Annotated Civil Liability Act 2002 (NSW)

This page provides summaries of significant cases from the New South Wales Court of Appeal and the High Court of Australia, since 1 October 2012, that relate to sections of the Civil Liability Act 2002 (NSW).  For case law prior to 1 October 2012, see the NSW CaseLaw website.  See also Dominic Villa, Annotated Civil Liability Act 2002 (NSW) (2017) (3rd ed, Lawbook Co).

This page is intended to be an educative tool for practitioners applying the Civil Liability Act. The Schedules to the Act and Notes included in it are not reproduced here. For the official version of the material, please see Legislation New South Wales.

Part 1 - Preliminary

This Act is the Civil Liability Act 2002.
This Act is taken to have commenced on 20 March 2002.

In this Act:

“court” includes tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined.

“damages” includes any form of monetary compensation but does not include:

(a) any payment authorised or required to be made under a State industrial instrument, or

(b) any payment authorised or required to be made under a superannuation scheme, or

(c) any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.

“non-economic loss” means any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement.

Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281

The appellant estate continued proceedings claiming damages for mesothelioma due to exposure in the Dust Diseases Tribunal. On appeal, there was a question as to whether the widow of the deceased had previously recovered “damages” for the purposes of s 15B(6).

Despite the apparently expansive form of the definition of “damages” in s 3, it does not extend beyond the heads of damages capable of being awarded by a tribunal dealing with a claim. [20]-[22]

State of New South Wales v Stevens [2012] NSWCA 415

The District Court awarded the respondent $10,000 in nominal damages for breach of a deed. On appeal, the respondent argued that the Act does not preclude the award of nominal damages as nominal damages do not fall within the definition of “damages” in s 3.

Section 3 defines “damages” to include, subject to stated exceptions, “any form of monetary compensation”. Nominal damages could be awarded as they are not “monetary compensation”, being vindicatory and not compensatory. They are awarded because the plaintiff has established liability but has not established that any damages flowed from the relevant breach. However, the assessment of damages made by the trial judge was erroneous and a revised sum of $100 was awarded as a token of the appellant’s breach of the deed. [25]-[26], [36]-[37]

(1) A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law.

(2) This Act (except Part 2) does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract with respect to any matter to which this Act applies and does not limit or otherwise affect the operation of any such express provision.

(3) Subsection (2) extends to any provision of this Act even if the provision applies to liability in contract.

State of NSW v McMaster; State of NSW v Karakizos; State of NSW v McMaster [2015] NSWCA 228

Three civil suits were brought against the State of NSW with respect to the shooting of Justin McMaster by a police officer. On appeal, the State challenged a number of the primary judge’s findings relating to whether the police officer was acting in defence of another officer. A question was raised as to whether there is any difference between the test of self-defence at common law and that under s 52 of the Act.

The immediate answer is that s 3A(1) does not limit protection from liability given by another provision or by another Act or law and, accordingly, the common law of self-defence remains. Given the terms of s 3A(1), s 52 does not purport to impinge on the common law and the common law is not to be construed by reference to s 52. [210]-[211]

Note: Special leave to the High Court of Australia was refused.

Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58

The respondent was found liable for breach of its obligations of care under a mortgage origination deed. It submitted that its liability was limited by the apportionment provision contained in s 35 of the Act. There was a question as to whether the parties had made express provision for their rights, obligations and liabilities in a manner which differed from that provided by Part 4 of the Act so as to attract the application of s 3A(2).

The relevant clause made express provision for the rights and liabilities of the parties under the contract and was inconsistent with the application of the apportionment provision in Part 4 of the Act. Accordingly, s 3A(2) of the Act applied, the apportionment provision was inapplicable and the respondent’s liability was not limited. Section 3A does not require any particular form of wording to effect a contracting out and no reference needs to be made to the Act. Rather, all that matters is that the contractual indemnity is inconsistent with the provisions of Part 4. [9]-[16]

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person–the whole Act except:

(ia) Part 1B (Child abuse—liability of organisations), and

(i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and

(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

(iii) Part 2A (Special provisions for offenders in custody),

(b) civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989 –the whole Act except sections 15A and 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)),

(c) civil liability relating to an award of personal injury damages (within the meaning of Part 2) where the injury or death concerned resulted from smoking or other use of tobacco products–the whole Act except section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)),

(d) civil liability relating to an award to which Part 6 of the Motor Accidents Act 1988 applies–the whole Act except the provisions that subsection (2) provides apply to motor accidents,

(e) civil liability relating to an award to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies (including an award to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the Transport Administration Act 1988)–the whole Act except the provisions that subsection (2) provides apply to motor accidents,

(e1)  civil liability relating to an award to which Part 4 of the Motor Accident Injuries Act 2017 applies—the whole Act except the provisions that subsection (2) provides apply to motor accidents,

(f) civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies–the whole Act (other than Part 1B),

(g) civil liability for compensation under the Workers Compensation Act 1987, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, the Workers’ Compensation (Dust Diseases) Act 1942 or the Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978 –the whole Act,

(h) civil liability for financial assistance for economic loss under the Victims Rights and Support Act 2013 –the whole Act.

(2) The following provisions apply to motor accidents:

(a) Divisions 1-4 and 8 of Part 1A (Negligence),

(a1) section 15B (Damages for loss of capacity to provide domestic services), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies,

(b) section 15C (Damages for loss of superannuation entitlements), except in relation to a motor accident to which the Motor Accident Injuries Act 2017 applies,

(c) section 17A (Tariffs for damages for non-economic loss),

(c1) section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)),

(d) Division 7 (Structured settlements) of Part 2,

(e) Part 3 (Mental harm),

(f) section 49 (Effect of intoxication on duty and standard of care),

(g) Part 7 (Self-defence and recovery by criminals),

(h) Part 8 (Good samaritans).

(3) The regulations may exclude a specified class or classes of civil liability (and awards of damages in those proceedings) from the operation of all or any specified provisions of this Act. Any such regulation may make transitional provision with respect to claims for acts or omissions before the commencement of the regulation.

2018

Fede v Gray by his tutor New South Wales Trustee and Guardian [2018] NSWCA 316

The appellant was injured when the respondent bit her inner thigh through her pants and caused a substantial wound, which left scarring. At the time of the incident, the respondent was in a severe psychotic state. An issue for the Court was whether the proceedings were excluded from operation the of the Civil Liability Act by virtue of s 3B(1)(a).

The first limb of the provision was satisfied, because the biting was intentional in the sense of being a voluntary act. However, the second limb was not satisfied, there being no reason to reject the primary judge’s finding that the respondent did not understand the nature or quality of his act, such that he did not intentionally cause injury to the appellant: [206].

McColl JA, dissenting, considered that there was no question that in opening his mouth and clearly closing it over a substantial portion of her thigh, the respondent acted with ‘intent to cause injury’ to the appellant. Section 3B(1)(a) was therefore satisfied, such that the appellant’s damages fell to assessed at common law: [138].

NSW Court of Appeal cases cited in discussion:

Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132

White v Johnson (2015) 87 NSWLR 779; [2015] NSWCA 18

Dean v Phung [2012] NSWCA 223

2016

Croucher v Cachia [2016] NSWCA 132

An altercation between two neighbours led to the respondent being seriously injured by the gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery. An issue which fell to be determined on appeal was whether the operation of s 21 of the Act was excluded under s 3B(1)(a).It is not clear that conduct which is reckless – even if it amounts to an intentional tort such as battery – will engage s 3B(1)(a). A battery which involves merely negligent conduct will not engage s 3B(1)(a) because the section looks to the nature of the conduct found to occur rather than to the cause of action which has been pleaded. Sections 3B(1)(a) and 20 operate upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is necessary to look at the character of the underlying conduct rather than whether the claim is in respect of an “intentional tort”. [33]–[35], [117]

NSW Court of Appeal cases cited in discussion:

2015

White v Benjamin [2015] NSWCA 75

The appellant claimed damages for the neck injuries sustained in a motor vehicle accident in which the respondent hit the rear of her stationary motor vehicle. The question arose whether the trial judge was correct in treating the claim with respect to domestic assistance as covered by s 15 of the Act.

The primary judge was incorrect in finding that s 15 of the Act applied governed the appellant’s claim as s 3B provides that s 15 does not apply to motor accidents. However, pursuant to s 3B(2)(a1), s 15B does apply to motor accidents. [3], [69]

White v Johnston [2015] NSWCA 18

The respondent alleged that the treatment she received at the respondent’s dental surgery constituted assault as it was unnecessary, ineffective and negligently performed. Damages were awarded at first instance on the basis that the Act did not apply, despite the fact that the primary judge did not make a finding as to whether the acts done by the appellant were done with intent to cause injury as required by s 3B(1)(a) of the Act.

There are two prerequisites for the application of s 3B(1)(a). The first is that the liability must arise in respect of an intentional act; the second is that the act must be done with intent to cause injury. It does not follow that because an intentional tort is alleged and made out that s 3B applies. As per Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743, it is the act and not the injury which must be intentional. In the immediate case, the primary judge had not made any finding that the act was done with the intention to cause injury and the evidence could not sustain such a finding. [15], [131]-[133]

NSW Court of Appeal cases cited in discussion:

Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714

2014

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

The respondent was hit by a forklift at work and suffered major injuries. At first instance, the appellant was found liable in negligence and the respondent was found not to be contributorily negligence for failing to keep proper lookout. The primary judge found that the accident fell within the definition of “motor accident” for the purposes of the Motor Accidents Compensation Act 1999 (NSW) and found, by reference to s 3B(1)(e), that the Act did not apply.

The primary judge’s finding that the Act did not apply was not correct. Section 5R of the Act is part of the enacted law of contributory negligence and, in any case, applies to “motor accidents” by virtue of s 3B(2)(a). [46], [85]

NSW Court of Appeal cases cited in discussion:

Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) [2010] NSWCA 191

Nominal Defendant v Meakes [2012] NSWCA 66

Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464

2013

Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219

The respondents were injured in a motor accident. At the time of the accident, two of the respondents were traveling in the rear luggage compartment and all three of the respondents had consumed alcohol. On appeal the respondents sought to challenge the primary judge’s findings with respect to contributory negligence.

In a motor vehicle accident claim, by virtue of s 3B(2)(a), s 49, which deals with the effect of intoxication on duty and standard of care, applies to the assessment of contributory negligence in place of a provision of the Motor Accidents Act 1988 (NSW) to the extent of any inconsistency. [32]

McDonald v Shoalhaven City Council [2013] NSWCA 81

The appellant was injured whilst assisting an employee of the respondent out of a trench which had collapsed. The trial judge found that, whilst the respondent owed the appellant a duty of care, that duty had not been breached. The appellant submitted that the claim was exempt from the provisions of the Act under s 3B(1)(f) because the duty of care owed by the respondent was derived from the duty of care the respondent owed to his employees. The appellant also submitted that s 3B should be construed to avoid the incongruity that would arise in having the determination of a breach of derivative duty of care determined in accordance with different principles than applied between an employer and employee.

It would do violence to plain the words of s 3B to give it a construction that avoids incongruity as submitted by the appellant. The Court has acknowledged that s 3B(1)(f) produces anomalies but any resultant incongruity in damages claims brought in varying circumstances does not affect the clear meaning of the provision. [10]–[13]

NSW Court of Appeal cases cited in discussion:

State of New South Wales v Ball [2007] NSWCA 71

Taylor v Owners – Strata Plan No 11564 [2013] NSWCA 55

The appellant’s husband was killed when a shop awning collapsed on him. His widow claimed damages, including an amount for lost expectation of financial support, under the Compensation to Relatives Act 1897 (NSW). The appeal turned, in part, on whether Part 2 of the Act applies to claims made under the Compensation to Relatives Act.

Whilst Compensation to Relatives Act claims are not referred to in s 3B, such actions are not specifically excluded by s 3B. This, among other contextual indications, suggests that Part 2 of the Act does apply to Compensation to Relatives Act claims. [10]-[22]

Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10

A teacher was found to have had a sexual relationship with a pupil. The primary judge found that the claim fell within s 3B(1)(a) of the Act as “liability in respect of an intentional tort that is … other sexual misconduct” and that, therefore, the Act did not apply to the claim. The question arose whether the primary judge’s construction of s 3B was correct.

The meaning of “sexual misconduct” is to be taken from its text and place in the Act, its purpose from the text and structure of the Act and appropriate secondary materials. The word ‘misconduct’ in conjunction with the adjective ‘sexual’ conveys the meaning of a breach of moral values sufficiently commonly recognised to be called wrong and the phrase necessarily requires application of a moral standard. However, the phrase “sexual misconduct” does not require a criminal act. What its reach is at any given time and place will be a matter for the court to assess and its limits need not be defined.

The primary judge was correct in finding that the claim involved “other sexual misconduct” where a teacher responsible for the care of a vulnerable young man had engaged in a sexual relationship with him. [49]-[52]

2012

Tomasetti v Brailey [2012] NSWCA 399

The appellants claimed that the respondent engaged in misleading and deceptive conduct with respect to a number of failed investment schemes. The question arose whether the respondent’s liability, or the liability of the partnership he acted on behalf of, was limited by s 35(1) of the Act.

Section 3C of the Act enables a person who is vicariously liable to claim a limitation of liability under s 35(1). In some cases, the vicariously liable defendant may be able to show that he or she was less than fully responsible for the loss and thus be entitled to limited liability. That was not so in the immediate case and the liability owed by the respondent was not limited by s 35(1). [154]-[156]

Any provision of this Act that excludes or limitsthe civil liability of a person for a tort also operates to exclude or limitthe vicarious liability of another person for thattort.

(1) Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

(2) Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(3) Notes Notes included in this Act do not form part of this Act.

(4) Savings and transitional provisions Schedule 1 has effect.

Part 1A - Negligence

Part 1A Division 1 - Preliminary

In this Part:

“harm” means harm of any kind, including the following:

(a) personal injury or death,

(b) damage to property,

(c) economic loss.

“negligence” means failure to exercise reasonable care and skill.

“personal injury” includes:

(a) pre-natal injury, and

(b) impairment of a person’s physical or mental condition, and

(c) disease.

(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361

The respondent was hit and seriously injured during a motorcycle race training circuit. He brought proceedings seeking damages for breach of an implied warranty and, in the alternative, relied upon a cause of action in tort. The contractual claim was successful.

Pursuant to s 5A(1), Part 1A applies to any claim for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Therefore, no matter how the claim is framed, Div 5 of Part 1A can be engaged in respect of claims in contract. [20] [86]

High Court cases cited in discussion:

Insight Vacations Pty Ltd v Young [2011] HCA 16; (2011) 243 CLR 149

Paul v Cooke [2013] NSWCA 311

The respondent’s radiologist negligently failed to diagnose an aneurysm which later ruptured during an operation. On appeal, general observations about the language of s 5A were critical to the interpretation of ss 5D and 5I.

The reference to “negligence” in s 5A is not a reference to a tort, but to a category of conduct, which may be an element of a cause of action in tort, in contract, under statute of otherwise. When the statute is directed to a “duty of care”, it is confined in its operation to causes of action in respect of which duty of care is an element. When the Act is directed to tort, it says so. But where the Act provides that a person “is not negligent” (s 5B), “is not liable in negligence” (ss 5I and 5L), or “does not incur a liability in negligence” (s 5O), then it is directed to any claim for damages for harm resulting from a failure to exercise reasonable care and skill. The effect of s 5A is therefore that Part 1A applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill. [39]-[41]

Part 1A Division 2 - Duty of care

(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.

2019

Hawkesbury Sports Council v Martin [2019] NSWCA 76

The respondent tripped and fell on a steel cable strung between low timber posts which formed a cable fence separating a car-parking area from playing fields at a park. Immediately behind the cable fence, closer to the fields, was a row of large concrete blocks, extending over about 40 m. The blocks had been installed at a later date than the fence. The respondent commenced proceedings against Hawkesbury Sports Council and Hawkesbury City Council, alleging that the Councils were negligent in failing to take precautions following the installation of the blocks and the retention of the cable, and further that they were negligent in failing to remove the cable. The primary judge found in favour of the respondent. The Councils appealed. By majority, the appeal was allowed.

On s 5B: the evidence did not establish that the risk of harm caused by the positioning of the concrete blocks and the retention of the cable was not insignificant: [38].

Note: Simpson AJA dissented on liability.

Weber v Greater Hume Shire Council [2019] NSWCA 74

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 5B: the requirement in ss 5B(2)(c) and 5C(a) that the court consider ‘the burden of taking precautions’ refers, in relation to a public authority, to the allocation of the necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c): [95].

2018

McFee v Reilly [2018] NSWCA 322

The respondent, Joseph Reilly, had commenced proceedings against various parties in respect of matters arising out of his father’s will. Relevantly, those proceedings included a claim in negligence against a solicitor. Mr Reilly claimed that the solicitor, who was retained by his father’s attorney to advise on ‘estate planning’, owed his father’s estate a duty of care as the ultimate client, and incidentally, owed Mr Reilly a duty of care as an intended beneficiary of the deceased. Mr Reilly argued that the solicitor had breached the duty of care owed to him by not taking reasonable care to prevent the father’s attorney from breaching her fiduciary duty to the estate (which she did). The primary judge upheld Mr Reilly’s claim in negligence. The solicitor appealed. The Court of Appeal upheld the primary judge’s decision on this point.

On s 5B: the risk of harm in a case where a testator is incapable is that the attorney may (whether innocently or consciously) misuse the power conferred on them, to the detriment of beneficiaries under the will. In a case where the testator was elderly and not legally qualified, that risk was plainly foreseeable and not insignificant. In such circumstances, a solicitor advising the attorney (and, ultimately, the testator’s estate) could be expected to take reasonable precautions that went beyond obtaining a copy of the will; they could be expected to test the deceased’s testamentary intentions: [161].

 

Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330

In 2015, the appellant, aged 70 at the time, tripped outside the entrance to an aged care facility owned by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10-20mm between the edges of the concrete and brick pavers. Those differences had been present since 2000 or earlier. Before the primary judge, the appellant had alleged that the respondent was negligent in failing to remedy the level differentials by raising the brick pavers. The primary judge rejected that claim, holding there was no breach of duty of care. The Court of Appeal dismissed an appeal.

On s 5B: Any risk of tripping created by the height difference was insignificant, given its obviousness and the remoteness of the likelihood that a pedestrian would fail to observe an account for it: [26]-[28].

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

NSW Court of Appeal cases cited in discussion:

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

Bunnings Group Ltd v Giudice [2018] NSWCA 144

Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183

The respondent was injured when he slipped on water on the floor of the below ground carpark of premises occupied by the appellant. The appellant contended that the primary judge had erred in principle because he had formulated the risk of harm retrospectively.

The primary judge identified the risk of injury which materialised as the risk of a customer suffering personal injury by slipping and falling when walking over the portion of the car park which was of smooth polished finish when wet. There was no error in this approach: [16]; [20].

The legal analysis under s 5B must be framed so as to encompass the risk which is claimed to have materialised and caused the damage of which the plaintiff complains. One should avoid an unduly narrow formulation of the risk which then distorts the reasoning, because, for example, it obscures the true source of the potential injury, focuses too narrowly on the particular hazard which causes the injury, or fails to capture part of the plaintiff’s case: [21]-[23].

High Court cases cited in discussion:

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

NSW Court of Appeal cases cited in discussion:

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320

Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; [2014] Aust Torts Rep 82-172

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Mr Bosevski was injured whilst working at a site operated by the appellant. The primary judge found that the appellant had been negligent; but that Mr Bosevski had not been contributorily negligent.

The appellant bore the onus of proof, including the identification of the correct risk of harm, to establish contributory negligence in relation to Mr Bosevski. It failed to frame its pleadings in respect of the risk of harm by specific reference to relevant provisions of the Civil Liability Act, or identify the correct risk of harm in its pleadings: [40]-[42].

The primary judge’s formulation of the risk of harm was not in error. It identified the “true source of potential injury”, and the “general causal mechanism of the injury sustained”: [43].

High Court cases cited in discussion:

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

NSW Court of Appeal cases cited in discussion:

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

Lim v Cho [2018] NSWCA 145

The appellant was injured when he leapt from a vehicle driven by the respondent. The primary judge found that although the respondent owed a duty of care to the appellant as a passenger, this did not extend to protecting the respondent from “harm which is caused to himself”, and that even if it did, breach and causation were not made out.

On appeal, the Court held that, assuming that the scope of the duty owed by the respondent could include a duty to take care to avoid or minimise harm to a passenger resulting from the passenger’s own deliberate actions, there was no basis for overturning the primary judge’s findings on breach or causation: [25]; [27].

The questions posed by s 5B(1) must be assessed prospectively and not with the wisdom of hindsight. The fact that a particular injury to the plaintiff might have been avoided if a defendant’s response to a risk of harm had been different does not necessarily establish that a defendant breached their duty of care. To analyse the question of breach by reference to the possibility that a different response would have produced a different outcome is to engage in impermissible hindsight reasoning. There was no error in the finding that the respondent had acted reasonably when confronted with a sudden emergency, and thus did not breach any duty of care: [28]-[38].

 

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62

Derrick v Cheung [2001] HCA 48; 181 ALR 301

NSW Court of Appeal cases cited in discussion:

Stuart v Walsh [2012] NSWCA 186

Bunnings Group Ltd v Giudice [2018] NSWCA 144

The respondent was injured when she tripped and fell on the raised ‘lip’ of the entrance to a children’s playground located at a store occupied by the appellant. The appellant had admitted that it owed a duty of care, but contended that the primary judge’s findings as to breach and causation could not stand.

