TORTS
LECTURE 5
Civil Liability Act: An Overview of the Duty of Care*
Clary Castrission
Clary@40k.com.au
*Later lectures will focus on other aspects of the Act (viz breach of duty and damages)
Overview for Tonight
• S35
• Duty of Care- s5B
Duty Areas under the CLA
• Risk (will cover in defences)
– Assumption of Risk: ss5F- I
– Recreational Activities: s5J- 5N
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•
•
•
Public Authorities: ss40-46
Good Samaritands: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
IMPACT OF THE CIVIL LIABILITY ACT ON
THE DUTY OF CARE
• The Civil Liability Act 2002 governs the law
of negligence in NSW.
– The Civil Liability Act 2002 was enacted 28th
May 2002 and received assent on 18 June 2002
• Rationale behind the legislation:
– to limit the quantum of damages for personal injury and
death in public liability instances; resultantly lowering
insurance premiums.
– to discourage ‘over litigation’, by the imposition of
restrictions and obligations and responsibilities upon
plaintiffs and counsel
Torts Law Reform: Stage 1
• The 1st stage aimed both at the
number of claims as well as at the
cost of claims
– restriction of legal advertising, minimising the
promotion of claims and a restriction on the
amount recoverable for legal costs
– capping damages, applying a higher discount
rate to the final lump sum figure, and the
abolition of punitive damages
Torts Law Reform: Stage 2
• The 2nd Stage: reforms include a range of broad-based tort
reform measures, including a fundamental re-assessment
of the law of negligence
–
–
–
–
addressing the concept of reasonable foreseeability in the law of negligence;
protection of good samaritans who assist in emergencies;
waivers for risky activities;
statutory immunity for local government; public authorities which fail to
exercise their powers will not breach any duty;
– changing the test for professional negligence to one of 'peer acceptance';
– abolishing reliance by plaintiffs on their own intoxication; preventing people
from making claims where they were injured in the course of committing a
crime;
– provide a wider range of options for damages; creating a presumption in
favour of structured settlements.
Claims excluded from operation of the
Civil Liability Act: s3B(1)
• (a) civil liability of a person in respect of an intentional act that is done
by the person with intent to cause injury or death or that is sexual
assault or other sexual misconduct committed by the person
• (AND A WHOLE BUNCH OF OTHERS… LIKE DUST DISEASES, SMOKING
ETC)
• See s3B as it lists where CLA and Motor Accidents Compensation Act
1987 overlap
Duty of Care
• S 5B:(1) A person is not negligent in failing to take precautions against a risk of
harm unless:
– (a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known), and
– (b) the risk was not insignificant, and
– (c) in the circumstances, a reasonable person in the person’s position would
have taken those precautions.
• (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.
Section 3B V s5B
• Deliberate Act intended to cause harm: s3B
(not covered by act)
• Omission which causes harm: s5B (covered by
the act)
• Deliberate Act without due care NOT intended
to cause harm:
– Drinkwater v Howarth [2006] NSWCA 222
– Dean v Phung [2011] NSWSC 653
Duty of Care – 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.”
- It is unclear whether “not insignificant” in Section
5B(1)(b) is more restrictive than “not far-fetched or
fanciful” in Wyong Shire Council v Shirt
Wyong Shire Council v Shirt
• Mason J
• “[13] ... when we speak of a risk of injury as being
‘foreseeable’ we are not making any statement as to the
probability or improbability of its occurrence, save that we are
implicitly asserting that the risk is not one that is far-fetched
or fanciful. Although it is true to say that in many cases the
greater the degree of probability of the occurrence of the risk
the more readily it will be perceived to be a risk, it certainly
does not follow that a risk which is unlikely to occur is not
foreseeable.
Duty of Care in Certain Situations
contained in the Act
• Duty Areas
– Risk (will cover in defences)
• Assumption of Risk s5F-I
• Recreational Activities- s5J to s5N
– Public Authorities (ss40-46)
– Good Samaritans (ss55-58)
– Volunteers (ss59-66)
• Mental Harm (ss27-33)
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
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.
Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270
S45- 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 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.
• (2) Doesn’t create duty of care simply because the roads authority
had actual knowledge of the risk.
• (3) Carry out roadwork defined to include construction, installation,
maintenance, inspection, repair.
• This done to overturn recent HCA decision in:
– Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City
Council (2001) 206 CLR 512
Porter v. Lachlan Shire Council [2006] NSWCA 126
• Facts
S45 (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 roadwork within the
meaning of the Roads Act 1993 .
Roads Act 1993 (dictionary)
"road work" includes any kind of work, building or structure (such as
a roadway, footway, bridge…) that is constructed, installed or
relocated on or in the vicinity of a road for the purpose of facilitating
the use of the road as a road…. and "carry out road work" includes
carry out any activity in connection with the construction, erection,
installation, maintenance, repair, removal or replacement of a road
work.
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.
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.
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.
s.45 Actual Knowledge:
North Sydney Council –v- Roman [2007] NSWCA 27
• Facts
• At Trial
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.
• Note McColl JA (dissenting)
Parts 8 Good Samaritans
S56
–
For the purposes of this Part, a "good samaritan" is a
person who, in good faith and without expectation of
payment or other reward, comes to the assistance of a
person who is apparently injured or at risk of being
injured.
s57
–
(1) A good samaritan does not incur any personal civil
liability in respect of any act or omission done or made
by the good samaritan in an emergency when assisting a
person who is apparently injured or at risk of being
injured.
