LAWS1061 Class Notes

Class 1- INTRODUCTION
What we Introduced ourselves, teacher talked, discussed in groups about questions relating to coffee problem
DID in class
LEARNED Importance of legal classification skills
CONCEPTS - Civil, crim, admin. tort etc, each providing diff remedies within its jurisdiction
- Each area as its own legal taxonomy (pleadings, forms of evidence, reasoning)
- Negligence developed from the common law and the neighbour principle
o But some ideas from the scope of civil responsibility owed to others changed over time
- Look at CLA Section 3B- civil liability operating in conjunction with common law and legislation
- Market mechanisms and access to justice issues impact ability to seek redress: the IP report
2002, no legal aid for plaintiffs
o Going away money (money to make case go away due to too high fees)
o No win no fee (market mechanism to encourage people to protest)
Justifications for tort law
- Compensatory- to restore the individual to the position they were in before the civil wrong
- Deterrence- to limit further similar harms in the future
o Questions on whether general society and taxpayers have dispersed responsibility
- Distributive justice- spreading risk and cost of injury to all or particular groups in society rather
than individual being held responsible & bear the loss
The Basis of Liability
- Deterrence Theory (Law & Economics): torts as a dispute resolution mechanism that operates
within a market economy
o Most efficient outcome for society? Transaction costs of pursuing rights?
- Corrective justice (civil recourse): focuses on rights & wrongs of individuals, looks to fault
based liability & moral responsibility
o Winners and losers
- Distributive Justice: distributing risk and redressing harm, driving social levelling based on need
and not restoring what has been lost
o Equaliser, looks that the social good is achieved (social utility)
- Feminist Theory: From whose position is the assessment made? What characteristics inform
normative judgements about personal behaviour and loss?
MAIN There are different legal categories in order to get desired results/remedies
TAKEAWAYS Functions of tort: compensatory, deterrence, distributive justice
The Basis of Liability: deterrence, corrective justice/civil recourse, distributive justice, feminist
theory
RELEVANT CASES UNSURE CONCEPTS
- Liebeck v McDonald’s - What actually is the Basis of Liability (different
theories? Ways of using torts?)
- Market mechanisms
Week 1
 LAWS1061 Class Notes
Class 2- PRIVATE NUISANCE
What we Random discussion on the Theory Article and how to critique an article/hypothetical (going through
DID in class questions on word doc). Discussion for hypothetical scenario on claiming private nuisance

LEARNED Critiquing an article and making our own

CONCEPTS - Markers aren’t really looking for our subjective opinion, but focus on the reasons/analysis
behind it, considering all potential ways a fact scenario can be interpreted.
- One interpretation of this is… The example they use is convincing, but applying the law in
another scenario shows…
Private nuisance answer framework to a problem question (see class 2 doc)
1. Does the plaintiff have title to sue?
o Owner of property, Tenant/lessee, Nuisance causing permanent devaluation
2. Is the interference with a protected right?
o Physical damage, inference with use & enjoyment of land, interference with land rights
3. Is the interference substantial and unreasonable?
4. Is the defendant at fault?
o Create, authorise, continue or adopt interference?
5. Are there any defences available?
o Consent, third party, an act of God, statutory authorisation, prescription
6. What remedies are available?
o Damages, injunction, abatement

MAIN How to answer a private nuisance problem question

TAKEAWAYS
RELEVANT CASES UNSURE CONCEPTS
- -
Week 1
 LAWS1061 Class Notes
Week 2

Class 3- DUTY OF CARE

What we General class discussion about reading, duty of care problem question
DID in class
LEARNED Importance of Donoghue v Stevenson
CONCEPTS - Court of law created new cause of action here
- Investigating the neighbour principle which was not as broad as it may seem
- Prior, there was no remedy to consumer transaction, this case makes it broader, traditional
modes of common law reasoning were just facts + relevant law + solution
- 19th century modernised the law, making common law objective
o Separating out legal from moral reasoning
o More expansive, more categories

