Torts B Notes

Week 1: Pure Psychiatric Harm

- Pure: not resulting from physical injury- Psychiatric Harm: recognisable (recognised) psychiatric injury- Not just ‘nervous shock’ anymore- Mere upset, distress or normal grief reactions are insufficient- This is because some harm is still outside the protection of the law

Typical Situations:

1. P involved in an accident (near miss or shell shock) – Dulieu v White2. P witnesses injury to another (secondary victim case) – Wick’s Case3. P suffers stress at work - NSW v Fahy4. False accusations/information (Tame) - Tame5. School bullying – Oyston v St Patrick’s College

Policy Concerns:- Courts are MORE restrictive with duty in Pure Psychiatric Harm cases: why?

1. Fraud (VRC v Coultas) – maybe no longer an issue?2. Difficulties of proof3. Lack of medical understanding about aetiology (this may also be irrelevant nowadays)- “lacking moral fibre” view (internal causes)4. Maybe psychiatric harm is simply less serious5. Compensation neurosis6. Indeterminate liability (e.g. reporting of natural disasters) – Alcock7. Defendant autonomy (inhibits freedom of the everyday person, always worrying about particularly sensitive people)

Only 6 and 7 are still really concerns at all.

The Modern Law

- Nowadays the law is found at common law and in some states, within statutory modifications

- All states except the NT and QLD have statutory modifications

Common Law: the Historical Approach

- Traditional limitations on duty relationship proximity of space proximity of time direct perception (with own unaided senses) sudden shock normal fortitude (relates to reasonable foreseeability and the autonomy concern)

- Restrictive case: Bourhill v Young - Liberating case: Jaensch v Coffey

NOW- These limitations now exist in a 2 part test:

1. Is there a recognisable psychiatric injury?2. Was that injury reasonably foreseeable?

- This is not the same as all other injuries, because the word ‘reasonably’ allows for policy considerations- The ‘requirements’ are now factors which can help determine reasonable foreseeability- It is unclear which factors are more important than others so we refer to precedent- Medical studies indicate the first factor is the most relevant

McHugh J in Gifford v Strang

- Which relationships may give rise to a duty of care?1. Husband and wife2. Defacto3. Parent and child4. Siblings5. Engaged couples- However, other relationships can count too (e.g. friends) if you can demonstrate enough closeness- Sometimes recovery is possible even when there is no relationship but the incident is particularly horrific* Remember you don’t need to foresee the plaintiff – just the class of plaintiff* Possessions – Atier v British Gas

Normal Fortitude

- Harm must be foreseeable in relation to a person of normal fortitude except when:1. You know they aren’t2. You ought to know- You do not have to be of normal fortitude to recover, but it must be foreseeable that a person of normal fortitude would suffer damage- Some confusion because paragraph 26 of Wick appears to say something different

Remaining controversies:

- Can mere bystanders recover?- Property damage- Relevance of normal fortitude?- Deathbed vigil cases?- Is the relationship between the defendant and the primary victim relevant?

Statutory Intervention

- NSW CLA (2002)- s 31 to 33

- 31: P must suffer RPI- 32: in all mental harm cases:

- harm must be foreseeable to a person of NF- it must be a RPI- 5 common law factors may be used

- 33: consequential mental harm- must be a RPI- 30: no damages unless - witness on scene (killed, injured or put in peril)- close family member

Wicks – restrictive statute, liberalising case- s 30 allows policemen to recover after suffering RPI following a train derailment1. Don’t need to witness a particular victim2. Meaning of killed, injured or put in peril

Omissions and Public Body Liability

Omissions

Background:

General approach: NO common law DOC to take positive action, except where you have created or increased the risk of injury

Lord Nicholls in Stovin v Wise. Lord Hoffman: there are political, moral and economic reasons for not imposing this DOC Responsibilities come from freedoms

Exceptions to this general rule:

1. Pre-Existing Relationships- School authority/pupils- Prison authority/prisoner- Doctor/patient- Employer/employee

Here the law may require positive action. The question is: what action is required?

