TORTS

1
TORTS

• LECTURE 5
• Civil Liability Act An Overview of the Duty of
  Care
• Greg Younggreg.young_at_lawyer.com
• 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 together with the
  Civil Liability Amendment (Personal
  Responsibility) 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

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.

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Claims excluded from operation of the Civil
Liability Act s3B(1)

• a) an intentional 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 intentional torts done with intent to
  injure.
• (b) dust diseases under the Dust Diseases
  Tribunal Act 1989
• (c) personal injury damages where the injury or
  death concerned resulted from smoking or other
  use of tobacco products
• (d) actions governed by Part 6 of the Motor
  Accidents Act 1988 and Chapter 5 of the Motor
  Accidents Compensation Act 1999 except the
  provisions that subsection (2) provides apply to
  motor accidents
• (e) Workers Compensation Act 1987, Workers
  Compensation (Bush Fire, Emergency and Rescue
  Services) Act 1987, Workers Compensation (Dust
  Diseases) 1942, Victims Support and
  Rehabilitation Act 1996 or Anti-Discrimination
  Act 1977 or a benefit payable under the Sporting
  Injuries Insurance Act 1978

6
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

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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.

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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

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

• Waverley Council v Ferreira 2005 NSWCA 418
• Facts
• 15 December 2000 12 yr old boy died when he
  fell to the ground through a skylight in the roof
  of a building known as the Community Centre in
  Kimberley Park
• - The boy was throwing a soft dart with a friend
  and mistakenly threw it onto the roof. He gained
  access to the roof by climbing a mesh fence
  attached to the building and undergrowth. The
  fence and undergrowth made it relatively easy for
  children to climb onto the roof. The fence had no
  utilitarian purpose as it had a gate without a
  lock.

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s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 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.
• 35 There can be no doubt that the Council knew or
  ought to have known that children frequently
  climbed on to the roof of the Community Centre.
  Children playing at the park were often seen on
  the roof. Mr Ferreira said that he saw children
  on the roof sometimes twice a week. Martins
  friend, Dima, said that on a few occasions he
  himself had climbed onto the roof. Some of Dimas
  friends had also climbed on to the roof as had
  other children. A witness testified that maybe
  weekly you could see at least one person up
  there.

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s.5B(1)(a) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 39 It was reasonably foreseeable that, once on
  the roof, a boy might be attracted to the
  skylight and stand on it or otherwise in some way
  rest his weight upon it.
• 41 ... Irrespective of whether the Council knew
  or ought to have known of the condition of the
  skylight it was reasonably foreseeable to the
  Council that a child who climbed on to the roof
  might come to serious harm by falling to the
  ground. Such a fall might be caused by an
  infinite variety of circumstances, impossible to
  identify in advance.

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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.

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s.5B(2) - Waverley Council v Ferreira

• Ipp JA (Spigelman CJ Tobias JA agreeing)
• 45 The matters set out in s5B(2), in substance,
  are a reiteration of Mason Js remarks in Wyong
  Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
  ...
• 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).

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s.5B(2) - Waverley Council v Ferreira

• 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).

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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)).

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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.

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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.

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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.

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s5G Obvious Risk

• Falvo v Australian Oztag Sports Association
  Anor 2006 NSWCA 17 (2 March 2006)
• The plaintiff injured his knee while playing
  Oztag (touch football) on the defendant council's
  field. The field had several sandy patches where
  the council had topped up' wear to the grass and
  the injury was suffered when the plaintiff
  stepped in one of these. Ipp JA, in his leading
  judgment, upheld the trial judge's finding that
  the field was in a fit condition and that the
  defendant was not liable. He found that the risk
  from the condition of the field was one
  substantially similar to many other fields used
  for amateur sport, and that the risk was obvious
  to all.

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s5G Obvious Risk

• Eutick v City of Canada Bay Council 2006 NSWCA
  30 (3 March 2006)
• The plaintiff was a pedestrian who tripped over
  the ridge of a gully or depression in a roadway.
  In the leading judgment, Campbell AJA held that
  the risk was very obvious', as part of the
  normal incidents of life', and that it did not
  pose a significant risk. This was held to be the
  case in spite of the fact of the injury and the
  amount of traffic on the roadway which was said
  to have added to the risk. His Honour held the
  defendant council was entitled, having regard to
  the obviousness of the risk, and the limited
  nature of the hazard posed by it, to expect that
  the exercise of reasonable care for their own
  safety by pedestrians would obviate the need for
  any further response' to the risk.
• His Honour added that s5(1)(b) CLA put the onus
  of proving that the risk was not insignificant'
  on the plaintiff, and that she had not discharged
  this.

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Assumption of risk

• 5H No proactive duty to warn of obvious risk
• A person ( "the defendant" ) does not owe a duty
  of care to another person ( "the plaintiff" ) to
  warn of an obvious risk to the plaintiff.
• This section does not apply if
• (a) the plaintiff has requested advice or
  information about the risk from the defendant, or
  
• (b) the defendant is required by a written law
  to warn the plaintiff of the risk, or
• (c) the defendant is a professional and the risk
  is a risk of the death of or personal injury to
  the plaintiff from the provision of a
  professional service by the defendant.
• (3) Subsection (2) does not give rise to a
  presumption of a duty to warn of a risk in the
  circumstances referred to in that subsection.

