Transcript TORTS LECTURE 6 Civil Liability Act

TORTS LECTURE 6
More Civil Liability Act
- Part 2 Personal Injury Damages
-Part 4 Proportionate Liability
- Part 5 Public Authorities
- Part 6 Intoxication
- Part 7 Self-defence & Recovery by Criminals
- Part 8 Good Samaritans
- Part 9 Volunteers
- Part 10 Apologies
Breach of Duty
Part 1A Duty of Care – more
commentary
• Section 5B(1) provides a person is not negligent
unless… (b) the risk was not insignificant.
- Wyong Shire Council v Shirt (1980) 146 CLR 40:
risk must be “real” in the sense that a reasonable
person would not “brush it aside as far-fetched or
fanciful.”
- Is “not insignificant” in Section 5B(1)(b) more
restrictive than “not far-fetched or fanciful” in
Wyong Shire Council v Shirt ?
Part 1A Duty of Care – more
commentary
• Recreational Activities – Sections 5J to N
- The NSW Govt could not exclude the
operation of the Trade Practices Act 1974,
although the Federal Govt has done so by
passing The Trade Practices Amendment
(Liability for Recreational Services) Act
2002 proclaimed on 19/12/02
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 2 Personal Injury Damages
• Received assent on 18 June 2002
• Section 11A:
(1) does not apply to claims excluded by
Section 3B (eg. Damages for dust diseases,
use of tobacco products, worker’s
compensation…)
(2) Part 2 applies regardless of whether the
claim is brought in tort, contract, statute or
otherwise
(3) A court cannot award damages, or
interest on damages, contrary to Part 2.
Part 2 Personal Injury Damages
• Economic Loss:
- Maximum for gross loss of earnings = 3 times average
weekly earnings: Section 12
- 5% discount rate for future economic loss: Section 14
• Gratuitous Attendant Care:
- No damages awarded if the services are provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months: Section 15(3)
Geaghan v D’Aubert [2002] NSWCA 260
Part 2 Personal Injury Damages
• Non-economic loss (general damages):
- No damages for non-economic loss unless assessed at 15%
of a most extreme case (eg. 15% = 1% or $3,500, 16% =
1.5% or $5,250, …26% = 8% or $28,000, …33% = 33% or
$115,500): Section 16(1) & (3)
- Maximum non-economic loss = $350,000: Section 16(2)
- Maximum for non-economic loss indexed: Section 17
- Courts/parties may refer to other awards of non-economic
loss in earlier court decisions: Section 17A
Part 2 Personal Injury Damages
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Pre-judgment Interest:
No interest payable on damages for noneconomic loss or gratuitous attendant care:
Section 18(1)
If interest is awarded (eg. Past economic loss),
the “relevant interest rate” is the Commonwealth
Govt 10-year benchmark bond rate: Section
18(4)
Part 2 Personal Injury Damages
•
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3rd Party Contributions:
Where the award against the 3rd Party is not subject to
Part 2 (eg. Dust disease, tobacco use, workers’
compensation…): Section 19
Step 1 Assess percentage of liability between the
defendant and 3rd party (eg. 50/50)
Step 2 Assess damages against the defendant’s under Part
2 (say, $200,000), then apply percentage of liability to
that assessment (50% of $200,000 = $100,000)
Step 3 Assess the non-Part 2 damages against the 3rd party
(say, $100,000), then apply percentage of liability to
that assessment (eg. 50% of $100,000 = $50,000)
Part 2 Personal Injury Damages
Exemplary, punitive & aggravated damages:
•
A court cannot award exemplary, punitive or aggravated
damages: Section 21
•
Note: as intentional torts are excluded from the Act [see Section
3B(1)(a), except re self-defence & recovery by criminals],
exemplary damages may be awarded (eg. False imprisonment)
Structured settlements:
•
Agreement that provides for the payment of all or part of
an award of damages in the form of periodic payments:
Section 22
Part 4 Proportionate Liability
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Part 4 – Sections 34 to 39 remains
unproclaimed.
