Fundamentals
Plaintiff vs Defendant approaches
Potential consequences
Common Causes of Action
Negligence
Nuisance
(Not) Breach of Statutory Duty
Common Causes of Action
Nuisance
Principles of negligence are relevant to nuisance: Hargrave v Goldman (1963) 110 CLR 40
Section 36 Civil Liability Act 2002 (Tas) (CLA)
Common Causes of Action
Principles in section 38 CLA
Principles are not defences
Still need to plead facts!
Negligence
Ordinary principles still apply
Starts with identifying duty
A duty does not exist just because a public authority does something/anything
Section 43 CLA:
“the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.”
Negligence
See also section 42 CLA:
(2) This section does not operate –
(a) to create a duty of care in respect of a risk merely because the public or other authority referred to in subsection (1) has actual knowledge of the risk; or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.
Negligence
Speaking of section 42 CLA…
Knowledge of a risk is a fact
Facts must be pleaded!
Lack of knowledge can also be a fact
Facts must be pleaded!
Negligence
Does a duty of care arise from the requirement of the public authority to exercise a function?
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 (McHugh J):
1. Consistent with the function of the public authority.
2. Specific to the plaintiff, not just the public at large.
3. Public authority is in a position of control and can take action to “protect” the plaintiff.
4. Plaintiff cannot safeguard themselves.
5. Policy considerations regarding immunities.
Negligence
Protection (ie defence) offered by section 41 CLA
No liability “if the authority could not have been required to exercise the function in proceedings instituted by the claimant.”
Warren Shire Council v Kuehne & Anor [2012] NSWCA 81
Breach of Statutory Duty
Not as simple as it sounds.
Focuses on legislative intention.
Byrne v Australia Airlines Limited (1995-96) 185 CLR 410 at 424
“A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.”
Breach of Statutory Duty
Whether the statutory provision gives rise a private right that can lead to damages is a fact.
Facts must be pleaded.
Breach of Statutory Duty
Example of a defence:
The defendant:
(a)says further and in the alternative, that if the Regulation has been contravened (which is denied) a right of action does not arise, and a civil proceeding may not be brought in relation to that contravention because the intention of the legislature in drafting the WHS Act was that nothing in the WHS Act or in regulations made under the WHS Act confers a right of action for a contravention of the WHS Act or a regulation made under the WHS Act; and
(b)says further that if the Regulation has been contravened (which is denied) and a right of action arises or a civil proceeding may be brought in relation to that contravention, there is no causal connection between the contravention and the plaintiff’s alleged injury, loss and damage.
Breach of Statutory Duty
Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 at [2] (Collier J):
“Although in the amended statement of claim (ASOC) lodged on 13 April 2017 Ms Rhodin claimed breach of statutory duty by the defendant, namely breach of the Work Health and Safety Regulations 2011 (ACT) (Regulations), at the hearing Counsel for Ms Rhodin conceded that the Regulations did not give rise to a statutory cause of action, and that Ms Rhodin did not rely on a breach of statutory duty….
Rather, Counsel for the plaintiff submitted that the regulations by their very nature and purpose informed the common law as to what is “reasonable”.”
Breach of Statutory Duty
Section 40 Civil Liability Act 2002 (Tas)
Equivalent to s 43 NSW Act.
Act or omission cannot be a breach unless “so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions”
Only applies to breach of statutory duty, not negligence: Doyle’s Farm Produce Pty Ltd v Murray-Darling Basin Authority (No 2) (2021) 106 NSWLR 41; [2021] NSWCA 246 at [39] (Bathurst CJ and Bell P agreeing).
Breach of Statutory Duty
Whether act was unreasonable is a fact.
Facts must be pleaded.
Plaintiff will bear the onus: Collins v Clarence Valley Council (2015) 91 NSWLR 128; NSWCA 263 at [177]:
“The plaintiff must establish that no authority acting reasonably having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. That requires demonstrating that no public authority properly considering the issue could place its conduct as within the range of opinions as to what might constitute a reasonable act or reasonable failure to act.”
Breach of Statutory Duty
Example of the objective assessment:
“there was no rational reason to confine Mr Bailey’s inspection in February 2008 to the risk posed by motor vehicles”, the Council knew the bridge was regularly used by the local cycle club both for its annual race and possibly monthly outings and, in circumstances where the Council did not propose to take some step to repair or rebuild the bridge it was unreasonable not to erect a sign which was “cheap and easy to undertake and was likely to ameliorate the risk faced by at least a significant group of the likely cyclists traversing the bridge.”
Collins v Clarence Valley Council [2015] NSWCA 263 at [178]
Practical considerations
Wide range of public authorities
Insurance
Floodgates issue
Immunities/strong defences
Key Takeaways
1. Plead the underpinning facts of a cause of action or defence.
2. Be careful not to overstate statutory defences or principles.
3. Consider interstate cases (particularly NSW) prior to commencing proceedings or filing a defence.
Bringing or Defending Civil Claims against Public Authorities
N Willing | Old Mercury Chambers | nikolas.willing@tasbar.com.au
Fundamental steps of any claim:
1. identify cause(s) of action;
2. identify the facts that are necessary to prove each cause of action;
3. identify the evidence you have to support those facts;
4. identify the relief you are seeking.
