THE LAW OF TORTS

1
THE LAW OF TORTS

• The Liability of Public Authorities

2
Introduction Public Authorities and the Rule of
Law

• Applying the same rules of civil liability to
  the actions of public authorities or corporation
  
• The rationale No legal or natural person is
  above the law
• The difficulties The nationalization and
  provision of public utilities and community
  facilities necessarily distinguish public
  corporations from ordinary citizens

3
The Rule of Law and Public Authorities

• When a statute sets up a public authority, the
  statute prescribes its functions so as to arm it
  with appropriate powers for the attainment of
  certain objects in the public interest. The
  authority is thereby given a capacity which it
  would otherwise lack, rather than a legal
  immunity in relation to what it does, There is,
  accordingly, no reason why a public authority
  should not be subject to a common law duty of
  care in appropriate circumstances in relation to
  performing, or failing to perform, its functions,
  except in so far as its policy-making and,
  perhaps, its discretionary decisions are
  concerned (per Mason J in Sutherland Shire
  Council v Heyman)

4
Some Basic Concepts Feasance

• In tort law D is liable for a breach of duty
  towards P
• The breach may take the form of an act
  (misfeasance) or an omission (non feasance)
• However not every non-feasance provides a basis
  for liability
• Negligent omissions are actionable.
• Mere/neutral omissions are not actionable
  unless the D is under a pr-existing duty to act

5
Some Basic Concepts Powers and Duties

• Duty
• The obligation to act the statutory
  provision/function is cast in mandatory terms
• Once the content of the duty is determined, the
  question of breach is a question of fact
• Breach duty attracts liability

6
Basic Concepts Power

• Power
• The statutory function is case in permissive
  terms
• It confers on the power holder a choice to act in
  a particular way
• The failure or refusal to exercise a choice may
  not necessarily be illegal.
• The power holder has a freedom of choice to act/
  The duty holder has an obligation to act

7
Some basic Concepts Ultra Vires

• It is for the power holder to decide what it
  wants to do within the limits of its powers
• Where a power holder acts beyond the powers
  conferred on it by the relevant statute, the
  power holders conduct is ultra vires. The
  decision of the power holder has no legal effect
  and can be quashed by a court.

8
The Planning Operational Dichotomy

• Planning decisions
• Are based on the exercise of policy options or
  discretions
• They may be dictated by social or economic
  considerations
• not provide the basis for a duty
• In general, a public authority is under no duty
  of care in relation to decisions which involve or
  are dictated by financial, economic, social or
  political factors or constraints
• Operational decisions
• The implementation of policy decisions
• subject to the duty of care
• - L v Commonwealth (sexual abuse in prison, D
  held liable for operational failures)
• - Parramatta CC v Lutz (failure to order the
  demolition of building Ps property catches fire)

9
Conclusions on the Basic Concepts Anns Case

• Intra Vires Policy Not actionable, Ct. will
  not interfere
• Ultra Vires Policy Actionable, Ct will assess
  whether Neg or not
• Not policy but Operational Actionable, Ct will
  assess

10
Australian Approaches to the Liability of Public
Authorities

• Sutherland Shire Council v Heyman Majority
  Mason, Brennan Deane JJ
• in general no duty to exercise statutory powers
• duty will arise where authority by its conduct
  places itself in a position where others rely on
  it to take care for their safety.
• duty arises where D ought to foresee a) Pl.
  reasonably relies on D to perform function AND b)
  P will suffer damage if D fails.
• Mason J concept of General Reliance

11
Australian Approaches to the Liability of Public
Authorities

• Parramatta City Council v. Lutz Maj of NSW Court
  of Appeal Kirby P McHugh JA
• D held liable P because P had generally relied
  on council to exercise its statutory powers.
• I think that this Court should adopt as a
  general rule of the common law the concept of
  general reliance

12
Australian Approaches to the Liability of Public
Authorities

• Pyrenees Shire Council v. Day Maj Brennan, CJ,
  Gummow, Kirby, JJ
• -rejected concept of General Reliance (too vague,
  uncertain, relies on general expectations of
  community)
• (Only McHugh, Toohey, JJ approved and applied
  concept of General Reliance)
• Brennan, CJ No specific reliance by P here Duty
  arises where Authority is empowered to control
  circumstances give rise to a risk and where a
  decision not to exercise power to avoid a risk
  would be irrational in that it would be against
  the purpose of the statute.