Under s 5B(1)(c), the onus is on the plaintiff to demonstrate not merely that there were precautions available, but that a reasonable person in the defendant’s position would have taken those precautions. A finding in terms of s 5B(1)(c) is only to be made after the Court has considered each of the matters in s 5B(2). Those matters refer both to the risk and to the precautions: [35]. The reasoning of the primary judge conflated the three distinct ways in which the respondent said precautions should have been taken. Nor did the judge consider each of the four sub-paragraphs in s 5B(2) as was mandated. It was necessary to identify each of the precautions, and apply s 5B to them individually: [36]-[39].

Based on the evidence adduced at trial, the respondent had not established that the risk of harm was not insignificant under s 5B(1)(b). Assuming otherwise, a reasonable person in the appellant’s position would not have done more than it had already done, by delineating the fencing of the area with yellow lines, a fence and a child-proof gate which obliged entrants to come to a stop: [55]-[59].

High Court cases cited in discussion:

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20

NSW Court of Appeal cases cited in discussion:

Roads and Traffic Authority v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263

Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Rep 82-065

Sibraa v Brown [2012] NSWCA 328

Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361

Stenning v Sanig [2015] NSWCA 214

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Mr Donald was employed by the second respondent, which hired out his labour to the appellant. He worked as a labourer, primarily, although not solely as a jackhammer operator, removing old railway sleepers and replacing them with new ones. The primary judge held that Mr Donald sustained a back injury due to the negligence of the appellant. He also entered judgment against the second respondent in accordance with the Workers Compensation Act 1987 (NSW). The appellant appealed and the second respondent cross-appealed with respect to the findings on liability.

The Court found that the appellant was negligent in failing to provide Mr Donald with a system of work that guarded against the risk of personal injury, and in failing to take adequate steps to ensure that he took reasonable rest breaks from jackhammering and from undertaking additional heavy work that was recognised to be work generally undertaken by two workers: [126]-[128].

The primary judge had not erred in finding that the risk of harm, being the risk of “suffering personal injury through the exertion of effort and strain in the performance of repetitive heavy labour work”, was “not insignificant”. The absence of reports of injury due to jackhammering did not mean that there was a sufficiently low probability of harm. The appellant recognised that the risk of harm was “not insignificant” by the very fact that its documented safe work practices were designed to minimise the likelihood of personal injury through heavy repetitive labouring work, by having a system of task rotation, rests and instructions as to weights that should be lifted: [132]; [142].

NSW Court of Appeal cases cited in discussion:

Shaw v Thomas [2010] NSWCA 169

Bitupave Ltd v Pillinger (2015) 72 MVR 460; [2015] NSWCA 298

Gulic v Boral Transport Ltd [2016] NSWCA 269

Sibraa v Brown [2012] NSWCA 328

Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361

South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8

Vincent v Woolworths Ltd [2016] NSWCA 40

Sparks v Hobson; Gray v Hobson [2018] NSWCA 29

The respondent underwent an operation for a genetic disorder, which was performed by the appellants, a surgeon and an anaesthesiologist. As a result of the operation, he became a paraplegic. If the operation had been terminated earlier, he would not have suffered the injuries which led to the paraplegia. Both the appellants argued, inter alia, that no breach of duty had occurred.

The surgeon had not breached his duty, as he was entitled to rely on the anaesthesiologist to inform him of the readings which would identify concern, and nothing came to his attention during the relevant time that should have directed him towards terminating the surgery: [201].

The anaesthesiologist had breached his duty, as he had ignored a serious and imminent danger to the respondent, and allowed the surgery to continue for 30 minutes without consulting the surgeon: [93]; [183]. In dissent, Simpson JA held that, on the basis of the medical evidence, there had been no breach of duty: [359].

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420; [2009] HCA 48

2017

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

The respondent suffered injuries to his neck, shoulder and back when he tripped over the corner of a raised timber platform while walking across the lobby of the Manly Pacific Hotel, which was occupied by the appellant.

The Court held, with reference to s 5B, that the risk that people might trip on the raised platform injuring themselves was not insignificant: [57].  Users were not likely to have expected the presence of such a low platform on one side of an area of the lobby providing pedestrian access to and from the main bar area.  The appellant occupier should reasonably have expected that users would include those who were distracted or inattentive or even less than careful: [66].

Accordingly, the majority held that a reasonable occupier in the appellant’s position would have sought to warn of the risk of tripping on the platform: [66].  Placing a warning sign on the platform, or roping it off, would have been sufficient: [66], [73].  Justice Fagan said that placing a barrier or removing the platform would have been sufficient: [83]-[84].

High Court cases considered:

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9

2016

Serrao by his Tutor Serraro v Cornelius [2016] NSWCA 60

The appellant was struck by a car driven by the respondent when walking home along a roadside shoulder at night. On cross-appeal, the respondent submitted that the primary judge had erred in dealing with the question of negligence without reference to s 5B of the Act.

Negligence is to be determined in accordance with s 5B. However, it is not necessarily indicative of error for a trial judge to omit express reference to s 5B in proceedings to which the Civil Liability Act applies, so long as negligence can be satisfied with reasonable clarity when the judgment is read as a whole. [61]-[62]

Swift v Wearing-Smith [2016] NSWCA 38

The respondent was injured when the glass panel of a balcony balustrade gave way due to a corroded bolt. By reference to s 5B, the primary judge found that the number of guests in close proximity to the balustrade made it reasonably foreseeable that there was a risk of harm from a failure of the balustrade and that the failure to take precautions to ensure the structural soundness of the balustrade was a breach of the appellant’s duty of care.

By reference to s 5B, the risk of a failure of the balustrade due to a corroded bolt was not reasonably foreseeable. There was no evidence that the appellants had actual knowledge concerning a corroded bolt nor should they have known. [130]

Note: Simpson JA dissented. [224], [231]-[238]

Vincent v Woolworths Ltd [2016] NSWCA 40

The appellant sustained injuries after colliding with a shopping trolley whilst working as a merchandiser in the respondent’s supermarket. The primary judge found that the respondent had not breached its duty of care. On appeal, the appellant submitted that the primary judge misapplied s 5B(1)(b) and (c) in focusing upon the severity of the injury which could result from the risk instead of an assessment of the probability of the occurrence of the risk.

The likely seriousness of the harm is of particular relevance to the question posed by s 5B(1)(c). However, that is not to say that the seriousness of the harm that might eventuate is irrelevant to s 5B(1)(b). Identification of the relevant risk of harm under s 5B requires the postulation of some material, or appreciable, harm. This need not be the severity of the harm actually suffered but must be harm in a legal sense. The adoption of common industry standards will also prove relevant to the determination of precautionary measures that a reasonable person would adopt, for the purposes of s 5B(2). The primary judge did not misconstrue s 5B(1)(b). [31]-[33], [42]

South Sydney Rugby League Club Ltd v Gazis [2016] NSWCA 8

An employee of the South Sydney Rugby Club fell and injured his back when moving a large empty trolley. The primary judge found in favour of the respondent and the appellant sought to challenge that finding on appeal.

The requirement that a foreseeable risk be “not insignificant”, for the purposes of s 5B(1)(b), engages a set of considerations which are not at the same level of generality as would suffice for a finding of a foreseeable risk. The significance of a risk will depend upon a variety of factors, including obviousness, likelihood of occurrence and seriousness of consequences. A risk that arises from the claimant’s carelessness, where foreseeable but quite unlikely to eventuate, is unlikely to satisfy s 5B(1)(b). In the present case, the risk that a person would fall over if a force either insufficient or too great were applied, or if the person were careless in his or her grip was dismissed as insignificant. [89]

2015

Schultz v McCormack [2015] NSWCA 330

The appellant was injured when she slipped and fell on the damp tiles of a front porch and brought proceedings against the respondent occupier. The primary judge found that a person in the plaintiff’s position would have been aware of the potential for water to pool on the porch. The appellant complained that, among other things, the primary judge had erred in characterizing the relevant risk for the purposes of s 5B.

The primary judge commenced his inquiry about breach by considering the issue of obvious risk under s 5F. However, after identifying the duty of care and its content, the primary judge should have considered what constituted the “risk of harm” for the purposes of s 5B. It is only through accurate identification of the risk that one can assess what a reasonable response to that risk is. The risk of harm provides the framework for considering the issue of breach and “obvious risk” under s 5F. In the present case the risk was foreseeable and not insignificant under s 5B(1)(a) and (b). Section 5B dictates that a reasonable occupier would have warned of the potential for there to be a slip. [86]-[87], [153]

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

A 12 year old elite swimmer suffered tetraplegia after slipping whilst diving in the shallow end of a pool. The primary judge, in dealing with the plaintiff’s claim for negligence, scarcely mentioned the Act and, in particular, did not undertake an analysis of the “risk of harm” under s 5B.

Central to the determination of civil liability for failure to exercise reasonable skill and care is the identification of the risk of harm. All seven paragraphs in s 5B presuppose a risk of harm against which precautions should have been taken. Each of those seven paragraphs must be considered by a court before a defendant is found to have been negligent. Subsection (1) states three necessary preconditions to liability, while subsection (2) provides a non-exhaustive but mandatory list of factors to which the court is required to have regard. To address the provisions of s 5B, a plaintiff must address and identify the relevant risk(s) of harm and, ordinarily, it would be desirable for the pleadings to address the Act in terms. [102]-[106], [128].

Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298

The respondent’s motorbike hit a waterlogged, roadwork windrow of road-base and aggregate, resulting in severe injuries. On appeal, it was alleged that the primary judge had, in a number of senses, failed to apply s 5B correctly.

Although under the heading ‘Duty of Care’, ss 5B and 5C are directed to questions of breach of duty.

The correct identification of the relevant risk of harm under s 5B is important as it enables an assessment of, among other things, what might be a reasonable response to the risk. However, it is unnecessary and undesirable to define the particular risk of harm with a high degree of particularity. In the present case, the risk of harm formulated by the primary judge was preferable to that formulated by the appellant.

While it is necessary for the relevant risk of harm to be properly identified in order to enable an assessment of what might be a reasonable response to the risk, generally it is both unnecessary and undesirable to define the particular risk of harm with a high degree of particularity. [152]–[153]

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

NSW Court of Appeal cases cited in discussion:

Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Collins v Clarence Valley Council [2015] NSWCA 263

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. On appeal, the appellant submitted that the primary judge erred in his identification of the relevant risk of harm for the purposes of s 5B, which his Honour said had to be identified without the use of hindsight reasoning, and prospectively from the position of the Council prior to the accident occurring. The risk of harm was identified by the primary judge, on that basis, as “the injury which might be suffered from a cyclist falling after their wheel becomes stuck in the holes or gaps in the planks on the bridge”.

Section 5B operates on the basis that the Court has identified the “risk of harm” for duty of care purposes and s 5B(1) is informed by the scope of the duty of care. The identification of a risk of harm must be undertaken prospectively, and not by reference to how the plaintiff was injured, with a view to identifying what risk a reasonable person would foresee and evaluate to determine what precautions (if any) ought be taken. A retrospective inquiry will obscure the proper ability to identify a breach. The primary judge did not err in the manner in which he identified the risk of harm for the purposes of s 5B [120]–[135]

NSW Court of Appeal cases cited in discussion:

Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253

The respondent tripped and fell up a wet entrance step to a demountable gatehouse. The primary judge found that the “risk of harm” for the purposes of s 5B was that of slipping on the metal door-sill when it was slippery because it was wet from rainwater. That risk arose from the “awkward height of the step” which was “higher than normal”; was foreseeable within the meaning of s 5B(1)(a); and not insignificant within the meaning of s 5B(1)(b). His Honour found that, taking into account the factors in s 5B(2), a reasonable person in the position of the appellant would have taken the precaution of installing a step and an awning and that, therefore, the appellant was negligent. In so finding, the primary judge relied on the fact that a step and awning were installed subsequently.

Section 5B(1)(c) means that a plaintiff must fail in an action for negligence based on a failure to take precautions unless the plaintiff discharges the onus of showing that a reasonable person in the defendant’s position would have taken precautions. The essential question posed as to what a reasonable person would have done in response to the foreseeable risk must be considered prospectively. Consideration of s 5B(1)(c) is subject to the limitations imposed by s 5C.

The primary judge erred in resolving the question of what a reasonable person would do merely by reference to the installation of an intermediate step. The fact that a step and awning were subsequently installed did not mean that a reasonable person would have taken those precautions. The primary judge inappropriately relied upon what the appellant did after the accident which is contrary to s 5C(c). There was also no basis in the evidence to conclude that the step was “awkward”. [49]-[51], [62]-[74]

High Court cases cited in discussion:

Hackshaw v Shaw (1984) 155 CLR 614
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169

An employee was seriously injured in a helicopter crash during an aerial inspection of power lines. The primary judge found that the appellant and respondent were liable to the employee but that Telstra, responsible for the wire with which the helicopter came into contact, owed no duty of care. On appeal it fell to be determined whether Telstra owed a duty of care and, whether it was in breach under ss 5B(1)(c) and (2).

Section 5B raised three questions: 1) whether it was reasonably foreseeable that there would be low flying aircraft in the area; 2) whether that risk was “not insignificant”, which involves two main variables: the seriousness of the consequences should the risk materialise and the likelihood of the risk materialising. A risk can be “not insignificant” for the purposes of s 5B(1)(b) despite a very low likelihood of the risk materialising and a small number of individuals likely to be involved. 3) what “precautions” a reasonable person would have taken in those circumstances.

In the instant case, Telstra owed a duty of care and, therefore, it was necessary under s 5B to consider the precautions that Telstra should reasonable have taken against the identified risk of harm. It ought reasonably to have foreseen the possibility that a helicopter may operate in the vicinity of its wire and come into contact with it. That risk was not insignificant. The appropriate precaution would have been not to re-erect the wire across the valley in the first place. [31]–[33], [48]–[51] .

High Court cases cited in discussion:

NSW Court of Appeal cases cited in discussion:
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

The respondent was injured when the armrest of a moving chair lift struck her from behind. The primary judge identified the risk as the risk of harm resulting from a chair arriving at the loading station in a state not suitable for boarding. However, when determining whether the risk was foreseeable for the purposes of s 5B(1)(a) the primary judge found that the risk of that of “physical harm being occasioned to a skier from a chair arriving at the loading station with its safety bar in the down position”. It was submitted that this characterization of the risk was erroneous.

The proper assessment of an alleged breach under s 5B depends on the correct identification of the relevant risk of injury. The risk should not have been characterized at the level of generality adopted. The second characterization does not identify the true source of the potential injury.

The identification of the relevant risk is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm. It is unnecessary to determine the precise source of the plaintiff’s potential injuries. The risk in the present case was that a skier might sustain physical injury as a result of his/her reaction to the manner in which a lift operator responds to a bar-down situation. Precision in defining the relevant risk was called for in the present case in order to determine what reasonable precautions ought to have been taken. [92]–[96], [98], [104]–[106]

High Court cases cited in discussion:

NSW Court of Appeal cases cited in discussion:

2014

Caruana v Darouti [2014] NSWCA 85

The respondent suffered injuries when he fell on the wet driveway of the appellant’s property. The primary judge found that s 5B had no application as the relevant acts were positive acts and s 5B applies to negligence “in failing to take precautions against a risk of harm”. Nevertheless, the primary judge went on to consider the matter by reference to s 5B.

There is no decision that established that the section does, or for that matter does not, apply where the acts of negligence proved are positive acts rather than negative. Because the Court considered that the conclusion of the primary judge could be supported on the view that s 5B did apply, it did not address the matter further. [105]-[111]

Mamo v Surace [2014] NSWCA 58

The appellant was injured as a front seat passenger when the respondent’s car collided with a cow. No breach of duty was found at first instance.

Section 5B(1) sets out the three preconditions that must co-exist to establish breach of duty – a respondent will not be negligent in failing to take precautions against a risk of harm unless the risk was one of which he knew or ought to have known, the risk was not insignificant and a reasonable person would have taken those precautions. Section 5B(2) provides a non-exhaustive list of factors the court is to take into account in deciding whether the a reasonable precautions against any harm that might be established under s 5B(1).

[48]–[51], [69]

NSW Court of Appeal cases cited in discussion:

2013

Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396

The appellant was driving along a dark residential street and struck the respondent. The primary judge found the appellant negligent in not using high-beam headlights.

A motorist’s duty to roadway users, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances. Under the common law and s 5B, the standard by which reasonable care is measured is objective and impersonal. The question whether there has been a breach of duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant’s circumstances would have done by way of response to any foreseeable risks of injury or sources of danger to other road users. Under s 5B(1), a person is not negligent unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in the circumstances.

Under 5B(1)(c), reflecting the common law, the question whether the appellant was exercising reasonable care in the circumstances is to be answered by reference to what a reasonable person in his/her position would have done by way of response to any foreseeable harm.

In this case, the risk of harm to a pedestrian on the roadway was, in the language of s 5B(1) and (2), foreseeable and not insignificant and was therefore something that the driver was required to take steps to avoid. The primary judge did not err in finding that the appellant was negligent in not switching her lights to high beam. [33]–[35], [40]–[41], [47]

High Court cases cited in discussion:

Cook v Cook [1986] HCA 73; (1986) 162 CLR 376
Shoalhaven City Council v Pender [2013] NSWCA 210

The respondent slipped and fell on a boat ramp during the course of employment as a ferry operator. One of the critical issues on appeal was whether the primary judge erred in failing to identify, with the requisite degree of precision, the risk of harm for the purposes of s 5B.

Section 5B(1) sets out three preconditions that must co-exist before liability in negligence arises and s 5B(2) provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists. Section 5B(1)(c) invokes the notion of foreseeability as it is relevant to breach of duty of care. The absence of consideration at trial of the matters prescribed by s 5B of the Act may be reason enough to conclude that the question of breach of duty was not determined properly.

For the purposes of s 5B(1)(b), it is sufficient if the kind of type or injury, rather than the precise and particular character of the injury, was foreseeable. Nevertheless, the focus of s 5B is upon the risk of harm and the precautions which might be taken against such a risk. The requirement in s 5B(1)(b) that the risk of harm be “not insignificant” is a more demanding standard than that at common law but not by very much.

In the present case, if the primary judge was to accept the respondent’s evidence that he fell when he slipped on dry algae, she then had to identify the risk of harm for the purposes of s 5B(1). This would have required focus on the nature of the surface on which the respondent slipped. Had the primary judge done so, she would have realized that there was no evidence that there was a risk of slipping on the dry part of the ramp.

[7], [62]-[63],[65], [97], [99], [205]

High Court cases cited in discussion:

Rosenberg v Percival [2001] 205 CLR 43
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
NSW Court of Appeal cases cited in discussion:
Shaw v Thomas [2010] NSWCA 169
Hoffman v Boland [2013] NSWCA 158

The appellant fell down the stairs of a holiday house and severely injured the grandchild she was holding. The child’s father successfully sued at first instance. On appeal, the appellant submitted that s 5B was not satisfied, nor was the social utility of 5B(2)(d) considered.

Section 5B(2)(d) requires the court to consider the ‘social utility’ of the activity that caused the harm when making normative judgment as to the precautions that a reasonable person would have taken against that risk of harm. The provision of domestic assistance, such as temporary relief in caring for an infant, is a circumstance with a very high social utility: it goes to the heart of what family members do for one another. Parliament has directed the ocutrs to consider this factor in making a normative judgment as to the precautions that a reasonable person should have taken against a foreseeable risk of harm. The primary judge did not undertake that task and, in that respect, erred.

In the present case, it verged on fanciful to suggest that the appellant breached any duty of care. She was assisting her family in a fraught domestic situation involving a restless infant and was conscious of the need to proceed safely. It was not shown that a reasonable person in the appellant’s position would have taken the precautions identified by the primary judge and the plaintiff.

The finding of negligence by the primary judge could not stand. [4], [114]-[116], [130]-[135], [152]

2012

State of New South Wales v Mikhael [2012] NSWCA 338

The respondent suffered brain damage when he was assaulted by a fellow student at his state high school. The respondent was awarded damages at first instance. One issue on appeal was whether the primary judge erred in finding that the appellant breached its duty of care to the respondent.

The determination of breach of duty of care must be made having regard to the requirements of s 5B of the Act. This involves identifying the risk of harm and the question of whether there has been a breach of duty should be assessed prospectively.

Section 5B(1)(a) necessitates a determination of whether the relevant risk was foreseeable. The relevant test is the test at common law

Section 5B(2) requires the Court to consider the probability of the harm occurring and the burden of taking precautions. Usually, reference is made to the cost of implementing a particular precaution. However, the language of s 5B(2)(c) is not confined to the economic burden of taking precautions to avoid a risk of harm. Such considerations need to extend to factors such as cost, time, distance and communication. It may be that a precaution is difficult to implement. Consideration may need to be given to less tangible burdens under s 5B(2)(d), such as the privacy concerns of this case. It was found that the school failed to comply with its own procedures and that this constituted a breach of its duty of care to take responsibility for the safety of the students. [70], [75], [76], [80]-[84], [86]

High Court cases cited in discussion:

Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; 239 CLR 420
NSW Court of Appeal cases cited in discussion:
Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53

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.

