Transcript Emergency Management for Local Government Legal Issues

Emergency Management for Local
Government
Legal Issues
Michael Eburn
ANU College of Law and Fenner School of Environment
& Society
Emergency Management
Legal issues for local government?
• Prevent
• Prepare
• Respond
• Recover
Areas of law
Administrative law
• Review of decision making.
Criminal law
• Leads to punishment – fines and gaol – not really
relevant here.
• Inquests and inquiries
Tort
• negligence, misfeasance in public office,
nuisance etc.
• Leads to the award of $.
Inquiries
• Royal Commission
• Coronial inquests
• Not meant to be adversarial – but often are.
Tort - Negligence
1.
2.
3.
An action in negligence raises three questions:
Did the defendant owe a duty of care?
Was there a breach of that duty?
Did the breach cause the plaintiff’s damage?
Duty of care
• Doesn’t arise just because a statute says someone must
or may do something.
• Difference between statutory duty and statutory power.
• An obligation to an individual must be consistent with the
Act.
• “… the path to defining the circumstances in which a duty
of care is owed by one party to another has been a long
and tortured one, and has, as yet, no end.” (Makawe Pty
Limited v Randwick City Council).
• Note the judgment of Alsop P – there are 18 factors to
consider.
Prevent
• Land use planning
• Raises issues of:
• Information – letting people know they are in a flood
risk?
• Restrictions – planning to avoid disaster – can you
build on the flood plain? What can you build?
• What can you do to protect your own property? Is selfhelp allowed? Is it OK to clear those trees?
Examples
• Failure by a council to give accurate, or any, information
about known risks of exposure to aircraft noise (Port
Stephens v Booth and Gibson [2005] NSWCA 323) and
contamination (Armidale City Council v Finlayson [1999]
FCA 330 ) has led to liability.
• No cases of liability for releasing accurate hazard
information.
• May be liability for inaccurate or misleading information
(Port Stephens v Booth and Gibson)
Is there liability…
• Wollongong City Council v Fregnan [1982] 1 NSWLR 244.
a Council “… which follows the practice of supplying
information upon which the recipient is likely to rely in
circumstances in which it is reasonable for him to do so is
under a duty to exercise reasonable care that the
information given is correct.”
Makawe Pty Limited v Randwick City Council
[2009] NSWCA 412
• Council approved a development where the car park was
below the water table and so was subject to flooding. Was
the council liable to the ultimate purchaser?
• No – but the issue isn’t easy. In that case the developer
knew of the risk; they drew up the plans and identified the
problem and the proposed solution. The council weren’t
‘in control’ and were exercising their statutory power to
approve the development, not to approve a good
development.
• Caveat emptor?
Response
• Response by Councils?
• Have to respond to maintain their services.
• What law is relevant?
• Consider Queensland 2011? Is ‘law’ the issue?
• Response by State agencies
• SES, RFS? Link with councils may be different across
jurisdictions. Who’s ‘in control’?
Recovery
• Recovery centres?
• The Volunteers?
• What are the duties? What could go wrong?
Breach of duty
• Duty is only to act as the ‘reasonable’ defendant.
• It is not a duty to guarantee safety.
• The reasonable defendant is not the average defendant –
a legal fiction.
• Be careful not to apply the ‘retrospectoscope’
Wyong Shire v Shirt
(1980) 146 CLR 40 [14]
... the reasonable man's response calls for a consideration of
the magnitude of the risk and the degree of the probability of
its occurrence, along with the expense, difficulty and
inconvenience of taking alleviating action and any other
conflicting responsibilities which the defendant may have.
Gardner v NT [2004] NTCA 14
... this Court must be careful not to impose unreasonable
expectations and unreasonable duties which are based
more on hindsight and a lack of appreciation of the
practicalities and difficulties that exist … than a realistic
assessment of the care which a reasonably prudent person
would exercise in these circumstances.
Vairy v Wyong Shire Council
[2005] HCA 62
The duty of care which a council owes … is a duty which is
not limited to taking reasonable care to prevent one particular
form of injury associated with one particular kind of …
activity.
Civil Liability Acts
There is only liability if you fail to act as the
reasonable authority.
The Court must look at:
(a) the probability that the harm would occur if
care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the
risk of harm,
(d) the social utility of the activity that creates the
risk of harm.
Damage
Did the actions/failure cause the damage?
What difference would it have made if some other action had
been decided upon?
Our scenario
Can you apply these principals?
Do the defendants owe a duty of care to the
plaintiff?
Did they cause the damage?
NOTE: Legislation in all States and Territories
impacts on the liability of volunteers and
organisations that have volunteer member (eg
RFS/Salvation Army). We need not concern
ourselves with that here.
Summary – duty of care
• A statutory authority, CAN owe a duty of care.
• But – must be consistent with the statute
• The exercise of ‘quasi-legislative’ powers are beyond
judicial review and cannot be subject to a duty of care,
neither can decisions regarding ‘… the raising of revenue
and the allocation of resources…’
Legislation
ACT, NSW, Qld, Tas, Vic and WA
a) the functions required to be exercised by the authority
are limited by the financial and other resources
b) the general allocation of resources is not open to
challenge,
c) The court must consider the whole range of functions
that the authority has to perform.
The little‘take home’ message
Emergency management is subject to law;
Legal risk varies with degree of control and impact on
individuals. Hard to see any tort issues with ‘planning’ and
‘preparation’, may be low risk at ‘response’, higher at
‘recovery’.
The big ‘take home’ message
There are legal risks but
There are legal risks in everything we do…
Nothing can guarantee you wont be sued
Nothing can guarantee you’ll win if you are but
The best answer is risk management
Litigation is a dispute resolution process
Being sued is a an opportunity to explain your position – to
identify your processes.
Don’t worry about the law … focus on achieving good
outcomes for your community.