Duty Public Authorities - Torts Law

Class 6: Duty- Public Authorities

• Nonfeasance v misfeasance – not doing something even though you can and doing something but badly (duty of care).

• Policy v operational- The development of policy of what money will be spent and what programs have no duty of care. The government has to do them. The operational factors have a duty of care.

• General reliance (public as a whole is relying on you) v specific reliance- utilitarianism (greatest good for the greatest number) but if there is specific reliance of one person on your actions a duty of care will arise out of that.

Public authorities

• The paradigm negligence case is when a person harms another and there was no pre-existing relationship. It is a different story for public authorities.

• You have a recourse in administrative law or in negligence.

• Sutherland shire Council v Heyman (1985) was where a council did not inspect the foundations of a house properly and caused Heyman pure economic loss. It established that in public authority cases there is a policy/operation distinction. If the matter is operational, then a duty of care can be imposed. It also established that a duty of care will arise where there is a general reliance based on community expectations that the government has private responsibility. Mason J acknowledged in Sutherland Shire Council v Heyman, it is generally no answer to a negligence claim for a defendant to argue that its failure to remove a risk was based upon “financial, economic, political or social factors”.

• General reliance is different from special reliance, as seen in Pyrenees Shire Council v Day (1998). In this case there was a fire to a house caused by a defective chimney. It burnt the Day’s shop as well. A few years earlier, the former tenants were told that the fireplace was unsafe to use by the council. The council did not notify the new tenants (Eskimo Amber). The High Court found that only a duty of care was owed to Eskimo Amber. The minority said a general duty of care was owed to them. Gummow J said that reasonable foresee-ability and relevant factors should decide the matter. Brennan CJ used statutory intention rather than general reliance.

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Crimmins v Stevedoring Industry Finance Committee (1999) – Do public authorities have a duty of care when there is general reliance on them to ensure adequate safety for employees under the statute.

Facts:

• Crimmins was a waterside worker employed by the Australian Stevedoring Industry Authority.

• He unloaded asbestos cargoes and was diagnosed with mesothelioma.

• The authority dealt with discipline, registration and who for and when employees would work. The work was short term with the respective employers.

• The Authority was replaced by the Committee in the Stevedoring Industry Finance Committee Act 1977 (Cth).

Remedy sought:

• Crimmins argued that he was owed a duty of care in the High Court.

Legal issue:

• Did the committee owe a duty of care if it was the Authority that employed Crimmins?

• Was the authority’s role to warn and supply equipment to prevent the danger or was it only a supervisory role in which it was the employer’s duty to take care of the employee’s safety?

• Did the statute include a responsibility to take steps to ensure workers were actively protected by the authority?

• Does the authority have a duty of care to provide safe working conditions for Crimmins, either under statute or the common law?

Outcome:

• Crimmins won 5:2. Appeal allowed. Hayne and Gummow JJ dissented.

Legal reasoning:

• McHugh J reasoned that the authority had a supervisory role and was ignorant of the cargoes to be handled on the ships. However negligent exercise of a statutory power is not immune from liability simply because it was within power.

• The authority directed the workers where they had to work and a failure to obey this would lead to disciplinary action or deregistration. The workers were made vulnerable to harm unless the authority took action. The casual nature with the employers gave them less incentive to protect the employees. The authority was under a continuing duty of care and possessed the powers to protect the workers.

• Is there a duty?

  • Reasonably foreseeable?

  • Is there a duty under statute or an assured obligation to the plaintiff as a specified class? The authority had a duty to protect a specific class of people and not the community at large. If a statute is set up to protect a certain class of people, then they have a duty of care towards that class.

  • Was the plaintiff vulnerable? Could the plaintiff adequately safeguard themself? Because the authority could control where they were working, this made them vulnerable.

  • Knowledge of the risk of harm? (ought to know) The authority must have knowledge that the risk of harm exists. The test is whether the authority had an obligation to follow up the risks (assumed knowledge).

  • Is it exercising core policy making or quasi legislative function? The authority retained power to control the risk. It was not policy, it was operational.

  • Is the duty consistent with public policy and statute? Is there a reason we should not impose this duty? This was dismissed.

• Gummow J dissented. He reasoned that the starting point lies in the statute and the determination of the scope of its operation

• Hayne J dissented. He reasoned that authority did not have day to day control of the system of work and its power was to prescribe rules to govern safety matters. It did not have a duty of care to make an order because if it did it would have transformed the relationship of the parties. It would cause the authority to limit the stevedore employers. The statute was designed to achieve a balance between the authority and the employer. The parliament did not give the authority the role to make orders or to supply safety equipment. The employer has the duty of care and not the authority.

• Control: The Authority did not have control of day to day functions. Even if any warning was given or equipment supplied it would have been done in a context where the employer and not the Authority had control over the effect that it was given.

  • The control of the safety over the work equipment, makes the employer responsible for the duty of care and not the authority.

• Accountability: Fundamental reason for not imposing a duty in negligence in relation to the quasi-legislative functions of a public body is one that must have a public (legislative) rather than a private or individual focus (day to day work conditions). A common law duty would alter the way in which the Authority performed its task.

  • The authority can make suggestions but ultimately it is up to the employer to put them in place.

Ratio decidendi:

• (Mc Hugh J) The issue of duty should be decided based on reasonable foresee-ability that an act would result in the plaintiff’s injury, if the defendant had the power to protect the plaintiff, the plaintiff was vulnerable and could not reasonably safeguard themselves, did the defendant know of the harm to the plaintiff, would this duty be inside of core policy making or are there reasons in policy to deny the duty existed.

  • McHugh J reasoned:

    • Would a reasonable public authority foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or their interests?

    • Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person?

    • Was the injured person or their interest vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard their interests from harm?

    • Did the public authority know, or ought to have known of an existing risk of harm to the plaintiff, or to a specific class of persons who included the plaintiff (rather than risk to the general public)?

    • Would the imposition of the duty of care impose liability with respect to the defendant’s exercise of core policy making or quasi legislative functions?

    • Is there any supervening policy reason that denies the existence of a duty of care?

• Public authorities have a duty of care when they have acted negligently under statute and caused a party harm as a result.

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Graham Barclay Oysters v Ryan (2002) – A case where the public authority did not owe a duty of care to the consumer even though they had power to address the problem under statute.

Facts:

• Mr Ryan got Hepatitis A after eating contaminated oysters from a NSW lake.

• The grower was Graham Barclay.

• It came from sewerage. The oyster industry used depuration to disinfect oysters.

• The state put in place mandatory depuration of 36 hours to which Barclay complied. They also delayed harvesting till the end of a storm.

• The water quality needed to be tested by the State but there was no way to test for HAV.

Remedy sought:

• Mr Ryan wanted damages for negligence against Graham Barclay, the council and the state.

Prior proceedings:

• Graham Barclay lost in trial.

• Barclay lost in the Full Federal Court.

• They appealed to the High Court.

Legal issue:

• Did the state and council have a reasonably foreseeable duty of care to control the cleanliness of the lake where the oysters were growing?

Outcome:

• Graham Barclay won. The state and council did not owe a duty of care. Appeal allowed. Gleeson CJ, Kirby and Callinan JJ dissented.

Legal reasoning:

• Gummow and Hayne JJ reasoned that in the trial it was found that under the Local Government Act, the state could have prevented the deterioration of the lake because they had the statutory powers to do so. They had the power...