TORTS LECTURE 6

1

• TORTS LECTURE 6
• More Civil Liability Act- Part 2 Personal
  Injury Damages
• Part 4 Proportionate Liability- Part 5 Public
  Authorities- Part 6 Intoxication- Part 7
  Self-defence Recovery by Criminals- Part 8
  Good Samaritans- Part 9 Volunteers- Part 10
  Apologies
• Breach of Duty

2
Part 1A Duty of Care more 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.
• Is not insignificant in Section 5B(1)(b) more
  restrictive than not far-fetched or fanciful in
  Wyong Shire Council v Shirt ?

3
Part 1A Duty of Care more commentary

• Recreational Activities Sections 5J to N
• - The NSW Govt could not exclude the operation of
  the Trade Practices Act 1974, although the
  Federal Govt has done so by passing The Trade
  Practices Amendment (Liability for Recreational
  Services) Act 2002 proclaimed on 19/12/02

4
Part 1A Duty of Care more commentary

• Recreational Activities Sections 5J to N
• Issues of concern
• Is the commercial incentive for the safe
  provision of recreational commercial activities
  gone?
• What real bargaining power do consumers have in
  negotiating a contractual waiver?
• Definition of recreational activity is broad and
  ambiguous.

5
Part 2 Personal Injury Damages

• Received assent on 18 June 2002
• Section 11A
• (1) does not apply to claims excluded by Section
  3B (eg. Damages for dust diseases, use of tobacco
  products, workers compensation)
• (2) Part 2 applies regardless of whether the
  claim is brought in tort, contract, statute or
  otherwise
• (3) A court cannot award damages, or interest on
  damages, contrary to Part 2.

6
Part 2 Personal Injury Damages

• Economic Loss
• Maximum for gross loss of earnings 3 times
  average weekly earnings Section 12
• 5 discount rate for future economic loss
  Section 14
• Gratuitous Attendant Care
• No damages awarded if the services are provided
• (a) for less than 6 hours per week, and
• (b) for less than 6 months Section 15(3)
• Geaghan v DAubert 2002 NSWCA 260

7
Part 2 Personal Injury Damages

• Non-economic loss (general damages)
• No damages for non-economic loss unless assessed
  at 15 of a most extreme case (eg. 15 1 or
  3,500, 16 1.5 or 5,250, 26 8 or
  28,000, 33 33 or 115,500) Section 16(1)
  (3)
• Maximum non-economic loss 350,000 Section
  16(2)
• Maximum for non-economic loss indexed Section 17
• Courts/parties may refer to other awards of
  non-economic loss in earlier court decisions
  Section 17A

8
Part 2 Personal Injury Damages

• Pre-judgment Interest
• No interest payable on damages for non-economic
  loss or gratuitous attendant care Section 18(1)
• If interest is awarded (eg. Past economic loss),
  the relevant interest rate is the Commonwealth
  Govt 10-year benchmark bond rate Section 18(4)

9
Part 2 Personal Injury Damages

• 3rd Party Contributions
• Where the award against the 3rd Party is not
  subject to Part 2 (eg. Dust disease, tobacco
  use, workers compensation) Section 19
• Step 1 Assess percentage of liability between the
  defendant and 3rd party (eg. 50/50)
• Step 2 Assess damages against the defendants
  under Part 2 (say, 200,000), then apply
  percentage of liability to that assessment (50
  of 200,000 100,000)
• Step 3 Assess the non-Part 2 damages against the
  3rd party (say, 100,000), then apply percentage
  of liability to that assessment (eg. 50 of
  100,000 50,000)

10
Part 2 Personal Injury Damages

• Exemplary, punitive aggravated damages
• A court cannot award exemplary, punitive or
  aggravated damages Section 21
• Note as intentional torts are excluded from the
  Act see Section 3B(1)(a), except re self-defence
  recovery by criminals, exemplary damages may
  be awarded (eg. False imprisonment)
• Structured settlements
• Agreement that provides for the payment of all or
  part of an award of damages in the form of
  periodic payments Section 22

11
Part 4 Proportionate Liability

• Part 4 Sections 34 to 39 remains unproclaimed.
• Claims for pure economic loss or damage to
  property (whether in tort, contract or otherwise)
  are no longer to be jointly severally assessed
  against multiple Defendants.
• The Act uses the term wrongdoer and provides
  that liability is limited to an amount reflecting
  the proportion of the damage or loss that is the
  responsibility of that Defendant.