School authority/pupils – Diocese of Canberra case

- Two kids pull a little girl off a flying fox while the teacher on duty is distracted and she is hurt- DOC established but not breach, as no alternative system of supervision was suggested

Prison authority/prisoner – NSW v Bujdoso

- Bujdoso (paedo) is threatened repeatedly but the prison fails to put him in safe accommodation

Doctor/patient – Rogers v Whittaker

- Duty to warn

Employer/employee – (Coca-cola v Pareezer)

2. Control Over Third Party Agent of Harm

Parent/child

- Smith v Leurs OR Hogan v Gill

Prison Authority/Escapee

- Dorset Yacht Ltd v Home Office- NSW v Godfrey

Occupier of licensed premises/ violent patrons

- Adeel’s Palace pty ltd v Moubarak

3. Public Body Liability

A statutory authority is a body created by a statute.’

Can a statutory body owe a common law duty of care?

There are a variety of policy concerns in relation to this:

- Would imposing a duty of care conflict with P’s other responsibilities?- Is it unconstitutional for courts to make rulings on the actions of democratic bodies?- Defensive practice?- Would the DOC conflict with the statutory purpose of the body?- Is there an alternative remedy for P other than damages?- Would liability be too extensive/indeterminate in nature?

How to determine duty in a novel case:

McHugh J in Crimmins:

1. Was it reasonably foreseeable that action or inaction on the part of the defendant (including a failure to exercise those powers) would result in injury to the plaintiff or to his or her interests?

2. Did D have the power to protect P?3. Was the plaintiff vulnerable in the sense that they couldn’t protect them self?4. Did D have actual or constructive knowledge of the risk?5. Would this conflict with D’s core policy making or legislative functions?6. Are there any other supervening policy reasons why a DOC should not be imposed? (e.g. Is

it a case of pure economic loss, in which case the law in respect of PEL applies)

If the first 4 questions are answered in the affirmative, and the last two in the negative, then liability can generally be imposed.

IMPORTANT CASES – WRITE NOTES ON THESE!

Crimmins v Stevedoring Industry Finance Committee

Graham Barclay Oysters Ltd v Ryan

Stuart v Kirkland-Veenstra

The Civil Liability Act (QLD) has some considerations which are relevant in discussing breach.

Introduction to Pure Economic Loss

What is pure economic loss? Spartan Steel & Alloys v Martin & Co (contractors) ltd.

- Not consequential on property damage/personal injury- When economic loss IS consequential there are no DOC issues (e.g. Spartan Steel, McMullin

v ICI)

Typical Scenarios:

1. Relational Economic Loss2. Negligent Misstatement3. Defective Premises

Policy Concerns:

- Are property interests just less important than physical interests?- Economic loss in not always socially harmful in the round? One person’s loss is another’s

gain, (however, tort law is about protecting individual rights)- Stifling of legitimate commercial competition/commercial autonomy (however, not all

competition is legitimate)- Indeterminate Liability (ripple effects)- Conflict/incoherence – a DOC will never be imposed where it would conflict with existing

contractual relations- Alternative means of protection (contract/insurance)

Ripple Effects and Indeterminacy

- Information is readily exchanged between parties- What is the indeterminacy concern?

Time: prolonged exposure of D to claimsToo many claims for courts to handle: floodgates (however, it is unclear rules, not broad rules that increase the number of claimants because when rules are clear parties settle).

- Unfair liability: out of proportion to D’s fault- Undesirable effects of large/expensive liabilities on pricing of service (e.g. auditor becomes

liable for ALL incorrect advice)- Uncertain liability/class of claimant (this may be unfair to D, inhibit freedom of action, and

undermine D’s ability to self-protect)

Approach to Duty in New Cases

Perre v Apand – WRITE A CASE NOTE - (like relational economic loss but still novel)

McHugh J’s Factors:

1. Was the loss reasonably foreseeable?2. Is there a problem of indeterminate liability?3. Would this impose an unreasonable burden on D?4. Was P vulnerable?

5. Did D know that it’s conduct could be harmful?

Pure Economic Loss – Relational Loss

Damage suffered as a consequence of damage to a third party.