2019

Weber v Greater Hume Shire Council [2019] NSWCA 74

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 5C: the requirement in ss 5B(2)(c) and 5C(a) that the court consider ‘the burden of taking precautions’ refers, in relation to a public authority, to the allocation of the necessary financial and other resources, additional to those already deployed, to achieve the precautions that would have been taken by a reasonable council, for the purposes of s 5B(1)(c). That assessment must take into account the additional burden which would be required to avoid ‘similar risks of harm’ in other activities conducted by the authority: [95]-[96].

2015

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

Ms Miller, a 12 year old elite swimmer suffered tetraplegia after slipping in the shallow end of a pool, mid track-dive. The primary judge gave a judgment in favour of the Council, and a judgment in favour of Ms Miller against the School. The School’s appeal against the findings of the primary judge raised the question of the risk of harm posed under the Act

In order to apply s 5C, it is necessary to identify the relevant risk of harm. Section 5C is to be read with s 5B. It extends s 5B(2)(c) by providing that the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm. It is significant that the section refers to similar risks of harm and not the risk of similar harms.

Section 5C then proceeds on the basis that the “risk of harm” is sufficiently narrow that a defendant may be able to point to similar but distinct risks of harm. [106], [111]-[114]

Note: Special leave to the High Court was refused.

Part 1A Division 3 - Causation

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (“factual causation”), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“scope of liability”).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

2019

Officeworks Ltd v Christopher [2019] NSWCA 96

Ms Christina Christopher commenced proceedings against Officeworks Ltd in the District Court, claiming damages for personal injury suffered as a result of being struck by an object falling from a shelf above her at an Officeworks store. The primary judge gave judgment in her favour. Officeworks appealed. On the appeal, Ms Christopher accepted that the appeal should be allowed: the reasons of the primary judgment were deficient in various respects. Officeworks’ single ground of appeal asserted an error in the assessment of damages, not challenging the primary judge’s findings on liability. The two key issues the Court of Appeal had to consider went to causation and assessment of damages. On causation, the Court held that the Officeworks incident did cause damage Ms Christopher had suffered to her rotator cuff, but that it did not cause the need for her to have a left shoulder hemiatroplasty. On damages, the Court held that Ms Christopher was precluded from obtaining damages for non-economic loss because she could not meet the threshold in s 16(1) of the Civil Liability Act 2002 (NSW), and she was precluded from obtaining damages for gratuitous domestic assistance because she had not received such assistance for a period of at least 6 consecutive months (s 15(3)(b)).

On s 5D: a finding that the negligence is a possible cause of the harm suffered is insufficient to meet the statutory requirements for causation: [47].

Williams v Metcash Trading Ltd [2019] NSWCA 94

Mr Williams worked as a picker-packer in a product distribution centre operated by Metcash Trading Ltd. He brought proceedings against Metcash Trading Ltd in the District Court, seeking damages in respect of personal injury said to have been sustained while working at the centre. The primary judge found that Mr Williams suffered an injury while lifting two boxes of dog food from under a rack that was 1.4 m high. He held that Metcash breached a duty it owed to Mr Williams by requiring that cartons of dog food be picked from a rack measuring only 1.4 m high. But he gave judgment for Metcash on the basis that this breach did not cause Mr Williams’ injury; rather, the injury was caused by the fact that Mr Williams lifted two boxes, contrary to safe lifting practices. In the event that he was wrong on causation, the primary judge went on to consider quantification of damages and contributory negligence, finding that any award of damages would be reduced by 20% by reason of Mr Wiliams’ contributory negligence. Mr Williams appealed, challenging the primary judge’s finding that the negligence found did not cause his harm, and challenging the findings on contributory negligence. The appeal was allowed on causation.

On s 5D: the relevant question for the purposes of s 5D(1)(a) was whether Mr Williams would have suffered the particular injury he did suffer if the height of the rack was 1.8 m, not 1.4 m. So far as causation was concerned, it was not to the point that he lifted two boxes. The Court of Appeal concluded that the injury in question would have occurred if the rack was at least 1.8 m high: [64]- [67].

Weber v Greater Hume Shire Council [2019] NSWCA 74

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 5D: in this case, it was unnecessary for the Court to be satisfied as to the precise cause of the fire if it was more probable than not that the fire was caused by one of the possible methods of ignition resulting from the Council’s negligence: [114], [141].

High Court decision cited in discussion:

Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36

Trajkovski v Simpson [2019] NSWCA 52

Mrs Trajkovski commenced proceedings against a firm of solicitors and its principal, alleging that they had breached a duty of care they owed her concerning the sale of a property registered in her name and that of her estranged husband. The trial judge found that the solicitors were not retained by her, and therefore owed her no duty. His Honour further held that even if the solicitors did owe her a duty, they had not breached it in conducting the sale as they did, because they acted on the instructions of her estranged husband who had her ostensible authority to give instructions on her behalf also. Both of these conclusions were reversed on appeal: the solicitors did owe Mrs Trajkovski a duty of care, and they had breached it by enabling that part of the proceeds of the sale to which she was entitled to be disbursed.

On s 5D: Because the trial judge considered that Mrs Trajkovski failed on duty and breach, he did not resolve questions of causation. It therefore fell to the Court of Appeal to address. The Court held that causation under s 5D was established – that is, it held the solicitors’ breach of duty in allowing Mrs Trajkovski’s share of the proceeds to be disbursed was a necessary condition of the occurrence of the harm she suffered and that it was appropriate for the scope of the solicitors’ liability to extend to that harm: [35], [47], [171].

2018

Ibrahimi v Commonwealth of Australia [2018] NSWCA 321

Following the wreck of a vessel, SIEV 221, on rocks at Christmas Island in December 2010, representative proceedings were commenced against the Commonwealth of Australia for damages arising from alleged negligence. The classes of persons represented included survivors of the wreckage, relatives of people who died in the wreckage, and onlookers who witnessed the accident. By operation of the Christmas Island Act 1958 (Cth), the laws of Western Australia are in force in Christmas Island, including, relevantly, the Civil Liability Act 2002 (WA). The relevant provisions of the WA Civil Liability Act are in similar terms to the Civil Liability Act 2002 (NSW), though there are differences in numbering.

In answering separate questions identified from the pleadings, the primary judge found that the Commonwealth owed no duty of care to the classes of plaintiffs: though there was a not insignificant, foreseeable risk that a boat heading south towards Christmas Island could, if not intercepted, be shipwrecked on the cliffs of Christmas Island, that risk was inherent and obvious, and did not arise from any conduct on the part of the Commonwealth. The primary judge also made a number of findings concerning the precautions that a reasonable public authority in the position of the Commonwealth and its agents would have taken, but found that even if those precautions had been taken, SIEV 221 still would have been shipwrecked. The plaintiffs appealed. The Court of Appeal dismissed the appeal.

On s 5D: where a duty of care is said to arise from past choices of the Commonwealth to exercise statutory and prerogative powers, and where the particular breach alleged could only have caused the harm suffered if such powers had been exercised in a certain way, some adjustment may be necessary in the analyses of duty, breach, and causation to accommodate the application of the principles and concepts of negligence to the acts and omissions of the Commonwealth in this capacity: [208].

High Court cases cited in discussion:

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41

Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian [2018] NSWCA 208

The respondent was injured and sued the occupier of the premises in which she was working (‘Network’); and her employer, a labour hire company (later substituted by the Workers’ Compensation Nominal Insurer). On appeal, Network and the Nominal Insurer raised a number of challenges to the findings of liability made by the primary judge.

Nowhere on the judgment was there any analysis of causation. The primary judge had not explained why, but for the absence of task rotation, supervision, training, or effective risk supervision, the respondent’s injury would not have occurred: [45]-[46].

In the case against Network, this would have involved findings of factual causation and scope of liability under s 5D, as well as grappling with the notion of “risk of harm” in s 5B. In relation to the claim against the Nominal Insurer under the Workers Compensation Act 1987 (NSW), the common law analysis would apply: Civil Liability Act, s 3B(1)(f). The Court observed that the analysis would probably have been similar at common law and pursuant to statute: [45].

The Court allowed the appeal and the Nominal Insurer’s cross-appeal, finding, inter alia, that the findings of breach should be set aside, and remitted the matter to the District Court for retrial.

High Court cases cited in discussion:

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

March v Stramare (E and MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-1; [1992] HCA 27

NSW Court of Appeal cases cited in discussion:

Vincent v Woolworths Ltd [2016] NSWCA 40

C by his tutor Sabatino v New South Wales [2001] NSWCA 380

Lim v Cho [2018] NSWCA 145

The appellant was injured when he leapt from a vehicle driven by the respondent. The primary judge found that although the respondent owed a duty of care to the appellant as a passenger, it did not extend to protecting the respondent from “harm which is caused to himself”, and that even if it did, breach and causation were not made out.

On appeal, the Court held that, assuming that the scope of the duty owed by the respondent could include a duty to take care to avoid or minimise harm to a passenger resulting from the passenger’s own deliberate actions, there was no basis for overturning the primary judge’s findings on breach or causation: [25]; [27].

The appellant bore the burden of proving that the respondent’s breach of duty was a necessary condition of the harm he suffered. The language of the primary judge was somewhat imprecise, and framed in a manner suggesting that the respondent bore the burden of proof on causation. This framed the issue in terms unduly favourable to the appellant. Despite these errors, the primary judge did not err in finding, on the basis of the evidence put at trial, that it was a matter of “speculation” whether the appellant’s injuries were likely to be less severe had the speed of the vehicle been reduced below 50 kph at the moment the appellant jumped onto the road: [44]-[51].

Bunnings Group Ltd v Giudice [2018] NSWCA 144

The respondent was injured when she tripped and fell on the raised ‘lip’ of the entrance to a children’s playground located at a store occupied by the appellant. The appellant had admitted that it owed a duty of care, but contended that the primary judge’s findings as to breach and causation could not stand. There was no issue as to the scope of liability in the present case.

The rejection of the appellant’s submission on causation by the trial judge was very different from a positive finding that if a ‘Watch your Step’ sign had been installed or the inclined slope had been painted, the respondent would not have fallen. The rejection of a submission that the respondent would not have seen a sign was distinct from a positive finding that she would have seen a sign and not sustained a fall. The primary judge had not made the positive finding, to the civil standard of proof, required by the terms of s 5D: [42]-[44].

The Court rejected the appellant’s submission in relation to the second and third alleged breaches. The primary judge’s findings reflected the language of s 5D. Although they did not expose any aspect of the reasoning process, little more could have been said, when the mechanism of the fall was the ‘sudden’ change in height at the entrance. If there had been no change or a gradual change in height, factual causation was established: [45]. However, the Court ultimately allowed the appeal on the basis that breach had not been established: [60].

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Mr Donald was employed by the second respondent, which hired out his labour to the appellant. He worked as a labourer, primarily, although not solely as a jackhammer operator, removing old railway sleepers and replacing them with new ones. The primary judge held that Mr Donald sustained a back injury due to the negligence of the appellant. He also entered judgment against the second respondent in accordance with the Workers Compensation Act 1987 (NSW). The appellant appealed and the second respondent cross-appealed with respect to the findings on liability.

The primary judge did not err in preferring the evidence of one expert to the effect that Mr Donald had suffered from an internal disc disruption. Nor did he err in accepting the evidence of a medical specialist that cumulative trauma could be a cause of an injury such as that sustained by Mr Donald: [179]-[192].

2017

Ralston v Jurisich [2017] NSWCA 63

Mrs Jurisich engaged the appellant solicitors in relation to the realisation of shares she held in her family company.  The appellants failed to advise Mrs Jurisich that proceeding with a buy-back of her shares, rather than by way of liquidation of the company, would expose her to a tax liability of about $600,000.

One of the effects of s 5D(3)(b) is to preclude a plaintiff from giving testimonial evidence as to his or her mental processes relevant to the question of causation.  In consequence, factual causation requires an assessment of all the evidence, and a consideration of the proper inference to be drawn from it: [67].  Another consequence is that the question of credibility, and more generally the advantages enjoyed by the trial judge, may in some cases be diminished: [68].

The requirement that the question of factual causation be decided “subjectively” obliges the court to decide what, on the balance of probabilities, the particular plaintiff would have done in the proved circumstances had there been no breach of duty on the part of the defendant: [72].  In this case, the essential question was whether, properly advised as to the tax consequences of the two choices open to her, Mrs Jurisich would nonetheless have chosen a share buy-back as her preferred method for realising the value of her shares, or whether she would have chosen liquidation: [73].

Proudlove v Burridge [2017] WASCA 6

Mr Proudlove suffered catastrophic injuries as a passenger in a vehicle driven by Mr Burridge when it collided with an escaped horse on an unlit road at night.  As Mr Burridge approached, another driver stood on the road, some distance in front of the horse, and waved.  At the time of the accident, WA did not have a no-fault compensation scheme for motor vehicle accidents.  At trial, Mr Proudlove proved breach of duty of care, but failed on causation.

Newnes and Mitchell JJA held that ss 5C and 5D of the Civil Liability Act 2002 (WA) required Mr Proudlove to prove that the collision and Mr Proudlove’s consequent injuries would have been avoided if Mr Burridge had taken reasonable care.  Mr Proudlove failed to achieve this on the evidence brought before the trial judge.

In dissent, Martin CJ applied March v E & MH Stramare Pty Ltd and held that, as a matter of common sense, failure to keep a proper lookout or to pay due care and attention resulting in a failure to identify and respond appropriately to a risk or hazard on the roadway is a frequent cause of motor accidents, and so, in the absence of other evidence, it was reasonable to infer that Mr Burridge’s negligence caused or materially contributed to the vehicle’s collision with the horse and therefore to Mr Proudlove’s injuries.

High Court cases considered include:

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Robinson Helicopter Company Incorporated v McDermott [2016] HCA; (2016) 331 ALR 550 [43]
Warren v Coombes (1979) 142 CLR 531

2016

Doble Express Transport Pty Ltd (Administrator Appointed) v John L Pierce Pty Ltd [2016] NSWCA 352

Two trucks were damaged when they collided in thick fog at an intersection on the Hume Highway.  The primary judge found that both drivers were negligent: Mr Hukins (employed by Pierce) in attempting the right hand turn in very poor visibility, and Mr Mead (employed by Doble) in travelling at an excessive speed in very poor visibility.  His Honour assessed Doble’s responsibility at 40%, and Pierce’s at 60%.  On appeal, Doble challenged the finding that any breach of duty by Doble was causative of Pierce’s loss.

The Court of Appeal held, applying s 5D and Wallace v Kam, that Pierce bore the burden of establishing on the balance of probabilities that if Mr Mead had not been negligent, Pierce would not have suffered harm: [40].  Pierce did not have to establish the speed at which Mr Mead should have been travelling, and then prove that the crash would not have occurred had he been travelling at that speed: [68], Mobbs v Kain distinguished.  Rather, it was enough that the NSW Government’s Heavy Vehicle Drivers Handbook required Mr Mead to drive at a speed which allows the vehicle to stop within the distance that can be seen to be clear, and Pierce proved that Mr Mead was not driving in accordance with this rule.  Had Mr Mead complied with that rule, he would have been able to avoid the crash and Pierce would not have sustained the harm: [48]-[52].

High Court cases considered:

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
New South Wales Court of Appeal cases considered:
Mobbs v Kain [2009] NSWCA 301; 54 (2009) MVR 179
Biggs v George [2016] NSWCA 113

The respondent suffered facial palsy caused during a surgical procedure to remove a tumour. The surgeon and hospital appealed against the District Court’s finding of negligence and, in part, the appeal turned on the question of whether the primary judge erred in finding that there was a negligent failure to warn which was causative of the relevant damage.

In order to be satisfied, for the purposes of s 5D(1), that negligence caused particular harm, it is necessary for the Court to find that negligence was a necessary condition of the occurrence of the harm.

In the present case, the question as to causation posed by s 5D of the Act required consideration of whether the claimant would have had the operation but for the alleged breach of duty. The evidence at trial indicated that the claimant held a belief concerning her tumour and the need for surgery which was not attributable to any breach of duty by the hospital or the medical practitioners. Any failure to warn was therefore not causative and did not meet the requirements of s 5D(1). [106], [114], [128]

2015

Roads and Maritime Services v Grant [2015] NSWCA 138

The respondent was injured when his motorcycle struck a median strip when he was riding through an intersection. The primary judge found that, but for the absence of a “Keep Left” sign, the respondent’s motorcycle would not have come into contact with the median strip which caused him to lose control of the motorcycle.

Causation is dependent upon the satisfaction of both factual causation and the scope of liability pursuant to s 5D. Factual causation requires that the negligence was a necessary condition of the harm, pursuant to s 5D(1)(a). If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent, that matter is to be determined subjectively in light of all the relevant circumstances. The scope of liability will then depend upon the appropriateness for the scope of the negligent person’s liability to extend to the harm so caused, pursuant to s 5D(1)(b). For the purpose of determining the scope of liability, a court is to consider, among other things, whether or not, and why, responsibility for the harm should be imposed on the negligent party.

In the present case, contrary to the finding of the primary judge, the evidence did not support the conclusion that it was more likely than not that the absence of a “Keep Left” sign caused the respondent’s injury. [178]-[184]

2014

King v Benecke [2014] NSWCA 399

The appellant sought professional negligence damages against his lawyer for the delayed settlement of a family business dispute. One issue for determination on appeal was whether the respondents’ breaches of duty and retainer caused the appellant to pay more under a settlement agreement than he would otherwise have paid.

Section 5D(1)(a) requires that the plaintiff bear the burden of establishing, on the balance of probabilities, that the negligence was a “necessary condition of the occurrence of the harm”. It also requires that the plaintiff establish “harm”, which in the present case meant that the appellant must show that in financial terms he was worse off than he would have been absent the respondents’ negligence. The questions of loss and causation were inextricably interwoven.

In the present case, there was no clear evidence that the strength or weakness of the appellant’s legal position was material to the outcome of the settlement negotiations. The appellant failed to prove that he suffered a financial loss caused by the respondents in accordance with s 5D. [25], [29]-[30]

Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255

The appellant commenced proceedings against the respondent solicitors, alleging that their negligent drafting of a deed resulted in a subsequent loss on the proceeds of sale.

The effect of s 5D(1)(a) is that factual causation must be determined by the “but for” test. The test will not be satisfied by showing that taking the steps the plaintiff alleges should have been taken might have made a difference and the plaintiff must show that it is more probable than not that, if the defendant had taken reasonable care, the harm would have been prevented. However, if the defendant’s negligence is necessary to complete a set of conditions jointly sufficient to account for the occurrence of the harm, the test of factual causation will be satisfied.

In exceptional cases, where the “but for” test cannot be satisfied, the court is to consider whether or not and why responsibility for the harm should be imposed on the negligent party under s 5D(2).

The plaintiff must also establish that it is appropriate for the scope of the negligent party’s liability to extent to the harm caused under s 5D(1)(b). Whilst the determination of factual causation is “entirely factual”, a determination as to the appropriateness of the application the scope of liability is “entirely normative”. The court will generally be guided by precedent when addressing this normative question, but in novel cases s 5D(4) requires the court to consider and explain in terms of legal policy whether or not and, if so, why responsibility for the harm should be imposed on the negligent party.

In the present case, if the relevant Deed had been drafted clearly and unambiguously, the appellant would likely have succeeded in claiming the proceeds of the sale. The appellant therefore satisfied the test for factual causation under s 5D(1)(a). However, the appellant failed to avail itself of a number of protections conferred by the Deed that would have enabled it to avert the relevant loss. Therefore, there was no basis for imposing liability for negligence in drafting the Deed and the appellant had not demonstrated that it was appropriate that the solicitors’ liability should extend to the loss claimed.

[103]-[106], [122]-[129]

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Wallace v Kam [2013] HCA 19; 87 ALJR 648
March v E. & M.H. Stramare Pty Ltd [1991] HCA 12; 171 CLR 506
Henville v Walker [2001] HCA 52; 206 CLR 459
NSW Court of Appeal cases cited in discussion:
Paul v Cooke [2013] NSWCA 311
Lucantonio v Stichter [2014] NSWCA 5

The appellant alleged that the respondent was professionally negligent when acting on behalf of the family trust during an attempted acquisition. The appellant argued that the primary judge erred in assessing causation under s 5D of the Act as he failed to have regard to all relevant subjective circumstances as required by s 5D(3). It was submitted that the primary judge’s findings turned on credit and, insofar as that was the case, were erroneous having regard to objective material or incontrovertible facts.

In order to establish factual causation, the appellant had to establish that negligence was a necessary condition of the harm. This determination is entirely factual and involves nothing more or less than the application of the “but for” test.

The inquiry into causation is retrospective and seeks to identify what happened and why, focusing on the conduct or omission which is found to constitute the defendant’s breach.

In the present case, the question whether the appellant would have completed the purchase had the respondent provided timely advice was a matter to be determined subjectively in light of all the relevant circumstances under s 5D(3)(a). The primary judge did not place undue emphasis on certain matters or fail to take relevant matters into account. [79]-[83], [91], [93]

2013

Paul v Cooke [2013] NSWCA 311

The respondent radiologist negligently failed to diagnose the appellant’s aneurysm. The aneurysm then ruptured during a subsequent operation, without any lack of care or skill on the part of the surgeons. The primary judge found that the appellant’s loss was not caused by the respondent’s negligence because it was not appropriate for the scope of the respondent’s liability to be extended to the relevant injuries under s 5D(1)(b).

The Act effects a substantive change insofar as it is directed to admissibility under s 5D(3)(b) or the ways in which courts are to determine issues under ss 5D(2) and (4). Whether or not s 5D will produce a different result from common law has not been decided.

