Anns v London Merton Borough Council (1978)
• House of lords distinguished between policy and operational decisions stating liability should attach to operational only
• problem with foundations of house, authority held responsible for failing to inspect property
Timbs v Shoalhaven City Council [2004] NSWCA 81 (1 April 2004)
• Deceased killed by falling tree, Council had, refused consent for removal of tree and further said that the tree was safe. In reliance upon that the deceased took no steps to cut the tree down
• Applying the same rules of civil liability to the actions of public authorities or corporation
• Council liable as it should have had expert knowledge
The Rule of Law and Public Authorities Sutherland Shire Council v Heyman (1985)
Tort Law
HCA declined to follow Anns, majority held that a statutory authority is under no general common law duty to exercise its statutory powers, however duty could arise in cases of specific reliance where the authority acts in a way to lead the pf to believe that it will exercise its power for his or her protection and the pf acts to his or her detriment in reliance
Mason J “There is, accordingly, no reason why a public authority should not be subject to a common law duty of care in appropriate circumstances in relation to performing, or failing to perform, its functions, except in so far as its policy-making and, perhaps, its discretionary decisions are concerned”
However the majority held that general reliance does not exist
Mis Feasance – Bad doing Non Feasance – Not doing
Generally Non feasance only gives rise to liability where a special relationship exists Powers and Duties
Duty: The obligation to act
Power: The power holder has a freedom of choice to act Ultra vires- beyond power
The Planning & Operational Dichotomy Planning decisions
Are based on the exercise of policy options or discretions
In general, a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints
Operational decisions
The implementation of policy decisions subject to the duty of care
L v Commonwealth
sexual abuse in prison, D held liable for operational failures Parramatta CC v Lutz (1988)
• failure to order the demolition of building P’s property catches fire
• Conclusions on the Basic Concepts: Ann’s Case
• Intra Vires + Policy = Not actionable, Ct. will not interfere
• Ultra Vires + Policy = Actionable, Ct will assess whether Neg or not
• Not policy but Operational = Actionable, Ct will assess
Tort Law
Australian Approaches to the Liability of Public Authorities:
Sutherland Shire Council v Heyman(1985):
Majority: Mason, Brennan & Deane JJ
In general no duty to exercise statutory powers
Duty will arise where authority by its conduct places itself in a position where others rely on it to take care for their safety. duty arises where D ought to foresee a) Pl. reasonably relies on D to perform function
b) P will suffer damage if D fails.
Mason J: concept of General Reliance Parramatta City Council v. Lutz (1988)
Maj of NSW Court of Appeal: Kirby P & McHugh JA
D held liable P because P had “generally relied” on council to exercise its
statutory powers. “I think… that this Court should adopt as a general rule of the common law the concept of general reliance
Pyrenees Shire Council v. Day (1998)
fish and chips shop with faulty chimney causes damage
Maj: Brennan, CJ, Gummow, Kirby, JJ
rejected concept of General Reliance (too vague, uncertain, relies on “general
expectations of community”)
(Only McHugh, Toohey, JJ approved and applied concept of General Reliance)
Brennan, CJ: No specific reliance by P here duty arises where “Authority is empowered to control circumstances give rise to a risk and where a decision not to exercise power to avoid a risk would be irrational in that it would be against the purpose of the statute.
Majority: Rejected concept of general reliance
Crimmins v. Stevedoring Industry Finance Committee (1999) 167 ALR 1
Issue whether the stevedoring industry owed a duty to waterside workers to warn of asbestos, association established by legislation to promote waterfront reforms the association had the power to warn but was not the employer of the workers - defendant owed P a duty of care
McHugh J, Gleeson CJ agreeing gave the following factors to consider:
1. was it RF that Ds act or omission include failure to exercise stat power would cause injury? (today s42 of the CLA would be looked at)
2. Did D have power to protect a specific class including the P (rather than Public at large)?
3. Was Pl vulnerable? (relates to duty- Perre v Apand)
4. Did D know of risk to specific class including P if D did not exercise power?
5. Would duty impose liability for “core policy making” or “quasi-legislative”
functions?
