1. WEEK 9 Categories of Duty of Care
The unborn child
Product Liability
Mental harm
Rescuers
Occupiers
WEEK 9 Categories of Duty of Care
Torts

2. Areas Public authorities Product Liability Unborn Children Mental Harm
Vicarious Liability

3. Public Authorities

4. What is a Public Authority?
A statutory authority is a body authorised by parliament to carry out duties and powers in the performance of a public function. Local councils, highway and transport authorities are examples of such authorities. These bodies are created under statute.
Statutory authorities and individuals are equally subject to law and therefore should be treated similarly for wrongful acts.

5. Public Authorities
(a)  the Crown (within the meaning of the Crown Proceedings Act 1988), or
(b)  a Government department, or
(c)  a public health organisation within the meaning of the Health Services Act 1997, or
(d)  a local council, or
(e)  any public or local authority constituted by or under an Act, or
(e1)  any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person’s public official functions, or
(f)  a person or body prescribed (or of a class prescribed) by the regulations as an authority to which this Part applies (in respect of all or specified functions), or
(g)  any person or body in respect of the exercise of public or other functions of a class prescribed by the regulations for the purposes of this

6. Public Authorities
Roads and Maritime Services v Grant [2015] NSWCA 138—21/05/2015
Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340—26/10/2012
City of Liverpool v Turano & Anor [2008] NSWCA 270
Porter v. Lachlan Shire Council [2006] NSWCA 126
North Sydney Council v Roman [2007] NSWCA 27

7. Introduction: Public/Statutory Authorities and the Rule of Law
Applying the same rules of civil liability to the actions of public authorities :
The rationale: No legal or natural person is above the law
The difficulties: The nationalization and provision of public utilities and community facilities necessarily distinguish public corporations from ordinary citizens

8. Issues: Constraints on Public Authorities
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Facts: an intoxicated P was injured when he fell over unfenced cliffs in a nature reserve:
Held: while this was reasonably foreseeable, the D was not liable in this case, to prevent the injury would have required the fencing of a long line of cliffs in a nature reserve area, a huge undertaking to prevent an injury that the court found to be at very low risk of occurring.

9. Romeo v Conservation Commission of the Northern Territory
Kirby J at 485:
accepted that budgetary, political and other constraints within which such authorities must operate are factors to be taken into account in determining the scope of the duty of care and whether, in a particular case, it has been breached

10. Some Basic Concepts: ‘Feasance’
In tort law D is liable for a breach of duty towards P
The breach may take the form of an act (misfeasance) or an omission (non feasance)
However not every non-feasance provides a basis for liability:
Negligent omissions are actionable.
Mere/’neutral’ omissions are not actionable unless the D is under a pr-existing duty to act

11. Some Basic Concepts: Powers and Duties
Duty:
The obligation to act; the statutory provision/function is cast in mandatory terms
Once the content of the duty is determined, the question of breach is a question of fact
Breach duty attracts liability

12. Basic Concepts: Power Power:
The statutory function is case in permissive terms
It confers on the power holder a choice to act in a particular way
The failure or refusal to exercise a choice may not necessarily be illegal.
The power holder has a freedom of choice to act/ The duty holder has an obligation to act

13. Some basic Concepts: Ultra Vires
It is for the power holder to decide what it wants to do within the limits of its powers
Where a power holder acts beyond the powers conferred on it by the relevant statute, the power holder’s conduct is ultra vires. The decision of the power holder has no legal effect and can be quashed by a court.

14. Mis-feasance and None-Feasance: Highway Authorities
The traditional position in Common Law:
Highway authorities owe no duty to road users to repair or keep in repair highways under their control and management.
Highway authorities owe no duty to road users to take positive steps to ensure that highways are safe for normal use.
It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right. (per Dixon J in Buckle v Bayswater Road Board): See also Gorringe v. Transport Comm.