Case type 1: Utility disruption

- Power cut: Spartan Steel v Martin- Gas cut: Johnson Tiles v Esso Australia

Case type 2: Disruption of Transport/Delivery Mechanisms

- Caltex

Case type 3: Disease Outbreak/Contamination

- Perre, Weller, McMullin

Case type 4: Interference with Individual Contracts (devaluation of contractual rights)

- The Aliakmon

Case type 5: Disruption through employee injury

- Barclay

Policy issues in this type of cases:

- Indeterminacy: excessive liability (e.g. Caltex example of a ship hitting a bridge between and island and the mainland) and uncertain liability as in Perre

- Conflict and Incoherence (e.g. the Aliakmon: no DOC where it would conflict with a pre-existing contract/possible conflict with the Hague rules of contract of carriage)

History

- Traditional exclusory rule- Origins: Cattle v Stockton Waterworks 1875- Applied in Weller and Spartan Steel- An early excpetion was made for common ventures (Morrison Steamship)- UK still says NO DAMAGES for relational economic loss

In Caltex, the exclusory rule was rejected – WRITE A CASE NOTE FOR CALTEX, and Perre v Apand clarified the area of law somewhat with McHugh J’s factors

Here are some ways to deal with the issue of identerminacy:

1. Actual or constructive knowledge of the plaintiff (or P as a member of an ascertainable class) by D – McHugh J in Perre

2. P = a first line claimant – McHugh J in Perre3. Transferred loss: case like the Aliakmon where the risk is transferred by the contract4. Joint venture: Fortuna Seafoods5. Was P’s property threatened although not actually damaged?

Important cases:

Johnson Tiles v Esso

Fortuna Seafoods

Barclay v Penbarthy

Pure Economic Loss – Negligent Misstatement

- There is not really an issue of DOC where this results in physical injury, but there is an issue as it pertains to economic loss

Typical Scenarios:

- Solicitors: Hill v Van Erp- Banks: individual credit references: Hedley Byrne v Heller- Auditor’s reports: Esanda Finance- Building surveyor’s reports- Environmental consultant’s reports: Charben- Public bodies

o Planning certifications/advisory statements for individual members of the public (Shaddock, Tepko)

o Changes in public development plans (San Sebastian) e.g. property bough, plans change, worth less

Policy Concerns:

1. Indeterminate Liability- Floodgates (McHugh J in Esanda)- Excessive liability for D (as above, moral and economic arguments)- Uncertainty/self-protection (e.g. unclear how much people will invest based on an auditor’s

report)2. Autonomy (ability to interact socially)- However, DOCs only apply in formal contexts3. Coherence with statutory frameworks/purposes (Caparo)4. Alternative means of protection

Common Law: when is a duty of care owed?

a) Two-party direct dealings- Historically 3 situations where recovery was allowed

o Fraud (Pasley v Freeman)o Contract (LeLievre v Gould)o Fiduciary relationship (Norton v Ashburton)

- Now also: NEGLIGENCE (Hedley Byrne v Heller)

Hedley Byrne v Heller: Lord Reid/Morris

- Relationship of trust- Reasonable reliance by P- D knows/ought to know that P will rely

We have our own test in Australia:

MLA v Evatt – the Barwick Test

- D insurance company: financial reference re associated company given to P (shareholder/investor)

- Requirements1. Trust by P (and D knows/ought to know he is being trusted)2. D knows or ought to know that that P (or P as a member of a class) intends to rely on the

information “in connection with some matter of business/serious consequence”3. P must reasonably rely on the statement

(3) involves consideration of:

- nature of subject matter

- occasion of interchange

- relative knowledge of parties

- relative capacities of parties

* You DO NOT have to be a professional: a monopoly of information is enough

Application: Tepko

There are 6 issues with the scope of the Barwick duty:

1. Not confined to professional advisors: Shaddock v Paramatta City Council2. Information vs advice3. Opinions as to the future4. Informal statements: MLA v Evatt per Barwick CJ5. Effects of disclaimer: MLA v E, Derring Lane v Fitzgibbon6. Unrequested statements to the public at large- San Sebastian v the Ministers

o Publication of re-development scheme by the Councilo P relies on them for property developmento No DOC because no representation made/not reasonable to relyo There are concerns of indeterminate liability hereo However, with statements to the public at large, there may still be a duty of care

WHEN1. P professes to posess special skill/knowledge2. P assumes responsibility for correctness3. P invites reliance4. P induces/intends to induce P to rely5. P has an interest in D relying

Three-party cases: indirect relationships (e.g. Esanda)

- Something more is needed than the Barwick Test- That ‘something more’ is possibly to be found in Esanda

McHugh J: no DOC unless P specifically assumed responsibility AND intended P to rely even though the information was not specifically for P

Brennan CJ: DOC where P was very likely to carry out that transaction and very likely to rely on the information

Dawson J: Proximity and reasonable reliance

Toohey, Gaudron JJ: proximity, special knowledge/skill and reasonable reliance

WHAT DO WE DO? Maybe just follow Tepko, but Tepko is a little different….