Tort Law
6. Are there Policy reasons to deny Duty (eg duty inconsistent with Statutory scheme)?
Refer to ss42 & 43 in relation to questions Great Lakes Shire Council v Ryan (2002)
• Oysters grown in lake and P got Hep A along with 400 other people
In a novel case involving a statutory authority the issue of duty should be determined by following questions:
1. was it RF that act or omission would cause injury???
2. Did D have power to protect a specific class including P?(rather than public at large)
3. Was P vulnerable?
4. Did D know (or ought D have known) of risk?
5. Would duty impose liability for “core policy making” or “quasi legislative”
functions? if so then NO duty
6. Are there Policy reasons to deny duty?
Voli v Inglewood Shire Council (1963) 110 CLR 74
• Voli was a professional architect Voli failed to provide strong enough bearers for a stage ,thus the stage collapsed
• The High Court said that the architect must use the level of skill attributable to a reasonable architect
Bryan v Moloney
• builders see above, non commercial so vulnreble Woolcock street investments
• Engineers – large company not vulnerable as had the opportunity and means to test themselves, unlike Bryan who was an individual- see above
Mis-feasance and None-Feasance: Highway Authorities The traditional position in Common Law:
Highway authorities owe no duty to road users to repair or keep in repair highways under their control and management.
Highway authorities owe no duty to road users to take positive steps to ensure that highways are safe for normal use.
It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right. (per Dixon J in Buckle v Bayswater Road Board):
See also Gorringe v. Transport Comm. (stautory authorities not liable for nonfeasance in their role as highway authorities)
Tort Law
Misfeasance and non-Feasance: Common Law Developments Brodie v. Singleton Shire Council
Ghantos v. Hawkesbury City Council
The Civil Liability Act (NSW) and Public Authorities Part 5 of the Civil Liability Act (Sections 40 to 46)
Section 42 sets out the principles to determine duty of care exists or has been breached (ie. financial and other resources reasonably available, allocation of resources, broad range of its activities, and compliance with the general procedures and applicable standards)
Section 43: act or omission not a breach of duty, unless it so was unreasonable that no authority having the functions in question could properly consider it as reasonable.- look to other councils
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
Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512- in Brodie they found for the pf and in Ghantous they found for the df council in Broadie the case was about a 22 ton truck going over a 50 year old bridge in Ghantous pf fell on footpath because of uneven footpath
Broadie: where the govt provides a facility it is assumed that they are reliable
Lord Nicholls noted in Stovin v Wise (1996)
“…the recognized legal position is that the bystander does not owe the drowning child or the heedless pedestrian a duty to take steps to save him. Something more is required than being a bystander. There must be some additional reason why it is fair and reasonable that one person should be regarded as his brother’s keeper and have legal obligations in that regard.”
Council can choose whether to exercise its powers but it must carry out its duties
LIABILITY FOR DEFECTIVE STRUCTURES
Tort Law
Builders, developers, engineers, architects, (as non-occupiers) all owe a DUTY of CARE to visitors or occupiers of negligently constructed buildings ( basic principles of negligence apply)
Woolcock v CDG [2004]
• builder of defective commercial building does not owe a duty of care to a subsequent owner of that building
• different to Bryan v Moloney as there was no element of vulnerability and the pf could have properly inspected the property before purchase and had the
resources to do so Bryan v. Maloney
• Defective Structures and the Liability of Public Authorities Pyrenees Shire Council v Day
• Move away from general reliance
Nervous Shock-
Duty to avoid psychiatric injury Jaensch v Coffey• “ sudden sensory perception: that is by seeing hearing or touching of a person, thing or event which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognisable psychiatric illness” Brennan J.
• This was accepted as the general definition, the courts applied it fairly rigidly.