12
Part 4 Proportionate Liability

• Part 4 applies even where the concurrent
  wrongdoer is not a party to the proceedings, no
  longer exists or where the concurrent wrongdoer
  is joined as a Cross Defendant but not as
  Defendant.
• For example, if 4 parties are equally liable (25
  each) for an economic loss and 2 of the
  Defendants are not sued or are insolvent or
  otherwise not able to meet the claim, a Plaintiff
  can only recover from the solvent Defendants
  their respective share. Note that this provision
  does not apply to personal injury claims.

13
Part 5 Liability of Public Other Authorities

• Proclaimed on 6/12/02 Sections 40 to 46
• Provides specific additional protection for
  public authorities including
• the Crown
• Government departments
• Local councils
• Other prescribed bodies

14
Part 5 Liability of Public Other Authorities

• Section 42 sets 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.

15
Part 5 Liability of Public Other Authorities

• Section 43 an act or omission by an authority
  does not constitute a breach of a statutory duty,
  unless the act or omission so was unreasonable in
  the circumstances that no authority having the
  functions in question could properly consider the
  act or omission to be a reasonable exercise of it
  function.

16
Part 5 Liability of Public Other 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

17
Part 6 Intoxication

• Proclaimed on 6/12/02 Sections 47 to 50
• Section 48 Broadly defines as any person under
  the influence of alcohol or drugs, whether or not
  taken for medicinal purposes and whether or not
  lawfully taken.
• Section 49 a court is not to consider
  intoxication as giving rise to any higher
  standard of care on the part of the Defendant.

18
Part 6 Intoxication

• Section 50 a court is not to award damages for
  harm where the Plaintiffs capacity to exercise
  reasonable care and skill for their own safety
  was impaired as a consequence of intoxication and
  unless the Court is satisfied that the same harm
  would have occurred even if the person had not
  been intoxicated
• Where an intoxicated Plaintiff overcomes the
  hurdle of demonstrating that their intoxication
  did not contribute to their harm, there is a
  presumption of at least 25 contributory
  negligence unless the court is satisfied
  otherwise.

19
Part 6 Intoxication

• Issues
• Definition of intoxication extends to
  prescription drugs. Is a hospital exempt from
  taking special care for a patient when it knows
  that the side effects of the prescribed drug are
  drowsiness or aggression?
• Why should hoteliers not have a special duty of
  care to patrons?
• Why has judicial discretion been removed to
  assess contributory negligence?

20
Part 7 Self-Defence in Recovery by Criminals

• Proclaimed on 6/12/02 Sections 51 to 54
• Section 52(1) (2) No civil liability for acts
  in self-defence of self, another or property,
  provided the act of defence is a reasonable
  response to the circumstances as subjectively
  perceived.
• Section 52(3) This section does not apply if the
  person uses force that involves the intentional
  or reckless infliction of death only to protect
  property, to prevent criminal trespass or to
  remove a person committing criminal trespass.

21
Part 7 Self-Defence in Recovery by Criminals

• 53 Damages limitations apply even if self-defence
  not reasonable response
• If section 52 would operate to prevent a person
  incurring a liability to which this Part applies
  in respect of any conduct but for the fact that
  the conduct was not a reasonable response in the
  circumstances as he or she perceived them, a
  court is nevertheless not to award damages
  against the person in respect of the conduct
  unless the court is satisfied that
• (a) the circumstances of the case are
  exceptional, and
• (b) in the circumstances of the case, a failure
  to award damages would be harsh and unjust.