It might seem that s 5D(1) has the effect that legal causation requires there to be a favourable determination of the two elements in paragraphs (a) and (b). This is not the case as factual causation is not a necessary precondition for legal causation. When reading s 5D(1) and (2) together, it is clear that legal causation may be established in cases where there is factual causation, and in (exceptional) cases where factual causation is not established. It is also clear that factual causation will not be a sufficient condition for legal causation. That was the position at common law and as 5D(1)(b) and 5D(4) proceed on that basis.

The determination of factual causation is not a value-free activity undertaken without reference to context. Policy considerations are highly fact-specific and the factual considerations which establish factual causation remain relevant in considering the proper scope of liability. [11]-[12], [41,] [84]-[86], [109]-[111], [115]

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Strong v Woolworths Ltd [2012] HCA 5
Wallace v Kam [2013] HCA 19; (2013) 87 ALJR 648
NSW Court of Appeal cases cited in discussion:
King v Western Sydney Local Health Network [2013] NSWCA 162
King v Western Sydney Local Health Network [2013] NSWCA 162

The appellant developed congenital varicella syndrome after her mother contracted chickenpox during pregnancy. The appellant claimed that the respondent had been negligent in failing to offer to immunise her mother. The primary judge found that the appellant had not established that, had the treatment been administered, her mother probably would have avoided developing chickenpox.

The Ipp Committee recommended the insertion of s 5D(2) to bridge the evidentiary gap for ‘exceptional’ cases, to enable a court to award damages for negligence, even where factual causation is not established. It enables a defendant to be liable for the total harm suffered by a plaintiff, even though it cannot be said that, but for the conduct of the defendant, the plaintiff would not have suffered the total harm.

The application of s 5D(2) requires an examination of the Ipp Report, an analysis of the causation issues discussed by Professor Stapleton, and the application of normative considerations to circumstances which may or may not constitute ‘an exceptional case’. These normative considerations may require that evidence is adduced. For a court to embark upon this inquiry the matter needs to have been raised at trial for the benefit of a full argument.

As s 5D(2) was not raised at trial, the Court did not undertake an inquiry as to the application of s 5D(2) on appeal. The challenge to the primary judge’s findings on causation failed.

[153]-[156], [213]-[218], [221]

High Court cases cited in discussion:

Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Wallace v Kam [2013] HCA 19

The respondent operated on the appellant without warning of the risk of paralysis and the risk of neurapraxia. The risk of neuraplaxia materialized. At first instance, it was found that the respondent had negligently failed to warn of neuraplaxia but that the appellant would have chosen to undergo the surgery in any case. On that basis, the failure to warn was not a necessary condition of the occurrence of the harm. On appeal, the Court of Appeal assumed that the appellant had negligently failed to warn the respondent of the risk and that the appellant would not have undergone the procedure. On that assumption, the majority found that the respondent was not liable for the neuraplaxia.

The distinction the Act draws between factual causation and scope of liability in s 5D(1) should not be “obscured by judicial glosses”. A determination under s 5D(1)(a) is entirely factual, and involves nothing more or less than a determination that the relevant harm would not have occurred but for the negligence. Here, the determination of factual causation turns on whether the patient proves that they sustained as a consequence of the medical treatment injury which they would not have sustained if they had been warned of the relevant risks. That turns on the question of what the patient would have chosen to do if the practitioner had warned of the relevant risks and therefore is governed by s 5D(3). Factual causation may be established where the patient would have chosen not to undergo the treatment at all if warned of the risks or where the patient would have chosen not to undergo the treatment at the time at which the treatment in fact took place.

A determination under s 5D(1)(b), however, is entirely normative. The question is whether it is appropriate for the scope of the negligent practitioner’s liability to extent to the physical injury in fact sustained by the patient. In an established category of case the question is answered by application of precedent. In a novel case, s 5D(4) applies and what is required is the identification and articulation of an evaluative judgment by reference to the purposes and policy of the relevant part of the law.

In the present case, factual causation was satisfied under s 5D(1)(a) but s 5D(1)(b) was not satisfied as the appellant should not be compensated for the materialisation of a risk which he was prepared to accept. [14]-[23], [29]-[31], [39]-[40]

Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8

The respondent was knocked over when two individuals attempting to carry out a robbery fled out the doors of a Harvey Norman store which was under the care and control of the appellant. The primary judge found in favour of the respondent. The appellant sought leave to appeal, in part, on the basis that there was no discussion of causation by the primary judge.

Unlike duty, which must be assessed prospectively, causation is assessed with hindsight under s 5D(1)(a). The structure of s 5D rests upon a fulcrum requiring that the negligence be a necessary condition of the harm, commonly identified as the ‘but for’ test: s 5D(1)(a). The section further reflects the general law understanding that this test is both over-inclusive and under-inclusive. To the extent that it is over-inclusive, its consequences may be limited by the second limb of subsection (1), incorporating an ‘appropriateness’ test for the scope of liability. The possibility that a ‘but for’ test will, in the “exceptional” case, exclude liability where it should be imposed, is provided for in subsection (2).

Section 5D(2) cannot be relied upon to establish causation absent proof that the negligence was a necessary condition of the injury. However, it may have been open to the respondent in the present case to prove causation by establishing that, if specified steps had been taken, which the appellant was obliged to take, it was more likely than not that the respondent would not have suffered the harm which he did.

The case was not one in which the mere coincidence of the nature of the risk and the harm suffered could lead to an inference of a relevant causal connection. The primary judge, in any case, erred in failing to apply s 5D of the Act altogether.

[28]-[30], [35], [39], [74]

High Court cases cited in discussion:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

2017

Springfield v Duncombe [2017] NSWCA 137

The appellant fell and suffered injury whilst negotiating a passage between the respondent’s apartment and her own apartment. Both apartments were located in a building owned by the respondent. Because appellant suffered a severe head injury, she experienced amnesia and was not able to explain exactly what had happened.

In order to discharge the persuasive onus of causation (in this case a breach of duty by failing to install a balustrade), the plaintiff must prove that the taking of such a step would, more probably than not, have prevented or minimised the injury which occurred: [70]. A defendant who negligently exposes a plaintiff to risk of injury or damage will not be liable unless the plaintiff can persuade the trier of fact that it was probable the risk “came home”: [71].

There was no error in the trial judge not being satisfied as to the mechanism of the fall. Because the appellant could not establish the point from which she fell, she could not prove that the risk of injury to which she was exposed by the lack of balustrade had any bearing on the injuries she suffered: [72].

High Court cases cited in discussion:

Roads and Traffic Authority v Royal (2008) 82 ALJR 870; [2008] HCA 19

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

NSW Court of Appeal cases cited in discussion:

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307

2014

Curtis v Harden Shire Council [2014] NSWCA 314

The appellant’s partner was fatally injured when the car she was driving ran off the road and hit a tree. The appellant claimed that the accident was caused by loose gravel on the road surface and that the respondent was negligent in failing to provide adequate signage to indicate that the road had been resurfaced. The primary judge dismissed the claim on the basis that the Council’s breach of duty was not causative of the appellant’s loss.

Both at common law and now pursuant to s 5E of the Act, the plaintiff bears the onus of proving any fact relevant to causation. An actual persuasion is required to satisfy the burden of proof, meaning that the Court must be satisfied that the probabilities of the fact’s existence is greater than the possibilities of its non-existence. A competing finding may be described as a possibility and the likelihood of its occurrence, a probability; in this context, however, it is common to use the term “probability” to refer to a state of satisfaction greater than 50% and the term “possibility” to refer to something less likely.

In the present case, the primary judge did not err in the assessment of causation. [197], [320], [332]-[333]

Note: Beazley P dissented on the issue of causation.

NSW Court of Appeal cases cited in discussion:

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

2013

Shoalhaven City Council v Pender [2013] NSWCA 210

The respondent slipped and fell on a boat ramp during the course of employment as a ferry operator. The primary judge awarded damages without properly establishing a breach of duty of care under s 5B, and without concluding that the appellant’s breach caused the injury under s 5D.

A plaintiff may discharge the onus of proof of causation imposed by s 5E by relying upon the inferences open on the facts of the case. In order for causation to be established by inference, however, it is necessary that according to the course of common experience the more probable inference from the circumstances should be that the injury arose from the defendant’s negligence. A court is entitled to draw inferences from slim circumstantial facts that exist so long as that goes beyond speculation and if the available inference is considered more probable than other possibilities.

The respondent failed to prove that any breach of duty on the part of the appellant caused his injuries. [75]-[76], [77], [205]

High Court cases cited in discussion:

Holloway v McFeeters [1956] HCA 25
NSW Court of Appeal cases cited in discussion:
Woolworths v Strong [2010] NSWCA 282
Flounders v Millar [2007] NSWCA 238
Jackson v Lithgow City Council [2008] NSWCA 312
Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268

Part 1A Division 4 - Assumption of risk

(1) For the purposes of this Division, an “obvious risk” to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

2019

Hawkesbury Sports Council v Martin [2019] NSWCA 76

The respondent tripped and fell on a steel cable strung between low timber posts which formed a cable fence separating a car-parking area from playing fields at a park. Immediately behind the cable fence, closer to the fields, was a row of large concrete blocks, extending over about 40 m. The blocks had been installed at a later date than the fence. The respondent commenced proceedings against Hawkesbury Sports Council and Hawkesbury City Council, alleging that the Councils were negligent in failing to take precautions following the installation of the blocks and the retention of the cable, and further that they were negligent in failing to remove the cable. The primary judge found in favour of the respondent. The Councils appealed. By majority, the appeal was allowed.

On s 5F: the risk of someone tripping or falling on the cable was ‘obvious’ within the meaning of this section, and was not such that a reasonable person in the Councils’ position would have taken the precaution of removing the cable (notwithstanding that doing so would not be onerous): [40].

Note: Simpson AJA dissented on liability.

2018

Bruce v Apex Software Pty Limited t/as Lark Ellen Aged Care [2018] NSWCA 330

In 2015, the appellant, aged 70 at the time, tripped outside the entrance to an aged care facility owned by the respondent. The surface of that area consisted of large, flat concrete slabs bordered by rows of red bricks. There were height differences of 10-20mm between the edges of the concrete and brick pavers. Those differences had been present since 2000 or earlier. Before the primary judge, the appellant had alleged that the respondent was negligent in failing to remedy the level differentials by raising the brick pavers. The primary judge rejected that claim, holding there was no breach of duty of care. The Court of Appeal dismissed an appeal.

On s 5F: Because any risk of tripping was ‘obvious’, the respondent was not required to warn of it: [29].

2017

Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103

The respondent suffered injuries to his neck, shoulder and back when he tripped over the corner of a raised timber platform while walking across the lobby of the Manly Pacific Hotel, which was occupied by the appellant.

The majority held, in relation to s 5F, that the risk of tripping on the raised platform would not have been “obvious” to a reasonable person in the respondent’s position: [69].  Despite seeing certain “visual cues” as to the existence of the platform, the respondent interpreted these as the respondent’s expert witness suggested they might be, such that he was not aware of the platform: [64]. Accordingly, s 5H did not apply to remove any duty on the part of the appellant to warn of the risk: [69] (Meagher JA, Macfarlan JA agreeing).  In dissent, Fagan J held that the risk of tripping was obvious in circumstances where the platform was visible from at least 20 metres away, its colour contrasted strongly with the surrounding floor, and this was enhanced by LED lighting around its base: [77]-[80].  His Honour said that ss 5F, 5G and 5H are ill adapted to cases of occupier’s liability: [81].

New South Wales Court of Appeal cases considered:

Jaber v Rockdale City Council [2008] NSWCA 98; (2008) ATR 81-952
Laoulach v Ibrahim [2011] NSWCA 402

Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482

2015

Collins v Clarence Valley Council [2015] NSWCA 263

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. In the first instance, the risk was characterised as an ‘obvious risk’ under s 5F, such that the Council did not owe the appellant a duty of care to warn of the risk by the erection of a warning sign. On appeal, the appellant argued that the primary judge erred in finding that the risk of harm was an ‘obvious risk’.

Section 5F involves the objective determination of whether the plaintiff was exposed to a risk of harm which would have been obvious to a reasonable person in his or her position. The focus of inquiry is not upon the tortfeasor but, rather, is upon a reasonable person in the position of the person who has been injured.

Whether or not a risk is ‘obvious’ may depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff. ‘Obvious’ means that both the factual scenario facing the plaintiff and the risk itself would be apparent to and recognized by a reasonable person exercising ordinary perception, intelligence and judgment. In assessing this, the Court will take into account the age and level of experience of the plaintiff. A risk may be obvious even if it has a low probability of occurring and is not prominent, conspicuous or physically observable.

The plaintiff’s actual knowledge of the risk of harm is irrelevant except insofar as it is relevant to the forward looking inquiry as to whether the risk would have been obvious. However, as the ‘obvious risk’ inquiry is into the knowledge that a reasonable person in the appellant’s position should be taken to have had, it may be relevant to know the extent to which he or he was actually aware of the relevant risk.

In the present case, the primary judge did not err in finding that the risk of harm was obvious within the meaning of the Act, having regard to the ubiquity of the gaps between the wooden planks of the bridge and the possibility of a wheel being jammed when the bicycle was near the railing [136]-[150], [202]

NSW Court of Appeal cases cited in discussion:

Jaber v Rockdale City Council [2008] NSWCA 98
Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394

2014

Liverpool Catholic Club v Moor [2014] NSWCA 394

The respondent was injured after falling down stairs to an ice rink whilst wearing ice skates. On appeal, the appellant submitted that the risk of harm which materialised was an “obvious risk” within the meaning of s 5F of the Act.

An “obvious risk” for the purposes of s 5F has been described as one which is clearly apparent or easily recognized or understood. It may include a risk that has a low probability of occurring and one which is not prominent, conspicuous or physically observable.

The forward looking inquiry required by s 5F is whether the risk of harm which eventuated and caused the relevant injury would have been obvious to the hypothetical reasonable person in the position of the plaintiff. The actual knowledge of the injured person is irrelevant except to the extent that how he acquired that actual knowledge may have been relevant to the forward-looking inquiry.

In the present case, the primary judge identified the risk in question as not just that of slipping and falling when descending the stairs whilst wearing ice skates, but involved the uneven dimensions of the stairs and the fact that they were wet. The evidence did not justify this emphasis and the primary judge erred in not finding that the risk of harm was obvious within the meaning of s 5F. [24], [41]

NSW Court of Appeal cases cited in discussion:

Laoulach v Ibrahim [2011] NSWCA 402
CG Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136
Streller v Albury City Council [2013] NSWCA 348
Jaber v Rockdale City Council [2008] NSWCA 98

2013

Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482

The respondent was injured when she slipped stepping from wet tiles onto on a downward moving travelator. The primary judge found that the appellant had breached its duty of care because it had allowed water to accumulate near the travelator and had taken no steps to protect the respondents from the risk of slipping. The primary judge found that the s 5F definition of “obvious risk” was not applicable to the present case.

Although a finding that a risk of harm is an “obvious risk” eliminates any common law duty to warn, it does not automatically prevent a defendant being held liable for breach of duty.

“Obvious” means that both the condition and the risk are apparent to and would be recognised by a reasonable man in the position of the plaintiff, exercising ordinary perception, intelligence and judgment. The test is an objective one. However, the plaintiff’s evidence will be relevant to the assessment of what a reasonable person knew about the relevant risk.

In the present case, there was no sound basis for overturning the primary judge’s finding that the risk was not obvious for the purposes of s 5F. [57], [59]-[61] [66]

NSW Court of Appeal cases cited in discussion:

Wyong Shire Council v Vairy [2004] NSWCA 247
Fallas v Mourlas [2006] NSWCA 32
Angel v Hawkesbury City Council [2008] NSWCA 130

(1) In proceedings relating to 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.

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

A 12 year old elite swimmer suffered tetraplegia after slipping whilst diving into the shallow end of a pool. The primary judge gave judgment in favour of the Council, and judgment in favour of Ms Miller against the School. One issue on appeal was how the risk of harm should be formulated.

Section 5G extends the rebuttable presumption of awareness of obvious risks to cases where 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. Section 5G proceeds on the basis that the “risk of harm” is sufficiently general that it may be described as a “type” or “kind” of risk, whose precise details need not be known. Section 5G should be read with ss 5C and 5B. [112]-[114]

Collins v Clarence Valley Council [2015] NSWCA 263

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. In the first instance, the risk was characterised as an “obvious risk” and the primary judge found that the appellant was not able to rebut the presumption under s 5G.

The logic of Division 4 of the Act is that once the s 5F obvious risk is identified, s 5G deems the person injured to be aware of that risk and places the burden on that person to prove to the contrary. It is irrelevant whether the person is aware of the precise nature, extent or manner of the occurrence of the risk – under s 5G a person will be aware of a risk if the person is aware of the type or kind of risk. The appellant failed to prove she was unaware of the risk on appeal. [153], [198], [202]

(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.

Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308

An aircraft owned by the respondent and driven by its directing mind, Dr Alterator, was damaged when it collided with a kangaroo on landing at Kempsey Aerodrome. The primary judge held that the appellant Council had breached its duty of care to aerodrome users by, inter alia, not issuing a notice to airmen (NOTAM) stating that kangaroo incursions into the aerodrome had increased to dangerous levels. At the time of the accident, Dr Alterator was aware of a warning published by Airservices Australia in the ‘ESRA’ notice for Kempsey Aerodrome, reading “1. Kangaroo hazard exists”.

The respondent should have been, and was, aware of the obvious risk of colliding with a kangaroo on the runway at Kempsey Aerodrome whilst landing. It was not possible on the evidence to conclude there was a heightened level of risk at the time of the accident, such that it was not properly described as within the obvious risk accepted by the pilot: [33]-[34];

Section 5H(2) was not engaged. Though the ERSA and NOTAM contained information provided by the Council, each appeared on a website operated by Airservices Australia. Accessing a website could not be said to constitute a “request” to third parties who provided information to the service provider [36].

Simpson AJA, dissenting, held that a liberal interpretation should be given to s 5H(2)(a). As the source of the information on the Airservices Australia website was in effect the appellant, it was not unreasonable to construe consulting the website as an indirect request for advice or information from the defendant: [104], [106]-[107]. Further, the defendant’s breach was not a “failure to warn”, but rather a “failure to provide information” which it had an obligation to provide: [106]-[107]; [110]-[111].

High Court cases cited in discussion:

Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19

NSW Court of Appeal cases cited in discussion:

Chotiputhsilpa v Waterhouse [2005] NSWCA 295

Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394

Collins v Clarence Valley Council [2015] NSWCA 263

The appellant sustained injuries after her bicycle wheel became caught between the wooden planks of a bridge and she fell over the low guard rails of the bridge. In the first instance, the risk was characterised as an “obvious risk”. The questions arose on appeal whether the primary judge erred in finding that the risk of harm was obvious for the purposes of s 5H and whether the Council needed to establish that the appellant voluntarily assumed the obvious risk identified.

If the defendant can establish that the relevant risk were “obvious” pursuant to s 5H(1) of the Act, this removes any duty on the part of the defendant to warn of the risk. In the present case, whilst the Council should have erected a warning sign, s 5H resulted in it not being liable for that default because the risk against which it would have warned was obvious. The appellant’s claim therefore failed.

Section 5H operates independently of any need to prove the voluntary assumption of risk. It also explains that a finding of an “obvious risk” does not negate a finding of breach of duty otherwise and may assist where the defence of voluntary assumption of risk is established. [154]-[155], [194], [202]

Liverpool Catholic Club v Moor [2014] NSWCA 394

The respondent was injured after falling down stairs to an ice rink whilst wearing ice skates. An issue which fell to be determined on appeal was whether the duty of care contended for by the respondent was to warn the respondent of an obvious risk within the meaning of s 5H(1).

Section 5H is concerned only with a duty of care to warn of an obvious risk. The section does not apply to a duty of care to take any other reasonable step to prevent or avoid or minimise harm from an obvious risk.

If a risk is an ‘obvious risk’ pursuant to s 5F(1) then the effect of s 5H(1) is that the defendant will not owe a duty of care to the respondent. In the present case, as it was not suggested that s 5H(2) (which provides for specific exceptions to s 5H(1)) applied, the appellant did not owe a duty of care to the respondent to warn him of what was an obvious risk. [43], [52]

NSW Court of Appeal cases cited in discussion:

Angel v Hawkesbury City Council [2008] NSWCA 130

(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.

Sparks v Hobson; Gray v Hobson [2018] NSWCA 29

The respondent underwent an operation for a genetic disorder, which was performed by the appellants, a surgeon and an anaesthesiologist. As a result of the operation, he became a paraplegic. If the operation had been terminated earlier, he would not have suffered the injuries which led to the paraplegia. In resisting liability, the anaesthesiologist relied on, inter alia, s 5I of the Act.

Section 5I should be understood as referring to the exercise of skill having no causal consequence on the outcome. In circumstances such as the present, the provision may be read as operating where the skill of the surgeon does not affect the risk of an adverse outcome: [44]. Where s 5I is raised, the plaintiff must nonetheless establish legal causation under s 5D; the establishment of causation often has the consequence of negating s 5I: [47].

The majority found that s 5I did not provide a defence. The risk which accompanied the surgery was the neurological collapse of the spinal column. This would not have occurred if the operation had been terminated earlier. The operation would have been terminated had reasonable care and skill been exercised. Accordingly, it could not be said that the risk was an “inherent risk”: [49]; [206].

