LAWS1114 Lecture 4

Week 4: Omissions and Public Body Liability

General Rule: No general duty of care

  • According to Lord Nicholls in Stovin v Wise [1996] AC 923, 931:
    • The classic example of the absence of a legal duty to take positive action is where a grown person stands by while a young child drowns in a shallow pool.
    • Another instance is where a person watches a nearby pedestrian stroll into the path of an oncoming vehicle.
  • In both instances the callous bystander can foresee serious injury if he does nothing. He does not control the source of the danger, but he has control of the means to avert a dreadful accident. The child or pedestrian is dependent on the bystander: the child is unable to save himself, and the pedestrian is unaware of his danger. The prospective injury is out of all proportion to the burden imposed by having to take preventive steps. All that would be called for is the simplest exertion or a warning shout.
  • NB: If you have created the risk that has resulted in the child being in that situation, then a common law duty might arise upon you.
    • Similarly, if you undertake a rescue but increase the risk of injury to someone else, you will owe a common law duty of care.
  • At pages 943-4 Lord Hoffmann states the following reasons for treating negligent omissions differently to negligent actions:
    • There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs. Wise) or natural causes. One can put the matter in political, moral or economic terms.

Politicals terms

  • In political terms it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect.

Moral terms

  • A moral version of this point may be called the 'why pick on me?' argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another?

Economic terms

  • In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call 'externalities' – a cost or benefit that falls on a third party) the market is distorted because the activity appears cheaper than it really is.
    • So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities.
    • But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else.
    • NB: Externalities will not crop up in the exam. Which is such a bummer!

Exceptional duty situations

Pre-existing relationships

School authority and pupils

  • Although a school authority owes pupils a duty to take reasonable care to protect them from harm, the duty is not absolute: Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161.
  • NB: At common law, there is a duty to take reasonable care in all of the circumstances.
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba

An eight year old child attending a primary school was injured when she was pulled by two other children off a flying fox device in the school playground during a morning recess period. The school had a "hands off" rule that required children not to touch each other in the playground.

Two teachers were rostered on duty in the part of the playground in which the flying fox had been erected. The teacher supervising activities on the flying fox on the morning in question was capable and experienced. It was necessary for the teacher supervising the flying fox to turn away from the flying fox from time to time to survey other parts of the playground area.

When the incident occurred the teacher's attention was directed towards another part of the area and she was not aware of the incident until 20 or 30 seconds after its occurrence.

  • The issue was whether the school had breached its duty of care owed to the child.
  • The plaintiff's case involved no criticism of the teacher personally. It was addressed to the system with which she had to comply.
  • Held, by Gleeson CJ, Hayne, Callinan and Heydon JJ, McHugh J dissenting, that the plaintiff had not established that the school had been in breach of its duty of care.
    • To do so it had been incumbent on her to demonstrate that there was a system of supervision, alternative to that which the school used at the time of the accident, which was free of the risk complained of and was available in a practical sense. She had failed to do so.
  • Res ipsa loquitur?: [13]
    • Inference has to be made that the incident could not be explained unless there was a breach of duty. Therefore, since
  • Reasonableness: [19] to [26]
  • [25] Nor is it reasonable to have a system in which children are observed during particular activities for every single moment of time — it is damaging to teacher-pupil relationships by removing even the slightest element of trust; it is likely to retard the development of responsibility in children, and it is likely to call for a great increase in the number of supervising teachers and in the costs of providing them.
  • [26] Thus there is force in Spender J's dissenting opinion that the majority decision [in the Court of Appeal of the Australian Capital Territory): "is a requirement of unrealistic and impractical perfection. It is born of hindsight. It offends the standard of reasonableness. It amounts to the imposition of the responsibility of an insurer … "
  • Court held that it was not reasonable for there to be 3-5 supervisors at the playground.
  • NB: It’s reasonableness in the circumstances of the case.

