Breach of Statutory Duty: Problem Q.
Advise all parties of their rights and liabilities in tort.
Parties
Party
NSW Parks and
Wildlife Service
Tort
 Breach of Statutory duty
 Negligence
The South Coast
Green Coalition (&
Ben Boyd)
Sam (Ranger)
 Contributory negligence to
fire
Ben (Protester)
 Intentional Torts (trespass
to person  Assault,
Battery)
 Negligence
South Coast Branch
of Rural Bush Fire
Service
 Intentional Torts (trespass
to person  Assault,
Battery)
Department of Main
Roads
 Negligence
 Trespass to property
Carlo (Bushwalker)
 Death (re: who can sue)
 Negligence
Sue (greenhouse
owner)
Harry (trailer park)
 Negligence
 Trespass to Land
 Pure Economic Loss
Facts
 Statutory authority for Green
National park
 Legislated requirement for
“responsibility for proper care and
maintenance of national parks and
wildlife”
 Protested back-burning
 Threatened Ben “if you are not
careful, we might just burn off
anyway. That’s fix you and your
greeny mates”
 Was assaulted by Ben (Ben through
possum dung at him)
 Threatened by Sam
 Battered Sam
 Statutory authority that
recommended to GNP to back-burn
 Has statutory discretion to require
“hazard reduction”
 Did not choose to use this discretion,
did mail, but not formal application
to back-burn
 Forbidden to smoke
 Smoked anyway
 May have caused bushfire
 Died of smoke inhalation
 Wife was dependant
 Was in park
 Neighbouring land
 Destroyed by fire
 Fire reduced tourism reduced income
Minor Actions
Ben v Sam (Battery)
-
-
-
Sam throwing faeces at Ben would probably constitute a battery
The requisite elements are:
o Intentional (either deliberate, reckless or negligent)
o Direct (requiring immediacy of action, directness of act and lack of an intervening act)
o Contact with the body (requiring a “touch in anger”, with hostility)
Application to facts
o Ben’s act would be considered deliberate, “responded by throwing ... dung at Sam”
 This would satisfy that the act was intentional (Holmes v Mather?)
o Direct  causation. There is no issue of causation or novus actus interveniens
 Satisfying directness (Hutchins v Moughan)
o Contact with the body
 Missile touch is still a touch (Pursell v Horn  water splashing, considered battery, no need
to establish touch, other than by the water)
It is most likely that Ben would succeed in this claim
Provocation is not available as a defense in tort
Sam v Ben (Assault)
-
-
-
Ben’s threat to Sam “If you are not careful, we might just burn off anyway. That’d fix you and your greeny
mates”
The elements are:
o Intentional (intention =/ intention to follow through: Rixon V Star City Pty Ltd “Proof of assault
requires proof of intention to create ... an apprehension of imminent harmful or dangerous conduct
... not ... proof of an intention to follow it up or carry it through”)
o Act or Threat (Stephens v Myers)
 Words alone (Barton v Armstrong, R v Ireland)
o Apprehension of imminent harmful conduct (Brady v Schatzel; ex p Brady, Barton v Armstrong)
o Regarding conditional threat (Tuberville v Savage  only conditional threat, Rozsa v Samuels 
conditional threat w action, Police v Greaves  extremely threatening conditional threat)
Application of facts
o Intention to create apprehension of imminent harm
 Nature of threat, esp. Specificity shows intent to create fear
 Thus satisfied
o Act or threat
 Threat, however, is words alone
 There is no precedent for words alone, in person, constituting an assault, it is possible that
the action would fail here
o Apprehension of imminent harmful conduct
 There is no evidence on the apprehension of harm by Sam
o Conditional threat
 Again, this weakens the threat, as in Tauberville v Savage
 Since it was not accompanied by any actions, and that the condition was not difficult to fulfil,
it is most probably that the assault action would fail here
Given the weaknesses in the element “act or threat” and the lack of evidence of “apprehension of imminent
harm”, it is most probable that the action would fail
P v South Coast Green Coalition (False Imprisonment)
-
Elements:
-
o Direct
o Intentional
o Total deprivation of liberty
o Without reasonable means of escape
This matter would fail immediately since:
o The green coalition only blocked one of many park entrances/exits, thus failing to satisfy “without
reasonable means of escape”
o No-one individual plaintiff was affected by the blockade, and thus no one was deprived of their
liberty
Green National Park v South Coast Green Coalition (Trespass to land)
-
-
-
Elements:
o Direct
o Intentional
o “sets foot upon his neighbour’s close”
o Without permission
o Without lawful justification
Application:
o Direct and intentional are not in contention
o On P’s property satisfied by “camped on park land”
o Without permission satisfied by “despite being told by Park rangers that they were in breach of
regulations forbidding camping in the park”
However: D might have the defence of Lawful justification because of their protest, on gov’t land
It is most likely that P will succeed in this action, and should proceed
Green National Park v South Coast Green Coalition (Nuisance)
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To do
Major Actions
Sue v NSW Parks and Wildlife Service (Negligence)
Elements
- Duty of Care
- Breach of Duty
- Causation
- Remoteness
Step by Step
Is it governed by the CLA? (s3B)
-
Negligence is not excluded under s3B
Proportionate liability (s34)
-
All defendants are to be served (s35A), and damages apportioned as required by the court to a total of 100%
(s45) with no several liability (ss(4)) except for cases of personal injury (s34(1)a))
GNP is only one of the concurrent wrongdoers in this matter (alongside South Coast Green Coalition, South
Coast Branch of Rural Bush Fire Service and the Department of Main Roads)
Re: vicarious liability of DMR?
