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 holder’s 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 P’s property catches fire)

9. Conclusions on the Basic Concepts: Ann’s 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” functions> 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 tovisitors 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