IRAC Example 2:

Hilift Pty Ltd (Hilift) owns an industrial crane.  Hilift employs two crane operators,
Elwyn and Osman, who each work 4 hour shifts.  In May 2008 the owner/builder of a
new apartment block hires Hilift’s crane and operators for two weeks to lift building
materials to the upper floors of their building.  At the end of the first shift on the 10 May,
Elwyn notifies the manager of Hilift that the crane is not performing properly and that it
needs looking at.  The manager contacts the company who does repairs and maintenance
work on the crane, EFL Engineering, and asks for an engineer to be sent out
immediately.  EFL says that no-one is available for two hours. The manager of Hilift
decides to allow Osman to begin his shift before the engineer arrives, since to stop work
will delay construction. Osman is halfway through hoisting his first load when a cable in
the crane snaps and the crane swings out of control, smashing into a lower floor of the
building.  Two construction workers in the building are injured. One has both legs
crushed and they have to be amputated.  The other worker will be hospitalised for a long
time with serious injuries but will make a full recovery.  The building is damaged by the
accident and will cost $75,000 to repair.  The construction of the building is delayed by
three months because of the accident, and for this period the expected income from
tenants is lost. Osman is deeply traumatized by these events and cannot bring himself to
drive a crane again.   After a period of six months without employment, during which he
receives psychiatric treatment, Osman takes lower paid work as a general construction
worker.  A subsequent inspection of the crane finds that the fault in the cable would have
been discovered if an engineer had inspected the crane after Elwyn’s shift had ended. To
replace this cable would have taken six hours.

Advise Hilift as to whether, and to what extent, the company will be liable in tort for the
harm that has occurred.

Facts:

 Hilift Pty Ltd owns industrial crane

Complete list
of facts
 May 2008: hired to lift building materials to upper floor of new apartment block
answering  Hilift is aware crane is not performing properly
relevant  Hilift contacts repairs company
questions such  Hilift allows Osman to work before crane is looked at
as:
Who is  Cable in crane snaps
involved?  Causes $75 000 of property damage and delays construction by 3 months
Who suffered?  Osman is traumatized, cannot drive crane again
How?
 Fault in cable would have been discovered by engineer
Could it have
been avoided?

Advise Hilift as to whether, and to what extent, the company will be liable in tort for
 the harm that has occurred.

Consider: Osman, Construction Worker 1, Construction Worker 2 and the building owner
using IRAC.

This shows how many parties must be considered in this report (4 times) and what law must be
considered.

Issue:
Is the company liable in tort for the harm that has occurred to Osman, Construction
Worker 1, Construction Worker 2 and the building manager and to what extent?

Rule
Tort of Negligence:
 The respondent in a civil claim of negligence will only be liable to the
applicant/plaintiff by way of damages if the following elements are
established on the balance of probabilities:
1. That a duty of care was owed by the respondent to the plaintiff in the
relevant situation;
 Here you would cite cases if relevant – specific tests/standards
etc.
2. That the respondent breached that duty of care owed to the plaintiff;
and
 Again, cite case authority and any applicable standards – e.g.
“reasonable person”
3. That the plaintiff has suffered some injury or damage as a result of
that breach.
 Case authority – e.g. the injury must be reasonably foreseeable.

This answer not only states the body of law which will be applied, but also what elements of the law
are of concern and how they will be examined. If you are discussing a tort of negligence, you will need
to address these three issues for each party involved.

Apply – Osman

1. Duty of care?
 Hilift reasonably ought to have been able to foresee, and clearly did know, that
there would be risk that the crane would malfunction or break which would likely
cause physical or psychological harm to the crane operator, if he did not wait for
Attention to the maintenance / repairs company.
detail is o This is supported by the fact that the other operator, Elwyn, notifies the
important. manager of Hilift after his shift recommending that the crane needs to be
These facts looked at.
establish
that Hilift
did breach
duty of care
to Osman.
 o This is also supported by the fact that the manager contacts the
maintenance company: if he did not perceive there to be a risk, why did he
contact the maintenance company and request a consultation
"immediately"?
 While a person is not generally liable in tort for psychological harm, this is a Highlighting
special case under the "pure mental illness" exception, whereby the plaintiff, exceptions and
extenuating legal
Osman, witnessed the two construction workers being severely injured practices is good
Proper citation.  Neighbour principle: Established a duty of care between employer and practice when
Excellent use of a employee in Wilson & Clide Coal Co LTG v English (1938): employers owe discussing any
legal precedent. employees a duty of care to provide a safe working environment, and Paris law.
v Stepney Borough Council (1951).

2. Breach?
 Standard of care: the “reasonable man” definitely would have believed there to be
a real and foreseeable risk that the plaintiff might be injured if the crane
malfunctioned or broke
 The “reasonable man” would have waited the two hours for an engineer from EFL
Engineering to check the crane.
 The “reasonable man” would have exercised a much greater standard of care,
particularly as the crane was lifting building materials to upper floors and the
consequences if the crane malfunctioned were very serious.

