Transcript TORTS LECTURE 6 Civil Liability Act Breach of Duty

TORTS LECTURE 6
More Duty of Care - Civil Liability Act
- Part 5 Public Authorities
- Part 8 Good Samaritans
- Part 9 Volunteers
Breach of Duty
Part 1A Duty of Care – more
commentary
• Recreational Activities – Sections 5J to N
- Issues of concern:
Is the commercial incentive for the safe provision
of recreational & commercial activities gone?
What real bargaining power do consumers have in
negotiating a contractual waiver?
Definition of recreational activity is broad and
ambiguous.
Part 5 Liability of Public & Other
Authorities
• Sections 40 to 46
• Provides specific additional protection for
public authorities including:
- the Crown
- Government departments
- Local councils
- Other prescribed bodies
Part 5 Liability of Public & Other
Authorities
•
Section 42 sets out the principles to apply in
determining whether a public or other authority has a
duty of care or has breached a duty of care including:
(a) the functions required to be exercised by the authority are limited by
the financial and other resources that are reasonably available to the
authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open
to challenge,
(c) the functions required to be exercised by the authority are to be
determined by reference to the broad range of its activities (and not
merely by reference to the matter to which the proceedings relate),
(d) the authority may rely on evidence of its compliance with the general
procedures and applicable standards for the exercise of its functions
as evidence of the proper exercise of its functions in the matter to
which the proceedings relate.
Part 5 Liability of Public & Other
Authorities
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Section 43: an act or omission by an
authority does not constitute a breach of a
statutory duty, unless the act or omission
so was unreasonable in the circumstances
that no authority having the functions in
question could properly consider the act or
omission to be a reasonable exercise of it
function.
Part 5 Liability of Public & Other
Authorities
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Section 44: Removes the liability of public
authorities for failure to exercise a regulatory
function if the authority could not have been
compelled to exercise the function under
proceedings instituted by the Plaintiff.
Section 45: Restores the non-feasance protection
for highway authorities taken away by the High
Court in Brodie v Singleton Shire Council
Council; Ghantous v Hawkesbury City Council
(2001) 206 CLR 512
S45 – Hwy Immunity
• Porter v. Lachlan Shire Council [2006] NSWCA
126
• The appellant suffered a fractured right ankle when he
accidentally put his foot into a hole in the nature strip
between the made footpath and the gutter of a street in
Condobolin.
• The primary judge held that, but for s45 of the Civil
Liability Act 2002, he would have found the Council liable
on the ground that it should have known about the hole;
but he was not satisfied that the Council had actual
knowledge of it.
s45 - Porter v. Lachlan Shire Council
• 45 Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil
liability to which this Part applies for harm arising from a
failure of the authority to carry out road work, or to
consider carrying out road work, unless at the time of the
alleged failure the authority had actual knowledge of the
particular risk the materialisation of which resulted in the
harm.
...
• (3) In this section:
carry out road work means carry out any activity in
connection with the construction, erection, installation,
maintenance, inspection, repair, removal or replacement of
a road work within the meaning of the Roads Act 1993.
roads authority has the same meaning as in the Roads Act
1993.
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA agreeing)
• 34 In my opinion, this case does come within s45, on either of two
bases.
35 First, where that part of a road used for pedestrian purposes has
been altered by the installation of a footpath and a gutter, leaving what
may be called a nature strip in between, it is in my opinion an unduly
narrow view of what constitutes a road work to say that, while the
made footpath is a road work and the gutter is a road work, the nature
strip between them is neither a road work nor part of a road work. In
my opinion the better view is that the whole of the area for pedestrian
purposes, comprising the made footpath, the nature strip and the gutter,
comprises a road work.
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA agreeing)
• 36 Second, in any event, where there is a hole in that part of a road
which is a nature strip within the area used for pedestrian purposes, it
would be road work to fill and make good that hole. That view is not in
my opinion precluded by the use of the words “constructed” and
“installed” in the definition of road work in the Roads Act, which,
unlike the relevant definition in s45 of the Civil Liability Act, is an
inclusive definition and not an exhaustive definition. Once it is
accepted that to fill and make good the hole would be road work, then
the question would arise whether failure to do this would be failure to
“carry out any activity in connection with the construction, erection,
installation, maintenance, repair or replacement of a road work” within
s45(3). In my opinion, it would be: although the words “construction”
and “installation”, and the indefinite article “a” in front of “road
work”, could be taken as inapt for the filling and making good of a
hole, on balance I think it would be too narrow an approach to hold
that the words do not extend to such activity.
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA
agreeing)
• 37 On either basis, s45 applies: on the first
basis, the allegation would be that the
respondent failed to maintain a road work,
and on the second basis, it would be that the
respondent failed to construct or install a
road work.
Parts 8 & 9 Good Samaritans &
Volunteers
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Proclaimed on 6/12/02: Sections 55 to 66
Parts 8 & 9 operate to protect Good Samaritans
and volunteers.
Section 58: no protection if the Good Samaritan
is under the influence of alcohol, impersonating
a police officer or falsely representing that they
have skills or expertise in providing emergency
assistance.
Parts 8 & 9 Good Samaritans &
Volunteers
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Section 60: Defines community work to mean work that
is not for private financial gain and that is done for a
charitable, benevolent, philanthropic, sporting,
educational or cultural purpose. It excludes community
service orders imposed by a court.