Mt Isa Mines v Pusey
• Windeyer J: “it is today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind”. Or other emotions that might be suffered in given circumstances. By lasting he means ‘medical’. (5)
Swan v Williams
Samuels J: held an abnormal grief reaction not a psychiatric illness & so no claim in nervous shock
Priestly & McHugh JJ held abnormal grief reaction was sufficient to ground a claim.
Andrewartha v Andrewartha SASC (6:20)
Depressive illness resulting from the prolonged stress of caring for a disabled wife not nervous shock, because it was not caused by shock. There was no shock element.
Would be different today
Tort Law
Development of the Duty of Care
Coultas v Victorian Railway Commission- near accident- old rule that recovery for nervous shock only where P physically injured
Dulieu v. White and sons (1901): P’s nervous shock result of fear for own safety
• court allowed this because P apprehended harm
Hambrook v Stokes Brothers (1925): recovery for nervous shock caused by fear for relative’s safety
Chester v Waverley Municipal Council (1939): P’s son drowned in an excavation in the street left inadequately fenced P was present where his body was dragged out of trench
• court held that the mother’s reaction was not reasonably foreseeable
• criticised by Deane J in Jaensch v Coffey (1984) – different today
Dooley v. Cammell Laird; P was a crane driver, because of D’s negligence, there was a falling load from the crane, and he feared for safety of fellow workers and got nervous shock. Court awarded damages
Mt Isa Mines v. Pusey (1971)– P saw a badly electrocuted workmate who died despite P’s rescue attempts
• HCA held that the P psychiatric damage was not too remote a consequence
• Mental disturbance of some kind was foreseeable the extent is irrelevant Chadwick v. British Transport Commission (1967) Chadwick was a man who lived near to a railway line, when there was a severe crash between two trains. Chadwick was one of the first on the scene. He climbed into the wreckage of the train, and even though he couldn’t do much, he offered comfort & solace to those in the wreckage. Sometime later, he developed a psych disorder as a result.
• Courts allowed recovery even though he was not a ‘real’ rescuer
Jaensch v Coffey (1984)
P suffered psych damage as her husband injured and taken to hospital
• The aftermath of the accident “up to & including immediate post accident treatment”.
• Deane J said she could recover for her injury if she was involved in the aftermath of the accident
• No requirement that P actually witness the accident to claim nervous shock ____________________________________________________________________
Alcock v Chief Constable –
English case of over crowded stadium. More than 100 people were killed.
• Alcock was a group of P’s, including some who watched it on TV.
Tort Law
• House of Lord made a distinction between primary & secondary victims.
(Australia has not taken these) Lord Oliver of Aylmerton:
Primary victim: “involved either mediately or immediately as a participant”
Secondary victim: “no more than the passive and unwilling witness of injury caused to others”
Damages not awaded to those who witnessed the accident on TV White & Others v Chief Constable of South Yorkshire
H.L 3.12.98
• Police were not rescuers but gave assistance to the injured.
• Police were never in physical danger themselves (cf Chadwick v. British Railways Bd. (1967) 1 QB 912)
Trinidad v Cane- Broadcasting authorities are exempt from being sued for psychiatric harm caused by what they show
Tame v Morgan (2002)– P had a blood alcohol level of nil. Morgan was a police constable and had accidentally switched blood alcohol reports. The error was rectified and an apology given. P was very upset about it and suffered a psychiatric illness.
• HC also found for D that there was no duty of care. not foreseeable that a person would react as Tame did due to the officer’s error.
• Only persons of normal fortitude are reasonably foreseeable.
Annetts v Australian Stations Pty Ltd (2000)- A WA case. Mr & Mrs Annetts were parents of a 16yo boy who went to work on a very large cattle station in WA. Parents were assured that he would be supervised and safe. He was then later stationed to work in a remote place alone. He and another boy in the same situation went missing. Their bodies were later found.
Parents suffered severe illnesses from seeing remains and gradual finding of evidence.
• HC, Sudden shock not a necessary pre-condition to recovery
• Annetts held that the direct perception of the event or aftermath is not always a necessary pre-condition for recovery.
