TORTS

1. 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)

2. IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF CARE • The Civil Liability Act 2002 governs 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

3. 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

4. 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.

5. Claims excluded from operation of the Civil Liability Act: s3B(1) • (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person • (AND A WHOLE BUNCH OF OTHERS… LIKE DUST DISEASES, SMOKING ETC) • See s3B as it lists where CLA and Motor Accidents Compensation Act 1987 overlap

6. 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 notinsignificant, 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.

7. 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

8. 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

9. 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.

10. Duty of Care in Certain Situations contained in the Act • Duty Areas • Risk (will cover in defences) • Assumption of Risk s5F-I • Recreational Activities- s5J to s5N • Public Authorities (ss40-46) • Good Samaritans (ss55-58) • Volunteers (ss59-66) • Mental Harm (ss27-33)

11. Part 5 Liability of Public & Other Authorities • Sections 40 to 46 • Provides specific additional protection for public authorities including: • the Crown • Government departments • Local councils • Other prescribed bodies

12. Part 5 Liability of Public & Other Authorities • Section 42sets out the principles to apply in determining whether a public or other authority has a duty of care or has breached a duty of care including: • the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, • the general allocation of those resources by the authority is not open to challenge, • the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), • the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate. Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270

13. S45- Roads Authorities • (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. • (2) Doesn’t create duty of care simply because the roads authority had actual knowledge of the risk. • (3) Carry out roadwork defined to include construction, installation, maintenance, inspection, repair. • This done to overturn recent HCA decision in: • Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512

14. Porter v. Lachlan Shire Council [2006] NSWCA 126 • Facts s45 • (3) In this section: "carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 . Roads Act 1993 (dictionary) "road work" includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre or rail infrastructure) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and "carry out road work" includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.

15. s45 - Porter v. Lachlan Shire Council • Hodgson JA (Beazley JA & Giles JA agreeing) • 34 In my opinion, this case does come within s45, on either of two bases. 35 First, where that part of a road used for pedestrian purposes has been altered by the installation of a footpath and a gutter, leaving what may be called a nature strip in between, it is in my opinion an unduly narrow view of what constitutes a road work to say that, while the made footpath is a road work and the gutter is a road work, the nature strip between them is neither a road work nor part of a road work. In my opinion the better view is that the whole of the area for pedestrian purposes, comprising the made footpath, the nature strip and the gutter, comprises a road work.

16. s45 - Porter v. Lachlan Shire Council • Hodgson JA (Beazley JA & Giles JA agreeing) • 36 Second, in any event, where there is a hole in that part of a road which is a nature strip within the area used for pedestrian purposes, it would be road work to fill and make good that hole. That view is not in my opinion precluded by the use of the words “constructed” and “installed” in the definition of road work in the Roads Act, which, unlike the relevant definition in s45 of the Civil Liability Act, is an inclusive definition and not an exhaustive definition. Once it is accepted that to fill and make good the hole would be road work, then the question would arise whether failure to do this would be failure to “carry out any activity in connection with the construction, erection, installation, maintenance, repair or replacement of a road work” within s45(3). In my opinion, it would be: although the words “construction” and “installation”, and the indefinite article “a” in front of “road work”, could be taken as inapt for the filling and making good of a hole, on balance I think it would be too narrow an approach to hold that the words do not extend to such activity.

17. s45 - Porter v. Lachlan Shire Council • Hodgson JA (Beazley JA & Giles JA agreeing) • 37 On either basis, s45 applies: on the first basis, the allegation would be that the respondent failed to maintain a road work, and on the second basis, it would be that the respondent failed to construct or install a road work.

