Fundamentals of Common Law

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Assignment 1
Legal Studies – GSB748
Due on: 20/03/2011 University of New England Victor M. Ayala Lancheros Student # 220070594 Word Count: 2,719

GSB748 – Legal Studies

Student # 220070594

1. The Case of Tommy v Spud 1.1 Advice to Tommy 1.1.1 Duty of Care In this case, the “neighbour principle” of Lord Atkin and the test of proximity of relationship of the High Court is applicable (Turner 2011:738). The parties have a special relationship based on physical proximity and causal proximity: Donogue v Stevenson [1932] AC 562 and Jaensch v Coffey (1984) 155 CLR 549. The loss or damage was “reasonable foreseeable”. This is substantiated by the fact that Spud warned Tommy of the herbicide spraying one day before it took place, this clearly demonstrates that for Spud the damage was foreseeable: Crimmins v Stevedoring Industry Finance Committe (1999) 200 CLR 1. In addition, there is no indeterminancy of liability that is the liability can be determined as well as the time and class, and the conduct adopted by Spud does not legitimately protect his business or social interests. Furthermore, the fact that Tommy is an organic farmer places him under significant vulnerability from Spud’s and Red Baron’s actions with no obvious measures that Tommy could have taken to prevent the damage: Perre v Apand Pty Ltd (1999) 198 CLR 180 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 80.

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GSB748 – Legal Studies

Student # 220070594

In summary, Spud and Red Baron owed Tommy a duty of care in regards to herbicide spraying. 1.1.2 Breach of the Duty of Care The risk was “significant” as the probability of materialising was high and a reasonable person would not have neglected the risk, particularly with the wind blowing as strong as it did on the day the facts took place: Bolton v Stone [1951] AC 850. The magnitude of the risk to Tommy as an organic farmer warranted greater precautions from Spud and Red Baron as the effect of the risk realising, as in fact did, left Tommy with extended damage to his crop, chickens and water supply: Paris v Stepney Borough Council [1951] AC 367. The burdensomeness or cost of the precautions that could have been taken by Spud or Red Baron was not high (Gibson 2005:456). A simple precaution could have been the delay of the herbicide spraying until the wind conditions were more favourable. The factors above constitute the “calculus of negligence” as formulated in Wyong Shire Council v Shirt (1980) 146 CLR 40. 1.1.3 Causation Section 5D (1) (a) of the Civil Liability Act 2002 (NSW) states that the harm occurred as a result of the negligent act. In this case, the spraying of Assignment 1 Page 3 of 16

GSB748 – Legal Studies

Student # 220070594

herbicide is the cause of the damage to Tommy. In addition, the “but for” test is applicable in this case where Tommy would have suffered no damages “but for” the herbicide spraying: Cork v Kirby McLean [1952] 2 All ER 402. 1.1.4 Remoteness of Damage As stated above and based on Spud’s conduct the day before the events, the damage was not too remote and therefore foreseeable by the defendant or other reasonable bystander: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2) [1967] AC 617. Tommy is entitled to recover damages on negligence for past and future economic as well as non-economic loss such as pain and suffering (Civil Liability Act 2002 NSW). The defence may argue contributory negligence and voluntary assumption of risk. 1.1.3 Trespass to Land According to Gibson (2005:551), “trespass to land is a direct interference with the plaintiff’s possession of land”. However, such interference can take place without the physical presence of the trespasser on the plaintiff’s land and it includes the area above and beneath the land: Bulli Coal Mining Co v Osborne [1989] AC 351.

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GSB748 – Legal Studies

Student # 220070594

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