Michael Eburn
Senior Lecturer
School of Law
University of New England
ARMIDALE NSW 2351
What is the issue?
• Is it:
1. ‘Will we be sued?’ or
2. ‘Will we win?’
Why don’t people sue?
• Evidence is that more people could sue than
do.
• Why don’t they sue? We really can’t say.
• Perhaps they:
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do not realise they could seek a legal remedy;
are not able to afford it;
have language barriers;
live in remote areas;
don’t have the time;
couldn’t be bothered;
think their needs are being met by other sources;
the service was what they expected.
Why do people sue?
• For lots of reasons – eg
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To prevent similar incidents occurring in the future;
To know and understand what happened and why;
To obtain monetary compensation; and
To hold individuals and institutions accountable.
Insurance companies
• Right of subrogation.
• They cannot care about the ‘public good’ or
expectations.
• The relevant expectations are what can they
expect from the legal system. Will the
defendant offer something?
On a decision to sue
• Whether or not a person’s expectations have
been met is only one factor that may be
considered when deciding whether or not taking
legal action will be worthwhile.
• The exception will be when the person expects
that the fire brigade will come and quickly
extinguish the fire, and that is in fact what
happened.
The law’s expectations
• These are largely unknowable – even by the
judges.
Kirby J
“One day this Court may express a universal
principle to be applied in determining such cases.
Even if a settled principle cannot be fashioned, it
would certainly be desirable for the Court to
identify a universal methodology or approach, to
guide the countless judges, legal practitioners,
litigants, insurance companies and ordinary
citizens in resolving contested issues about the
existence or absence of a duty of care, the breach
of which will give rise to a cause of action
enforceable under the common law tort of
negligence.”
Graham Barclay Oysters v Ryan (2002) 211 CLR 540 [211].
And later…
“… a duty of care will be imposed when it is
reasonable in all the circumstances to do so.”
Reasonable expectations
• Are not part of modern tort law.
• To determine if a duty arises we look at the
‘salient features’ between the plaintiff and the
defendant.
• Two of them are vulnerability and control:
Was the plaintiff vulnerable?
Was the defendant able to control the hazard?
NSW v West
[2008] ACTCA 14 (5 September 2008) [26] and [27] (Higgins CJ).
“A bushfire hazard is clearly a danger to persons
and their property and only an organised, trained
and equipped service such as the Rural Fire
Service could have any prospect of averting
danger from a serious bushfire.
The vulnerability of the prospective victims is selfevident, particularly if they are or may be assumed
to lack the resources to protect themselves.”
Are they reasonable
‘expectations’?
• “Prepare, stay and defend or leave early” policy is
predicated on the assumptions
1. There may not a fire appliance to come you’re
way and
2. You are not helpless if you take responsibility
for your fire plan.
Fire Brigades Act 1989 (NSW)
s 11.
“... despite anything to the contrary in any Act, proceed
with all speed to the fire and try by all possible means
to extinguish it and save any lives and property that are
in danger.”
Breach of duty
• Based on the standard of the reasonable
person, not what the plaintiff expects.
• None of us are the ‘reasonable person’
• We all make mistakes – it is not reasonable to
expect anyone to be perfect 100% of the time,
but that is no defence.
Some cases – what does the
law expect?
Case
Highest court
Approximate time to
finalisation
5 years
Nelligan v Mickan
Court of appeal (SA)
Keller v MAS and Victoria
Gardner v NT
Supreme court
High Court of Australia
8 years
10 years
Neal v NSW Ambulance
West v NSW
Court of appeal
High Court of Australia
NSW v Tyszyk
High Court of Australia
7 years
6 years and still a
long way to go
5 years
The cases
• Often decide on the issue of ‘duty’ that is (in
short) there is no duty to rescue.
• They don’t then have to decide ‘breach’ (ie was
the service ‘reasonable’).
• The issue of when a statutory authority
established for the greater good owes a duty to
an individual is complex, but does not depend
on ‘expectations’.
Other cases
• Are decided on the question of breach or
causation so they don’t have to deal with the
tough question of duty!
• So the tough questions aren’t answered.
West v NSW
• Will be a defining case. The critical issues will
be was there a duty and if so what was it a duty
to do.
• Over 3000 other cases ‘waiting in the wings’!
Conclusion
• Managing expectations will only have a
marginal legal impact.
• It may be partially relevant to the question of
whether on not a person sues; and marginally
relevant to whether or not they win.
• Other factors motivate the litigant – particularly
insurers.
• ‘Expectations’ are not formally part of the legal
tests.