TORTS LECTURE 6

1. TORTS LECTURE 6 More Duty of Care - Civil Liability Act- Part 5 Public Authorities- Part 8 Good Samaritans- Part 9 Volunteers Breach of Duty

2. 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.

3. 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

4. Part 5 Liability of Public & Other Authorities • Section 42sets 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: • 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, • the general allocation of those resources by the authority is not open to challenge, • 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), • 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.

5. 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.

6. 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

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. s.45 Actual Knowledge:North Sydney Council –v- Roman [2007] NSWCA 27 • Ms Roman was injured at night when she fell in a pothole half a metre wide and about four to five inches deep in Princes Street, McMahon’s Point on 16 October 2001. She brought proceedings against the Council, alleging that it had been negligent in failing to maintain the road by repairing the pothole. The Council defended the proceedings on the basis that it did not have actual knowledge of the pothole as required by s.45 of the CLA. The evidence established that Council street sweepers regularly swept the gutters in Princes Street in the vicinity of the subject hole. The street sweepers were instructed as part of their induction to identify hazards which needed attention and report them to their supervisor. Ms Roman argued at trial that the street sweepers’ actual knowledge of the pothole could be inferred from the regularity of those duties and from their obligation to identify hazards which needed attention. She also argued that their knowledge was attributable to the Council.

13. s.45 North Sydney Council –v- Roman • The appellant did not call a street sweeper. It did call evidence from their supervisor and from people responsible for repairing potholes. All said they had not known of the pothole. They said that if they had they would have regarded it as a hazard. By the time of the trial the pothole had been repaired. None of the appellant’s witnesses was aware of how it had come to be repaired, nor did the appellant produce any records relating to its repair. The primary judge inferred the street sweepers had actual knowledge of the pothole and that, for the purposes of s.45, their knowledge could be attributed to the appellant. She also found the appellant had breached its duty of care by leaving the pothole in a place where a person getting into or out of a car might reasonably be expected to step. She awarded the respondent $475,485 damages.

14. s.45 North Sydney Council –v- Roman • On appeal the appellant submitted that to find “actual knowledge” for the purpose of s.45 it was necessary that there be a connection between the person with actual knowledge of the particular risk and the person able to, but who failed to, carry out the roadwork which would have avoided the harm which materialised. It argued that even if it was assumed a street sweeper had actual knowledge of the pothole, such knowledge was not sufficient because street sweepers did not carry out repairs.

15. s.45 North Sydney Council-v- Roman • Held, allowing the appeal, per Basten JA (Bryson JA agreeing): • 1. For the purposes of s.45 actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs. • 2. The evidence demonstrated that no Council officer at a decision-making level had “actual knowledge” of the particular pothole and therefore the appellant did not have such knowledge. Accordingly, the exception to s.45 was not engaged and the statutory immunity prevailed. Per McColl JA (dissenting)

16. Parts 8 & 9 Good Samaritans & Volunteers • 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.

17. 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.

18. 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.”

19. 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.

20. 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).

21. 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).

22. 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)).

23. 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.

24. 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

25. 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

26. 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

27. 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

28. Causation 2 stage process is adopted. 5D General principles • A determination that negligence caused particular harm comprises the following elements: • that the negligence was a necessary condition of the occurrence of the harm ( "factual causation" ), and • 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

29. 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: • 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.

30. 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

31. Proof of Negligence – Res Ipsa Loquitor • “The action/thing speaks for itself” • Nominal Defendant v Haslbauer (1967) 117 CLR 448