15. Misfeasance and non-Feasance: Common Law Issues
Brodie v. Singleton Shire Council
Ghantous v. Hawkesbury City Council

16. The Civil Liability Act (NSW) and Public Authorities
Part 5 of the Civil Liability Act (Sections 40 to 46)
Sets out the principles to determine whether duty of care exists or has been breached
Establishes when act or omission constitutes a breach

17. S42 Principles Concerning Resources, Responsibilities of Public Authorities
(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open to challenge,
(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

18. Proceedings Against Public or other Authorities Based on Breach of Statutory Duty (s43)
This limits claims because it is insufficient that negligence be proved. What is required is that the act or omission of the authority was so unreasonable, that no authority could consider it a reasonable exercise of its functions.
Rhodes v Lake Macquarie City Council [2010]
The stronger reason for the Council not being liable in this case was that it was not shown that the Council had done anything that no Council could consider to be a reasonable exercise of its functions or powers, within the meaning of ss 43 and 43A of the Civil Liability Act. NSWCA 235,

19. The Civil Liability Act (NSW) and Public Authorities
Section 44: Removes the liability of public authorities for failure to exercise a regulatory function if the authority could not have been compelled to exercise the function under proceedings instituted by the Plaintiff.
Section 45: Restores the non-feasance protection for highway authorities taken away by the High Court in Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512

20. S45 Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

21. Mental Harm Part 3 CLA (ss27-33)

22. Mental harm: impairment of a person’s mental condition.
“consequential mental harm” means mental harm that is a consequence of a personal injury of any other kind.
“pure mental harm” means mental harm other than consequential mental harm.

23. Pure mental harm vs consequential mental harm
Distinction between:
(1) cases where plaintiff suffers mental harm as a result of some other injury; and
(2) where plaintiff suffers only mental harm

24. Categories of pure mental harm
Two categories:
(1) plaintiff endangered but not injured by defendant’s negligence; and
(2) plaintiff develops psychiatric injury as a result of someone else being injured or killed by defendant’s negligence.

25. Mental Harm Cases
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010)
Tame v NSW (2002) 211 CLR 317
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

26. Mental harm: What is mental harm?
S27 CLA: “mental harm" means impairment of a person’s mental condition:
Recognised psychiatric injury or mental illness
Nervous shock
personal injury includes mental harm
pure mental harm" means mental harm other than consequential mental harm.

27. S29: Pure Mental Harm ACTIONS
Can a plaintiff sue for mental harm?
In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.

28. The Central Question
The central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable
(Tame v NSW)

29. CLA s 32 Mental harm--duty of care
(1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

30. Limitation on recovery for pure mental harm arising from shock (s30 CLA) (Secondary victims)
The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
Family
(a) a parent of the victim or other person with parental responsibility for the victim, or
(b) the spouse or partner of the victim, or
(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or
(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

31. Contributory Negligence:
Limitation on recovery for pure mental harm arising from shock (s30 CLA)
Contributory Negligence:
Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim

32. Limitations on Liability: Pure Mental Harm: (s31 CLA)
(S31) There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognized psychiatric illness
(S33): A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

33. Tame v New South Wales [2002]
Facts: The plaintiff was involved in a minor car accident.
an error was made on the police report, attributing to the plaintiff the blood alcohol reading of the other driver, who was significantly over the legal limit.
as a lifelong teetotaller, she was upset by this.
while the mistake was soon corrected, she became obsessed with the matter and developed a psychiatric illness.
she sued the police for negligence.

34. Tame v New South Wales [2002]
Held: the court was unanimous in holding that the police officer owed no duty of care to the plaintiff
three main reasons :
it was not reasonably foreseeable that the police officer's mistake in completing the accident report might cause the plaintiff to suffer a recognisable psychiatric illness..
the police officer had a duty to include all relevant information about the accident, …would be inconsistent with this duty to require him also to take care to protect from psychiatric illness one of the people he was investigating.
this sort of case should be dealt with via the law of defamation, not the law of negligence

35. Annetts v Australian Stations (2000)
Facts:
the plaintiffs' 16 year-old son was working as a jackaroo on a cattle station in a remote part of Western Australia.
The plaintiffs were worried about him doing this, but had been assured by his employer (the def) that he would be closely supervised.
After working for the defendant for seven weeks, the plaintiffs' son was sent to live alone as caretaker of another cattle station.
6 weeks later, he and a jackaroo from another station disappeared into the desert.

36. Annetts v Australian Stations cont.
they were not found.
The plaintiffs (lived in NSW) were notified over the phone that their son was missing.
Went to the area while the search was in progress, and were shown some of their son's belongings
Over 4 months after the disappearance, they were notified by phone that the vehicle driven by their son had been found; later that day, they were informed that two sets of remains were found nearby.
The father returned to WA to ID the body. The plaintiffs claim to have suffered psychiatric injury as a result, and sued the defendant.