MAIN
TAKEAWAYS
RELEVANT CASES UNSURE CONCEPTS
- Donoghue v Stevenson -
- Sullivan v Moody
- Chapman v Hearse
 LAWS1061 Class Notes
Class 5- OCCUPIERS’ LIABILITY
What we Online lecture (PowerPoint)
DID in class
LEARNED Duty Of Care: Occupiers' Liability
CONCEPTS - Before looked at mental harm, focused on type of harm P suffered, nature of the harm caused
certain legal tests had to be established further than the reasonably foreseeability
- In occupiers' liability is more about the identity of the plaintiff, and all defendants are occupiers
of premises
- Occupier: Someone with control, or immediate right to exercise control, over premises (not
necessarily ownership)
- Premises: Land and immovable structures on land eg: bridges, lifts, escalators, flagpoles and
wharves. Movable structures eg: ladders, scaffolding, ships, aircraft and cars

Should there be different tests to established whether occupier owes DoC for different categories of
entrants? SAFEWAY STORES V ZALUZNA
- Prior to Aus Safeway Stores v Zaluzna, yes --> shopper treated differently from thief
- Now, much easier after this case
o Ratio: These different category-based tests for different categories would be abolished.
Instead, an occupier owes the same duty of care to everyone on their premises
regardless of whether they an invitee, a licensee, a trespasser etc
o New legal test: Does P belong to a reasonably foreseeable class of persons who might
suffer injury if the occupier does not take reasonable care?

Third party causing the injury or loss?

- One might sue the occupier instead because the occupier might be able to pay more damages
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2001)
- Held: plaintiff shouldn't have relied on defendant for their safety, as they had no responsibility
for actions of attackers. Criminal conduct COULD give rise to DoC, but would required high
degree of foreseeability and predictability (series of assaults over previous months)/salient
factors are satisfied (not in this case)
- Other things could have been done, like video store closed earlier
- Salient factors
o An occupier only owes a duty of care for the acts of third parties if further tests (salient
factors) are satisfied:
 They have ‘control’ over the actions of the third party (i.e. could have taken steps
to prevent the harm/preventative measures).
 There is ‘reasonable reliance’ on D by P.
 D assumes responsibility for the class of persons P comes within.
 Employees/business
 If the act by the third party is criminal, then a much higher degree of
‘predictability and foreseeability’ is required.
o Here, the occupier did not have control over the criminal actions of the attackers. There
was nothing that indicated a ‘high degree of predictability’.

- Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002)- D didn't have control over criminal
activity and this was not foreseeable/predictable
- Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447- D had control over the premises and he
reasonably relied on D to inform him that the situation in the club had deteriorated. Hence, it
was both foreseeable and predictable that P might be injured when he returned to the club

MAIN New law: category of entrant is irrelevant when determining whether occupier has DoC to a person
TAKEAWAYS Occupier not responsible for actions of a third party unless it was reasonably foreseeable harm
RELEVANT CASES RELEVANT CASES
- Aus Safeway Stores v Zaluzna - Ashrafi Persian Trading Co Pty Ltd v Ashrafinia
- Modbury Triangle Shopping Centre Pty Ltd v Anzil - Club Italia (Geelong) Inc v Ritchie (2001)
 LAWS1061 Class Notes
Week 3

VICARIOUS LIABILITY
LEARNED - a ‘blameless’ person is responsible for harm resulting from another’s tortious conduct
CONCEPTS - of service = employee. For services = individual

