TORTS

1
TORTS

• LECTURE 5
• Civil Liability Act An Overview of the Duty of
  Care
• Clary Castrission
• Clary_at_40k.com.au
• Later lectures will focus on other aspects of
  the Act (viz breach of duty and damages)

2
Roadmap for Today

• Torts Reform through the CLA
• Duty of Care under the CLA Part 1A
• Obvious Risk
• Professional Negligence
• Mental Harm

3
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

4
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

5
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.

6
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)

7
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

8
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 persons 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.

9
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

10
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

11
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.

12
Duty of Care s.5B(1) (2)

• Waverley Council v Ferreira 2005 NSWCA 418
• Facts

13
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?

14
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

15
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.

16
s5B(2) in Ferreira

• s5B(2)
• 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

17
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).

18
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).

19
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)).

20
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.

21
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)

22
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.

23
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.

24
Duty of Care

• 5C Other principles
• In proceedings relating to liability for
  negligence
• 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
• 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
• 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.

25
Adeels Palace Pty Ltd v MoubarakAdeels 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.

26
Checking In

• Torts Reform through the CLA
• Duty of Care under the CLA Part 1A
• Obvious Risk
• Professional Negligence
• Mental Harm

27
Assumption of risk

• Injured persons presumed to be aware of obvious
  risks
• 5G Injured persons presumed to be aware of
  obvious risks
• 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.
• 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.

28
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)

29
C G Maloney Pty Ltd v Hutton-Potts 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.

30
C G Maloney Pty Ltd v Hutton-Potts 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.

31
C G Maloney Pty Ltd v Hutton-Potts 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.

32
Assumption of Risk

• Inherent risks, recreational activities and
  dangerous recreational activities will be covered
  in defences to negligence lecture.

33
Checking In

• Torts Reform through the CLA
• Duty of Care under the CLA Part 1A
• Obvious Risk
• Professional Negligence
• Mental Harm

34
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

35

• Rogers v Whitaker (1992) 175 CLR 479
• Facts
• Relevance of professional opinion v conclusiveness

36
F v R (1983) 33 SASR 189 per King CJ at 194 The
ultimate question is not whether the defendants
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.
37
Professional negligence

• 5O Standard of care for professionals
• 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.
• However, peer professional opinion cannot be
  relied on for the purposes of this section if the
  court considers that the opinion is irrational

38
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.

39
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 doesnt sound damagesMount
  Isa Mines v Pusey (1970) 125 CLR 383

40
The 2 major cases

• Both heard together
• Tame v NSW (2002) 211 CLR 317
• Annetts v Australian Stations Pty Ltd (2002) 211
  CLR 317

41
Affecting Factors

• Was illness result of sudden shock?
• Direct perception of distressing events?
• Relationship between primary and secondary victim
• Relationship between Plaintiff and Defendant

42
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 persons
  mental condition.
• "negligence" means failure to exercise reasonable
  care and skill.
• "personal injury" includes
• pre-natal injury,
• impairment of a persons physical or mental
  condition, and
• disease.
• "pure mental harm" means mental harm other than
  consequential mental harm.

43
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
• the plaintiff witnessed, at the scene, the victim
  being killed, injured or put in peril, or
• the plaintiff is a close member of the family of
  the victim. (eg Waverley Council v Ferreira
  2005 NSWCA 418)

44
Mental harm

• 32 Mental harmduty of care
• 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

45
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.

46
Wrapping Up

• Torts Reform through the CLA
• Duty of Care under the CLA Part 1A
• Obvious Risk
• Professional Negligence
• Mental Harm