Section 61: No civil liability for a volunteer doing
community work but does not extend to criminal acts,
acts whilst intoxicated, a volunteer failing to exercise
reasonable care and skill, actions outside the scope of the
charitable organisation or contrary to instructions, where
the volunteer is required by State law to be insured or
motor vehicle accidents.
Breach of Duty – General
Principles
• Wyong Shire Council v Shirt (1980) 146 CLR 40 per
Mason J:
“In deciding whether there has been a breach of the duty of
care the tribunal of fact must first ask itself whether a
reasonable man in the defendant’s position would have
foreseen that his conduct involved a risk of injury to the
plaintiff… If the answer is in the affirmative, it is then for
the tribunal of fact to determine what a reasonable man
would do… The perception of 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.”
Breach of Duty – Civil Liability
Act
• Section 5B(2) In determining whether a reasonable person
would have taken precautions against a risk of harm, the
court is to consider the following (amongst other relevant
things):
– (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.
s.5B(2) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 45 The matters set out in s5B(2), in substance, are a reiteration of
Mason J’s remarks in Wyong Shire Council v Shirt (1980) 146 CLR
40 at 47-48. ...
• 51 Section 5B(2) provides a framework for deciding what precautions
the reasonable person would have taken to avoid the harm and
involves weighing the factors set out in ss5B(2)(a) and (b) against
those in ss5B(2)(c) and (d) (subject, of course, to each being applicable
in the particular circumstances of the case).
• 52 In my opinion, the probability as to whether a reasonable person
would have taken precautions against a risk of harm (referred to in
s5B(2)(b)) must be considered objectively by reference to the
particular circumstances of the case (and the state of mind of the
defendant is not relevant to this inquiry).
s.5B(2) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 53 ... s5B(2)(a) requires consideration to be given to the
objective probability of harm occurring if care were not
taken. In my view, there was a reasonable possibility of
harm occurring if the fence and undergrowth were not
removed and children were not prevented from using the
fence or the undergrowth as a stepping stone to gain access
to the roof. By s5B(2)(a), this possibility must be taken
into account.
• 54 The likely seriousness of the harm, should the risk
materialise, was severe injury or death (s 5B(2)(b)) (that is,
in consequence of falling from the roof to the ground).
s.5B(2) - Waverley Council v
Ferreira
• 55 Garling DCJ found that the fence served no
practical purpose and in my view he did not
thereby err. There was a gate in the fence and the
gate had no lock. It would not have been difficult
to climb over the fence. There is nothing to
suggest that there was a reason to retain the
undergrowth. Both the fence and the undergrowth
served no apparent utilitarian or aesthetic purpose
and the burden of removing them would have been
small (s 5B(2)(c)).
s.5B(2) - Waverley Council v
Ferreira
• 56 I have already mentioned that s5B(2)(d) (the
social utility of the activity that creates the risk of
harm) is not relevant in this case.
• 57 Weighing the factors set out in ss5B(2)(a) and
(b) against those in s5B(2)(c), I conclude that a
reasonable Council would have taken the
precautions of removing the fence and the
undergrowth and Garling DCJ did not err in so
holding.
Breach of Duty – Likelihood of
Injury
• Section 5B(2)(a) the probability that the
harm would occur if care were not taken
• Bolton v Stone [1951] AC 850
Breach of Duty – Seriousness of
Risk
• Section 5B(2)(b) the likely seriousness of
the harm
• Adelaide Chemical & Fertilizer Co. v
Carlyle (1940) 64 CLR 514
• Paris v Stepney Borough Council [1951]
AC 367
Breach of Duty – Cost of
Avoiding Harm
• Section 5B(2)(c) the burden of taking
precautions to avoid the risk of harm
• Caledonian Collieries Ltd v Speirs (1957)
97 CLR 202
Breach of Duty – Utility of the
Act of the Defendant
• Section 5B(2)(d) the social utility of the
activity that creates the risk of harm.
• South Australian Ambulance Transport Inc.
v Walhdeim (1948) 77 CLR 215
Causation
2 stage process is adopted.
5D General principles
(1) A determination that negligence caused particular harm comprises
the following elements:
(a) that the negligence was a necessary condition of the occurrence of the
harm ( "factual causation" ), and
(b) that it is appropriate for the scope of the negligent person’s liability to
extend to the harm so caused ( "scope of liability" ).
Compare with March v E&MH Stramare Pty Ltd (1991) 171
CLR 506
Causation
Failure to warn cases
5D General principles
(3) If it is relevant to the determination of factual causation to determine
what the person who suffered harm would have done if the negligent
person had not been negligent:
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the matter is to be determined subjectively in the light of all relevant
circumstances, subject to paragraph (b), and
any statement made by the person after suffering the harm about what
he or she would have done is inadmissible except to the extent (if any)
that the statement is against his or her interest.
Proof of Negligence - General
• CIVIL LIABILITY ACT 2002 – s.5E:
Onus of proof
- In determining liability for negligence, the
plaintiff always bears the onus of proving,
on the balance of probabilities, any fact
relevant to the issue of causation.
Holloway v McFeeters (1956) 94 CLR 470
Proof of Negligence – Res Ipsa
Loquitor
• “The action/thing speaks for itself”
• Nominal Defendant v Haslbauer (1967)
117 CLR 448