In dissent, Simpson JA held that once it was accepted that the respondent’s condition warranted performance of the operation as an emergency surgery, and that surgery carried a risk of paraplegia, section 5I applied: [349].

High Court cases cited in discussion:

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

NSW Court of Appeal cases cited in discussion:

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311

The Nominal Defendant v Buck Cooper [2017] NSWCA 280

The respondent was injured when the motorcycle he was riding collided with another motorcycle ridden by his friend, Mr Lamont. The motorcycles were unregistered and uninsured. The respondent and his friend had been intoxicated and sleep-deprived at the time of the collision.

In order for there to be no liability for the materialisation of an inherent risk, it must be proven that the risk cannot be avoided by the exercise of reasonable care and skill. The evidence did not permit a finding that Mr Lamont was incapable of exercising reasonable care and skill to avoid the risk of the motorbikes colliding, i.e., by riding on the correct side of the road, not exceeding the speed limit, and keeping a proper lookout: [110]; [114].

The appellant’s characterisation of the risk, as being the likelihood of physical injury or damage caused by driving motor bikes together in the dark whilst intoxicated, should be rejected. Defining the relevant risk in this way is to confuse cause and risk: [116]. The appellant’s construction of s 5I would give rise to inconsistency within Division 5 of the Civil Liability Act, and convert all potentially dangerous activities involving an “obvious risk” into an “inherent risk”. This is not warranted by the statutory language or the policy considerations underlying the Civil Liability Act or the Motor Accidents Compensation Act [117].

High Court cases cited in discussion:

Rootes v Shelton (1967) 116 CLR 383; [1967] HCA 39

NSW Court of Appeal cases cited in discussion:

Paul v Cook (2013) 85 NSWLR 167; [2013] NSWCA 311

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

The respondent was injured when the armrest of a moving ski-lift chair struck her from behind. The appellant successfully contested the primary decision in which a breach of the duty was found causative of the respondent’s injuries pursuant to ss 5D, 5E.

In order for there to be no liability for the materialisation of an inherent risk pursuant to s 5I, it must be proven, inter alia, that the risk “cannot be avoided by the exercise of reasonable care and skill”. In this instance the respondent’s injuries were not the materialisation of an inherent risk because they could have been avoided by the exercise of reasonable care and skill. [167]

Paul v Cooke [2013] NSWCA 311

The respondent radiologist negligently failed to diagnose the appellant’s aneurysm. The aneurysm then ruptured during a subsequent operation, without any lack of care or skill on the part of the surgeons. The primary judge found that the appellant’s loss was not caused by the respondent’s negligence because it was not appropriate for the scope of the respondent’s liability to be extended to the relevant injuries under s 5D(1)(b). He also gave reasons as to why he would reject the respondent’s contention that he was not liable pursuant to s 5I because the injuries were suffered as a result of the materialisation of an inherent risk.

The harm suffered by the appellant resulted from the materialisation of a risk occurring that could not be avoided by the exercise of reasonable care and skill. The “reasonable care and skill” referred to in s 5I(2) is not necessarily limited to that of the defendant; it depends upon the relationship between the act of negligence and exposure to inherent risk and there was no such relationship in the present case.

Section 5I precludes liability for the materialisation of an inherent risk, however s 5I(1) and (2) operate quite differently. In s 5I(2), the definition of a “risk of something occurring” is forward-looking, to a harm that has not yet happened. In contrast, s 5I(1) is backwards-looking, and considers the materialisation of an inherent risk that led to the “harm suffered”. It is the wrong approach to focus on the occurrence and pose it as the ultimate question as to whether what occurred could have been avoided with reasonable care and skill.

Once s 5I is engaged it will provide a complete defence to any liability falling within Part 1A. This is clear from the broad and casual language of s 5I, where the phrase “as a result of” reflects the language of s 5A(1) rather than s 5D(1). Consequently, if a case can conveniently be decided under s 5I, it should be.

In the present case, the the respondent was not liable under s 5I. [7]-[9], [15]-[17], [60]-[69], [70]-[78]

High Court cases cited in discussion:

Wallace v Kam [2013] HCA 19

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

NSW Court of Appeal cases cited in discussion:

Cox v Fellows [2013] NSWCA 206

Part 1A Division 5 - Recreational activities

(1) This Division applies only in respect of liability in negligence for harm to a person (“the plaintiff”) resulting from a recreational activity engaged in by the plaintiff.

(2) This Division does not limit the operation of Division 4 in respect of a recreational activity.

In this Division:

 

“dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm.

 

“obvious risk” has the same meaning as it has in Division 4.

 

“recreational activity” includes:

 

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

2017

Goode v Angland [2017] NSWCA 311

The appellant suffered serious injuries when he fell from a horse whilst riding as a professional jockey. He claimed that the injuries were caused by the negligence of the respondent, another professional jockey, who had ridden in such a manner as to cause interference with the appellant and his horse.

Horseracing is a sport that engages the first limb of the definition of “recreational activity” in s 5K. The limbs in s 5K are disjunctive. The words “any sport” preclude a distinction between sports engaged in for recreational and professional purposes: [190]; [210].

The Court declined to follow Dodge v Snell [2011] TASSC 19, where it was held that professional horseracing was not a “recreational activity”, notwithstanding that the Tasmanian statutory definition included “any sport”: [205]-[209].

High Court cases cited in discussion:

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 321

NSW Court of Appeal cases cited in discussion:

Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361

Belna Pty Ltd v Irwin [2009] NSWCA 46

2015

Sharp v Parramatta City Council [2015] NSWCA 260

The appellant suffered injuries when she landed awkwardly after jumping from a 10 metre diving platform. One issue on appeal was whether the appellant’s claim was for harm suffered as a result of the materialisation of an obvious risk of a “dangerous recreational activity” under s 5K.

In determining whether there is a “significant risk of harm” for the purposes of determining that a recreational activity is dangerous pursuant to the definition in s 5K, an objective assessment of the riskiness of the activity, taking into account the probability of physical harm coming to pass and the seriousness of the harm which would or might then result, is required.

The activity of jumping into water from a height of 10m carried with it a probability of harm that was real and present and the consequences of which carried with it serious risk of injury. This made the activity “dangerous” for the purposes of s 5K. [42]-[43]

NSW Court of Appeal cases cited in discussion:

Streller v Albury City Council [2013] NSWCA 348

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219

The appellant was injured while riding a quad bike at the respondent’s recreational facility. One issue on appeal was whether the appellant’s injury resulted from the materialisation of an obvious risk of a dangerous recreational activity for the purposes of s 5K.

Section 5K defines a “dangerous recreational activity” as “a recreational activity that involves a significant risk of physical harm”. Factors such as time, place, competence, age, sobriety, equipment and even the weather may make a dangerous recreational activity which would not otherwise involve a risk of harm. It is the totality of the particular circumstances which surround the recreational activity that will determine whether a recreational activity is dangerous. [34]-[35]

NSW Court of Appeal cases cited in discussion:

Fallas v Mourlas [2006] NSWCA 32

2014

Campbell v Hay [2014] NSWCA 129

The appellant was injured when his light aircraft made an emergency landing during a flying lesson. The primary judge classified the activity as a “dangerous recreational activity” pursuant to s 5K. The appellant appealed against that finding.

The definition of “dangerous recreational activity” must be read as a whole and determined objectively. Regard must be had both as to the nature and the degree of harm that might be suffered, on the one hand, and the likelihood of the risk materializing, on the other. The expression constitutes one concept with the risk and harm mutually informing each other. Significant risk means a risk that is more than trivial and does not import an undemanding test of foreseeability. It does not mean a risk that is likely to occur but lays down a standard lying somewhere between a trivial risk and a risk likely to materialize. [116]-[118]

NSW Court of Appeal cases cited in discussion:

Falvo v Australian Oztag Sports Association [2006] NSWCA 17

Fallas v Mourlas [2006] NSWCA 32

2013

Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361

The respondent was hit and seriously injured during a motorcycle race training circuit. At first instance, the respondent brought a claim for breach of warranty and, in the alternative, a claim in negligence. The primary judge awarded damages on the basis of the claim in contract. On appeal, one issue for determination was the definition of “recreational activity” under s 5K.

A “recreational activity” under s 5K involves four considerations. First, the expression “recreational activity” is broadly defined in inclusive terms in the Act. Second, the emphasis is on engaging in the relevant pursuit or activity for the purposes of enjoyment, relaxation or leisure. Third, the goal of the activity is relevant in determining whether the activity is or is not a recreational activity. Finally, regard must be had to the particular activities engaged in by the plaintiff at the relevant time

The respondent was found to have engaged in a recreational activity for the purposes of s 5K. [99]-[105]

NSW Court of Appeal cases cited in discussion:

Belna Pty Ltd v Irwin [2009] NSWCA 46

(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.

Goode v Angland [2017] NSWCA 311

The appellant suffered serious injuries when he fell from a horse whilst riding as a professional jockey. He claimed that the injuries were caused by the negligence of the respondent, another professional jockey, who had ridden in such a manner as to cause interference with the appellant and his horse.

Section 5L is a complete answer to liability which is governed by the Civil Liability Act, Pt 1A. Even if a plaintiff establishes duty, breach, and causation, if s 5L applies, the defendant will not be liable. The onus of establishing the defence lies with the defendant. There is much to be said for the view that the defence should be dealt with at the outset: [185].

It was common ground that the risk that a jockey might fall during a race and suffer injury was an “obvious risk”, and that horse racing involved a significant risk of physical harm: [183]. Professional horseracing is a sport that engages the first limb of the definition of “recreational activity” in s 5K, and thus falls within the operation of s 5L.

NSW Court of Appeal cases cited in discussion:

Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [54]-[57]

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128

Bankstown City Council v Zraika; Roads and Maritime Services v Zraika [2016] NSWCA 51

Holroyd City Council v Zaiter [2014] NSWCA 109—08/04/2014

A 9 year old boy suffered a brain injury after he rode his bike down a grassed slope into a concrete drainage channel. The primary judge found that the activity was not a dangerous recreational activity for the purposes of s 5L. On appeal, the appellant contended that the primary judge erred making that finding.

The materialisation of an “obvious risk” depends will depend upon the risk being an obvious risk to the reasonable person. The reasonable person will be defined as the reasonable person within the class of persons to which the “obvious risk” applies.

In the present case, riding an unfamiliar bike down a grass slope could not be characterized objectively as a dangerous recreational activity for two reasons. First, the standard of reasonableness to be expected was that of the child. It was found that the presence of the channel was not obvious and would not have been obvious to the respondent until he was at least half way down the slope. Second, the risk which materialized was not a normal incident of the dangerous recreational activity. [89]-[91]

(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 person who suffers harm 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).

(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

(4) A risk warning can be given orally or in writing (including by means of a sign or otherwise).

(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).

(6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.

(7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.

(8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.

(9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant.

(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.

(11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity.

(12) In this section:

“incapable person” means a person who, because of the person’s young age or a physical or mental disability, lacks the capacity to understand the risk warning.

“parent” of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person.

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320

A 12 year old elite swimmer suffered tetraplegia after slipping whilst diving in the shallow end of a pool.

Section 5M, dealing with “risk warnings”, also speaks in terms to the question of generality or particularity of the risk. It is not necessary to give a precise delineation of each separate obstacle or hazard which may be encountered.

Section 5M is directed principally to signage and written disclosures, and ultimately to the end that the warning is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. That end would not be served by a provision which required a possibly lengthy list of specific warnings of individual risks, all of which were incidents of the recreational activity. [115]

NSW Court of Appeal cases cited in discussion:

Sharp v Parramatta City Council [2015] NSWCA 260

Sharp v Parramatta City Council [2015] NSWCA 260

The appellant suffered injuries when she landed awkwardly after jumping from a 10 metre diving platform. At first instance, the appellant’s claim was dismissed because the risk that materialized had been the subject of a risk warning within the terms of s 5M.

A s 5M risk warning must warn of the general nature of the particular risk but does not necessitate the precise delineation of each separate obstacle or hazard which may be encountered.

Section 5M does not direct attention to whether the relevant person received or understood the warning, or was capable of doing so. Instead, s 5M considers whether the warning, by the manner in which it was given, was reasonably likely to result in “people” being warned. The “people” referred to are not all people but people in the same position as the relevant person. Such people are “warned” if they were reasonably likely to have received and understood the warning said to have been given.

In the present case, the sign warned that there was a risk of injury in undertaking the activity of diving. There was no error shown in the conclusion of the primary judge that the sign was placed in a manner reasonable likely to result in the appellant being warned of the risk. [30]-[33]

NSW Court of Appeal cases cited in discussion:

Action Paintball Games Pty Ltd (in liq) v Barker [2013] NSWCA 128

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219

The appellant was injured while riding a quad bike at the respondent’s recreational facility. On appeal, the respondent sought to rely on s 5M.

Unlike s 5L, s 5M does not require that the activity be “dangerous”. It is sufficient that the activity is a “recreational activity.” However, similarly to s 5L, the protections of s 5M require that the harm suffered is harm that related to a risk of that particular recreational activity. For the section to apply, the risk must be inherent in or incidental to the activity.

In the present case, the risk that materialized was not inherent in, or incidental to, the relevant activity. [49]-[50]

Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361

The respondent was hit and seriously injured during a motorcycle race training circuit. At first instance, the respondent brought a claim for breach of warranty and, in the alternative, a claim in negligence. The primary judge awarded damages on the basis of the claim in contract. One issue on appeal was whether instructions given to riders constituted a “risk warning” in respect of a recreational activity under s 5M.

The language of s 5M “does not owe a duty of care” is expressly directed to negating any duty, rather than limiting or excluding liability for a breach of duty. It negates a duty of care and reflects the context of its subject matter, namely an anterior risk warning having been given to the plaintiff to take care in respect of a risk of the recreational activity. Such a risk warning has the effect of negating any duty of care owed to the person in the recreational activity. It does not limit or purport to limit or preclude liability for breach of a term of a contract providing for the exercise of due care and skill.

Section s 74(2A) of the Trade Practices Act 1974 does not operate to pick up and apply s 5M of the Civil Liability Act. [87]-[88] [95]-[96]

Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128

A 10 year old girl fell over tree root and fractured her arm whilst playing outdoor ‘laser tag’. The primary judge held that there had been no “risk warning” because the warning which had been given to the children prior to the game did not warn of specific obstacles, such as tree roots. On appeal, the appellant argued that the trial judge erred in making that finding.

A “risk warning” is a warning with respect to the existence of a risk. It is perfectly possible to warn of a risk without instructing the recipient as to all the steps necessary to avoid the risk. Further, adequate warning can be given by reference to the general kind of risk involved without precise delineation of each separate obstacle or hazard.

In the present case, s 5M provided a straightforward path for disposing of the appeal. The suggestion that one specific hazard should have been identified is a function of hindsight. Furthermore, the plaintiff was not an “incapable person” for the purposes of s 5M. [25]-[28]

(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.

(3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude 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.

(4) In this section, “recreation services” means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity.

(5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement.

(6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219

The appellant was injured while riding a quad bike at the respondent’s recreational facility. One issue that fell to be determined on appeal was whether a term of the contract between the respondents and the appellant for the provision of recreational services purported to exclude the respondents’ liability for negligence and whether s 5N protected that term’s efficacy.

The heading to s 5N refers to “contractual duty of care” but there is nothing in the terms of s 5N itself to limit its operation to contractual duties of care. The effect of s 5A is that Part 1A of the Act is applicable to claims in both tort and contract and an appellant can choose to sue in contract, or tort or both. The heading of s 5N does not limit its operation.

In the immediate case, the respondents did not, as a matter of contract, exclude their liability. [51]-[54]

Part 1A Division 6 - Professional negligence

(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.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

South Western Sydney Local Health District v Gould [2018] NSWCA 69

The respondent presented to hospital with an open fracture to his left thumb. He was treated with two particular types of antibiotic, and underwent surgery. After being discharged, gangrene developed in his thumb, leading to its amputation. The primary judge held that the failure to administer another type of antibiotic was causative of the injury. He also rejected expert opinion that not administering the antibiotic was “competent professional practice”, on the basis that the body of opinion was irrational.

It was clear from examining the text, context and purpose of s 5O that it would be “seriously pejorative and exceptional” to find a professional’s opinion to be irrational, and even more so if the opinion were widely held. Considering a body of opinion to be “irrational” is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion: [96]. To the extent that the judge’s approach amounted merely to preferring the views of one expert over another, it was inconsistent with ss 5O(3) and (4): [97].

Despite the dispute between various experts, the appellant had established there was a practice, under s 5O(1), to administer the antibiotics which were in fact administered, and no more, unless there was significant exposure to water. To the extent that one of the experts failed to articulate the reasoning process leading to his conclusions, it did not follow that his opinion was irrational. Rather, it would have been open for the plaintiff to object to its tender in accordance with principles of admissibility of evidence: [101]-[102].

The primary judge had erred in failing to determine the standard of care by reference to the evidence of what was regarded by peer professional opinion as competent professional practice. The effect of s 5O, in a case where its preconditions are made out, is to replace the standard of care against which breach is assessed. There is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case when the preconditions of s 5O have been made out: [123]-[124]; [128]-[129].

High Court cases cited in discussion:

Commissioner of Taxation v BHP Billiton Ltd (2011) 244 CLR 325; [2011] HCA 17

Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12

Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 93

Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58

NSW Court of Appeal cases cited in discussion:

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44

Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335

White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18

Sparks v Hobson; Gray v Hobson [2018] NSWCA 29

The respondent underwent an operation for a genetic disorder, which was performed by the appellants, a surgeon and an anaesthesiologist. As a result of the operation, he became a paraplegic. If the operation had been terminated earlier, he would not have suffered the injuries which led to the paraplegia. In resisting liability, the anaesthesiologist relied on, inter alia, s 5O of the Act.

Section 5O did not provide a defence. Relying on his reasoning in McKenna v Hunter & New England Local Health District (‘McKenna’) (overturned by the High Court on other grounds), Macfarlan JA held that the evidence did not point to the existence of an established ‘practice’ concerning how a competent medical practitioner would deal with such a situation for the purposes of the section: [221]-[223].

Basten JA considered that the phrase “competent professional practice” did not require evidence of ‘a practice’: [31]-[32]. While the reasoning of the Court in McKenna as to the scope and operation of s 5O should not be disregarded, there was no obligation on the Court, as a matter of precedent, to follow it [40]. Nevertheless, based on how the defence was run at trial, the appellant could not rely on the section: [75].

Simpson JA concluded that she was obliged to follow McKenna, meaning that the appellant could not rely on s 5O. But for that constraint, she would have considered that “competent professional practice” was intended to denote the practice of a profession, not the specific practice or method of providing the professional services in question: [335]-[336].

High Court cases cited in discussion:

Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44

Garcia v National Australia Bank (1998) 194 CLR 395; [1998] HCA 48 at [56]

Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 410; [1981] HCA 4

NSW Court of Appeal cases cited in discussion:

McKenna v Hunter & New England Local Health District [2013] NSWCA 476; (2013) Aust Torts Rep 82-158

Dobler v Haloverson (2007) 70 NSWLR 151; [2007] NSWCA 335

Holmes a Court v Papaconstuntinos [2011] NSWCA 59

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.

Part 1A Division 7 - Non-delegable duties and vicarious liability

(1) The extent of liability in tort of a person (“the defendant”) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

(2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A.

Part 1A Division 8 - Contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

2019

Williams v Metcash Trading Ltd [2019] NSWCA 94

Mr Williams worked as a picker-packer in a product distribution centre operated by Metcash Trading Ltd. He brought proceedings against Metcash Trading Ltd in the District Court, seeking damages in respect of personal injury said to have been sustained while working at the centre. The primary judge found that Mr Williams suffered an injury while lifting two boxes of dog food from under a rack that was 1.4 m high. He held that Metcash breached a duty it owed to Mr Williams by requiring that cartons of dog food be picked from a rack measuring only 1.4 m high. But he gave judgment for Metcash on the basis that this breach did not cause Mr Williams’ injury; rather, the injury was caused by the fact that Mr Williams lifted two boxes, contrary to safe lifting practices. In the event that he was wrong on causation, the primary judge went on to consider quantification of damages and contributory negligence, finding that any award of damages would be reduced by 20% by reason of Mr Wiliams’ contributory negligence. Mr Williams appealed, challenging the primary judge’s finding that the negligence found did not cause his harm, and challenging the findings on contributory negligence. The appeal was allowed on causation.

On s 5R: for the purposes of contributory negligence, in determining the standard of care required, a plaintiff should not be treated differently from a defendant merely because the plaintiff is the person who suffered harm: [73].

NSW Court of Appeal cases cited in discussion:

Council of the City of Greater Taree v Wells [2010] NSWCA 147

2018

Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183

The respondent was injured when he slipped on water on the floor of the below ground carpark of premises occupied by the appellant. The primary judge found that the respondent had not been contributorily negligent.

It was necessary for the appellant to establish that the respondent’s inattention causally contributed to the damage suffered by him. This flows from the abrogation of the defence of contributory negligence at law and the apportionment effected by the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9. Section 5R is also relevant, and requires questions of culpability to be assessed by reference to ss 5B and 5C.

Divergent views have been expressed as to whether s 5D is applicable to the determination of causal contribution for contributory negligence, or whether the “common sense” approach in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 applies. It was not necessary to resolve the point in the present case: [31].

