Category Archives: Torts

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 | 25 May 1966

ON THIS DAY in 1966, the Privy Council delivered Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 (25 May 1966).

http://www.bailii.org/uk/cases/UKPC/1966/1.html

A person is negligent if they fail to prevent a real risk that is reasonably foreseeable. A real risk is one in the mind of a reasonable person “which he would not brush aside as far-fetched”. This does not depend on the actual risk of occurrence.

Lawyers

Sydney, Australia

1300 00 2088

Negligence – Duty of care – Safe system of work – Work injuries

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

Lawyers

Sydney, Australia

1300 00 2088

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 | 13 May 1986

ON 13 MAY 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

Lawyers

Sydney, Australia

1300 00 2088

Pyrenees Shire Council v Day [1998] HCA 3 | 23 January 1998

ON 23 January 1998, the High Court of Australia delivered Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330; 151 ALR 147; 72 ALJR 152 (23 January 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/3.html

The High Court rejected the “doctrine of general reliance” of Sutherland Shire Council v Heyman (1985) 157 CLR 424 (1985) 157 CLR 424.

Lawyers

Sydney, Australia

1300 00 2088

Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd (“Wagon Mound No 1”) [1961] UKPC 1 | 18 January 1961

ON 18 January 1961, the Judicial Committee of the Privy Council delivered Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd (“Wagon Mound No 1”) [1961] UKPC 1 (18 January 1961)

http://www.bailii.org/uk/cases/UKPC/1961/1.html

In cases of negligence, the defendant is not liable for damage just because it was a direct result of a negligent act. The Privy Council ruled that the “essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen” (at 426).

Lawyers

Sydney, Australia

1300 00 2088

Nader v General Motors Corporation 25 NY2d 560, 255 NE2d 647, 307 NYS2d 647, 1970 NY | 8 January 1970

ON THIS DAY IN 1970, the Court of Appeals of New York delivered Nader v General Motors Corporation 25 NY2d 560, 255 NE2d 647, 307 NYS2d 647, 1970 NY.

http://h2o.law.harvard.edu/cases/109

Lawyers

Sydney, Australia

1300 00 2088

Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 | 18 December 1906

ON 18 DECEMBER 1906, the High Court of Australia delivered Balmain New Ferry Co Ltd v Robertson [1906] HCA 83; (1906) 4 CLR 379 (18 December 1906).

http://www.austlii.edu.au/au/cases/cth/HCA/1906/83.html

A party who wishes to rely on a contractual term is required to show that it did all that was reasonable to bring term to the other party’s attention.

The plaintiff was not considered to have been falsely imprisoned by the ferry terminal’s turnstiles as he was considered to be free to leave the premises by water.

Lawyers

1300 00 2088

Bugden v Rogers (1993) Aust Tort Reports 81-246 | 23 November 2003

ON 23 NOVEMBER 1993, the NSW Court of Appeal delivered Bugden v Rogers (1993) Aust Tort Reports 81-246.

Lawyers

Sydney, Australia

1300 00 2088

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 | 10 November 2009

ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html

Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.

The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.

The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.

The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).

Lawyers

1300 00 2088

CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47 | 27 October 1995

ON 27 OCTOBER 1995, the NSW Court of Appeal delivered CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47.

The plaintiff (CES) sought civil damages for the loss of opportunity to terminate a pregnancy arising from the defendants’ alleged breach of duty of care by failing to detect a pregnancy . Newman J of the Supreme Court of NSW found in favour of the defendants, not satisfied that the evidence justified a finding that termination of pregnancy would have been legal in accordance with Levine J’s test in R v Wald.

The NSW Court of Appeal upheld an appeal, ordering a new trial. The Court of Appeal held that the evidence did not justify a finding than a termination of pregnancy would have been illegal.

The Wald test, per Levine DCJ (at 29) provides:

“It may be that an honest belief be held that the woman’s mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s83 of the Act could be proved.”

Kirby P in CES and Anor v Superclinics (Australia) Pty Ltd and Ors said that the Wald test “allows a consideration of the economic demands on the pregnant woman and the social circumstances affecting her health when considering the necessity and proportionality of a termination.”

Kirby P said that there is “no logical basis for limiting the honest’ and reasonable expectation of such a danger to the mother’s psychological health to the period of the currency of the pregnancy alone.”

Lawyers

1300 00 2088