Charben Haulage gives an example: THEY WENT THROUGH EVERY APPROACH FROM ESANDA AND SAID INTENTION IS IRRELEVANT

Pure Economic Loss – Defective Premises

In recent times building certifications are done by approved building certifiers. In the past, some of the work was done by local councils.

Defective premises once again focuses on duty of care.

The issue of economic loss is very important in relation to defective structures – there is a difference between PEL and damage to persons or property.

- Voli v Inglewood Shire [1963] 110 CLR 64- E.g. if there is a problem with a house’s foundations that reduces the value for subsequent

owners, this is pure economic loss (because you paid more than it was worth) due to latent defects

- There will always be a duty of care when the latent defect result in damage to persons or property

Local Council Liability

Sutherland v Heyman

- NSW councils issue s317A certificates of building compliance- Councils had discretion over this- Certificate was never sought or issued in this case- 1975 Heyman buys a house in the shire- Problems with foundations cause cracks in the house during Heyman’s time there- Frame of house had been okayed, but there was no evidence that the foundations had been

checked- Value of the house decreased

Gibbs, Wilson JJ: DOC but no breach because issuing certificates was discretionary

Mason J: General reliance/expectations

Brennan CJ: did D create or increase the risk? Did D induce reasonable reliance? No and no, so no DOC

Deane J: No evidence of any representations of exercising power, no evidence that it was relied on

Woolahra v Sved

- House built in Sydney: problem with construction- P had begun negotiations to purchase the house- NO 317A certificate- P asks for a 317A from the council- P (Mrs Sved) asks Mr James about the certificate and he assures her that one will be issued- P purchases house before certificate is issued- Certificate arrives later

- DOC owed by council to Sveds: breached because problems arise with the leakage of water into the house

- There was REASONABLE reliance when the house was bought- May not have been reasonable if she didn’t have his name etc

Makawe v Randwick City Council

- Given approval for housing complex with underground carpark- Council knew that the water table was at that same level- Council engineers though it would be fine even when the water table rose (i.e. would not

flood car park)- Makawe was a subsequent purchaser- Water table rises and causes flooding: requires repairs etc $$$

Hodgson JA:

1. Was loss physical loss or pure economic loss?2. Do circumstances fall within an established DOC?- Apply case authority (judgement contains very good summary)3. Novel Case: consider cumulative amount of salient factors considered by Alsopp J in Caltex v

Stavar- Decides no DOC- Don’t have to look at them all: cumulative effect of relevant ones

Builders, architects and design proffessionals:

Bryan v Moloney

- Contract to build a home in Launceston- ‘Domestic dwelling’- Foundations not properly installed- Mrs Moloney purchases it much later- Crack appear in walls and value is decreased, incurs rectification costs- Decided when ‘proximity’ was in vogue- Assumption of responsibility/reliance emphasised- Subsequent confusion over whether this would also apply to commercial premises

Woolcock St Investments v CDG

- Engineering firm (D)- Problem with the foundations- Ps were subsequent purchasers- One of the engineers who built it suggested to the original owner that more soil tests should

be undertaken: owner refuses- Does Bryan v Moloney apply?- Problem: this was an agreed case stated (i.e. the facts were agreed upon beforehand, not

determined by the judge)- Prior to the purchase, P did not obtain any assurance that the building was sound

- Joint majority’s comments on Bryan v Moloney- DOC not owed to original owner because of the suggestion for soil tests, therefore no DOC

to a subsequent owner- P had not shown that it was vulnerable- Very reluctant to develop common law on an agreed case stated

McHugh:

- P v A factors- Purchasers of commercial property: doing it as part of an investment process- Can and should self-protect- Generally speaking: no DOC to a commercial entity

Kirby in dissent:

- It’s not really possible to find out what’s wrong with a building once its built

LOOK AT OWNERS V BROOKFIELD JUDGEMENT

- Important changes

Defamation

Background:

No longer a distinction between libel and slander as per DA Up until the DA of 2005 defamation was dealt with in QLD under the Defamation Act of 1889 The new 2005 act is not a codification therefore the QLD law Is part common law and part

statute Each state’s defamation legislation is now streamlined to prevent ‘forum shopping’