Prison authority and prisoner – New South Wales v Bujdoso (2005) 222 ALR 663

In 1990, Bujdoso was convicted on three counts of sexual assault on male persons under the age of 18 years and sentenced to 2½ years imprisonment. In 1991 Bujdoso was seriously assaulted at Silverwater Prison by other prisoners.

Prior to the assault, Bujdoso had received threats to his safety of which prison authorities were aware. Bujdoso had requested he remain at Silverwater Prison rather than be removed to another facility where he had previously been assaulted. He signed a statement that he felt he was not in danger and wished to remain at Silverwater Prison (the signed statement).

Following the assault, Bujdoso sued for damages for personal injuries in negligence in the District Court of New South Wales.

  • Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon J held:
  • The prison authority had breached its duty of care: [50].
  • As Bujdoso was a known likely target of other prisoners, the prison authority was under a duty of care to adopt effective measures to reduce the risk of harm to the respondent. No such measures were adopted: [47], [50].
  • While a prison authority is under no greater duty to take reasonable care, the content of the duty in relation to a prison and its inmates is different from what it is in the general law abiding community: [44].
    • Content of duty: to adopt effective measures to reduce the risk of harm to the respondent and in the context of the fact that the prison authority was aware of the threat
  • The signed statement did not relieve the prison authority of the duty it owed Bujdoso: [48].

Doctor and patient: Civil Liability Act 2003 (Qld)

Section 21 - Proactive and reactive duty of doctor to warn of risk:
(1) A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk—
(a) information that a reasonable person in the patient's position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice; (b) information that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.
(2) In this section— patient, when used in a context of giving or being given information, includes a person who has the responsibility for making a decision about the medical treatment to be undergone by a patient if the patient is under a legal disability. Example— the responsibility a parent has for an infant child

Employer and employee – Coco-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45 (15 March 2006)

The plaintiff, Pareezer, was a contractor to the defendant, Coca-Cola. The contract involved the refilling of machines dispensing soft drinks distributed by Coca-Cola.

The brief facts were that on the day in question, Pareezer, when delivering Coca-Cola products to Werrington TAFE, was held up and shot by a person not involved in the present litigation, Adriano Manna.

  • Pareezer sued Coca-Cola for negligence claiming:
    • Coca-Cola should have provided non-marked vehicles for all deliveries and collections in the Penrith area, including Werrington TAFE;
    • Coca-Cola should have provided practical or competency based training to drivers in the Penrith/Werrington area in armed robbery awareness and its Security Manager should have monitored the implementation of those security procedures by the drivers;
    • Coca-Cola should have provided for two persons in each vehicle delivering in the subject area or alternatively security guards meeting all drivers at the TAFE;
    • Coca-Cola should have provided the plaintiff with a personal security alarm;
    • Coca-Cola should have regularly updated all drivers of the situation regarding the activities of the gang targeting their drivers;
    • Coca-Cola should have liaised with TAFE security at Werrington to provide assistance to drivers delivering at the TAFE.
  • According to Mason P in relation to the issue of causation(with whom Tobias JA agreed):
  • [7] In Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 Mason JA said (at 1086): ‘The injury which the plaintiff sustained, although occasioned by deliberate human intervention, was the outcome of the very risk against which it was the duty of the defendants to safeguard the plaintiff as their employee. If, as was the case, it was the existence of that risk of injury which called for the exercise of care and the taking of precautions by the defendants, then the defendants’ failure to take care may properly be regarded as the cause of the injury which occurred when the risk became an actuality.’
  • [9] Sadly for the respondent, I am not persuaded that the extra steps that Coca-Cola could have (and let it be assumed should have) taken would have saved Mr Pareezer from being shot. Extra training about risk minimisation is unlikely to have avoided the shooting that took place in daylight and the presence of witnesses.
  • [10] I am prepared to concede that a differently coloured truck might have fooled some would-be robbers, but I am not persuaded that it would have deceived or deterred Mr Manna. A different cash collection system might also have led others to think that the rewards of a armed hold-up were not great enough prepared to the risks of being caught and gaoled. However, the conduct of Mr Manna strikes me as particularly opportunistic and random in its viciousness. The [generally considered] measures that Coca-Cola might or should have adopted, including a higher level of training for drivers, do not appear to me as things that would probably have averted the unfortunate shooting of Mr Pareezer.
    • No causation established.