The primary judge erred in finding that the respondent was not contributorily negligent. The respondent’s inattention and having only a single hand on the trolley while using his phone made it more likely that he could not save himself from his slip, and would instead fall to the ground. An apportionment where the respondent bore one quarter of responsibility was a just and equitable apportionment: [33]-[35].

High Court cases cited in discussion:

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37; [1964] HCA 16

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

NSW Court of Appeal cases cited in discussion:

Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380

Verryt v Schoupp [2015] NSWCA 128; 70 MVR 484

Nominal Defendant v Rooskov [2012] NSWCA 43; 60 MVR 350

Cam & Bear Pty Ltd v McGoldrick [2018] NSWCA 110

The appellant was the trustee of a self-managed superannuation fund, established for the benefit of two individuals, who were directors of the trustee company. The respondent was an accountant who had audited the accounts of the fund. The primary judge found that the respondent had been negligent, but that his conduct had not caused any loss. If he were wrong, the primary judge indicated his findings as to contributory negligence and proportionate liability. On appeal, the Court concluded that causation had been made out.

In considering contributory negligence, s 5R(2)(a) requires regard to be had to how a reasonable person “in the position of” the claimant would have acted. In making an apportionment based on a plaintiff’s contributory negligence, the Court must consider “the degree of departure from the standard of care of the reasonable man” and “the relative importance of the acts of the parties in causing the damage”: [80]-[84]; [89].

The appellant, through its director, departed from the standard of care that a reasonable person would have applied to protect his or her own interests, but to a very limited degree. Even a person with the director’s lack of financial sophistication should reasonably have considered the prudence of supplying significant amounts of money to Mr L’s company.  However, the respondent’s departure from the standards of a reasonable person in his position, that is, of an experienced accountant and auditor, was significant. The respondent’s negligence should be regarded as being of significantly greater importance in causing the damage than the negligence of the appellant: [89]-[90]. Responsibility for the loss should be apportioned 10% to the appellant and 90% to the respondent: [91].

High Court cases cited in discussion:

Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6

Rogers v Whitaker (1992) 175 CLR 479 at 487; [1992] HCA 58

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

NSW Court of Appeal cases cited in discussion:

Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139

T & X Company Pty Ltd v Chivas [2014] NSWCA 235 at [48]-[56]; (2014) 67 MVR 297

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

Daniels v Anderson (1995) 37 NSWLR 438

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82

Mr Donald was employed by the second respondent, which hired out his labour to the appellant. He worked as a labourer, primarily, although not solely as a jackhammer operator, removing old railway sleepers and replacing them with new ones. The primary judge held that Mr Donald sustained a back injury due to the negligence of the appellant. He also entered judgment against the second respondent in accordance with the Workers Compensation Act 1987 (NSW). The appellant appealed and the second respondent cross-appealed with respect to the findings on liability.

There is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to determining contributory negligence, as the question of breach is directed to whether a person has breached a duty to another person, while contributory negligence requires a determination whether a person has taken reasonable care for their own safety. However, once this difference is recognised, consideration must be given to the statutory prescriptions in s 5B: [201]-[203].

In finding that Mr Donald was not contributorily negligent, the Court observed that the appellant’s essential position was that Mr Donald should have taken breaks himself and asked for help. However, the manner in which Rail Corp permitted an ad hoc system of work to operate and the fact that it permitted Mr Donald to do all the jackhammering work meant that it was unlikely that a worker in his position would ask for help. A quasi-employer in the position of the appellant could not expect an unskilled labourer such as Mr Donald to regulate his own work practices so that they were safe for him: [204].

High Court cases cited in discussion:

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34

NSW Court of Appeal cases cited in discussion:

Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72

Jurox Pty Ltd v Fullick [2016] NSWCA 180

2015

Allen v Chadwick [2015] HCA 47

The respondent was injured when the car in which she was a passenger, driven by the appellant, struck a tree. She was thrown from the back seat and suffered severe spinal injuries.

The issue for determination by the High Court was whether, in light of specific provisions of the Civil Liability Act 1936 (SA), the respondent was contributorily negligent in choosing to travel in the car despite knowing that the appellant was intoxicated and in failing to put on a seat belt. In resolving these questions, the High Court considered the operation of s 44(1) which is in similar terms to s 5R of the Civil Liability Act 2002 (NSW).

Section 44(1) imposes the same standard of care on both plaintiffs and defendants. It disqualifies any suggestion that the reasonable care and skill expected of a plaintiff to protect his or her own interests is different from that expected of a defendant to protect the interests of others.

Collins v Clarence Valley Council [2015] NSWCA 263

The appellant was injured when the front wheel of her bicycle became stuck in a gap between the wooden planks of a bridge. She sued the respondent council for negligence but liability was not established at trial because the risk was an “obvious risk” under s 5F. On appeal, the council submitted that if it had been negligent, the appellant was guilty of contributory negligence.

There was no error on the part of the primary judge in reaching the conclusion that the respondent council was not liable. However, had the appellant been successful in establishing liability, a finding of contributory negligence would have followed as a matter of course because the questions posed by s 5R(2) are essentially the same questions as those which arise in determining the issue of “obvious risk”, an issue which had already been determined adversely to the appellant. [188]-[191]

Verryt v Schoupp [2015] NSWCA 128

The 13 year old respondent, not wearing a helmet, hitched a ride up a hill by holding on the back of a car driven by the appellant at a slow speed whilst on a skateboard. After a few hundred metres the respondent fell and struck his head on the bitumen, being severely injured. The primary judge found that the respondent had been contributorily negligent.

The primary judge erred in proceeding on the basis that s 5R(1) required the appellant to satisfy each of the elements in s 5D(1) in order to prove causation for the purposes of its contributory negligence defence. The “principles” referred to in s 5R(1) as applicable in determining negligence are those in s 5B and not those in s 5D(1) which are directed to a different question, namely, whether for the purpose of attributing liability, negligence caused particular harm. a.

The appellant must bear by far the greater responsibility for the injuries sustained by the respondent. A sufficient allowance for the respondent’s lack of care for his own safety is reflected in a reduction of his damages by 10%. [25]-[27]

NSW Court of Appeal cases cited in discussion:

Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

Davis v Swift [2014] NSWCA 458
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Grills v Leighton Contractors Pty Limited [2015] NSWCA 72
T and X Company Pty Ltd v Chivas [2014] NSWCA 235
Grills v Leighton Contractors Pty Limited [2015] NSWCA 72

The appellant police officer, whilst conducting an urgent security sweep, collided with a boom gate that had been lowered across a road in error by a motorway controller in the employ of the respondent. The appellant appealed against the primary judge’s finding of contributory negligence against him in the order of 15%.

Section 5R requires the court, in determining whether a person is contributorily negligent, to apply ss 5B and 5C. Consideration must be given to the statutory prescriptions in s 5B but s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d). Furthermore, the relevance of and weight to be given to each factor depends on the circumstances. Pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew.

Having regard to the urgency of the appellant’s task and the unexpected lowering of the boom, the finding of contributory negligence was overturned. [159]-[162], [173], [175]

2014

Allard v Jones Lang Lasalle (Vic) Pty Ltd [2014] NSWCA 325

The appellant slipped on a puddle of clear liquid on the floor of a shopping centre and sued the respondent as owner and occupier of the shopping centre. Liability was established at trial and the primary judge held that the respondent was not contributorily negligent, a finding against which the appellant appealed.

The primary judge erred in failing to find that the appellant was contributorily negligent. The relevant question was not whether the appellant’s response to the signs was reasonable, but whether her response was that of a reasonable person in her position.

The appellant failed to take precautions which a reasonable person in her position would have taken and therefore failed to take reasonable care for her own safety. Contributory negligence was assessed at 20%. [86]-[91]

T and X Company Pty Ltd v Chivas [2014] NSWCA 235

A taxi owned by the appellant fatally struck a pedestrian crossing the street against a red pedestrian light. The respondent, the mother of the pedestrian, sued for nervous shock. Liability was made out at trial and contributory negligence was assessed at 40%.

There are difficulties in applying the same legal principles in determining negligence of the defendant and determining whether the injured party was contributorily negligent. It is also not clear whether the standard of care identified in s 5R(2) in relation to the injured person is that which applies to the person causing the injury.

The Act raises a doubt as to whether emphasis should be placed, as it has in the past, on the capacity for a motor vehicle to cause far greater damage when compared with the capacity of the plaintiff to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian. The conduct of the driver should not be judged against a higher standard than that of the pedestrian.

The fact that the deceased crossed the road against a red pedestrian light required a far higher level of contributory negligence, which was assessed at 75%. [6], [41]-[57]

Note: Beazley P dissented. The greater harm that may be done by a motor vehicle to pedestrians remains a relevant observation in determining contributory negligence. The likely seriousness of the driver’s conduct was such that he should bear a higher proportion of the blame and the primary judge’s apportionment should not be disturbed. [11], [16]-[17]

High Court cases cited in discussion:

Joslyn v Berryman [2003] HCA 34; 214 CLR 552

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139

The respondent was hit by a forklift when exiting the appellant’s premises. The respondent was aware that forklifts operated in the area. The appellant submitted that the respondent was contributorily negligent.

Section 5R(2) deals with the “standard of care”, which may or may not affect the “just and equitable” test in s 9 of the Law Reform (Miscellaneous Provisions) Act 1965. Section 5R was intended to apply to the assessment of contributory negligence the general principles set out in s 5B (and arguably s 5C) in determining the negligence of the defendant. Like s 5B(1)(c), s 5R(2) adopts the qualified objective test of “a reasonable person in the position of [the plaintiff]”.

No distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted.

If both driver and passenger were equally careless, liability should be shared equally. Given that the respondent should have seen the forklift and knew that the forklift operated without looking behind him, the respondent was 30% contributorily negligent for the accident. [79]-[100], [118]

Note: McColl JA dissented. Her Honour found that s 5R says nothing about how the relative culpability of the plaintiff and defendant are to be apportioned. [47]-[48], [53]-[59]

High Court cases cited in discussion:

Astley v Austrust Ltd [1999] HCA 6, (1999) 197 CLR 1
Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
NSW Court of Appeal cases cited in discussion:
Carey v Lake Macquarie City Council [2007] NSWCA 4
Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208
Council of the City of Greater Taree v Wells [2010] NSWCA 147
Frost v Kourouche [2014] NSWCA 39
Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464
Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; (2013) 279 FLR 202
Nominal Defendant v Meakes [2012] NSWCA 66; (2012) 60 MVR 380
Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; [2008] 172 IR 453
Taheer v Australian Associated Motor Insurers Ltd (trading as AAMI) [2010] NSWCA 191
Talbot-Butt v Holloway (1990) 12 MVR 70
Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reps 81 – 818
Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140

The respondent suffered serious injuries when he fell eight metres whilst dismantling scaffolding. The appellant was responsible for the supply, erection and dismantling of the scaffolding. The respondent brought proceedings for negligence against the appellant and his employer. The primary judge held that both the appellant and his employer were negligent, and that there was no contributory negligence on the part of the respondent. The appellant challenged those findings.

The test for contributory negligence under s 5R and the common law is an objective one notwithstanding that it differs from the test for negligence in that it focuses on conduct of the actor which exposes him or herself to the risk of injury without necessarily exposing others to such a risk. Whether the appellant was guilty of contributory negligence was to be assessed against the risk of injury to which he was exposed if he did not act as a reasonable and prudent worker in his position would have acted. The appellant’s actions were incompatible with the conduct of a reasonably careful scaffolder and contributory negligence was assessed at 20%. [77]-[86]

High Court cases cited in discussion:

Commissioner of Railways v Ruprecht [1979] HCA 37; 142 CLR 563

Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Gordon v Truong; Truong v Gordon [2014] NSWCA 97

The respondent was struck by a car, driven by the appellant, whilst crossing a street on foot. The appellant conceded liability at trial and the only issues for determination were contributory negligence and damages. The trial judge found that there was no contributory negligence on the part of the respondent. On appeal, the appellant alleged that the respondent was contributorily negligent in failing to keep a proper lookout.

The principles applicable in determining whether a person has been negligent under s 5R include those set out in s 5B. The negligence of the defendant is to be assessed against the risk of harm to the plaintiff, while the contributory negligence of the plaintiff is to be assessed against a risk of harm to him or herself. The harm which a motor vehicle is likely to cause to a pedestrian is, on one view, precisely the same harm which should have been foreseeable to the pedestrian. However, the precautions which each should reasonably take will be different in kind.

As the options to a pedestrian in the circumstances may be more limited than that of a driver, and the culpability of the driver greater, the appropriate allowance of contributory negligence was 35%. [14]-[22]

Note:

Whilst Macfarlan JA agreed with Basten JA that contributory negligence should be assessed at 35%, his Honour took into account as relevant to the apportionment exercise the fact that the appellant was in charge of a fast moving vehicle whereas the consequence of carelessness on the part of the plaintiff was more likely to be harm to himself.

Simpson JA dissented, finding no error on the part of the primary judge in rejecting the appellant’s contention that the respondent was contributorily negligent.

2013

Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219

Each of the three respondents was injured when the motor vehicle in which they were travelling left the road and collided with a power pole. The trial judge assessed contributory negligence at 35-40% to reflect the respondents’ knowledge or constructive knowledge that the driver of the vehicle was so affected by alcohol as to impair his ability to drive and the fact that none of them was wearing a seat belt. On appeal, the appellant submitted that contributory negligence should have been assessed at 80%.

An effect of s 5R is to apply to the conduct of the person who suffers harm, principles relevant to determining negligence on the part of the person owing a duty of care. This includes the general principles set out in ss 5B and 5C.

An intermediate appellate court should be reluctant to interfere with a trial judge’s finding as to contributory negligence as reasonable minds may differ as to where within a particular range the appropriate result is to be found. In this case there was no reason demonstrated which took the conduct of the respective parties outside a range of 35%-40%. [31]-[32], [55]

High Court cases cited in discussion:

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492

2012

Origin Energy LPG Ltd v BestCare Foods Ltd [2012] NSWCA 407

A factory owned and operated by the respondents was destroyed in an explosion caused by liquefied petroleum gas as supplied by installations supplied and constructed by the appellants. The respondents brought a claim alleging breach of common law, statutory and contractual duties of care in respect of the construction, maintenance and inspection of the gas installation. The appellants alleged contributory negligence with respect to the respondent’s failure to isolate a critical storage tank whilst shut down.

The terms of s 5R(2)(b) CLA require that actual knowledge has a part to play in the assessment of contributory negligence. The correct legal question is whether a reasonable person in the position of the respondents, i.e. having the knowledge which the respondents had or ought to have had, was negligent.

The respondents did not have actual knowledge of the need to isolate the tank and no evidence supported the proposition that the respondents ought to have known of that need. Accordingly, the respondents were not contributorily negligent. [216]-[219]

NSW Court of Appeal cases cited in discussion:

Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

Davis v Swift [2014] NSWCA 458

The appellant was injured when a motor vehicle driven by the respondent ran over her foot. The appellant brought proceedings against the respondent for negligence and, in the alternative, on the basis that her injuries were the result of a “blameless motor accident” pursuant to the Motor Accidents Compensation Act 1999 (NSW). The primary judge found that it was a “blameless accident” and assessed contributory negligence at 100 per cent.

Section 138(1) of the Motor Accidents Compensation Act provides that the “common law and enacted law as to contributory negligence” apply to an award of damages in respect of a motor accident. This includes s 5S.

Section 5S provides that in apportioning responsibility a court may determine a reduction of 100 per cent in the claimant’s damages by reason of contributory negligence. This overcomes the decision in Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 72 ALJR 65. Contributory negligence was assessed at 80%. [23], [29], [43]

High Court cases cited in discussion:

Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; 72 ALJR 65

T and X Company Pty Ltd v Chivas [2014] NSWCA 235

A taxi owned by the appellant fatally struck a pedestrian crossing the street against a red pedestrian light. The respondent, the mother of the pedestrian, sued for nervous shock. Liability was made out at trial and contributory negligence was assessed at 40%.

Section 5S may constitute a reform to the common law in providing that a court may determine a reduction of 100 per cent if it considers it “just and equitable to do so”. It is possible that s 5S may articulate what was in any event already available having regard to the terms of the legislation governing apportionment, in this case the Motor Accidents Compensation Act 1999 (NSW). [3] (per Beazley P in dissent on the question of contributory negligence)

(1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is entitled to have regard to the contributory negligence of the deceased person.

(2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.

Part 1B Child abuse - liability of organisations

Part 1B Division 1 - Preliminary

In this Part:
child means a person under the age of 18 years.
function includes a power, authority or duty, and exercise a function includes perform a duty.
organisation means any organisation, whether incorporated or not, and includes a public sector body but does not include the State.
public sector body means the following:

(a) a government sector agency within the meaning of the Government Sector Employment Act 2013,

(b) a service of the Crown in which persons excluded from the Government Sector Employment Act 2013 by section 5 of that Act are employed,

(c) a statutory body representing the Crown that is authorised by legislation to employ staff,

(d) a statutory body representing the Crown that at any time received funding from the State for a public purpose,

(e) a body (however described) that has been superseded by a body listed in paragraphs (a)–(d),

(f) a body (however described) of a kind referred to in paragraphs (a)–(d) that has been abolished.

(1) Nothing in section 5Q or Part 2A or 5 protects a person from civil liability arising under this Part or places any restriction or limitation on an award of damages made pursuant to this Part.

(2) A person is not prevented from seeking compensation under Divisions 2 and 3 in respect of the same child abuse but in such a case, an award of damages under either of those Divisions must take into account any award already made under the other Division.

(1) An organisation and any successor of that organisation are, for the purposes of this Part, taken to be the same organisation.

Part 1B Division 2 - Duty of organisations to prevent child abuse

In this Division:
(a) an organisation is responsible for a child if it (including any part of it) exercises care, supervision or authority over the child (or purports to do so or is obliged by law to do so), and
(b) if an organisation (including any part of it) delegates the exercise of care, supervision or authority over a child to another organisation (in whole or in part), each organisation is responsible for the child.

(1) In this Division, an individual associated with an organisation without limitation includes an individual who is an office holder, officer, employee, owner, volunteer or contractor of the organisation and also includes the following:

(a) if the organisation is a religious organisation—a religious leader (such as a priest or a minister) or member of the personnel of the organisation,

(b) if the organisation or part of the organisation is a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998—an individual authorised by the designated agency (under that Act) as an authorised carer,

(c)an individual, or an individual belonging to a class of individuals, prescribed by the regulations.

(2) An individual is not associated with an organisation solely because the organisation wholly or partly funds or regulates another organisation.

(3) An individual associated with an organisation to which the exercise of care, supervision or authority over a child has been delegated, in whole or in part, is also taken to be an individual associated with the organisation from which the exercise of care, supervision or authority was delegated.

(1) This section imposes a duty of care that forms part of a cause of action in negligence.

(2) An organisation that has responsibility for a child must take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse of the child in connection with the organisation’s responsibility for the child.

(3) In proceedings against an organisation involving a breach of the duty of care imposed by this section, the organisation is presumed to have breached its duty if the plaintiff establishes that an individual associated with the organisation perpetrated the child abuse in connection with the organisation’s responsibility for the child, unless the organisation establishes that it took reasonable precautions to prevent the child abuse.

(4) In determining, for the purposes of this section, whether an organisation took reasonable precautions to prevent child abuse, a court may take into account any of the following:

(a) the nature of the organisation,

(b) the resources reasonably available to the organisation,

(c) the relationship between the organisation and the child,

(d) whether the organisation has delegated in whole or in part the exercise of care, supervision or authority over a child to another organisation,

(e) the role in the organisation of the individual who perpetrated the child abuse,

(f) the level of control the organisation had over the individual who perpetrated the child abuse,

(g) whether the organisation complied with any applicable standards (however described) in respect of child safety,

(h) any matter prescribed by the regulations,

(i) any other matter the court considers relevant.

(5) In this section:
child abuse, of a child, means sexual abuse or physical abuse of the child but does not include an act that is lawful at the time it takes place.

Part 1B Division 3 - Vicarious liability of organisations

(1) In this Division:
employee of an organisation includes an individual who is akin to an employee of the organisation.

(2) An individual is akin to an employee of an organisation if the individual carries out activities as an integral part of the activities carried on by the organisation and does so for the benefit of the organisation.

(3) However, an individual is not akin to an employee if:

(a) the activities are carried out for a recognisably independent business of the individual or of another person or organisation, or

(b) the activities carried on by the individual are the activities of an authorised carer carried on in the individual’s capacity as an authorised carer.

(4) The regulations may, despite subsections (2) and (3), prescribe circumstances in which an individual will be akin to an employee or not akin to an employee.

(5) In this section:
authorised carer means a person who is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998 other than a person who is an authorised carer only because the person is the principal officer of a designated agency.

(1) An organisation is vicariously liable for child abuse perpetrated against a child by an employee of the organisation if:

(a) the apparent performance by the employee of a role in which the organisation placed the employee supplies the occasion for the perpetration of the child abuse by the employee, and

(b) the employee takes advantage of that occasion to perpetrate the child abuse on the child.

(2) In determining if the apparent performance by the employee of a role in which the organisation placed the employee supplied the occasion for the perpetration of child abuse on a child, a court is to take into account whether the organisation placed the employee in a position in which the employee has one or more of the following:

(a) authority, power or control over the child,

(b) the trust of the child,

(c) the ability to achieve intimacy with the child.

(3) This section does not affect, and is in addition to, the common law as it applies with respect to vicarious liability.