Defamation Act (QLD) 2005

- Effective as at 1 January

Section 6- ‘General law’ refers to common law and equity- Act doesn’t affect common law unless it says so

Section 7- No slander/libel distinction- No proof of damage for slander- ‘Defamatory matter’ defined in schedule 5

Section 21- Plaintiff may elect to have the matter heard by a jury unless the court orders otherwise- The court can order otherwise if the case looks too hard (i.e. really complicated)

Section 22

- Roles of judges and juries- Judge decides whether the alleged defamatory imputation is CAPABLE of having the meaning the plaintiff alleges that it does- The jury decides questions of fact: whether there was defamatory matter and whether any defence applies- If there is no jury, the judge does both- Judge determines damages NOT the jury

Issue 1: Defamatory Matter

1. Is the imputation (as a question of law) capable of being defamatory (judge)? (Lewis v Daily Telegraph)

2. Does the imputation bear that defamatory meaning (jury)?

- Imputation does not necessarily have to be what is actually said- In deciding whether something is capable of being defamatory judges may consider:

- the natural, ordinary meaning as communicated to the ordinary person (i.e. someone not overly suspicious or naiive)

- the impression created- the intention is irrelevant- taken that the ordinary reader is aware of the whole publication and has taken notice of any prominence given to certain parts of the text

General Test of Defamation – Radio 2UE v Chesterton

- applied at the stage of consideration by the jury

Innuendos

- Something inferred or insinuated

- Goes back to whether the information is capable of being defamatory (i.e. looks at the ordinary, plain meaning of words including any innuendo)

- Favill v Queensland Newspapers: whether there is a popular false or legal true innuendo is a question of law considered by judge

- A popular or false innuendo: a defamatory meaning may be inferred or implied from the context in which the words are used, i.e. the context of the newspaper article as a whole

- This involves READING BETWEEN THE LINES

- Lewis v Daily Telegraph – legal or true innuendo: where some members of the community would have particular knowledge (involves special knowledge) which would make something defamatory

Issue 2: Reference to the Plaintiff

- Knuffler v London Express

- Two questions

1. Is the information capable of referring to the plaintiff? (law)

This can be decided looking at: the size of the class referred to, the generality of the charge and the extravagance of the accusation

Unless there is a yes here, the second question is irrelevant.

2. Does the information in fact refer to the plaintiff? (fact)

- Bjelke-Peterson v Warburton

Issue 3: Publication

Initial publication:

- Byrne v Deane: words published by being put on a noticeboard?- Urbanchich v Deane: words must either be positively published OR P must prove that D

consented/approved/adopted/promoted the presence of the words on his property

Republication:

- Liability of repeater: s32 of DA provides a defence (innocent dissemination)- Every repetition is an action

Liability of Original Publisher for Republication:

- Williams v John Fairfax- Can the original publisher by liable for repetition? 4 principles.

o Did D authorise it?o Did D intend it?o Was repetition a natural consequence?o Was there a moral obligation to repeat it?

- In Williams it was a natural and probable consequence

Defences to Defamation

S24(1): defences under the DA are additional to those at Common Law, and some are alternatives

S24(2): some defences do not operate where there is malice, and malice is at common law

1. Justification s25- Defence where the imputations are ‘substantially true’- “True in substance or not materially different from the truth” (schedule 5)

2. Contextual Truth s26- Applies where the false imputation P alleges is defamatory is ‘overshadowed’ by a true

imputation

3. Absolute Privilege s274. Public Documents s285. Fair Report of Proceedings of Public Concern s29

6. Qualified Privilege

AT COMMON LAW:

- Aktas v Westpac- Definition in Lange- Applies in several different situations where there is a reciprocal duty and interest in

information being divulged- Honesty of purpose (i.e. not malice) is very important- Enders v Erbas

RECIPROCITY

- Public response to public criticism- Harbour Radio v Trad

LANGE DEFENCE

- QP extended to cover government and political matters- Requirement of reasonableness

S30 of Defamation Act

- Wider than Lange- No CL requirement of reciprocity of duty and interest like there is at common law- Defeated by malice- Judge determines responsibility under 30(1)c

7. Honest Opinion (formerly fair comment) s31- Adelaide v Manock

8. Triviality s33

Invasion of Privacy

The Privacy Gap

Victoria Park Racing v Taylor (1937)) HCA

Kaye v Robertson

- HCA: defamation, injurious falsehood

ABC v Lenah Game Meats

- HCA: no injunction, no known wrong- Ways forward?- Gleeson CJ: breach of confidence- Gummow, Hayne, Gaudron JJ: piecemealism- Kirby: postponement- Callinan: privacy tort at common law, legislation

Why is privacy important? (3 and 4 less important)

1. Seclusion (Kaye, Victoria Park)2. Personal information – having control (Lenah)3. False light4. Quasi-property

Privacy is about DIGNITY and AUTONOMY.