Control over third party agent of the harm

Parent and child: *Smith v Leurs (1945) 70 CLR 356

Six year-old boy was on holidays. Shanghais were quite common. One day, with a group of friends, they started to chase after another group of boys. It resulted that Brian Leurs fired a rock that hit Smith in the eye and seriously injured his eye. So an action was brought against Leurs (parents) for negligence). You really should know the facts of this case really well considering how many times it was freaking repeated …

  • The issue here is whether or not/ what standard of care a parent or guardian should have over a child.
  • According to Dixon J at 262: ‘It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature. It appears now to be recognized that it is incumbent upon a parent who maintains control over a young child to take reasonable care so to exercise that control as to avoid conduct on his part exposing the person or property of others to unreasonable danger. Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others.
    • The parents had specifically told the child not to use the shanghai away from the house (and only against the wall … except when shooting birds …)
  • General proposition: If the parent has control over the child ‘there’ and the child caused injury to someone else, the parent would owe a duty of care. (As such, if the incident occurred outside of the parent’s control, a duty of care would not be owed).
  • NB: All the judges emphasised considering duty and standard of care in all of the circumstances.

Prison authority and prison escapee – New South Wales v Godfrey [2004] NSWCA 113 (7 April 2004)

On 27 July 1990 a prisoner escaped from a gaol run by the State of New South Wales.

On 5 October 1990 the escapee entered a newsagency in Schofields, Sydney where Carol Godfrey was working. The prisoner pointed a shotgun at her and demanded money. She was twenty three weeks pregnant. She suffered nervous shock as a result of the robbery.

Eight days after the robbery, she gave birth to Andrew Godfrey. He suffered disabilities brought about by his premature birth, which, according to medical evidence, was precipitated by the robbery.

The New South Wales Court of Appeal held:
(1) There is no established category of duty of care owed by a prison authority to prevent harm caused by an escaped prisoner beyond the immediate vicinity of a gaol. The duty of a gaoler to prevent the criminal activity of an escaped prisoner, so far as it has been established, is confined to the course of the escape, where control is still capable of being reasserted: [31], [34], [35], [87], [88].

  • There would still be a duty of care if the prisoner is still in the immediate vicinity of the jail – control is a significant factor here!
  • Consideration of factors relevant to determining whether a duty of care should be recognised: foreseeability, assumption of responsibility, control, extent of liability vulnerability, conflict and coherence, and remoteness.

No duty should be recognised in the present appeal, by reason of:
(i) the absence of any relevant control;
(ii) the extent and indeterminate nature of the liability;
(iii) the possible distortion of the penal decision making process;
(iv) the remoteness in time and place from the negligent conduct: [52], [65], [75]-[80], [84],[85],[87], [88].

Public Body Liability: Failure to carry out the careful exercise of statutory powers

(a) Novel case: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
(b) Control and vulnerability: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
(c) *Stuart v Kirkland-Veenstra (2009) 237 CLR 215
(d) Sections 34 to 37 of the Civil Liability Act 2003 (Qld)

  • Control over third party agent of harm
  • The issue is whether a common law duty of care arises out of the statutory authority’s powers or obligations

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1

The plaintiff Crimmins worked on the wharfs of Melbourne from 1961 to 1965. He would turn up each day at work with other workers and would be allocated work by the stevedoring authority. During that period, most of Crimmins’ work was unloading asbestos bags.

He was told where to work, which ship to go to and what he would be doing. Thus, the employer controlled his work. He was also particularly vulnerable since he couldn’t self-protect. It could also be said that the stevedoring authority had knowledge of the vulnerability.