(4) In this section:
child abuse means sexual abuse or physical abuse perpetrated against a child but does not include any act that is lawful at the time that it takes place.

Part 1B Division 4 - Proceedings against unincorporated organisations

The objects of this Division are:

(a) to enable child abuse proceedings to be brought against unincorporated associations, and

(b) to enable an organisation to pay liabilities arising from child abuse proceedings from the assets of an associated trust in certain circumstances.

In this Division:

associated trust—see section 6N (3).

child abuse proceedings means proceedings for a civil claim arising from abuse (including sexual abuse) against a child, whether arising under this Part or the common law.

entity includes the trustees of a trust.

legal personality, in respect of an organisation, means the organisation is incorporated and capable of being sued and found liable.

management member of an unincorporated organisation means:

(a) a member of any management committee of the organisation, or

(b) if the organisation does not have a management committee, a person who is concerned with, or takes part in, the management of the organisation, regardless of the person’s title or position.

 

suitable proper defendant—see section 6M.

unincorporated organisation means an organisation that is not incorporated.

(1) Child abuse proceedings may be commenced or continue against an unincorporated organisation in the name of the organisation or in a name reasonably sufficient to identify the organisation as if the organisation had legal personality.

(2) For the purposes of this Division, a function that may be exercised by an unincorporated organisation may be exercised by a management member of the organisation.

(3) A court may make the orders and directions it sees fit for the purposes of this Division, in particular to further the objects of this Division.

(4) Without limiting subsection (3), a court may direct one or more management members of an unincorporated organisation to exercise a specified function of the organisation under this Division.

(1) An unincorporated organisation may, with the consent of an entity, appoint the entity as a proper defendant for the organisation at any time.

(2) An appointment is to be made in accordance with the Uniform Civil Procedure Rules 2005.

(3) However, if the unincorporated organisation is a public sector body, the State is taken to be appointed as the proper defendant.

For the purposes of this Division, an entity is suitable to be appointed as a proper defendant for an organisation if:

(a) the entity is able to be sued in this State, and

(b) the entity (or, if the entity is a trustee of a trust, the trust) has sufficient assets in this State to satisfy any judgment or order that may arise out of child abuse proceedings against the unincorporated organisation.

(1) This section applies if:

(a) child abuse proceedings are commenced against an unincorporated organisation and no suitable proper defendant is appointed for the organisation by the end of 120 days after the unincorporated organisation (or a management member of the unincorporated organisation) is served with notice of the commencement of the proceedings, or

(b) after that time, the proper defendant appointed ceases to be a suitable proper defendant.

 

(2) The court in which the child abuse proceedings are commenced may, on the application of the plaintiff, appoint the trustees of one or more of the following trusts if the trustees are suitable to be appointed as a proper defendant for the organisation:

(a) an associated trust of the organisation,

(b) a trust that was formerly an associated trust of the organisation if the court considers that the trust ceased to be an associated trust in an attempt to avoid trust property being applied to satisfy any liability that may be incurred in child abuse proceedings and it would be unjust not to appoint the trustees of the trust.

 

(3) A trust is an associated trust of an unincorporated organisation, for the purposes of this Division, if one or more of the following apply:

(a)  the organisation has, either directly or indirectly, the power to control the application of the income, or the distribution of the property, of the trust,

(b)  the organisation has the power to obtain the beneficial enjoyment of the property or income of the trust with or without the consent of another entity,

(c)  the organisation has, either directly or indirectly, the power to appoint or remove the trustee or trustees of the trust,

(d)  the organisation has, either directly or indirectly, the power to appoint or remove beneficiaries of the trust,

(e)  the trustee of the trust is accustomed or under an obligation, whether formal or informal, to act according to the directions, instructions or wishes of the organisation,

(f)  the organisation has, either directly or indirectly, the power to determine the outcome of any other decisions about the trust’s operations,

(g)  a member of the organisation or a management member of the organisation has, under the trust deed applicable to the trust, a power of a kind referred to in paragraphs (a)–(f) but only if the trust has been established or used for the activities of the organisation or for the benefit of the organisation.

 

(4)  On the making of an application by a plaintiff under this section, the unincorporated organisation must, within 28 days after the application is made, identify to the court any associated trusts of the organisation, including by identifying the financial capacity of those trusts.

On the appointment of a proper defendant for an unincorporated organisation:

(a)  the proper defendant is taken to be the defendant in the child abuse proceedings against the organisation on behalf of the organisation and is responsible for conducting the proceedings as the defendant, and

(b)  anything done by the unincorporated organisation is taken to have been done by the proper defendant and a duty or obligation of the unincorporated organisation in relation to the proceedings is a duty or obligation owed by the proper defendant, and

(c)  the unincorporated organisation must continue to participate in the child abuse proceedings and a court may make orders or directions in respect of the organisation as if the organisation had legal personality, and

(d)  a court may make substantive findings in the child abuse proceedings against an unincorporated organisation as if the organisation had legal personality, and

(e)  the proper defendant incurs any liability from the claim in the proceedings on behalf of the organisation that the organisation would have incurred if the organisation had legal personality (including any costs awarded), and

(f)  the proper defendant may rely on any defence or immunity that would be available to the organisation as a defendant in the proceedings if the organisation had legal personality, and

(g)  any right of the unincorporated organisation to be indemnified (including under a policy of insurance) in respect of damages awarded in a claim in child abuse proceedings extends to, and indemnifies, the proper defendant, and

(h)  if more than one proper defendant is appointed, the proper defendants must file a single defence and proceed as a single defendant.

(1)  Despite any Act or other law or instrument (including any trust deed), the trustees of an associated trust of an unincorporated organisation may do one or more of the following:

(a)  consent to be appointed by the organisation as a proper defendant,

(b)  supply any information about the trust that may be required under this Division, including identifying the financial capacity of the trust,

(c)  apply trust property to satisfy any liability incurred by the trustee as a proper defendant in child abuse proceedings.

 

(2)  Liability of a trustee of an associated trust incurred by the trustee as a proper defendant in child abuse proceedings is limited to the value of the trust property.

(3)  The satisfaction of any liability incurred by a trustee of an associated trust as a proper defendant in child abuse proceedings is a proper expense for which the trustee may be indemnified out of the trust property, irrespective of any limitation on any right of indemnity a trustee may have.

(4)  A trustee of an associated trust is not liable for a breach of trust only because of doing anything authorised by this section.

(5)  The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of the Corporations legislation generally.

(6)  In this section:

liability incurred by the trustee as a proper defendant in child abuse proceedings includes any unpaid judgment debt arising from the proceedings, any amount paid in settlement of the proceedings and any costs associated with the proceedings.

Part 1B Division 5 - Rules

(1) The Uniform Rules Committee under the Civil Procedure Act 2005 may make rules, not inconsistent with this Part, for or with respect to any matter that by this Part is required or permitted to be prescribed by rules or that is necessary or convenient to be prescribed by rules for carrying out or giving effect to this Part.

(2) In particular, the rules may make provision for or with respect to the following matters:

(a) the practice and procedure to be followed in respect of proceedings under this Part and any matters incidental to or relating to that practice and procedure,

(b) the protection of the privacy of plaintiffs,

(c) the duties of registrars and other officers of a court in relation to or for the purpose of the operation of this Part,

(d) the forms to be used in connection with the operation of this Part.

(3) Rules made by the Uniform Rules Committee for the purposes of this Part are to form part of the rules made by that Committee under the Civil Procedure Act 2005.

Part 2 - Personal injury damages

Part 2 Division 1 - Preliminary

In this Part:

 

“injury” means personal injury and includes the following:

 

(a) pre-natal injury,

(b) impairment of a person’s physical or mental condition,

(c) disease.

“personal injury damages” means damages that relate to the death of or injury to a person.

(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B.

(2) This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

(3) A court cannot award damages, or interest on damages, contrary to this Part.

(4) In the case of an award of damages to which Part 2A (Special provisions for offenders in custody) applies, this Part applies subject to Part 2A.

Part 2 Division 2 - Fixing damages for economic loss

(1) This section applies to an award of damages:

(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

(b) for future economic loss due to the deprivation or impairment of earning capacity, or

(c) for the loss of expectation of financial support.

(2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.

(3) For the purposes of this section, the amount of average weekly earnings at the date of an award is:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

Taylor v The Owners – Strata Plan 11564 [2014] HCA 9

The appellant’s husband was killed when a shop awning collapsed on him. His widow claimed damages under the Compensation to Relatives Act 1897. The trial judge found that an award of damages pursuant to ss 3 and 4 of the Compensation to Relatives Act would be limited by the operation of s 12(2) of the Act. An appeal to the Court of Appeal was dismissed.

Section 12(2) directs a court, when awarding damages relating to the death of or injury to a person, to disregard the amount by which the “claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is three times the amount of average weekly earnings”. Despite the repeal of the definition of “claimant” within the Act, nothing evidences an intention to change the meaning from its ordinary meaning as “the person who makes or is entitled to make a claim”. To read s 12 as applying the s 12(2) limitation to the deceased’s gross weekly earnings cannot be reconciled with the language that Parliament has enacted. The phrase “the claimant’s gross weekly earnings” cannot identify the gross weekly earnings of the deceased. [1], [9], [41]-[44]

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Mr Bosevski was injured whilst working at a site operated by the appellant. The primary judge awarded Mr Bosevski $2,615,605.93 in damages, plus interest. The appellant challenged the assessment of damages with respect to, inter alia, future attendant care, lawn mowing, gardening and handyman services, and future medical expenses.

Section 13 applies to damages for future economic loss both in respect of “future earning capacity” and “other events on which the award is to be based”. The latter category includes damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses. The primary judge did not approach the assessment of damages falling within this latter category in the manner required by the section: [139]; [141]; [159]; [165].

Section 13(2) requires an approach to the assessment of damages which is consistent with the approach in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20. This extends to the assessment of damages for future attendant care, lawn mowing, gardening and handyman services, and future medical expenses, consistent with principle and the weight of authority in the Court of Appeal. The correct approach is to calculate the degree of probability of a future event occurring but for the injury, and then to adjust the award of damages according to that calculation: [128]-[137].

The Court reassessed the impugned heads of damage: [153]-[155]; [160]-[162]; [167]-[169]. In reassessing the award of damages for future attendant care, the Court found that an award of damages for future attendant care on a commercial basis was warranted because the required services were readily available and likely to be availed of by Mr Bosevski: [145]-[152].

High Court cases cited in discussion:

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54

Sharman v Evans (1977-1978) 138 CLR 563; [1977] HCA 8

NSW Court of Appeal cases cited in discussion:

Amoud v Al Batat [2009] NSWCA 333

Marsland v Andjelic (1993) 31 NSWLR 162

Miller v Galderisi [2009] NSWCA 353

White v Benjamin [2015] NSWCA 75

Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95

Sampco Pty Ltd v Wurth [2015] NSWCA 117

Gordon v Truong [2014] NSWCA 97

Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93

(1) If an award of damages is to include any component, assessed as a lump sum, for future economic loss of any kind, the present value of that future economic loss is to be determined by adopting the prescribed discount rate.

(2) The “prescribed discount rate” is:

(a) a discount rate of the percentage prescribed by the regulations, or

(b) if no percentage is so prescribed–a discount rate of 5%.

(3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages.

(1) In this section:

“attendant care services” means any of the following:

(a) services of a domestic nature,

(b) services relating to nursing,

(c) services that aim to alleviate the consequences of an injury.

“gratuitous attendant care services” means attendant care services:

(a) that have been or are to be provided by another person to a claimant, and

(b) for which the claimant has not paid or is not liable to pay.

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a) there is (or was) a reasonable need for the services to be provided, and

(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

(4) If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award–that quarter, or

(ii) in respect of the whole or any part of any other quarter–the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5) If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

Note: 
By reason of the operation of section 3B (1) (b), this section does not apply to the determination of civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989.
Section 15A makes provision with respect to the determination of damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 of the Dust Diseases Tribunal Act 1989.
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Mr Bosevski was injured whilst working at a site operated by the appellant. The primary judge awarded Mr Bosevski $2,615,605.93 in damages, plus interest. The appellant challenged the assessment of damages with respect to a number of different heads of damage.

The Court rejected a submission that Mr Bosevski had failed to meet the threshold in s 15(3) with respect to damages for past gratuitous care. The primary judge had not erred in finding that Mr Bosevski was entitled to such an award. The evidence in the present case about Mr Bosevski’s need for attendant care was compelling: [111]-[117].

It should be noted that s 15 governs damages for future gratuitous care, but not for future commercial care: s 15(6). In this case, Mr Bosevski had made no pleaded claim for gratuitous future attendant care, and leave was refused to amend his pleading during the appeal hearing in order to do so: [118]; [126].

High Court cases cited in discussion:

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

NSW Court of Appeal cases cited in discussion:

Sampco Pty Ltd v Wurth [2015] NSWCA 117

(1) This section applies to the determination of civil liability for damages for gratuitous attendant care services in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989.

(2) The amount of damages that may be awarded for gratuitous attendant care services in proceedings referred to in subsection (1) must not exceed the amount calculated at the same hourly rate as that provided by section 15 (5) regardless of the number of hours involved.

(3) Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

(4) In this section, “attendant care services” and “gratuitous attendant care services” have the same meanings as they have in section 15.

(1) Definitions In this section:

“assisted care”, in relation to a dependant of a claimant, means any of the following kinds of care (whether or not the care is provided gratuitously):

(a) any respite care (being care that includes accommodation that is provided by a person other than the claimant to a dependant who is aged or frail, or who suffers from a physical or mental disability, with the primary purpose of giving the dependant or claimant, or both, a break from their usual care arrangements),

(b) if the dependant is a minor (but without limiting paragraph (a))–any care that is provided to the dependant by a person other than the claimant where:

(i) the person is a parent of the dependant (whether derived through paragraph (a) (i) or (ii) of the definition of “dependants” in this subsection, adoption or otherwise), and

(ii) the care includes the provision of accommodation to the dependant.

“dependants”, in relation to a claimant, means:

(a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises:

(i) the person to whom the claimant is legally married (including a husband or wife of the claimant),

(ii) a de facto partner of the claimant, “De facto partner” is defined in section 21C of the Interpretation Act 1987.

(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

(iv) any other person who is a member of the claimant’s household, and

(b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time.

“gratuitous domestic services” means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid.

(2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, but only if the court is satisfied that:

(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of “dependants” in subsection (1)–the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b) the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

Note: Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants.

(3) If a dependant of the claimant received (or will receive) assisted care during the 6-month period referred to in subsection (2) (c) (ii) and the court is satisfied that the periods of that care were (or will be) short-term and occasional, the court may:

(a) in determining whether the claimant would have provided gratuitous domestic services to the dependant during a particular week for at least the 6 hours referred to in subsection (2) (c) (i), disregard the week if assisted care was (or will be) provided during that week, and

(b) in determining whether the claimant would have provided gratuitous domestic services to the dependant during the 6-month period referred to in subsection (2) (c) (ii), disregard any periods during which the assisted care was (or will be) provided in that 6-month period,

but only if the total number of weeks in which the care was (or will be) provided during the 6-month period does not exceed 4 weeks in total.

(4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant’s capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15 (5) regardless of the number of hours involved.

(5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants, a court:

(a) may only award damages for that loss in accordance with the provisions of this section, and

(b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity.

(6) Circumstances when damages may not be awarded The claimant (or the legal personal representative of a deceased claimant) may not be awarded damages for any loss of the claimant’s capacity to provide gratuitous domestic services to any dependant of the claimant if the dependant has previously recovered damages in respect of that loss of capacity.

(7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant’s loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.

(8) If a claimant is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, damages may not be awarded to the claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants while the claimant is a participant in the Scheme if (and to the extent that):

(a) the loss resulted from the motor accident injury (within the meaning of that Act) in respect of which the claimant is a participant in that Scheme, and

(b) the treatment and care needs (within the meaning of that Act) of the claimant that are provided for or are to be provided under the Scheme include the provision of such domestic services to the claimant’s dependants.

(9) Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a) the loss resulted from an injury caused by a motor accident (within the meaning of the Motor Accidents Compensation Act 1999), and

(b) an insurer has made, or is liable to make, payments to or on behalf of the claimant for such services under section 83 (Duty of insurer to make hospital, medical and other payments) of that Act.

(10) Damages may not be awarded if they can be recovered as damages for attendant care services Damages may not be awarded to a claimant under this section in respect of any loss of the claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants if (and to the extent that):

(a) the claimant could recover damages for gratuitous attendant care services (within the meaning of section 15) in respect of the same injury that caused the loss, and

(b) the provision of such attendant care services to the claimant also resulted (or would also result) in the claimant’s dependants being provided with the domestic services that the claimant has lost the capacity to provide.

(11) Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account:

(a) the extent of the claimant’s capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and

(b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and

(c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.

Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raines [2018] NSWCA 216

The respondent sued the appellants for damages arising from his exposure to asbestos in around 1967 and 1975-6. He was diagnosed with mesothelioma in 2016. In 1996, one of his children had suffered a catastrophic motor vehicle accident, which led to the respondent and his wife providing around-the-clock care. The respondent’s wife had also previously sustained an injury leading to two back operations and other health issues. A dispute arose as to the amount the respondent was entitled to for loss of his capacity to provide gratuitous domestic services to his wife and son.

The primary judge did not err by including ‘passive care’ in the award of damages for “gratuitous domestic services”. Passive care includes forms of “protective attention” such as constant supervision and availability to step in in case of emergency: [160]-[163], [67]-[70].

Even if gratuitous domestic services are provided jointly, the task remains one of identifying both the number of hours of the services provided by the respondent and the reasonable need of the dependants for those services to be provided by the respondent. Section 15B(2)(d) is not directed to the identity of the provider of services being either the wife or the potential workers’ compensation insurer: The availability of alternative care was not relevant to the question of the dependent’s need for the services previously rendered by the respondent: [83]-[84]; [92]; [147]-[148].

High Court cases cited in discussion:

Van Gervan v Fenton (1992) 175 CLR 327

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64

NSW Court of Appeal cases cited in discussion:

State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149

Dionisatos (for the estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281

Amaca Pty Ltd v Phillips [2014] NSWCA 24

Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338

(1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based.

(2) The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions.

Part 2 Division 3 - Fixing damages for non-economic loss (general damages)

(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

(2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.

(3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table:

 

 Table
Severity of the non-economic loss (as a proportion of a most extremecase) Damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss)
15% 1%
16% 1.5%
17% 2%
18% 2.5%
19% 3%
20% 3.5%
21% 4%
22% 4.5%
23% 5%
24% 5.5%
25% 6.5%
26% 8%
27% 10%
28% 14%
29% 18%
30% 23%
31% 26%
32% 30%
33% 33%
34%–100% 34%–100% respectively
(4)    An amount determined in accordance with subsection (3) is to be rounded to the nearest $500 (with the amounts of $250and $750 being rounded up).

 

Note:
The following are the steps required in theassessment of non-economic loss in accordance with this section:
Step 1: Determine the severity of theclaimant’s non-economic loss as a proportion of a most extreme case. Theproportion should be expressed as a percentage.
Step 2: Confirm the maximum amount that may beawarded under this section for non-economic loss in a most extreme case. Thisamount is indexed each year under section 17.
Step 3: Use the Table to determine the percentageof the maximum amount payable in respect of the claim. The amount payableunder this section for non-economic loss is then determined by multiplying themaximum amount that may be awarded in a most extreme case by the percentageset out in the Table.
Where the proportion of a most extreme case isgreater than 33%, the amount payable will be the same proportion of themaximum amount.
Scenic Tours Pty Ltd v Moore [2018] NSWCA 238

The respondent commenced representative proceedings on behalf of himself and persons who had booked and paid for certain European river cruises with the appellant. The primary judge found that Mr Moore was entitled, inter alia, to damages for distress and disappointment caused by the appellant’s failure to comply with certain guarantees under the Australian Consumer Law.

The respondent should not have been awarded damages for distress and disappointment. This was because the Australian Consumer Law, s 275, picked up and applied s 16 as a surrogate federal law. The respondent could not satisfy the statutory threshold for damages for non-economic loss under ss 15-16: [364].

Section 16 applied notwithstanding that the contraventions in the respondent’s case had occurred outside Australia: [388].

High Court cases cited in discussion:

Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16

NSW Court of Appeal cases cited in discussion:

Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137

Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95

The appellant was injured when helping to release a 5 year old boy who had become stuck in play equipment. The primary judge assessed non-economic loss under s 16 as 26% of a most extreme case on the basis that the appellant suffered a significant wrist injury, injury to his ribs and chest and shock, distress, upset and anxiety. The appellant argued that the assessment was manifestly inadequate.

The cap on general damages for non-economic loss is a significant amount, and under the table of apportionment in s 16, small variations in the proportion can have significant financial consequences for a plaintiff. This is because of steep increase in the award of damages where the proportion is between 15% and 34% of a most extreme case. Nevertheless, appellate courts will not intervene in the discretionary or evaluative judgment as to the appropriate proportion, except on the well-established grounds that the judge has in some way mistaken the facts of the legal principles to be applied or otherwise demonstrated error, which may only be discernible on the basis that the result is outside a reasonable range. [38]

Appleton v Norris [2014] NSWCA 311

The appellant underwent unsuccessful reconstructive breast surgery that led to serious infection and breast asymmetry. At first instance the appellant was awarded damages including for non-economic loss which was assessed under s 16 at 30% of a most extreme case. On appeal the appellant argued that assessment was manifestly inadequate and that the damages should have been assessed as 40% of a most extreme case.

