1. TORTS LECTURE 5 Civil Liability Act: An Overview of the Duty of Care* Greg Young greg.young@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 28 th 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 1 st 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 2 nd 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) 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

7. 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 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.

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. 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.

10. 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”. Martin’s friend, Dima, said that on a few occasions he himself had climbed onto the roof. Some of Dima’s 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”.

11. 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.

12. 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.s 5B

13. 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 J’s 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).

14. 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).

15. 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)).

16. 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.

17. Duty of Care 5C Other principles In proceedings relating to liability for negligence: (a)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 (b)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 (c)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.

18. Assumption of risk Injured persons presumed to be aware of obvious risks 5G Injured persons presumed to be aware of obvious risks (1)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. (2)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.

19. 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.

20. 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 incident[s] 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.

21. Assumption of risk 5H No proactive duty to warn of obvious risk (1)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. (2)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.

22. Assumption of risk 5I No liability for materialisation of inherent risk (1)A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2)An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3)This section does not operate to exclude liability in connection with a duty to warn of a risk.

23. 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.

24. Recreational activities 5M No duty of care for recreational activity where risk warning (1)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. (2)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).

25. Recreational activities 5M No duty of care for recreational activity where risk warning (10)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 (1)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. (2)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.

27. 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.

28. 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.

29. 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

30. 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.

31. Professional negligence 5O Standard of care for professionals (1)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. (2)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 person’s mental condition. "negligence" means failure to exercise reasonable care and skill. "personal injury" includes: (a)pre-natal injury, (b)impairment of a person’s physical or mental condition, and (c)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: (a)the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b)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 harm—duty of care (1)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.