3. Damage?
 Osman was “deeply traumatized” and cannot drive a crane again
 He received psychiatric treatment and would eventually take lower paid work.
Make note of  Causation: if Hilift had waited for EFL Engineering, the cable would not have
the various snapped and would not have caused Osman’s psychological injury. (“But for”
strategies test)
which could  Foreseeability: Hilift ought to have foreseen that if he did not wait for the EFL
be invoked to
help guide Engineering consult, that the crane could malfunction and this malfunction would
the process. be likely to cause injury or death to others and consequently cause a severe risk of
physical or psychological harm to the crane operator.

Conclusion - Osman
 Hilift would be liable in tort for the psychiatric injury to Osman, but is unlikely to
be liable in tort for the compensation for Osman’s reduced salary after the Although
unnecessary, in
accident because established in Kyogie shire Council v Francis (1989) that it is some instances
not permissible for the court to award damages to compensate the injured for it may be
profits they may have earned if not for the negligent conduct. useful to draw
on precedent
cases in your
conclusion.
Apply – Construction worker 1 (Amputee)

1. Duty of care?
  Hilift reasonably ought to have known that there would be a (not insignificant)
risk that the crane would malfunction or break, which would, in turn, be likely to
cause severe damage or injury to workmen below.
o Supported by Hilift’s contact with the maintenance company: if he did not
perceive there to be a risk, why did he contact the maintenance company and
request a consultation “immediately”?
 Neighbour principle: Established a duty of care between employer and employee
in Wilson & Clide Coal Co Ltd v English (1938): employers owe employees a
duty of care to provide a safe working environment, and Paris v Stepney Borough
Rather than Council (1951).
rewriting the
same facts
word for word 2. Breach?
the author  See “Breach” in Apply – Osman
refers readers  The likely seriousness of the consequences of Hilift continuing construction
to where the without waiting for the engineer were extremely serious as the crane was handing
passage can be
found heavy materials at a high altitude, which suggests Hilift ought to have exercised a
elsewhere. higher standard of care.

3. Damage?
 The snapping of the cable caused direct, severe injury to the construction worker,
requiring amputation of both legs.
 Causation: If Hilift had waited for EFL Engineering, the fault in the cable would
have been detected and fixed, and the construction worker would not need to be
amputated.
 Foreseeability: Hilift ought to have foreseen that if he did not wait for the EFL
Engineering consultant, the crane could malfunction and this would be likely to
cause severe injury or death to construction workers working on lower floors.

Conclusion – Construction Worker 1

 Hilift would be liable in tort to pay compensation for the costs incurred by
Construction Worker 1 due to that hospitalisation and forced amputation of both
legs, and possibly even “consequential mental harm” depending on the mental
health of Construction Worker 1.

Apply – Construction Worker 2

1. Duty of care?
 see “Duty of care” in Apply – Construction Worker 1*

2. Breach?
 Standard of care: the “reasonable man” definitely would have believed there to be
a real and foreseeable risk that the plaintiff might be injured if the crane
malfunctioned or broke.
 The “reasonable man” would have waited the two hours for an engineer from
EFL Engineering to check the crane.
  The “reasonable man” would have exercised a much greater standard of care,
particularly as the crane was lifting building materials to upper floors and the
likely seriousness of the consequences if the crane malfunctioned.

3. Damage?
 The snapping of the cable hospitalised Construction Worker 2 for an extended
period of time and serious injuries.
 Causation: If Hilift had waited for EFL Engineering, the fault in the cable would
have been detected and fixed, and the construction worker would not need to be
hospitalised.
 Foreseeability: Hilift ought to have foreseen that if they did not wait for the EFL
Engineering consultation, the crane could malfunction and this would be likely to
cause severe injury or death to construction workers working on lower floors.

Conclusion – Construction Worker 2

 Hilift would be liable in tort for compensation for the costs incurred by
Construction Worker 2 for the hospitalisation due to Hilift’s negligent inaction by
allowing Osman to continue work on a faulty crane.

Apply – Building Manager

1. Duty of care?
 Hilift ought to have foreseen that if the crane was faulty, it would likely cause
damage to the building
 Duty of care: professional persons (Hilift) owing a duty to client (building Excellent use
owner) established in Hill v Van Erp (1997). Analogous situation: manufacturers of supporting
(Hilift) owing a duty to eventual consumer (building owner) established in evidence.
Donohue v Stevenson (1932).

2. Breach?
 Standard of care: the “reasonable man” definitely would have believed there to be
a real and foreseeable risk that the building would be damaged if the crane
malfunctioned while handing heavy building materials.
 The “reasonable man” would have waited the two hours for an engineer from the
EFL Engineering to check the crane.

3. Damage?
 The building will cost $75 000 to repair
 Construction is delayed by three months; expected income from tenants during
this period is lost.
  Causation: If Hilift had waited for EFL Engineering, the fault in the cable would
have been detected and fixed, and the building would not need to be repaired, nor
will construction be delayed 3 months.
 Foreseeability: Hilift ought to have foreseen that if he did not wait for the EFL
Engineering consultation, the crane could malfunction and this would be likely to
cause damage to the building.

Conclusion – Building Manager

 Hilift would be liable in tort for the compensation of $75, 000 for the building
repair, but precedent suggests the company will not be liable for compensation for
the expected profits the building owner lost due to the three month delay. This
was established in Kyogle Shire Council v Francis (1989).

Excellent conclusion, drawing on precedent cases and addressing the $75, 000 compensation addressed in the
case outline.