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. 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 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.

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 BouNajem[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 obviousrisk, 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 defendant’s 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 doesn’t sound damages:Mount 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 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.

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 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

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