Part 8: Good Samaritans
• S58 where liability not exempted
– Where good samaritan caused the injury in the
first place
– The good samaritan was under the influence of
drugs/alcohol AND failed to take reasonable care
– The good samaritan was impersonating
emergency service worker, policeman or
pretending to have the skills to address the
current injury
Part 9: Volunteers (ss59-66)
• 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.
Volunteers (cont)
• Section 61: No civil liability for a volunteer doing
community work, but does not extend to:
– Criminal acts (s62)
– Acts while intoxicated AND volunteer failing to
exercise reasonable care (63)
– Actions outside the scope of the charitable
organisation contrary to instructions (s64)
– Where the volunteer is required by State law to be
insured (s65)
– Or motor vehicle accidents (s66)
Mental Harm
• At common law- only type of pure mental
harm where this liability is recognised
psychiatric illness
• Thus grief or sorrow doesn’t sound damages:
Mount Isa Mines v Pusey (1970) 125 CLR 383
Mental Harm pre Annetts
•
•
•
•
Suffer from a recognised psychiatric illness
Be a person of reasonable fortitude
Be subject to a sudden shock
Have directly perceived the accident or its
immediate aftermath
The 2 major cases
• Both heard together:
– Tame v NSW (2002) 211 CLR 317
– Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317
Affecting Factors
• Was illness result of sudden shock?
– “Cases of protracted suffering, as opposed to ‘sudden
shock’ could raise difficult issues of causation and
remoteness of damage. Difficulties of that kind are
more appropriately analysed with reference to the
principles of causation and remoteness, not through
an absolute denial of liability.” (Gleeson CJ, Gaudron,
Gummow , Kirby and Hayne JJ in separate j’ments)
• Direct perception of distressing events?
• Relationship between primary and secondary
victim
• Relationship between Plaintiff and Defendant
Ipp Report
• “... the law has said that a duty to avoid causing
mental harm would be imposed only in relation
to harm caused by ‘shock’; that this duty was
owed only to persons who were physically near
to the scene of the ‘shocking’ events at the time
they occurred, or who witnessed their
‘immediate aftermath’; and that the duty was
owed only to those who witnessed the shocking
events or their aftermath with ‘their own unaided
senses’.” (138, 9.12)
Ipp Report Continued
• “The fundamental proposition which Tame/Annetts seems
to establish is that reasonable foreseeability of mental
harm is the only precondition of the existence of a duty of
care. It also establishes, however, that a duty of care to
avoid mental harm will be owed to the plaintiff only if it
was foreseeable that a person of ‘normal fortitude’ might
suffer mental harm in the circumstances of the case if care
was not taken. This test does not require the plaintiff to be
a person of normal fortitude in order to be owed a duty of
care. It only requires it to be foreseeable that a person of
normal fortitude in the plaintiff’s position might suffer
mental harm. In this sense, being a person of normal
fortitude is not a precondition of being owed a duty of
care.” (138, 9.13) (Original emphasis)
Mental harm
27 Definitions
In this Part:
"consequential mental harm" means mental harm that is a consequence of a
personal injury of any other kind.
"mental harm" means impairment of a person’s mental condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
(a) pre-natal injury,
(b) impairment of a person’s physical or mental condition, and
(c) disease.
"pure mental harm" means mental harm other than consequential mental
harm.
Mental Harm
• 29 Personal injury arising from mental or
nervous shock
• In any action for personal injury, the plaintiff is
not prevented from recovering damages
merely because the personal injury arose
wholly or in part from mental or nervous
shock.
Mental harm
•
30 Limitation on recovery for pure mental harm
arising from shock
(1) This section applies to the liability of a person ("the defendant”) for pure
mental harm to a person ("the plaintiff") arising wholly or partly from
mental or nervous shock in connection with another person ("the
victim") being killed, injured or put in peril by the act or omission of the
defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm
unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or
put in peril, or
(b) the plaintiff is a close member of the family of the victim.
Mental harm
32 Mental harm—duty of care
(1) A person ("the defendant") does not owe a duty of care to
another person ("the plaintiff") to take care not to cause the
plaintiff mental harm unless the defendant ought to have
foreseen that a person of normal fortitude might, in the
circumstances of the case, suffer a recognised psychiatric
illness if reasonable care were not taken.
Codifies the common law test for foreseeability of risk of mental
harm in Tame v NSW; Annetts v Australian Stations Pty Ltd
[2002] HCA 35
Mental harm
33 Liability for economic loss for consequential mental harm
A court cannot make an award of damages for economic loss for
consequential mental harm resulting from negligence
unless the harm consists of a recognised psychiatric illness.
Overview for Tonight
• S35
• Duty of Care- s5B
Duty Areas under the CLA
• Risk (will cover in defences)
– Assumption of Risk: ss5F- I
– Recreational Activities: s5J- 5N
•
•
•
•
Public Authorities: ss40-46
Good Samaritands: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
Practice Question
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Arnold was a serving police officer who attended the scene of an horrific train
derailment in Katoomba NSW, whereby six people were killed and many were
injured.
He was among the first ones at the scene following the derailment and was
involved in the rescue operation by providing emergency first-aid and assisting the
injured from the carriages.
Arnold searched through the train where he saw dead bodies in horrible condition,
as well as badly injured people. One of them, he recognised to be his high-school
friend, Steve.
Arnold suffered post traumatic stress syndrome, nervous shock and major
depressive disorder.
State Rail had failed to ensure the train’s “deadman’s” safety device was operating
Arnold brought a claim for damages against State Rail alleging he had suffered
psychiatric injury due to the negligence of State Rail in failing, inter alia, to ensure
the train’s “deadman’s” safety device was operating, or was designed so as to
operate in the event of the incapacitation of the driver.
Did State Rail owe Arnold a Duty of Care?