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)
Roadmap for Today
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Torts Reform through the CLA
Duty of Care under the CLA: Part 1A
Obvious Risk
Professional Negligence
Mental Harm
IMPACT OF THE CIVIL
LIABILITY ACT ON THE DUTY
OF CARE
• The Civil Liability Act 2002 govern 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
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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) an intentional torts done with intent to injure. act that is done with
intent to cause injury or death or that is sexual assault or other sexual
misconduct. Note Part 7 does not apply to
• (AND A WHOLE BUNCH OF OTHERS… LIKE DUST DISEASES
ETC)
THE CIVIL LIABILITY
AMENDMENT (PERSONAL
RESPONSIBILITY) ACT
• Part 1A Division incorporates statutory reform
to the law of negligence in Sections 5A to 5T
• Commenced 6/12/02, except Section 5N applies
to breaches of warranties which occur after
10/1/03
• 5A scope of application
– The part applies to any claims in negligence
regardless of whether the claim is brought in tort,
contract, under statute or otherwise
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
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 farfetched 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 – s.5B(1) & (2)
• Waverley Council v Ferreira [2005] NSWCA 418
• Facts
Issue 1: The Fence and the undergrowth
• S5B(1)
– Risk of harm foreseeable?
– Risk of harm significant?
– In circumstances, would reasonable person
have taken precautions?
s.5B(1)(a) - Waverley Council v
Ferreira
• Foreseeability of harm
• 34 The initial element to be determined under s5B(1) is
whether the risk was foreseeable. As s5B(1)(a) makes
plain, that involves inquiring whether the risk in question
is one of which the defendant knew or ought to have
known. The relevant risk in relation to the removal of the
fence and undergrowth was the risk that children might use
the fence and undergrowth to facilitate their access to the
roof and, when on the roof, might fall to the ground.
• Doubleday v Kelly [2005] NSWCA 151
“The actual events as they happened are not the
circumstances to which consideration of foreseeability of
risk of injury is applied; what is to be considered is
foresight in more general terms of risk of injury.” per
Bryson JA
s.5B(1)(a) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 43 In my opinion, the relevant risk of injury was
that a child such as Martin might fall to the ground
once he had climbed on to the roof. In my opinion,
that was a foreseeable risk in terms of s 5B(1)(a).
It was a risk of which the Council knew or ought
to have known. It is immaterial that the Council
might not have been able to foresee the precise
mechanism that caused Martin to fall.
s5B(2) in Ferreira
• s5B(2)
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Probability of harm if care not taken
Likely seriousness of harm
Burden of taking precautions to avoid risk
Social utility of activity which creates risk
• Watt v Hertfordshire County Council [1954] 2 All
ER 368
s.5B(2) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 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).
So would reasonable council remove
the fence and undergrowth?
• 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).
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)).
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.
So what about the grille?
• Did the council have duty to put a grille on
the skylight?
-IN SOLVING THESE PROBLEMS:
1. Find out if risk or harm was foreseeable
(question of law) under 5B(1)
2. THEN, balance up the cost of the precautions
(under s5B(2)- as directed by 5B(1)(c)
Council of the City of Greater Taree v
Wells [2010] NSWCA 147 (1 July 2010)
• Facts
• KIRBY J in Romeo v Conservation
Commission (young woman fell 6.5m off cliff)
• “It is one thing to hold that a person owes a
duty of care of some kind to another. But the
critical question is commonly the measure or
scope of that duty. The failure to distinguish
these concepts can only lead to confusion.”
Council of the City of Greater Taree v
Wells [2010] NSWCA 147 (1 July 2010)
• Quoted McColl JA in RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA
263
• “5B is not a self-contained statement of the circumstances in which
a liability for negligence will arise. Rather, subsection 1 sets out
three preconditions that must co-exist before a liability in
negligence arises, when the type of negligence alleged is failure to
take precautions against a risk of harm arising…. Subsection 2
provides a non-exhaustive list of factors the court is required to
take into account in deciding whether the third of those
preconditions exists. Section 5B presupposes the existence of the
law of negligence, and operates against its background.”
Duty of Care
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm includes the
burden of taking precautions to avoid similar risks of harm for which
the person may be responsible , and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or affect
liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken
earlier) have avoided a risk of harm does not of itself give rise to or
affect liability in respect of the risk and does not of itself constitute
an admission of liability in connection with the risk.
Adeels Palace Pty Ltd v Moubarak
Adeels Palace Pty Ltd v Bou Najem [2009]
HCA 48
• Facts
• Application of CLA
– [13] “Although ss5B and 5C appear beneath the
heading “Duty of Care,” that heading is apt to
mislead… Both provisions are evidently
directed to questions of breach of duty.”