Duty of Care
-
There is no established duty for statutory authorities
o Sue’s property was outside of the park, therefore nullifying the occupier’s established duty of care
As such, the duty of care of the statutory authority must be established
o First: leg^n internal to problem question to which the authority is subject: “responsible for proper
care and maintenance of national parks and wildlife”
 Implies a duty to act properly
 However, whether this includes back burning is moot, and thus preventing forest fires by
back burning must be seen as a discretionary power
 Potential misfeasance (not “proper[ly] caring” properly or, more likely, nonfeasance, did not
“properly care”)
o Establishing the duty of care for a statutory authority (defn in s41) Things to consider:
 Functions required to be exercised are limited by funding CLA s42(a)
 Previous actions, as well as their half-hearted attempts imply an ability to excersize
this power
 Allocation of resources is not up to the courts ss(b)
 This is not in issue
 Function must be considered in light of all functions of this power ss(c)
 This is a central responsibility of this statutory authority?
 Evidence of compliance with general procedure of all functions as evidence of specific
compliance ss(d)
 Not used to create a duty
 McHugh J in (Crimmins v Stevedoring Industry Finance Committee)
 Would a reasonable public authority reasonable foresee that its acts or omissions
may result in an injury to the plaintiff or her interests?
o Yes, they wanted to back-burn and were thus aware of the risks of not doing
it
 Was the authority in a position to control the situation which brought about the
harm?
o They could have prevented the harm
 Was the injured person vulnerable?
o Yes, sue would not be able to prevent the harm herself
 Did the authority know or out it to have know of an existing risk to the class of
persons who included the plaintiff?
o Ought to have perceived the fire spreading
 Would the imposition of a duty of care impose liability for policy/quasi legislative
functions?
o Nope?
 Is there any policy reason to deny a duty of care?
o Nope
 However, duty of care has only been imposed twice in the HC
 Pyrenees Shire Council v Day
 Crimmins v Stevedoring Industry Finance Committee
 Therefore improbable
o Previous excercise of a function does not impose a duty (s46)
o Plaintiff must have standing to sue, Wednesbury Test ss44(1)
 Probably satisfied?
o It is improbable that the statutory authority would be satisfied
Breach of Duty
-
S 42, see above
S 5B
S 5C
Amica allows us to use not the but for test but operating and substantial cause, allowing for multiple
plaintiffs
Remoteness
-
5D(1)a factual causation
5D(1)b scope (duty of care did apply to this breach)
Defences
Inherent risk/Obvious risk?
-
5H/I
More w regards to failure to warn
V South Coast Green Coalition
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Not sure how to go about Duty for these pps
However, would probably fail on foreseeability, causation and remoteness?
V South Coast Branch of Rural Bush Fire Service
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Duty would be established as per NSWP/W, but easier, since they had a “duty”
V DMR
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Vicarious Liability
However, may not have caused the fire (there was a probability)
Would fail under Causation
Other Plaintiffs
Carlo
-
Died
Family would sue under Compensation of Relatives Act
o Would be limited by S1
Was in the park, therefore duty of care of NSWP/W would be definitely established
Harry
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Case of Pure Economic Loss (Not negligent Misstatement)
Third-party injury under Pt 4 CLA
o Policy
 Indeterminate liability
 Not indeterminate since is identifiable (places who depend on park for income)