4

Did the defendant’s act or omission cause the damage to be suffered?

CASE EXAMPLE Objective, not subjective

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ASSESSMENT OF DAMAGES

The aim of damages in the law of torts is to place the plaintiff in the position that they would have been in had the tort not taken place. The aim of damages is to compensate the plaintiff. The aim of damages in the law of contract is different. It aims to place a person in the position that they would have been in had the contract been performed.

As with damages in contract, the plaintiff is under a duty to mitigate their loss (i.e. to reduce the loss as far as possible). In Chapter 9 this concept is discussed fully (see pp. 292–3), as are the various types of damages that can be awarded: ordinary, nominal and punitive damages.

Damages can be awarded to compensate for a loss of income, for loss of enjoyment of life, and for pain and suffering. In the case of negligent misstatement, damages can be awarded for purely economic loss; for example, a person is given negligent advice by an accountant and as a result loses money. Damages are also payable for mental distress caused as a result of a negligent act.

1. Why are doctors reluctant to give expert medical testimony in medical

negligence cases?

2. Why did the claim brought by Lainie Radovanovic’s parents take so long to

resolve?

3. What effect did the $11 million payout to Calandre Simpson have on United Medical Protection?

Doctors wary of being caught in a web of litigation

BY JONATHAN PEARLMAN

Lawyers have little difficulty finding medical experts to testify in negligence cases—unless they need doctors to give evidence against other doctors. Solicitors acting for injured parties in medical negligence cases often complain that doctors tend to close ranks rather than testify. People making medical claims frequently have to bring in experts from overseas, they say.

‘By and large doctors don’t like to give evidence against other doctors,’ says a barrister and former doctor, Duncan Graham. ‘It’s an in-built way of thinking for them. They regard people who act against them as dishonourable.

‘They have no problems in giving opinions in workers’ compensation or public liability because they’re not criticising colleagues, and they will put up their hands for some money as an alternative form of income.’

Some doctors fear that successful claims will cause increases in their liability premiums, says David Hirsch, a medical negligence solicitor at Maurice Blackburn Cashman. ‘I have been in a number of cases where doctors have told me that mistakes were made and another doctor was negligent, but they refuse to give evidence in court. Some have been told, wrongly, that their premiums have gone up because of litigation.’

Doctors may also refuse to testify against each other in cases that require technical medical evidence because the few possible specialists know each other and do not want to testify on their colleague’s alleged mistakes, Hirsch says.

Complex medical negligence cases—such as those involving claims against obstetricians for problems during deliveries—can often take decades to complete and require teams of experts for both sides.

One case, lodged in 1985 by the parents of Lainie Radovanovic after she was born in 1980 with cerebral palsy, took 15 years to get to court and was then heard in 58 days over 21 months. The decision then took the judge, Malcolm Gray of the ACT Supreme Court, 20 months to write. Earlier this year Radovanovic was awarded damages of about $9 million for loss of a normal life, medical and future care expenses and home modifications. The decision has since been appealed.

There were four medical specialists for each side, including an obstetrician flown from Scotland for the plaintiff. The other witnesses were from Sydney. Legal costs were estimated at $5 million. Hirsch says most doctors from overseas are flown first class and paid for each day of their visit.

Large medical negligence payouts, such as the awarding of $11 million to Calandre

Simpson, whose botched forceps delivery left her with cerebral palsy, led to the provisional liquidation of the insurer, United Medical Protection. The case raised fears among doctors that premiums would become unaffordable. But the head of the legal division at UMP, David Brown, says doctors are willing to testify against each other in such claims. ‘Our experience in NSW is that there is no problem getting doctors to give evidence,’ he says. ‘That used to be the case 15 years ago but it no longer happens these days.’

The Australian Medical Association’s legal counsel, and a counsel in the Radovanovic case, Pam Burton, says judges should not be forced to decide complex medical issues without the help of impartial experts. ‘The medical indemnity crisis creates problems for specialists over 55 who want to keep in the workforce. One way out is the medico-legal area because you’re not going to be sued for personal injuries there,’ she says. ‘You have more and more people falling into this part of the system and using their medical skills to be pure expert witnesses, and this has led to more hired guns.’

SOURCE: Sydney Morning Herald,

6 September 2004, News and Features Section, p. 11 Damages compensate the plaintiff

Damage for different forms of loss

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Types of damages

Special damages

These are damages that can be calculated precisely. They will cover expenses such as:

• the cost of repairs to damaged property • medical expenses.

Evidence that these expenses have been incurred must be produced; for example, the production of the receipt for payment for services provided.

1. How was the plaintiff defamed? 2. Name the defendant(s) to the action.

3. Who made the assessment of damages in the case? 4. What order was made in relation to costs?

Clarke wins $710 000 damages from ABC

BY PETER GREGORY

CHIEF COURT REPORTER

The Australian Broadcasting Corporation could be forced to pay almost $1.1 million in damages after a jury found Australian athletics great Ron Clarke was defamed on

The 7.30 Report.

The Supreme Court jury in Melbourne took about 90 minutes to award Mr Clarke $710 700 and the Runaway Bay Centre Pty Ltd $386 250 damages, including interest.

In a 15-day trial before Judge David Ashley, the six jurors heard submissions for the plaintiffs that a report in November, 1999 wrongly suggested that Mr Clarke, 64, was developing a Gold Coast sport centre on a toxic waste dump.

The combined damages figure of $1 096 950 is easily the biggest defamation payout in Victoria.

Mr Clarke revealed yesterday that before the trial began he had offered to settle the case for $75 000 and an apology.

The amount awarded to Mr Clarke is the second-highest to an individual, behind a $780 000 payout, including interest, ordered against a French law firm last year for defaming a solicitor.

Mr Clarke and the company sued the ABC and chemical oceanographer Robert Morris, who was featured on the program. They denied liability.

The jury found that Dr Morris was about one-third liable for the defamation of Mr Clarke and the Runaway Bay Centre.

The ABC and Dr Morris were also ordered to pay the cost of the proceedings on the same basis. The orders allow the plaintiffs to recover the money from the ABC or up to 33 per cent from Dr Morris.

Mr Clarke, one of the world’s greatest middle-distance runners, said outside the court that he was no longer associated with the sports complex.

The sports centre, aimed at athletes from school students to Olympians, was eventually built at Runaway Bay.

Mr Clarke’s barrister, Simon Wilson QC, told the trial that not only was Mr Clarke one of Australia’s most famous sportsmen, but a man of unblemished character and had a reputation as an environmentalist.

After the jury’s verdict, Mr Clarke revealed that he had offered to settle the case for $75 000, to cover costs, and an apology.

‘The big thing was the apology, really,’ he

said. ‘The $75 000 was only the difference between what you get assessed as costs and what actually it costs you. All we wanted was an apology, that’s all we wanted.’

Mr Clarke said he did not want to go to court, but wanted the facts ‘laid out’ that the development was properly done.

He said he was upset because he considered the ABC to be a most credible broadcaster which had a reputation for being balanced.

He said attending the trial was like reliving a nightmare and he was upset because his honesty had been challenged. ‘I’ve done a lot of work in the environment. My motto is to be honest above all,’ he said.

Asked what he would do with the money, Mr Clarke said he would probably give it to charity.

The ABC’s head of legal services, Judith Walker, said the organisation was disappointed with the result and was considering an appeal. The ABC has been given a 30-day stay of the orders.

SOURCE: The Age, Thursday 5 July 2001

General damages

Unlike special damages, general damages are not quantifiable. The court must award an amount that will cover items such as:

• pain and suffering • loss of amenities of life