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Law Notes Torts Law Notes

Duty Public Authorities Notes

Updated Duty Public Authorities Notes

Torts Law Notes

Torts Law

Approximately 121 pages

These are comprehensive notes that include explanations from the lecturer. The case law for torts has always been old and these notes should still be relevant....

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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.

Page 329

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...

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