18. s.45 Actual Knowledge:North Sydney Council –v- Roman [2007] NSWCA 27 • Facts • At Trial

19. s.45 North Sydney Council-v- Roman • Held, allowing the appeal, per Basten JA (Bryson JA agreeing): • 1. For the purposes of s.45 actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs. • 2. The evidence demonstrated that no Council officer at a decision-making level had “actual knowledge” of the particular pothole and therefore the appellant did not have such knowledge. Accordingly, the exception to s.45 was not engaged and the statutory immunity prevailed. • Note McColl JA (dissenting)

20. Parts 8 Good Samaritans S56 • For the purposes of this Part, a "good samaritan" is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured. s57 • (1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

21. Part 8: Good Samaritans • S58 where liability not exempted • Where good samaritan caused the injury in the first place • The good samaritan was under the influence of drugs/alcohol AND failed to take reasonable care • The good samaritan was impersonating emergency service worker, policeman or pretending to have the skills to address the current injury

22. Part 9: Volunteers (ss59-66) • Section 60: Defines community work to mean work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose. It exclude scommunity service orders imposed by a court.

23. Volunteers (cont) • Section 61: No civil liability for a volunteer doing community work, but does not extend to: • Criminal acts (s62) • Acts while intoxicated AND volunteer failing to exercise reasonable care (63) • Actions outside the scope of the charitable organisation contrary to instructions (s64) • Where the volunteer is required by State law to be insured (s65) • Or motor vehicle accidents (s66)

24. Mental Harm • At common law- only type of pure mental harm where this liability is recognised psychiatric illness • Thus grief or sorrow doesn’t sound damages: Mount Isa Mines v Pusey (1970) 125 CLR 383

25. Mental Harm pre Annetts • Suffer from a recognised psychiatric illness • Be a person of reasonable fortitude • Be subject to a sudden shock • Have directly perceived the accident or its immediate aftermath

26. The 2 major cases • Both heard together: • Tame v NSW (2002) 211 CLR 317 • Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

27. Affecting Factors • Was illness result of sudden shock? • “Cases of protracted suffering, as opposed to ‘sudden shock’ could raise difficult issues of causation and remoteness of damage. Difficulties of that kind are more appropriately analysed with reference to the principles of causation and remoteness, not through an absolute denial of liability.” (Gleeson CJ, Gaudron, Gummow , Kirby and Hayne JJ in separate j’ments) • Direct perception of distressing events? • Relationship between primary and secondary victim • Relationship between Plaintiff and Defendant

28. Ipp Report • “... the law has said that a duty to avoid causing mental harm would be imposed only in relation to harm caused by ‘shock’; that this duty was owed only to persons who were physically near to the scene of the ‘shocking’ events at the time they occurred, or who witnessed their ‘immediate aftermath’; and that the duty was owed only to those who witnessed the shocking events or their aftermath with ‘their own unaided senses’.” (138, 9.12)

29. Ipp Report Continued • “The fundamental proposition which Tame/Annetts seems to establish is that reasonable foreseeability of mental harm is the only precondition of the existence of a duty of care. It also establishes, however, that a duty of care to avoid mental harm will be owed to the plaintiff only if it was foreseeable that a person of ‘normal fortitude’ might suffer mental harm in the circumstances of the case if care was not taken. This test does not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care. It only requires it to be foreseeable that a person of normal fortitude in the plaintiff’s position might suffer mental harm. In this sense, being a person of normal fortitude is not a precondition of being owed a duty of care.” (138, 9.13) (Original emphasis)

30. 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: • pre-natal injury, • impairment of a person’s physical or mental condition, and • disease. "pure mental harm" means mental harm other than consequential mental harm.

31. Mental Harm • 29 Personal injury arising from mental or nervous shock • In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.

32. 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.

33. Mental harm 32 Mental harm—duty 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

34. 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.

35. Practice Question • Arnold was a serving police officer who attended the scene of an horrific train derailment in Katoomba NSW, whereby six people were killed and many were injured. • He was among the first ones at the scene following the derailment and was involved in the rescue operation by providing emergency first-aid and assisting the injured from the carriages. • Arnold searched through the train where he saw dead bodies in horrible condition, as well as badly injured people. One of them, he recognised to be his high-school friend, Steve. • Arnold suffered post traumatic stress syndrome, nervous shock and major depressive disorder. • State Rail had failed to ensure the train’s “deadman’s” safety device was operating • Arnold brought a claim for damages against State Rail alleging he had suffered psychiatric injury due to the negligence of State Rail in failing, inter alia, to ensure the train’s “deadman’s” safety device was operating, or was designed so as to operate in the event of the incapacitation of the driver. Did State Rail owe Arnold a Duty of Care?