Routes to reform:

Breach of confidence

1. Coco v Megarry2. Campbell v MGN

a. Reasonable expectation of privacyb. Not outweighed by D’s right to freedom of speechc. Disclosure of some seriousness

3. Lenah as per Gleeson CJa. Information is privateb. Obtained illegally, improperly or surreptitiously: just because obtained on private

land doesn’t make it private info4. Gillver v Procopets

Wrongful disclosure of Private Information

1. Doe v ABC- Hampel J’s model: private information, expectation of privacy, no public interest

New Zealand

- Hosking v Runtingo Reasonable expectation of privacyo Publication highly offensive to the reasonable person (resembles US approach)o Defence of legitimate public concern

- Wrongful Intrusiono Grosse v Purvis

Shoien J’s model of wrongful intrusion

Sands v SA

Routes to reform 3: Statutory Reform (see key issues)

Vicarious Liability and Non-Delegable Duty of Care

- Vicarious Liability: fault by an employee- Non-delegable duty of care: fault by the employer

Vicarious Liability (only examining in relation to employment relationship)

1. The tortfeasor must be an employee, not an independent contractor- Even if the person’s contract says that they are an IC, the court may decide (looking at the

relevant details of their employment) they are an employee2. The tort must occur ‘in the course of employment’

Employee v IC

Historically the ‘existence of control’ may determine employment relationship

Zuijs v Wirth Brotherso Control over P’s selection/schedule/payment/rehearsals/programs/touringo Concluded that he is an employee

Humberstone v Northern Timber Mills

Now, we focus on the existence of control in conjuction with OTHER FACTORS:

- Stevens v Brodribbo Mason J: Other relevant matters include remuneration, provision/maintenance of

equipment, obligation to work and holidays, income tax and delegation of work- Hollis v Vabu

o Totality of relationship 40-41o 42-45 relevant factors

In the course of employment

Unauthorised acts v authorised act carried out through an improper method:

- Century Insurance Co v Northern Ireland Road Transport Boardo WAS in course of employment because he was doing his basic duties but did them

negligently- Deatons Pty Ltd v Flew

o No VL because the act was INDEPENDENT as opposed to INCIDENTAL TO employment

Prohibitions:

- Bugge v Browno VL because he was carrying out a function that his employer should actually have

done for him- Limpus v London General Omnibus

o VL because employer benefitted from the conducto Detours from route (‘on a frolic of his own’) unlikely to be liable

Injuries sustained in an interval during a period of work:

- Comcare v PVWY- Actions not in the course of employment because:- “For an injury to occurring in an interval in a period of work to be in the course of

employment, the circumstances in which an employee is injured must be connected to the inducement/encouragement of an employer. An inducement/encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is engaged in activity at that place.”

Intentional tortious/criminal acts:

- Leporeo Not NDDOC because there was no fault on the school’s part (i.e. school did not

breach NDDOC)o Maybe VL depending on whether what occurred was ‘within the scope of

employment’- Sprod v PR Securities

o Liability because actions were in employees interestso Acts connected to employee’s employmento Relevant factors: nature/seriousness of misconduct, personal motivations,

- Blake v Perry Nominees o actual furtherance of employer’s interests? (Deatons v Flew)o actual authority? (Deatons v Flew)o incident of job? (Deatons v Flew)o significant connection with job? (Lepore-Gleeson, Kirby)o intended or ostensible furtherance of employer’s interests? (Lepore-Gummow,

Hayne)o estoppel ? representing employer? (Lepore- Gaudron)

- Paula Gillikers suggestion: o Liability for intentional torts only when employee’s conduct was in the course of a

protective or fiduciary relationship: e.g. looking after property, customers, other employees or people whom the employee in question is responsible for