Cambridge University Press 978-1-108-62625-5 — Contemporary Australian Tort Law Joanna Kyriakakis , Tina Popa , Francine Rochford , Natalia Szablewska , Xiaobo Zhao , Jason Taliadoros , Darren O'Donovan , Lowell Bautista Index More InformationINDEX abatement, 329 breach of duty of care, 21–2, 99–101 abatement of nuisance, 332, 496 demonstration of, see demonstrating breach of duty recaption of goods, 329–31 of care re-entry of land, 331–2 importance of civil liability legislation, 103–5 action for breach of statutory duty negligent conduct, 101–2 availability of action, 564–5 no degrees of breach, 102 defences to, 575 proving breach, see proving breach of duty of care elements of, see elements of breach of statutory reasonable person standard, see reasonable person duty standard actionable interferences in trespass to land relevance of past indings of, 102–3 direct interferences, 272–3 ‘but for’ test, 22, 166, 171–5, 179, 184 interference with land, see interference with land age, breach of duty of care and, 107–9 calculus of negligence, see negligence calculus agency, vicarious liability and, 401–4 causation, 22 aggravated damages, 4, 497–8, 500 ‘but for’ test, see ‘but for’ test awarded for intentional torts, 500–1 chain of, see chain of causation awarded for negligence, 501 contributory negligence and, 207–8 in defamation, 475 dependants’ action and, 546–7 limited by civil liability legislation, 501 factual causation, see factual causation as remedy for trespass to land, 350–1 chain of causation as remedy for trespass to the person, 346–7 breaking of, 184–7 airspace, 274–7 causally independent events, 188–9 animus possidendi, 269–70 successive causes leading to a similar damage, 189 apportionment, contributory negligence and, voluntary human action, 187–8 208–11 chattels, trespass to, see trespass to personal property assault, 242–4 circumstances for injunctions, 552–3 reasonable apprehension of, see reasonable adequacy of damages as remedy, 553 apprehension of assault proprietary interest required, 553 subjective intention and, 249 rights protected by injunctions, see rights protected threat of imminent harm and, see threat of by injunctions imminent harm civil liability reforms, 36 Australian statutory compensation schemes background to, 36–7 National Disability Insurance Scheme, 41–2 efects of, 38–9 transport accident compensation, 40 key amendments, 37–8 victims of crime compensation schemes, 42 response to, 38 workers compensation, 40–1 claims upon the death of a person, 543 awards of damages adjustments assessing damages, 550–1 collateral source rule, 537–9 claims by dependants of the deceased, 545–8 contingencies or ‘vicissitudes’, 533–6 claims by estate of the deceased, 543–5 ‘discount rate’, 531–3 non-pecuniary loss, 549–50 ‘saved’ items of expenditure, 536–7 pecuniary loss, 549 tax to be deducted, 537 collateral beneits gifts by the defendant, 538 battery, 236–7 gifts by third parties, 538 direct application of force and, 238 Medicare payments, 538 fault of the defendant and, 242 no-fault compensation schemes, 539 as positive act, 237–8 redundancy payments, 538 unlawful touching and, 238–41 sick pay, 538 Bernstein test, 273, 274, 275, 276 social security beneits, 538–9 Bolam principle, 37, 115, 116, 137 voluntary payments by an employer, 538 breach of conidentiality, privacy and, 483–7 collateral source rule, 537–9 589 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-62625-5 — Contemporary Australian Tort Law Joanna Kyriakakis , Tina Popa , Francine Rochford , Natalia Szablewska , Xiaobo Zhao , Jason Taliadoros , Darren O'Donovan , Lowell Bautista Index More Information ‘commonsense’ test, 175–6, 179 gratuitous services damages, see gratuitous services compensation, feminist analysis and, 10–11 damages compensation schemes Griiths v Kerkemeyer damages, 524, 526 Australian statutory, see Australian statutory nominal damages, 498–9 compensation schemes non-pecuniary damages, see non-pecuniary international, see international compensation damages schemes other factors afecting assessment of, 551 compensatory damages, 498 pecuniary damages, see pecuniary damages as remedy for trespass to land, 349–50 personal injury compensation, see personal injury as remedy for trespass to the person, 345–6 compensation compensatory damages for property damage, 507–8 restitutionary damages, see restitutionary damages cost of repair or diminished value, 508–12 ‘special’ and ‘general’ damages, 497 consent, 332–3 Sullivan v Gordon damages, 529 capacity to give, 337–40 trespass to land, 349–51 express consent, 333–5 trespass to the person, 345–8 implied consent, 335–6 types of, 498 real and voluntarily given, 336–7 types of for remedies for trespass, 318–19 revocation