• Pre existing relationship (parents)
CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY ) Act 2002 Part 3 mental harm
S27 Pure mental harm is distinguished from consequential mental harm.
Consequential mental harm Pure mental harm
Tort Law
S.30 (1) Limitation on recovery for pure mental harm “arising …from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril…”
S30. Plaintiff is not entitled to recover damages for pure mental harm unless:
P witnessed, at the scene, the victim being killed, injured or put in peril or P is a close member of the victim’s family (parent, person with parental responsibility, spouse , partner, child, stepchild, or other person for whom the victim has parental
responsibility, brother, sister, half-sibling, step-brother, step-sister…)
Damages to be reduced by same proportion as damages recoverable by victim for contrib.. neg of victim (9)
No damages if victim prevented from recovery by any provision of this act or any other written or unwritten law (9:20)
S30 must be read with s31 & s32
S 31. (1) D “does not owe a duty of care…not to cause …mental harm unless D ought to have foreseen that a person of normal fortitude might in the circumstances of the case…suffer a recognized psychiatric illness…
(2) The circumstances of the case include whether or not the mental harm was…the result of a sudden shock whether P witnessed at the at the scene a person being killed, injured or put in peril…
nature of the relationship between P & any person killed, injured etc whether there was a pre-existing relationship between P & D.
The wording that says “include” means that it is not an exhaustive list. (12:30)
When the sections are read together, it means that you must establish a duty of care, AND that you were either a close relative or you were at the scene. The category of persons is therefore significantly narrower at legislation than at common law. S30 &
32…(14)
Question (15:15)
Seedsman v NSW (2000)
• Employer & employee case. Seedsman was a new Policewoman and was straight away placed to work in a child abuse unit that the police had. On her first day she witnessed several horrific scenes and suffered from post traumatic stress disorder. She had received no counselling or training whatsoever.
• Court said that the employer did owe her a duty of care to protect the proper counselling & training.
• No ‘single shock’
Tort Law
Omissions
Duty to Rescuers Death
A MERE OMISSION : where the failure to act is the only conduct causally linked to the P’s loss is generally not actionable
BUT where the omission takes place in the course of a larger activity it is not a mere (or pure) omission and is actionable (eg: failure to stop at a red light).
NOTE: In some circumstances there will be a legally recognized pre-existing duty to take positive action (eg; occupier of land or premises)
–Mere/’neutral’ omissions are not actionable unless the D is under a pre-existing duty to act – ie, no duty of care relationship.
If you are meant to take care, then there is a duty relationship, and then the omission becomes a negligent omission which is actionable.
Negligent Omissions: The Scope
Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29
• P, was seriously injured when struck by a motor vehicle.P had been consumed a large amount of alcohol at the premises operated by D. According to the club, they had stopped selling her alcohol because she was drunk. They also claimed to offer her transport home, which she refused. P argued that the club shouldn’t have allowed her to leave while she was so drunk.
• P’s appeal to the HCA was dismissed
• D had taken reasonable steps to ensure her safety
Tort Law
• Heydon J – “How are customers to be lawfully restrained? If customers are restrained by a threat of force, prima facie the torts of false imprisonment and of assault will have been committed. If actual force is used to restrain customers, prima facie the tort of battery will have been committed as well as the tort of false imprisonment. Further, the use of actual force can be a criminal offence”.
Mercer v Commissioner for Road Transport (1936) 56 CLR 580
• P was a passenger on a tram & was injured when the tram crashed The reason for the crash was that the driver fainted at the wheel The tram was not fitted with the “Dead mans handle” a safety device that is designed to stop the tram if the driver was to faint D argued that no where in the world, was a “Dead mans handle” fitted on a two man tram, thus there was no need for the device in this instance, hence there was no negligence, as it was world wide practice to not fit the devices on two man trams
• The High Court held that there was negligence, courts are not bound by industry practice, it is wholly up to courts to decide if something is negligent