Checking In
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Torts Reform through the CLA
Duty of Care under the CLA: Part 1A
Obvious Risk
Professional Negligence
Mental Harm
Assumption of risk
Injured persons presumed to be aware of obvious risks
5G Injured persons presumed to be aware of obvious
risks
(1) In determining liability for negligence, a person who suffers harm is
presumed to have been aware of the risk of harm if it was an obvious
risk, unless the person proves on the balance of probabilities that he
or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the
person is aware of the type or kind of risk, even if the person is not
aware of the precise nature, extent or manner of occurrence of the
risk.
s5G – Obvious Risk
• Falvo v Australian Oztag Sports Association & Anor
[2006] NSWCA 17 (2 March 2006)
• Eutick v City of Canada Bay Council [2006] NSWCA 30
(3 March 2006)
C G Maloney Pty Ltd v HuttonPotts [2006] NSWCA 136
• Per Bryson JA at [172] – [175]
• Much depends, in the application of provisions dealing with
obvious risk, upon the degree of generality or precision with
which the risk is stated. Rejecting more highly generalised
statements, such as that bad things sometimes happen in hotels
or that people sometimes fall over when walking on floors, the
risks which confronted Ms Hutton-Potts can be stated at several
different degrees of intensity. In a room in a hotel where a
cleaner is polishing the floor with a buffing machine there is a
risk that a recently polished floor will be slippery, because it is
polished. I do not think that it would be correct in fact to see this
as the risk which matured.
C G Maloney Pty Ltd v HuttonPotts [2006] NSWCA 136
• If it were to be said that that risk was obvious it would, in
the application of the meaning of ‘obvious risk’ to the
facts, have to be said that a reasonable person in the
position of Ms Hutton-Potts who entered the room would
have seen that Mr Elder was in the room, and would have
gone further and considered what he was doing, and would
have gone further and noticed that he was buffing the floor
with a buffing machine; and that it would have been
obvious to the reasonable person who did those things that
there was a risk of slipping on the floor because it was
recently polished.
C G Maloney Pty Ltd v HuttonPotts [2006] NSWCA 136
• However that would not be enough to show that Ms Hutton-Potts
suffered harm from an obvious risk, because it was not the recent
polishing of the floor which caused her injury. A higher degree of
intensity is required in stating the risk. Her injury was caused by
there being polishing material on the floor which was not visible,
and had not been removed in the buffing process. The finding
that the risk which caused her injury was an obvious risk involves
attributing to the reasonable person in her position discernment,
as an obvious matter, that there may (even with a low degree of
probability) be polishing material on the floor which was not
visible. This is the risk which matured and caused her injury.
Involved in this is not only advertence to what Mr Elder was
doing, but advertence to the risk that he was not doing it properly.
Assumption of Risk
• Inherent risks, recreational activities and
dangerous recreational activities will be
covered in defences to negligence lecture.
Checking In
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Torts Reform through the CLA
Duty of Care under the CLA: Part 1A
Obvious Risk
Professional Negligence
Mental Harm
Professional negligence
Sections 5O & 5P
• “Peer professional opinion” (or Bolam) test for
determining the appropriate standard of care
– Sidaway v Governors of Bethlehem Royal Hospital
[1985] UKHL1
• Rogers v Whitaker (1992) 175 CLR 479
– Facts
– Relevance of professional opinion v
conclusiveness
F v R (1983) 33 SASR 189: per King CJ at 194
“The ultimate question is not whether the defendant’s conduct
accords with the practices of his profession or some part of it,
but whether it conforms to the standard of reasonable care
developed by the law.”
Professional negligence
5O Standard of care for professionals
(1) A person practising a profession ( "a professional" ) does
not incur a liability in negligence arising from the
provision of a professional service if it is established that
the professional acted in a manner that (at the time the
service was provided) was widely accepted in Australia
by peer professional opinion as competent professional
practice.
(2) However, peer professional opinion cannot be relied on
for the purposes of this section if the court considers that
the opinion is irrational
2nd Reading Speech, Hansard 23
October 2002.
• “The bill also creates an additional defence
to alleged professional negligence if the
professional acted in a manner that was
widely accepted in Australia by pure
professional negligence if the professional
opinion as competent professional practice.”
» The Premier, Minister for Arts and Minister
for Citizenship.
Mental Harm
• At common law- only type of pure mental
harm where this liability is recognised
psychiatric illness: Tame v NSW (2002) 211
CLR 317
• Thus grief or sorrow doesn’t sound
damages:Mount Isa Mines v Pusey (1970)
125 CLR 383
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?
• Direct perception of distressing events?
• Relationship between primary and
secondary victim
• Relationship between Plaintiff and
Defendant
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
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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. (eg
Waverley Council v Ferreira [2005] NSWCA 418)
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.
Wrapping Up
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Torts Reform through the CLA
Duty of Care under the CLA: Part 1A
Obvious Risk
Professional Negligence
Mental Harm