1. Is there an employer/employee relationship?

a. Who is an employee  use the ‘multifactor test’ (Vabu which draws on Brodribb)
i. Brodribb: the totality of the relationship between the parties which must be
considered’ (look at the substance of the arrangements)
ii. Vabu:
a) Control (hrs worked, ability to accept/decline work or other work)
b) ‘part and parcel’ of the organisation (are they supplementary or
integral?)
c) Uniform requirements
d) Skill level
e) Conditions (sick pay, holidays)
f) Provision of equipment (general/specialised)
g) Payment of taxes (legal consistency)
h) Payment arrangements (regular? Fixed amount/piece?)
i) Ability to bargain for pay?
iii. Sweeny v Boylan Nominees: not interesting in distinguishing between employee
v agent
iv. CFMMEU: emphasises contract rather than substance (limiting)
a) Obligations by which the parties [are] bound. “the characterisation of
their relationship as one of employment or otherwise procees by
reference to the right and obligation of the parties under that [written]
contract” (given contract is valid)
a. Look at contractual relationship and control within that relo
b) This confines Vabu into situations where the written contract is not the
entirety (to be proven that the contract does not fully capture the
nature of the relationship)
2. Did the tortious conduct occur ‘in the course of employment?
a. Salmond test
i. Employee did an authorised act
ii. Employee did an improper mode of performing an authorised act
b. Prince Alfred College Inc:
i. where employment provides opportunity for a wrongful act to be committed,
then consider “authority, power, trust, control and ability to achieve intimacy
with the victim. The latter feature may be especially important”
3. Was the damage caused by the employee’s tort?
a. Refer to discussion on causation (but still mention this)

ESSAY POINTS
Rationales
- ‘just and practical remedy’ (distributive justice)
- Deterrence for future harm (impose liability on D2 will deter others from allowing harmful
practices developing)
- Enterprise risk (party that created risk bears responsibility)

If Ps all say they are independent contracts, they will be barred from damages
 Principle of corrective justice, should restore them to harm
 Social justice --> deterrence--> employers have bad conditions but they say everyone is
independent, they have no incentive to make conditions good
 Social utility --> create a known risk, you should do smth about it (negligence)
 LAWS1061 Class Notes

RELEVANT CASES UNSURE CONCEPTS

- Stevens v Brodribb Sawmilling Co Pty Ltd (1986) - Sweeny v Boylan Nominees
160 CLR 16 - Price Alfred College Inc
- Hollis v Vabu Pty Ltd (2001) 207 CLR 21
- Sweeney v Boylan Nominees Pty Ltd (2006) 226
CLR 161
- CFMMEU v Personnel Contracting Pty Ltd (2022)
96 ALJR 89
- Prince Alfred College Inc v ADC (2016) 258 CLR 134
 LAWS1061 Class Notes
BREACH OF STATUTORY DUTY
LEARNED 1. Does the statute give rise to a private right of action?
CONCEPTS a) Apply the ordinary rules of construction (O’Connor v Sp Bray Ltd 1937)
b) What inference really arises? (Sovar v Henry Lane P/L 1967)
Presumptions
c) Is there a penalty imposed?
 No penalty for breach  P has a right to recover damages unless it is clear no right
was intended (Cutler v Wandsworth Stadium ltd 1949)
d) Does the statute benefit an individual, a class or the public at large?
 Public at large  no private right of action was intended
 Duty relate to health, education or welfare? (public policy)
o Yes  against a right to sue (benefits public at large) (Blood case thing?)
o Policy areas unlikely to give rise to right to sue
e) Are there adequate alternate remedies?
 Yes  no civil action lies
f) Does the duty concern a specific safety precaution which could lead to an action in
negligence? (public policy considerations)
 Safety concerns  confers a right to sue
g) If criminal penalties are imposed, it may exclude a right of action
h) Sometimes courts find an intention to confer a right to sue (Prosser)

The statutory duty must have been imposed on the D (Darling Island Stevedoring and Lighterage Co
Ltd v Long (1957)

2. Is the statute breached?

a) Gorris v Scott  The Contagious Disease Act

3. P must be a member of class of persons protected by the statute?

4. The statute must be directed at preventing the kind of harm

MAIN
TAKEAWAYS
RELEVANT CASES UNSURE CONCEPTS
- - F, h, I presumptions