22
Part 7 Self-Defence in Recovery by Criminals

• Section 54 A court is not to award damages in
  respect of liability where at the time of death,
  injury or damage the Plaintiff was engaged in
  conduct that (on the balance of probabilities)
  constitutes a serious offence.
• - A "serious offence" is an offence punishable
  by imprisonment for 6 months or more.
• - This section operates whether or not the
  offence has been prosecuted and proved.
• - The criminal conduct must have contributed
  materially to the risk of death, injury or damage.

23
Parts 8 9 Good Samaritans Volunteers

• Proclaimed on 6/12/02 Sections 55 to 66
• Parts 8 9 operate to protect Good Samaritans
  and volunteers.
• Section 58 no protection if the Good Samaritan
  is under the influence of alcohol, impersonating
  a police officer or falsely representing that
  they have skills or expertise in providing
  emergency assistance.

24
Parts 8 9 Good Samaritans Volunteers

• 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 excludes community service orders
  imposed by a court.
• Section 61 No civil liability for a volunteer
  doing community work but does not extend to
  criminal acts, acts whilst intoxicated, a
  volunteer failing to exercise reasonable care and
  skill, actions outside the scope of the
  charitable organisation or contrary to
  instructions, where the volunteer is required by
  State law to be insured or motor vehicle
  accidents.

25
Part 10 Apologies

• Proclaimed on 6/12/02 Sections 67 to 69
• Section 68 Defined as an expression of sympathy
  or regret, or of a general sense of benevolence
  or compassion, in connection with any matter
  whether or not the apology admits or implies an
  admission of fault in connection with the matter.

26
Part 10 Apologies

• Section 69(1) An apology
• (a) does not constitute an express or implied
  admission of fault or liability by the person in
  connection with that matter, and
• (b) is not relevant to the determination of
  fault or liability in connection with that
  matter.

27
Breach of Duty General Principles

• Wyong Shire Council v Shirt (1980) 146 CLR 40 per
  Mason J
• In deciding whether there has been a breach of
  the duty of care the tribunal of fact must first
  ask itself whether a reasonable man in the
  defendants position would have foreseen that his
  conduct involved a risk of injury to the
  plaintiff If the answer is in the affirmative,
  it is then for the tribunal of fact to determine
  what a reasonable man would do The perception of
  the reasonable mans response calls for a
  consideration of the magnitude of the risk and
  the degree of the probability of its occurrence,
  along with the expense, difficulty and
  inconvenience of taking alleviating action and
  any other conflicting responsibilities which the
  defendant may have.

28
Breach of Duty Civil Liability Act

• Section 5B(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.

29
Breach of Duty Likelihood of Injury

• Section 5B(2)(a) the probability that the harm
  would occur if care were not taken
• Bolton v Stone 1951 AC 850

30
Breach of Duty Seriousness of Risk

• Section 5B(2)(b) the likely seriousness of the
  harm
• Adelaide Chemical Fertilizer Co. v Carlyle
  (1940) 64 CLR 514
• Paris v Stepney Borough Council 1951 AC 367

31
Breach of Duty Cost of Avoiding Harm

• Section 5B(2)(c) the burden of taking precautions
  to avoid the risk of harm
• Caledonian Collieries Ltd v Speirs (1957) 97 CLR
  202

32
Breach of Duty Utility of the Act of the
Defendant

• Section 5B(2)(d) the social utility of the
  activity that creates the risk of harm.
• South Australian Ambulance Transport Inc. v
  Walhdeim (1948) 77 CLR 215

33
Proof of Negligence - General

• CIVIL LIABILITY ACT 2002 s.5E Onus of proof
• In determining liability for negligence, the
  plaintiff always bears the onus of proving, on
  the balance of probabilities, any fact relevant
  to the issue of causation.
• Holloway v McFeeters (1956) 94 CLR 470

34
Proof of Negligence Res Ipsa Loquitor

• The action/thing speaks for itself
• Nominal Defendant v Haslbauer (1967) 117 CLR 448