(See article of Estcourt J here: https://www.supremecourt.tas.gov.au/publications/speechesarticles/pleadings-tips-traps/)
5. plead 1, 2 and 4.
All the material facts must be pleaded: Bruce Bruce v Odhams Press Limited [1936] 1 KB 697 at 712 (and plenty of intermediate appellate adoption).
Conclusions drawn from unstated or insufficient facts do not fulfil the function of pleadings: H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 181 at 186 (see decision of Holt AsJ in Holden v Devonport City Council [2002] TASSC 95).
The process is no different for defendants, but they will look for the cause of action and relief first, and then assess whether the pleaded facts support the cause of action. If they do not, there are going to be two potential outcomes (neither of which is of benefit to a plaintiff):
1. Strike-out/summary judgement.
2. Do nothing and let the plaintiff suffer later (good luck at trial).
Most common causes of action:
(a) Negligence
(b) Nuisance
(c) Breach of statutory duty
Civil Liability Act 2002 (Tas) Part 9 (relating to public authorities) does not apply to claims in nuisance or excluded claims under s 3B (see s 36).
Principles in section 38 Civil Liability Act 2002 (Tas).
Principles are not a defence. If the reasonableness of the allocation of resources is an issue, that is a fact which must be pleaded (likely in a defence). Likewise, a plaintiff should expect to encounter the argument and pursue the issue (eg by requiring the documents proving the resourcing issue to be produced in discovery).
Negligence
1. Duty
2. Breach
3. Causation
4. Loss
What duty does a public authority owe in making a decision of a regulatory nature?
Consider another principle in section 43, Civil Liability Act 2002 (Tas):
“the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.”
See for example section 42(2)(a). Section 42 offers a protection (“not liable”) but it does not create a duty of care even where the public authority might have actual knowledge of a risk.
If dealing with a roadwork situation to which section 42 applies, plaintiffs would be wise to investigate, obtain evidence of, and then plead the existence of that knowledge. Likewise, if the defendant is of the view that the knowledge did not exist, and therefore s 42 will be relied on, plead that the defendant did not have the actual knowledge.
The question is whether there is a common law duty.
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 (McHugh J):
1. The imposition of a common law duty must be consistent with and complementary to the performance by the public body of its statutory functions.
2. The duty can be seen to arise specifically in relation to a known Plaintiff rather than generally in relation to the public at large.
3. The Defendant is in a position of control and is under a statutory obligation, or at least has specific power to protect the Plaintiff from danger.
4. The Plaintiff is in a position of special vulnerability or dependence on the Defendant. He or she cannot reasonably be expected to safeguard himself or herself from danger.
5. On a policy overview there is no good reason for giving the Defendant an immunity from liability.
Consider the protection offered by section 41, Civil Liability Act 2002 (Tas):
No liability “if the authority could not have been required to exercise the function in proceedings instituted by the claimant.”
Warren Shire Council v Kuehne & Anor [2012] NSWCA 81
Breach of Statutory Duty
Byrne v Australia Airlines Limited (1995-96) 185 CLR 410 at 424
It is about legislative intention.
A provision prescribing a specific precaution for the safety of others in a matter where the person required to take the precaution is also required to exercise due care under the general law of negligence would give rise to a private right of action unless a contrary legislative intention appears: O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478 (Dixon J).
Existence of a penalty in the legislation opposes the existence of a private right. See for example Spectrum Decorating P/L v State of South Australia & Anor [2000] NSWSC 971 at [39].
Whether a statute contains a duty that if breached can lead to damages is part of the cause of action. This should be pleaded, but it can be done so simply by saying that the defendant owed a statutory duty to do XYZ.
For defendants, the allegation could simply be denied and the plaintiff would still have to make out the cause of action. However it may be wise to plead that the specific provision does not give risk to a private right
Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 at [2] (Collier J)
If a statutory duty exists/is pleaded, consider section 40, Civil Liability Act 2002 (Tas).
Solely for breach of statutory duty: Doyle’s Farm Produce Pty Ltd v Murray-Darling Basin Authority (No 2) (2021) 106 NSWLR 41; [2021] NSWCA 246.
Whether a public authority has acted unreasonably is something for the plaintiff to prove (but objectively, from the perspective of the authority): Collins v Clarence Valley Council (2015) 91 NSWLR 128; NSWCA 263 at [177].
The unreasonableness should be pleaded.
Practical considerations
• Very wide range of decision-making styles. Many different interests at play.
• Most statutory authorities are insured, and not by the State.
• Can be commercial, but also a strong interest in not allowing a flood of litigation (especially Councils).
• Be aware of immunities and strong defences: both plaintiff and defendants.
Key takeaways
1. Plead the underpinning facts of a cause of action or defence.
2. Be careful not to overstate statutory defences or principles, otherwise your opponent may take advantage.
3. Consider interstate cases (particularly NSW) prior to commencing proceedings or filing a defence.