37. Annetts v Australian Stations (2000)
Held: All seven judges held that a duty of care was owed.

38. Mental Harm Part 3 CLA (ss27-33)
Wicks v State Rail Authority of New South Wales
Sheehan v State Rail Authority of New South Wales ([2010] HCA June 2010 (S27/2010 & S28/2010))
Facts: P as serving police officers attended the scene of an accident caused by D’s negligence
They alleged psychological and psychiatric injuries, post traumatic stress syndrome, nervous shock and major depressive disorder.
Issues:
Whether appellant in each case was owed a relevant duty of care,
and if the appellant suffered a recognized psychiatric illness of which the negligence of State Rail was a cause,

39. Waverley Council v Ferreira [2005] NSWCA 418
P sued the Council for damages for mental harm he suffered by reason his son’s death.
Facts
son aged 12 falls through a through a skylight in the roof of a building situated in a park used as a part-time play centre and under the care, control and management of the appellant the Council. The park was designed to attract children and was equipped with swings and other playground equipment. Children came to play there every day.

40. The Unborn child
A duty of care is owed directly to the unborn child (not to cause injury) which ‘crystalizes’ on birth.
Watt v Rama [1972] VR 353 Driver owed a duty of care to unborn child.
Lynch v Lynch (1991) 25 NSWLR 411mother owes duty to unborn child only with respect to driving - not extended to other lifestyle choices.
X and Y v Pal (1991) 12 NSWLR 26 Duty of health care professional to woman, her fetus and future unborn children.
Torts

41. ( Per Gillard J in Watt v Rama)
The unborn child:
There can be no justification for distinguishing between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child en ventre sa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child

42. Wrongful Birth Claims
Claims by parents in respect of the birth of a child who would not have been born but for the D’s negligence.
Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled child born bec. Pl lost opportunity to lawfully terminate pregnancy. Damages included costs for past & future care of child for 30 years.)
CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost opportunity to terminate pregnancy as a result of D’s neg failure to diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages not to include costs of raising the chills as adoption was an option.
Melchior v Cattanach [2003] HCA Mother of healthy child after failed sterilization procedure. Qld CT Appeal held damages shld include reasonable costs of raising the child. High Ct agreed on appeal

43. CLA Part 11 s71
In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or maintains the child. (2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

44. Wrongful Birth Claim by Parents to whom a Duty of Care is owed
But for D’ s negligence the child would not have been born: parents would not have to provide financial support
S CLA substantially overturns common law as determined in Cattanach v Melchoir (2003) 215 CLR 1.
S71 (1) Prevents recovery in cases of wrongful birth for the cost of raising a child and loss of earning while raising the child.
S71 (2) the additional cost of raising a disabled child can be recovered.
Torts

45. Wrongful birth at common law
Negligent advice with respect to a sterilization procedures/failed sterilization procedures / lost opppotunity for a legal abortion.
Cases generate controversy with respect to choice around mother/parenthood.
Cattanach v Melchoir awards damages with respect to loss of earnings, cost of raising the child, costs associated with pregnancy and birth, pain of birth.
Only damages recoverable post CLA relate to costs and pain of birth and additional cost of raising a disabled child.
Torts

46. Wrongful Life
Claim by Child who asserts he/she is owed a duty of care by parents’ health care professionals whose negligence allowed P to be born.
McKay v Essex Area Authority [1982] QB 1166 No duty to child re advice to mother of appropriateness of abortion.
Bannerman v Mills (1991) Aust Torts Reps (NSW Sup Ct, Master Greenwood) Followed Mckay
Harriton V Stephens (2002) NSWSC 461(Studdert J)
No duty for wrongful life:
Sanctity of life
Self esteem of people with disabilities
Exposure of parents to liability
Impossibility of assessing damages
Torts

47. Impossibility of comparing non-existence with a disabled existence.
Harriton v Stephens (2004)59 NSWLR 694 (NSW Court of Appeal) No duty for wrongful life
Majority (Spigelman CJ & Ipp JA) confirmed the decision of Studdert J at first instance finding no duty.
Impossibility of comparing non-existence with a disabled existence.
Mason J in dissent:
-no real difference between wrongful birth and wrongful life cases.
-Children born alive because of D’s neg and in this sense the D caused the suffering of the P.
Torts

48. Harriton v Stephens (2006) 226 CLR 52 HCA - No Duty for Wrongful Life
Impossible to compare a life with disabilities with non-existence: therefore no damage recognizable by law.
A Doctor’s duty to advise re termination could not logically be separated from a duty upon parents to terminate .
The common law values all life and such a duty would conflict with this value.
To make the D responsible for Alexis’s (P’s) disabilities by comparing her life without disabilities is to make the D liable for damage which he did not cause.
Torts