As a consequence, he developed mesothelioma. His wife brought this action forward on his behalf.

  • In the context of a statutory authority, the issue was whether or not a common law duty of care was owed and breached.

According to McHugh J at 39:
[93] In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

  • That is, can we distinguish the public at large from ‘a specific class’?

3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.

  • There is a difference between policy decisions and operational decisions.
    • Policy: To prioritise funding for garbage collection over … roads
    • Should they find an unsafe road afterwards, it would be an operation decision to fix said road.
    • A DOC may arise from an operational decision.

6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.

[94] If the first four questions are answered in the affirmative, and the last two in the negative, it would ordinarily be correct in principle to impose a duty of care on the statutory authority.

  • NB: Have a look at [103], [104] and [107] (which should be the paragraphs where McHugh J applies the above questions)

Control and vulnerability – Policy and operational distinction

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 596-8

There was an area where oysters were grown. At the relevant time, there was particularly heavy rain and the heavy rain caused problems with the local sewerage system. There was an overflow of the sewerage into the lake. That contaminated the oysters.

Quite a few people ate the oysters and ended up with food-poisoning.

  • The plaintiff/s sued the company that made the oysters, the council as well as the state government.
  • It was found that the state government did not owe a DOC to the people who got sick.
    • Such a decision was for the legislature rather than for the Court to interfere with.
  • The Council operated under statutory powers; however, there was no specific statutory obligation on the Council to control the production of oysters. Therefore, there was no DOC owed by the Council for the plaintiff/s.
  • In relation to Graham Barclay Oysters, the Court found that they had done everything they could reasonably be expected to do – a duty was owed but there was no breach.

According to Gummow and Kirby JJ at 596-8:
[146] The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.
[149] An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute…
[150] The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority…

Stuart v Kirkland-Veenstra (2009) 237 CLR 215

NB: The majority of the Victorian Supreme Court concluded that a duty of care was owed to the plaintiff. The Court of Appeal analysed the circumstances in the context of the exercise of statutory powers.

Ronald Veenstra was sitting in his car one morning (after 5 am). He had a hose from the exhaust pipe into the car and was sitting alone. Two police officers stopped and asked if everything was okay. They checked the car and found no drugs or alcohol. Ronald seemed rational and insisted that he was alright. The police officers asked if Ronald wanted to see a doctor.

  • The issue was whether or not the State of Victoria and the police officers owed him a duty of care to prevent him from committing suicide.
  • Important to this case: s 10(1) of the Mental Health Act 1986
  • Reasoning of French CJ was very narrow and restrictive
    • If they did not perform the belief that the person was mentally ill, then the Act did not come into effect.
    • NB: Re-read [22]-[25] to look at the reasoning of the Supreme Court as well as [53] to the end of the judgment.
  • Gummow, Hayne and Heydon JJ ([114] – [121] are the most important paragraphs)
    • The decisions in Crimmins does not apply (look at their reasoning – we need to understand when a case reasoning applies or not)
    • Applied Graham Barclay Oysters v Ryan
    • Their analysis was a common law analysis that was then linked into s 10 of Mental Health Act 1986 (emphasised common law more than French CJ)
    • Concluded that no duty of care arose
  • Crennan and Kiefel JJ commencing on [123]
    • Link the common law directly to s 10 of Mental Health Act 1986 much more
    • Conclude that no duty of care arises since s 10 had not come into effect
    • NB: Referred to breach of statutory duty.
      • There was a tort of breach of statutory duty that arose in England.

Civil Liability Act 2003 (Qld)

  • Hinchy will focus on ss 35 and 37 … don’t worry about s 36
  • s 35
    • Essentially, s 35 reflects the common law
    • s 35(b) refers to policy decisions (policy/operational)
  • s 37
    • (2) Subsection (1) does not apply if at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.