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Assumption of risk

• 5I No liability for materialisation of inherent
  risk
• A person is not liable in negligence for harm
  suffered by another person as a result of the
  materialisation of an inherent risk.
• An "inherent risk" is a risk of something
  occurring that cannot be avoided by the exercise
  of reasonable care and skill.
• This section does not operate to exclude
  liability in connection with a duty to warn of a
  risk.

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s5I Inherent Risk

• Lormaine Pty Ltd v Xuereb 2006 NSWCA 200
• The NSW Court of Appeal has held that a shipowner
  was liable for a woman's injuries when she was
  washed from the bow by a rogue wave'. One of the
  defences raised by the shipowner was that the
  waves were an inherent and obvious risk of
  dolphin-watching. However, the shipowner was
  unable to prove that the risk was obvious because
  the brochure had given the impression of a gentle
  cruise. Also, the ship's presence in a known
  wave zone' meant that the risk was avoidable,
  not inherent. The woman's damages were reduced,
  however, because the trial judge had not
  considered pre-existing conditions and the
  plaintiff had failed to alleviate the symptoms by
  losing weight.

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Recreational activities

• 5M No duty of care for recreational activity
  where risk warning
• A person ( "the defendant" ) does not owe a duty
  of care to another person who engages in a
  recreational activity ( "the plaintiff" ) to take
  care in respect of a risk of the activity if the
  risk was the subject of a risk warning to the
  plaintiff.
• If the plaintiff is an incapable person, the
  defendant may rely on a risk warning only if
• (a) the incapable person was under the control
  of or accompanied by another person (who is not
  an incapable person and not the defendant) and
  the risk was the subject of a risk warning to
  that other person, or
• (b) the risk was the subject of a risk warning
  to a parent of the incapable person (whether or
  not the incapable person was under the control of
  or accompanied by the parent).

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Recreational activities

• 5M No duty of care for recreational activity
  where risk warning
• The fact that a risk is the subject of a risk
  warning does not of itself mean
• (a) that the risk is not an obvious or inherent
  risk of an activity, or
• (b) that a person who gives the risk warning
  owes a duty of care to a person who engages in an
  activity to take precautions to avoid the risk of
  harm from the activity.

26
Recreational activities

• 5N Waiver of contractual duty of care for
  recreational activities
• Despite any other written or unwritten law, a
  term of a contract for the supply of recreation
  services may exclude, restrict or modify any
  liability to which this Division applies that
  results from breach of an express or implied
  warranty that the services will be rendered with
  reasonable care and skill.
• Nothing in the written law of New South Wales
  renders such a term of a contract void or
  unenforceable or authorises any court to refuse
  to enforce the term, to declare the term void or
  to vary the term.

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Recreational activities

• 5L No liability for harm suffered from obvious
  risks of dangerous recreational activities
• (1) A person ( "the defendant" ) is not liable in
  negligence for harm suffered by another person (
  "the plaintiff" ) as a result of the
  materialisation of an obvious risk of a dangerous
  recreational activity engaged in by the
  plaintiff. (2) This section applies whether or
  not the plaintiff was aware of the risk.

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s5L Dangerous Recreational Activities

• Fallas v Mourlas 2006 NSWCA 32 (16 March 2006)
• The plaintiff was holding a spotlight from a
  vehicle, while others shot the kangaroos. He was
  accidentally shot by the defendant when the
  defendant tried to unjam his weapon, despite
  having given the plaintiff assurances that the
  weapon was not loaded. The defendant argued it
  was an obvious risk in the course of a dangerous
  recreational activity (s5L CLA).
• The court held unanimously (Ipp JA, Tobias JA and
  Basten JA) that spotlighting was a dangerous
  recreational activity'. Ipp JA and Tobias JA held
  that for the risk to be significant' (s5K) it
  must have been a somewhere between a trivial
  risk and a risk likely to materialise'. Ipp JA
  held that in determining whether a recreational
  activity was dangerous involved particularising
  and segmenting the activity where necessary.
• The court held by majority (Ipp JA, Basten JA)
  that the risk that eventuated was not an obvious
  risk' (s5F) in the course of a dangerous
  recreational activity because of the defendant's
  assurances that the gun was not loaded. It
  therefore ruled in favour of the plaintiff.

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Recreational Activities Trade Practices Act

• 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

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Professional negligence

• Sections 5O 5P
• Peer professional opinion (or Bolam) test for
  determining the appropriate standard of care
• Rogers v Whitaker (1992) 175 CLR 479
• Cases involving a risk of injury or death arising
  from a professional service, community standards
  and other considerations may be applied by the
  court in determining the appropriate standard of
  care to be exercised.

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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

32
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.

33
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)

34
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

35
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.