49. Harriton v Stephens (2006) 226 CLR 52 HCA Kirby J (dissent)
No problem with respect to assessing damages – the comparison is between no economic expense with the cost of care for Alexia.
Contrary to devaluing the P’s life, awarding damages practically enables a more dignified life with greater opportunities to participate and less reliance on family/charity/social security.
A duty against a health care provider says nothing about a mother or parent’s duty: they are in different categories.
Denying a duty erects an immunity around negligent health care providers where children are born into a life of suffering because of the failings of those Health Care Providers.
Torts

50. Product liability
Actions with respect to injury by defective products may be brought in:
Negligence
Donoghue v Stevenson [1932]
Grant v Australian Knitting Mills (1935)
AND
Contract
Under the Competition and Consumer Act (Cth) (2010).
Torts

51. Mental Harm Part 3 CLA 2002 (NSW)
S 27 CLA TWO Types of “Mental Harm”
consequential mental harm defined as "mental harm that is a consequence of a personal injury of any other kind“ and
pure mental harm defined as "mental harm other than consequential mental harm".
Torts

52. Pure and Consequential Mental Harm Part 3 CLA 2002 (NSW)
SS Civil Liability Act 2002 (NSW)
S30 (2) No recovery for pure mental harm unless witness the scene or a close family member of victim.
S30 (3) damages reduced for contributory neg of primary victim.
S 31 No liability for pure mental harm which is not a recognised psychiatric illness.
Torts

53. Pure and Consequential Mental Harm
S 32 (1) CLA No duty not to cause mental harm except where D ought to have foreseen that a person of normal fortitude could suffer a recognised psychiatric illness if reasonable care not taken.
S 32 (2) CLA In cases of Pure Mental Harm, relevant factors include : sudden shock; witnessing a person being killed or put in peril; relationship between P and person injured or put in peril; pre-existing relationship between P and D.
S32 (3) CLA P needs to demonstrate separate duty with respect to mental harm where mental harm consequential.
S33 CLA No award for economic loss for consequential mental harm unless it amounts to a recognised psychiatric illness.
Torts

54. Reasonable foreseeably of mental harm at common law & S32 (1) and (2) CLA
Ipp Report recommendations based on recent Australian common law
Mt Isa Mines v Pusey (1970) 125 CLR 383:
RF of psychiatric illness - not particular type of psychiatric illness.
Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a "recognizable psychiatric illness
Torts

55. Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Relevant factors in determining reasonable foreseeability include: directness of perception, relationship with injured party, relationship between P and D, nature of shock.
Torts

56. Annetts
Hayne J:The relationship which existed, between the parents of a child and the defendant for whom and at whose premises the child was to work and to live, may readily be seen to be a relationship in which the defendant may owe the parent a duty to take reasonable care not to cause psychiatric harm to parents of reasonable or ordinary fortitude by reason of the negligent causing of injury or death to the child. It is a relationship not different in any relevant way from the relationship considered in Pusey[326]. There, an employer was found liable to an employee for psychiatric injury caused by the negligent infliction of injury to another employee. Although the relationship between plaintiffs and defendant in this case was not that of employees and employer, the position of the plaintiffs as parents of an employee who was not of full age and who was committed by them to the care and control of the defendant both during and outside working hours should not be considered to be different in any relevant respect from the relationship between employee and employer which founded the duty held to exist in Pusey. [304]
Torts

57. Annetts
No one would doubt the foreseeability of psychiatric injury to the [Annetts] if they had seen their son being run over by a car, or trampled by a stock horse. The circumstances of his disappearance and death were such that injury of that kind was more, rather than less, foreseeable.
Torts

58. Tame v NSW (2002) 211 CLR 317 McHugh J
it must follow that a defendant is entitled to act on the basis that there will be a normal reaction to his or her conduct. The position is different if the defendant knows that the plaintiff is in a special position. But otherwise the defendant should not be penalised for abnormal reactions to his or her conduct. [109]
To insist that the duty of reasonable care in pure psychiatric illness cases be anchored by reference to the most vulnerable person in the community - by reference to the most fragile psyche in the community - would place an undue burden on social action and communication. To require each actor in Australian society to examine whether his or her actions or statements might damage the most psychiatrically vulnerable person within the zone of action or communication would seriously interfere with the individual's freedom of action and communication.
Torts