13
Australian Approaches to the Liability of Public
Authorities

• Crimmins v. Stevedoring Industry Finance
  Committee (1999) 167 ALR 1 McHugh J, Gleeson CJ
  agreeing
• was it RF that Ds act or omission incl failure to
  exercise stat power would cause injury?
• Did D have power to protect a specific class incl
  Pl (rather than Public at large)
• Was Pl vulnerable
• Did D know of risk to specific class incl P if D
  did not exercise power
• Would duty impose liability for core policy
  making or quasi-legislative functions.
• Are there Policy reasons to deny Duty (eg D of C
  inconsistent with Stat.y scheme)

14
Australian Approaches to the Liability of Public
Authorities

• Ryan v. Great Lakes Council Federal Court of
  Australia 9 August, 2000
• -In a novel case involving a statutory authority
  the issue of duty should be determined by the
  following questions
• 1.was it RF that act or omission would cause
  injury
• 2.Did D have power to protect a specific class
  including Pl (rather than public at large)
• 3. Was P vulnerable
• 4.Did D know (or ought D have known) of risk
• 5.Would duty impose liability for core policy
  making or quasi legislative functionsgt if so
  then NO duty
• 6.Are there Policy reasons to deny duty?

15
Mis-feasance and None-Feasance Highway
Authorities

• The traditional position in Common Law
• Highway authorities owe no duty to road users to
  repair or keep in repair highways under their
  control and management.
• Highway authorities owe no duty to road users to
  take positive steps to ensure that highways are
  safe for normal use.
• It is well settled that no civil liability is
  incurred by a road authority by reason of any
  neglect on its part to construct, repair or
  maintain a road or other highway. Such a
  liability may, of course, be imposed by statute.
  But to do so a legislative intention must appear
  to impose an absolute, as distinguished from a
  discretionary, duty of repair and to confer a
  correlative private right. (per Dixon J in
  Buckle v Bayswater Road Board) See also Gorringe
  v. Transport Comm.

16
Misfeasance and non-Feasance Common Law
Developments

• Brodie v. Singleton Shire Council
• Ghantous v. Hawkesbury City Council

17
The Civil Liability Act (NSW) and Public
Authorities

• Part 5 of the Civil Liability Act (Sections 40 to
  46)
• Section 42 sets out the principles to determine
  duty of care exists or has been breached (ie.
  financial and other resources reasonably
  available, allocation of resources, broad range
  of its activities, and compliance with the
  general procedures and applicable standards)
• Section 43 act or omission not a breach of duty,
  unless it so was unreasonable that no authority
  having the functions in question could properly
  consider it as reasonable.

18
The Civil Liability Act (NSW) and Public
Authorities

• Section 44 Removes the liability of public
  authorities for failure to exercise a regulatory
  function if the authority could not have been
  compelled to exercise the function under
  proceedings instituted by the Plaintiff.
• Section 45 Restores the non-feasance protection
  for highway authorities taken away by the High
  Court in Brodie v Singleton Shire Council
  Council Ghantous v Hawkesbury City Council
  (2001) 206 CLR 512

19
LIABILITY FOR DEFECTIVE STRUCTURES

• Builders, developers, engineers, architects, (as
  non-occupiers) all owe a DUTY of CARE to visitors
  or occupiers of negligently constructed buildings
  ( basic principles of negligence apply)
• Bryan v. Maloney

20
Defective Structures and the Liability of Public
Authorities

• Pyrenees Shire Council v Day