and expiration of, 340–1 vindicatory damages, 499–500 scope of, 341 damages in defamation, 474 contribution, 560 aggravated damages, 475 against whom contribution may be claimed, 561 economic loss, 474 assessment of, 561 exemplary damages prohibited, 475 who may claim, 560–1 non-economic loss, 474–5 contributory negligence, 23, 194–5 defamation, 437 apportionment and, 208–11 damages in, see damages in defamation causation and, 207–8 defences to, see defences to defamation deinitions and rationale, 195 elements of, see elements of defamation as non-defence to trespass, 344 liability for, 4 standard of care for, see standard of care for purpose of defamation law, 437–8 contributory negligence remedies for, see remedies for defamation control test, 406–7 social media and, see defamation and social media conversion, 301–2 uniform legislation, see uniform defamation bailees and bailors and, 303 legislation co-owners and, 304 defamation and social media, 476 fault and, 310–11 defamation and the internet, 476–7 inders and, 304–5 liability of anonymous users, 477–8 owners and, 302–3 liability of intermediaries, 478–83 remedies for, 355–6 defamatory imputation, 442 repugnant dealing, see repugnant dealing defamatory imputations, 442–3 title to sue, 302–5 deinition of ‘defamatory’, 443–50 co-owners deinition of ‘matter’, 442 conversion and, 304 true and false innuendos, 443 possession and, 272 defences to defamation, 457 absolute privilege, 463–4 damage, recognised by law, 152–4 contextual truth, 460–3 damages, 4 fair report of proceedings of public concern, 466 adjustments to awards of, see awards of damages honest opinion, 470–2 adjustments innocent dissemination, 472 aggravated damages, see aggravated damages justiication, 458–60 claims upon the death of a person, see claims upon publication of public documents, 464–5 the death of a person qualiied privilege, 466–70 compensatory damages, see compensatory damages triviality, 473 contemptuous damages, 499 defences to negligence, 193 ‘damage’ and ‘damages’, 497 contributory negligence, see contributory damages ‘at large’, 497–8 negligence exemplary damages, see exemplary damages good Samaritans and volunteers, 221–2 590 Index © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-62625-5 — Contemporary Australian Tort Law Joanna Kyriakakis , Tina Popa , Francine Rochford , Natalia Szablewska , Xiaobo Zhao , Jason Taliadoros , Darren O'Donovan , Lowell Bautista Index More Information illegality, see illegality non-delegable duties, see non-delagable duties limitation of actions, 220–1 in the novel case, salient features approach, see voluntary assumption of risk, see voluntary salient features approach assumption of risk occupiers, see occupiers defences to nuisance public authorities, see public authorities prescription, 384 special defendants, see special defendants statutory authorisation, 384–7 special duty relationships, see special duty defences to trespass relationships abatement, see abatement steps for appropriate rule, 55–6 categories, 317–18 duty of care established categories, 54–7 consent, see consent doctor–patient, 61 defence of another, 323–4 duty owed to a rescuer, 63–4 defence of property, 324–5 employer–employee and master–servant, 58–9 disciplinary powers, 341–2 manufacturer–customer, 57–8 inevitable accident, 342 occupier–entrant, 59–60 necessity, see necessity teacher–pupil and school authority–pupil, 61–3 self-defence, 320–3 users of the highway, 64–5 defendant characteristics, breach of duty duty of care general principles, 49 of care, 107 current law, 54 age, 107–9 ‘neighbour’ principle, 49–51 experience, 113–14 ‘proximity’ principle, 52–4 intoxication, 111–12 duty to control others, 90–2 physical and mental impairment, 109–11 existence of some other factor, 92–3 possession of special skills, 112–13 existence of special relationship, 92 public authorities, 119–20 when duty arises, 92–3 status of professional, 115–19 duty to prevent psychological injury defendants for private nuisance liability development of liability, 79–81 adopting or continuing a nuisance, 380–1 early decisions, 78–9 authorisation of a nuisance, 379–80 policy factors in mental harm cases, 77–8 creators of a nuisance, 379 duty to prevent pure economic loss, 81–2 defendants for public nuisance liability, 379 diference between pure and consequential demonstrating breach of duty of care, 122–4 economic loss, 82 failure to warn, 138–40 negligent misstatement and, 82–6 negligence calculus, see negligence calculus other factors causing loss, 86 ‘not insigniicant’ risk, 127–8 reasonable foreseeability, 124–7 easements, possession and, 272 dependants’ action, 545–6 economic loss, 346 causation and, 546–7 pure, duty to prevent, see duty to