59. Tame and Annetts
These decisions outlined the following common law principles in relation to establishing an action for negligently caused mental harm:
(a)The plaintiff must demonstrate a recognisable psychiatric injury (per Gaudron, Gummow, Kirby, Hayne and Callinan JJ).
(b) Reasonable foreseeability is still a requirement for the duty of care to be established; however, ‘normal fortitude’ is not a prerequisite to establishing a duty in all cases . “normal fortitude” goes to reasonable foreseeability of the risk of psychiatric harm(per Gleeson CJ, Gaudron, Gummow and Kirby JJ).
In some cases, the risk of a recognisable psychiatric illness to a person falls outside the notion of “normal fortitude” is nonetheless not far-fetched or fanciful. If that is the case, then the tribunal of fact is to determine what a reasonable person would do by way of response to the risk in the manner indicated by Shirt.
However the other justices thought that “normal fortitude” should not be abandoned
(c) Relevant considerations to determine a duty of care include the directness of the perception of the event by the claimant, their relationship with the person placed in peril, the nature of the shock and whether there is any pre-existing relationship between the plaintiff and the defendant. However, none of these is a precondition for recovery.
Torts

60. Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60
Torts

61. High Court Interpretation of S 32 (2) CLA
Wicks v State Rail Authority of NSW
(2010) 241 CLR 60
‘Being’ injured can take place over an extended period of time
“S. 32 … must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by this Court in Tame v New South Wales.”
Torts

62. Wicks v State Rail Authority of NSW Per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ
It would not be right, however, to read s 30, or s 30(2)(a) in particular, as assuming that all cases of death, injury or being put in peril are events that begin and end in an instant, or even that they are events that necessarily occupy only a time that is measured in minutes. No doubt there are such cases. But there are cases where death, or injury, or being put in peril takes place over an extended period. This was such a case, at least in so far as reference is made to victims being injured or put in peril. [44]
The survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident being put in peril as a result of the negligence of State Rail.
Torts

63. Wicks v State Rail Authority of New South Wales (On the issue of foreseeability)
Contrary to the submissions of State Rail, the question of duty of care is a question of law[13]. To resolve this question would require consideration of whether it was reasonably foreseeable that a rescuer attending a train accident of the kind that might result from State Rail's negligence (in which there might be many serious casualties and much destruction of property) might suffer recognisable psychiatric injury as a result of his experiences at the scene. Or to put the same question another way, was it reasonably foreseeable that sights of the kind a rescuer might see, sounds of the kind a rescuer might hear, tasks of the kind a rescuer might have to undertake to try to ease the suffering of others and take them to safety, would be, in combination, such as might cause a person of normal fortitude to develop a recognised psychiatric illness? The question of foreseeability is to be posed in these terms because it must be judged[14] before the accident happened.
Torts

64. Rescuers No common law duty to rescue
A Duty of care is owed to professional and lay rescuers
Chapman V Hearse
Mt Isa Mines v Pusey
CLA PART 8, SS Good Samaritans
Rescuers NOT LIABLE
Provisos:
act in good faith, without expectation of payment or reward,
did not create the need to rescue,
not under the influence of prescription or recreational drugs which significantly impairs their ability to use reasonable care and skill
not impersonating a health care professional or presenting as having skills which they do not have.
Torts

65. Occupiers liability
Australian Safeways Stores v Zaluzna (1987) 162 CLR 479
Occupiers liability governed by ordinary common law duty to take care - not tied to separate categories of entrants.
Thompson v Woolworths (2005) 221 CLR 234
Examined the context of the occupier and their relation to entrants to determine duty. Woolworths established and maintained the system for deliveries i.e. they controlled the system of deliveries which was for the mutual commercial benefit of the D and P and to which the P was required to conform.
Torts

66. Occupiers Liability
Modbury Triangle Shoppping Centre Pty Ltd v Anzil (2000) 205 CLR 254 The scope of the occupier’s duty did not extend to protecting P, an employee of a tenant, from the criminal acts of third parties. Relevant factors in not finding a duty included the nature of the relationship between P and D; the control and knowledge which the D had with respect to the third party criminal’s behavior. Even if a duty had been found it would be difficult to demonstrate that the D’s failure to keep lighting in the parking lot caused the P’s harm.
Torts

67. Occupiers Liability
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
The occupier did owe a duty of care. The nature of their occupation distinguished them from Modbury Triangle. A licensed club is a premises where reasonable care for patrons must be taken against known risks of violence and anti social behavior.
Strong v Woolworths [2012] HCA 5
Duty to have a system in place to regularly inspect and clean the store and side walk area.
Torts