Claims for pure economic loss or damage to
property (whether in tort, contract or otherwise)
are no longer to be jointly & severally assessed
against multiple Defendants.
The Act uses the term “wrongdoer” and provides
that liability is limited to an amount reflecting
the proportion of the damage or loss that is the
responsibility of that Defendant.
Part 4 Proportionate Liability
•
•
Part 4 applies even where the concurrent wrongdoer is
not a party to the proceedings, no longer exists or where
the concurrent wrongdoer is joined as a Cross Defendant
but not as Defendant.
For example, if 4 parties are equally liable (25% each)
for an economic loss and 2 of the Defendants are not
sued or are insolvent or otherwise not able to meet the
claim, a Plaintiff can only recover from the solvent
Defendants their respective share. [Note that this
provision does not apply to personal injury claims].
Part 5 Liability of Public & Other
Authorities
• Proclaimed on 6/12/02: 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
•
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
•
•
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
Part 6 Intoxication
• Proclaimed on 6/12/02: Sections 47 to 50
• Section 48: Broadly defines as any person under
the influence of alcohol or drugs, whether or not
taken for medicinal purposes and whether or not
lawfully taken.
• Section 49: a court is not to consider intoxication
as giving rise to any higher standard of care on the
part of the Defendant.
Part 6 Intoxication
• Section 50: a court is not to award damages for harm
where the Plaintiff’s capacity to exercise reasonable care
and skill for their own safety was impaired as a
consequence of intoxication and unless the Court is
satisfied that the same harm would have occurred even if
the person had not been intoxicated
: Where an intoxicated Plaintiff overcomes the hurdle of
demonstrating that their intoxication did not contribute to
their harm, there is a presumption of at least 25%
contributory negligence unless the court is satisfied
otherwise.
Part 6 Intoxication
Issues:
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Definition of intoxication extends to prescription drugs.
Is a hospital exempt from taking special care for a patient
when it knows that the side effects of the prescribed drug
are drowsiness or aggression?
Why should hoteliers not have a special duty of care to
patrons?
Why has judicial discretion been removed to assess
contributory negligence?
Part 7 Self-Defence in Recovery
by Criminals
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Proclaimed on 6/12/02: Sections 51 to 54
Section 52(1) & (2): No civil liability for acts in
self-defence of self, another or property,
provided the act of defence is a reasonable
response to the circumstances as subjectively
perceived.
Section 52(3): This section does not apply if the
person uses force that involves the intentional or
reckless infliction of death only to protect
property, to prevent criminal trespass or to
remove a person committing criminal trespass.
Part 7 Self-Defence in Recovery
by Criminals
53 Damages limitations apply even if self-defence not
reasonable response
(1) If section 52 would operate to prevent a person incurring
a liability to which this Part applies in respect of any
conduct but for the fact that the conduct was not a
reasonable response in the circumstances as he or she
perceived them, a court is nevertheless not to award
damages against the person in respect of the conduct
unless the court is satisfied that:
(a) the circumstances of the case are exceptional, and
(b) in the circumstances of the case, a failure to award
damages would be harsh and unjust.
Part 7 Self-Defence in Recovery
by Criminals
• Section 54: A court is not to award damages in
respect of liability where at the time of death,
injury or damage the Plaintiff was engaged in
conduct that (on the balance of probabilities)
constitutes a serious offence.
- A "serious offence" is an offence punishable by
imprisonment for 6 months or more.
- This section operates whether or not the offence
has been prosecuted and proved.
- The criminal conduct must have contributed
materially to the risk of death, injury or damage.
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
•
•
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.
Part 10 Apologies
• Proclaimed on 6/12/02: Sections 67 to 69
• Section 68: Defined as an expression of
sympathy or regret, or of a general sense
of benevolence or compassion, in
connection with any matter whether or not
the apology admits or implies an
admission of fault in connection with the
matter.
Part 10 Apologies
•
Section 69(1): An apology …
(a) does not constitute an express or implied
admission of fault or liability by the person in
connection with that matter, and
(b) is not relevant to the determination of fault or
liability in connection with that matter.
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.
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
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