The assessment of s 16 non-economic loss is an evaluative assessment made by a trial judge. It is not appropriate for the court to engage in relatively minor alterations of such percentages or take account of the monetary consequences of such adjustments. The Court did not alter the award made by the primary judge under s 16. [39]

NSW Court of Appeal cases cited in discussion:

Dell v Dalton (1991) 23 NSWLR 528

Clifton v Lewis [2012] NSWCA 229
Hall v State of New South Wales [2014] NSWCA 154

The appellant suffered major psychiatric injury after witnessing a fight at a juvenile correctional facility. The primary judge found that non-economic loss was 25% of a most extreme case under s 16. On appeal, the appellant argued that the primary judge erred in finding that the appellant would be greatly assisted by the conclusion of the litigation and contended for a finding of 40%.

Section 16 calls for no exercise of “discretion” such that its review is governed by the principles in House v King (1936) 55 CLR 499. Rather, it imposes an obligation to determine the severity of the non-economic loss and to do so by reference to a proportion of a most extreme case. The purpose is to replace the former process of awarding a money sum by way of general damages with an obligation to evaluate the severity of the non-economic loss by reference to a proportion of a most extreme case. That proportion is translated into a monetary amount. The court should not look through s 16 and approach the exercise by reference to the dollar amounts which correspond to the percentages. That would be to subvert the statutory regime and would be legally erroneous.

Whilst some authorities refer to s 16 as involving an exercise of discretion, they do not go so far as to suggest that a House v King error needs to be established. They do suggest that the determination under s 16 is neither scientific nor normative and that it is not readily susceptible to appellate review. That is plainly so and the description of the task as “discretionary” may be seen in the oft cited proposition that the assessment involves matters of “opinion, impression, speculation and estimation” (Dell v Dalton (1991) 23 NSWLR 528 at 533). However, whilst the task involves some inevitable imprecision, it remains conceptually distinct from the exercise of a discretionary power and therefore its review on appeal is subject to different principles.

The primary judge, in the immediate case, was not called upon to exercise a discretionary power but, rather, to make a finding of fact as to the severity of the non-economic loss by reference to a proportion of a most extreme case. Ordinary principles of appellate review apply to that finding, although the intrinsically imprecise nature of the statutory task will have the effect that in most cases nothing will turn upon the different formulation of the applicable principles of appellate review. This was such a case and there was no error in the primary judge’s findings as the challenged finding of fact played no part in the s 16 finding of 20% of a most extreme case. [5], [28]-[33]

NSW Court of Appeal cases cited in discussion:

Clifton v Lewis [2012] NSWCA 229

Dell v Dalton (1991) 23 NSWLR 528
Berkely Challenge Pty Ltd v Howarth [2013] NSWCA 370
Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343
Crystal Wall Pty Ltd v Pham[2005] NSWCA 449
Jopling v Isaac [2006] NSWCA 299
Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149
Withyman v State of New South Wales [2013] NSWCA 10
Berkely Challenge Pty Ltd v Howarth [2013] NSWCA 370

The respondent suffered an injury whilst working as a cleaner at an abattoir operated by the second appellant. Damages for non-economic loss were assessed at 33% of a most extreme case. The appellants submitted that the assessment was so excessive that it must have been brought about by error.

Tobias JA found that, in order to displace a trial judge’s assessment under s 16, the appellant must establish an error of principle, a misapprehension of the facts or a wholly erroneous estimate of the damage suffered. The assessment of damages is more like an exercise of discretion than an ordinary act of decision. In the present case it could not be said that the primary judge’s assessment of the severity of the damage was so inordinately high as to be wholly erroneous.

Basten JA agreed with Tobias JA’s ultimate finding but observed that whilst an assessment of general damages under the general law was to be reviewed on principles analogous to those applied to the exercise of a discretionary power, the assessment of general damages is now reduced by statute to a determination of the severity of the injuries as a proportion of a most extreme case. This involves to translation of pain and suffering into a cash payment and on this approach, the assessment is not to be seen as analogous to a discretionary judgment but rather to be subject to general principles for appellate review. Therefore, if the appellate court’s assessment of the facts satisfies it that the primary judge’s assessment was erroneous, it should substitute its own view for that of the trial judge. If this permits a higher level of intervention in respect of damages awards under s 16, it is because of the significant change which has been made from the common law principles governing general damages. [5]-[19], [77]-[80]

NSW Court of Appeal cases cited in discussion:

Moran v McMahon (1985) 3 NSWLR 700

Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298
Mason v Demasi [2012] NSWCA 210
Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264
Dell v Dalton (1991) 23 NSWLR 528
Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361

The respondent was hit and seriously injured during a motorcycle race training circuit. The primary judge assessed damages for non-economic loss under s 16 as 50% of the most extreme case. The appellant submitted on appeal that this assessment was manifestly excessive.

For an appellate court to reconsider a primary judge’s award of non-economic loss under s 16, the appellant must show error in the House v The King sense, or at least that the assessment was outside the reasonable range for such a decision.

In the present case, the primary judge was entitled to take into account the respondent’s exceptional pre-accident health, physical prowess and lifestyle when assessing the impact and extent of the respondent’s injuries and disabilities as a percentage of the most extreme case. The appellant failed to demonstrate relevant error. [203]-[207]

Nemeth v Westfield Shopping Centre Co Management Pty Ltd [2013] NSWCA 298 

The appellant broke her ankle when she fell in a shopping centre carpark owned and operated by the respondent. The primary judge assessed non-economic loss as 25% of a most extreme case. The appellant submitted that the assessment was flawed because the primary judge wrongly determined the likely duration of the appellant’s condition and failed to give adequate weight to her depressive illness.

In order to displace the judge’s assessment that, in terms of s 16 of the Act, the severity of the appellant’s non-economic loss was 25% of a most extreme case, the appellant must establish an error of principle, a misapprehension of the facts or a wholly erroneous estimate of the damage suffered. The assessment of damages is more like an exercise of discretion than an ordinary decision and the settled rule is that an appellate court will not disturb a primary judge’s award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered. No such error was demonstrated in the present case. [11], [28]

NSW Court of Appeal cases cited in discussion:

Moran v McMahon (1985) 2 NSWLR 700
Southgate v Waterford (1990) 21 NSWLR 427
Dell v Dalton (1991) 23 NSWLR 528
State of New South Wales v Stevens [2012] NSWCA 415

The respondent was awarded $10,000 in ‘nominal damages’ for breach of a Deed despite failing to prove that the relevant breach caused her loss. The primary judge also said that, in any event, the respondent had not established that the non-economic loss suffered was at least 15% of a most extreme case under s 16. The appellant submitted on appeal that s 16 left no room for an award of nominal damages where the respondent could not meet the s 16 threshold.

Part 2 of the Act does not apply to the award of nominal damages in respect of the breach of contract unless that award is itself of “personal injury damages” as defined in s 11. Even then, Part 2 would not preclude an award of nominal damages for breach of contract in the present case unless the award could be classified as “damages … for non-economic loss” with s 16(1). An award of true nominal damages is made precisely because the plaintiff has not sustained any loss or is unable to prove loss by reason of the breach. An award of nominal damages is not an award of damages for non-economic loss within s 16(1). [70]-[75], [79]

(1) The Minister is, on or before 1 October 2002 and on or before 1 October in each succeeding year, to declare, by order published on the NSW legislation website, the amount that is to apply, as from the date specified in the order, for the purposes of section 16 (2).

(2) The amount declared is to be the amount applicable under section 16 (2) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in New South Wales over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.

(3) An amount declared for the time being under this section applies to the exclusion of the amount under section 16 (2).

(4) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (2), the amount declared is to be determined in accordance with the regulations.

(5) In adjusting an amount to be declared for the purposes of section 16 (2), the amount determined in accordance with subsection (2) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up).

(6) A declaration made or published on the NSW legislation website after 1 October in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.

(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.

(2) For that purpose, the parties to the proceedings or their Australian legal practitioner may bring the court’s attention to awards of damages for non-economic loss in those earlier decisions.

(3) This section does not alter the rules for the determination of other damages.

Sutherland Shire Council v Major [2015] NSWCA 243

The respondent was injured after the railing he was sitting on gave way and caused him to land heavily on his buttocks and roll into an embankment. The respondent alleged that he suffered non-economic loss as a result.

Section 17A of the Act provides that, in determining damages for non-economic loss, a court may refer to earlier decision of that or other courts for the purpose of establishing the appropriate award. For that purpose, the parties of their legal advisors may bring the court’s attention to the awards of damages for non-economic loss in those earlier decisions. [12]

Part 2 Division 4 - Interest on damages

(1) A court cannot order the payment of interest on damages awarded for any of the following:

(a) non-economic loss,

(b) gratuitous attendant care services as defined in section 15 (other than gratuitous attendant care services to which section 15A applies),

(c) loss of a claimant’s capacity to provide gratuitous domestic services to the claimant’s dependants (as provided by section 15B).

(2) If a court is satisfied that interest is payable on damages (other than damages in respect of which a court cannot order the payment of interest under subsection (1)), the amount of interest is to be calculated:

(a) for the period from when the loss to which the damages relate was first incurred until the date on which the court determines the damages, and

(b) in accordance with the principles ordinarily applied by the court for that purpose, subject to subsection (3).

(3) The rate of interest to be used in any such calculation is:

(a) such interest rate as may be determined by the regulations, or

(b) if no such rate is determined by the regulations–the relevant interest rate as at the date of determination of the damages.

(4) For the purposes of subsection (3), the “relevant interest rate” is the rate representing the Commonwealth Government 10-year benchmark bond rate as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin (however described) and as applying:

(a) on the first business day of January of each year (in which case the rate is to apply as the relevant interest rate for the period from 1 March until 31 August of that year), or

(b) on the first business day of July of each year (in which case the rate is to apply as the relevant interest rate for the period from 1 September of that year until the last day of February of the following year).

(5) Nothing in this section affects the payment of interest on a debt under a judgment or order of a court.

Part 2 Division 5 - Third party contributions

(1) This section applies when a person (“the claimant”) is entitled to an award of damages in respect of death or injury against a person (“the defendant”) and also against another person (“the third party”), and the award against the defendant is an award to which this Part applies but the award against the third party is not an award to which this Part applies.

(2) A court determining the amount of the contribution (“the defendant’s contribution”) to be recovered by the third party from the defendant must:

(a) determine the defendant’s contribution as a percentage, being such percentage as the court thinks just and equitable (having regard to the extent of the responsibility of the defendant and the third party, respectively, for the claimant’s damages), and

(b) determine the amount of damages to which the claimant is, or would be, entitled in accordance with this Part (as if the award of damages against the third party were not excluded from the operation of this Part), and

(c) fix the amount of the defendant’s contribution by applying the percentage determined under paragraph (a) to the amount of damages determined under paragraph (b).

(3) The amount of damages that may be recovered by the claimant from the third party is to be reduced by the difference between:

(a) the amount of the contribution to which the third party would have been entitled (but for this section) from the defendant, and

(b) the amount of the defendant’s contribution calculated under subsection (2).

(4) Subsection (3) does not limit any greater reduction (applicable under any other law, including any other Part of this Act) in the amount of damages that may be recovered by the claimant from the third party.

Part 2 Division 6 - Exemplary and similar damages

In an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.

Croucher v Cachia [2016] NSWCA 132

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery. An issue which fell to be determined on appeal was whether the operation of s 21 of the Act was excluded under s 3B(1)(a).

It is not clear that conduct which is reckless – even if it amounts to an intentional tort such as battery – will engage s 3B(1)(a). A battery which involves merely negligent conduct will not engage s 3B(1)(a) because the section looks to the nature of the conduct found to occur rather than to the cause of action which has been pleaded. Sections 3B(1)(a) and 20 operate upon the particular act which gives rise to the civil liability and the intent of the person doing that act. It is necessary to look at the character of the underlying conduct rather than whether the claim is in respect of an “intentional tort”. [33]-[35], [117]

NSW Court of Appeal cases cited in discussion:

State of New South Wales v Ibbett [2005] NSWCA 445
Dean v Phung [2012] NSWCA 223
White v Johnson [2015] NSWCA 18

Part 2 Division 7 - Structured settlements

For the purposes of this Division, a “structured settlement” is an agreement that provides for the payment of all or part of an award of damages in the form of periodic payments funded by an annuity or other agreed means.

(1) The purpose of this section is to enable the court to give the parties to proceedings a reasonable opportunity to negotiate a structured settlement.

(2) A court that decides to make an award of personal injury damages in respect of future loss (not including interest) exceeding $100,000 must first notify all the parties to the proceedings of the terms of the award it proposes to make.

(3) In addition, if the court considers that the person may be a person in need of protection, the court is to notify the NSW Trustee and Guardian of the terms of the award it proposes to make.

(4) The notification must set out the amount of each component part of the proposed award in accordance with the requirements of the regulations and rules of court.

(5) In this section:

“person in need of protection” means a person who is liable to be subject to an order that the estate of the person be subject to management under the NSW Trustee and Guardian Act 2009 because the person is not capable of managing his or her own affairs.

A court may, on the application of the parties to a claim for personal injury damages, make an order approving of or in the terms of a structured settlement even though the payment of damages is not in the form of a lump sum award of damages.

An Australian legal practitioner must advise, in writing, a plaintiff who proposes to negotiate a settlement of a claim for personal injury damages about the following:

(a) the availability of structured settlements,

(b) the desirability of the plaintiff obtaining independent financial advice about structured settlements and lump sum settlements of the claim.

(1) Clause 5 of Schedule 1 to the Legal Profession Uniform Law Application Act 2014 extends to an offer of compromise by way of a structured settlement on a claim for personal injury damages.

(2) In that case, the court is to have regard to the cost to the defendant of the proposed structured settlement as compared to the lump sum payment of damages when determining whether a reasonable offer of compromise has been made.

Part 2A - Special provisions for offenders in custody

Part 2A Division 1 - Preliminary

(1) In this Part:

“CAS Act” means the Crimes (Administration of Sentences) Act 1999.

“injury” means personal injury and includes the following:

(a) impairment of a person’s physical or mental condition,

(b) disease.

“offender in custody” or “offender” means each of the following:

(a) an inmate within the meaning of the CAS Act, namely a person to whom Part 2 (Imprisonment by way of full-time detention) of that Act applies,

(b) an offender within the meaning of Part 3 (Imprisonment by way of intensive correction in the community) of the CAS Act,

(c)    (Repealed)

(d)  a detainee under the Children (Detention Centres) Act 1987,

(e)  a person performing community service work under, or attending a place in compliance with the requirements of, an intensive correction order, a community correction order, or a children’s community service order as provided by the CAS Act or the Children (Community Service Orders) Act 1987, whether or not the person is an offender in custody under any other paragraph of this definition,

(f)  a person in custody who is in the keeping of a correctional officer, as provided by Part 13 (Custody of persons during proceedings) of the CAS Act.

“personal injury damages” means damages that relate to the death of or injury to a person.

“protected defendant” means each of the following:

(a) the Crown (within the meaning of the Crown Proceedings Act 1988) and its servants,

(b) a Government department and members of staff of a Government department,

(c) a public health organisation (within the meaning of the Health Services Act 1997) and members of staff of a public health organisation,

(d) any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person’s public official functions,

(e) a management company or submanagement company (within the meaning of the CAS Act) and members of staff of such a company.

(2) (Repealed)

(1)    This Part applies to and in respect of an awardof personal injury damages against a protected defendant in respect of:

(a)  
an injury to a person received while the personwas an offender in custody, or
(b)  
the death of a person resulting from or caused byan injury to the person received while the person was an offender incustody,

being an injury caused by the negligence (that is, thefailure to exercise reasonable care and skill) of the protected defendant orcaused by the tort (whether or not negligence) of another person for whosetort the protected defendant is vicariously liable.

(2)    This Part does not apply to:

(a)  
an award of damages pursuant to an action underthe Compensation to Relatives Act 1897,or
(b)  
an award of damages for mental harm (within themeaning of Part 3) to a person who was not an offender in custody at the timeof the incident that resulted in the mental harm.
(3)    Part 2 is subject to thisPart.
(4)    Section 19 (Third party contributions) extends toan award of damages to which this Part applies as if that section were aprovision of this Part.
(5)    A reference in Divisions 2–5 to an offenderincludes a reference to a person who, subsequent to the injury concerned,ceases to be an offender.

Part 2A Division 1A - Duties of claimant for offender damages

(1) This Part applies to and in respect of an award of personal injury damages against a protected defendant in respect of:

(a) an injury to a person received while the person was an offender in custody, or

(b) the death of a person resulting from or caused by an injury to the person received while the person was an offender in custody,

being an injury caused by the negligence (that is, the failure to exercise reasonable care and skill) of the protected defendant or caused by the tort (whether or not negligence) of another person for whose tort the protected defendant is vicariously liable.

(2) This Part does not apply to:

(a) an award of damages pursuant to an action under the Compensation to Relatives Act 1897, or

(b) an award of damages for mental harm (within the meaning of Part 3) to a person who was not an offender in custody at the time of the incident that resulted in the mental harm.

(3) Part 2 is subject to this Part.

(4) Section 19 (Third party contributions) extends to an award of damages to which this Part applies as if that section were a provision of this Part.

(5) A reference in Divisions 2-5 to an offender includes a reference to a person who, subsequent to the injury concerned, ceases to be an offender.

(1) A claimant must comply with any reasonable request by the protected defendant to furnish specified information, or to produce specified documents or records, for the purpose of providing the protected defendant with sufficient information:

(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and

(b) to be able to make an early assessment of liability, and

(c) to be able to make an informed offer of settlement.

(2) The reasonableness of a request under this section may be assessed having regard to criteria including the following:

(a) the amount of time the claimant needs to comply with the request,

(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,

(c) the amount of information that has already been supplied to or is available to the protected defendant to enable liability and quantum of loss to be assessed and an offer of settlement made,

(d) how onerous it will be for the claimant to comply with the request,

(e) whether the information is privileged,

(f) whether the information sought is sufficiently specified,

(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.

(3) A claimant is not required to comply with a requirement under this section while the claimant is a vulnerable offender under section 26BC.

(4) The duty under this section applies only until court proceedings are commenced.

(1) An offender in custody is considered to be a vulnerable offender for the purposes of this Division if:

(a) the offender has a reasonable apprehension that the offender’s safety will be put at risk if the offender gives notice as required by section 26BA or complies with a request of the protected defendant under section 26BB, and

(b) the offender has (as a result of that reasonable apprehension) applied to be placed in protective custody or transferred to another correctional facility.

(2) The offender ceases to be a vulnerable offender when any of the following happens:

(a) the offender is transferred to another correctional facility or placed in protective custody in response to the offender’s application,

(b) the offender declines an offer to be transferred to another correctional facility or be placed in protective custody in response to the offender’s application,

(c) the offender’s application is rejected on the ground that the offender has failed to establish that the application is made on reasonable grounds.

(1) A protected defendant against whom court proceedings for an award of damages to which this Part applies are commenced may apply to the court to have the proceedings dismissed on the grounds of a failure to comply with section 26BA or 26BB in connection with the claim concerned.

(2) An application under this section cannot be made more than 2 months after the statement of claim is served on the protected defendant.

(3) On an application under this section, the court must dismiss the proceedings unless the court is satisfied that:

(a) section 26BA has been complied with in respect of the claim or the claimant has a full and satisfactory explanation for non-compliance with that section and the required notice of the incident was given to the protected defendant within a reasonable period in the circumstances, and

(b) the claimant has complied with section 26BB in respect of the claim or has a reasonable excuse for any non-compliance with that section.

Part 2A Division 2 - Damages subject to 15% permanent impairment threshold

No damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%.

(1) The degree of permanent impairment that results from an injury is to be assessed as provided by this Part and Part 7 (Medical assessment) of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the “1998 WC Act”).

(2) Part 7 of Chapter 7 of the 1998 WC Act extends to an assessment of degree of permanent impairment for the purposes of this Part and for that purpose applies as if:

(a) an assessment under this Part were an assessment under and for the purposes of that Part of the 1998 WC Act, and

(b) a reference in that Part of the 1998 WC Act to a worker were a reference to an offender, and

(c) a reference in that Part of the 1998 WC Act to a worker’s employer were a reference to the Crown, and

(d) section 330 (Costs of medical assessment) of the 1998 WC Act were omitted from that Part, and

(e) a reference in that Part to the WorkCover Guidelines were a reference to guidelines issued under subsection (2A), and

(f) the provisions of that Part applied with such other modifications as may be prescribed by the regulations.

(2A) The Minister administering the CAS Act may, by order published in the Gazette, issue guidelines for the purposes of the application of Part 7 of Chapter 7 of the 1998 WC Act to offenders in respect of the same kinds of matters for which the WorkCover Guidelines may make provision for the purposes of that Part. The Minister may amend or repeal an order made under this subsection. See section 43 of the Interpretation Act 1987.

(2B) Without limiting subsection (2A), an order made under that subsection may apply, adopt or incorporate (whether wholly or in part or with or without modifications) the provisions of the WorkCover Guidelines, either as published or as in force from time to time.

(2C) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to an order made under subsection (2A) in the same way as they apply to a statutory rule.

(3) If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment has been assessed by an approved medical specialist in accordance with the 1998 WC Act.

(3A) A dispute about the degree of permanent impairment of an injured offender cannot be referred for assessment unless the offender has provided the protected defendant with a medical report by a medical practitioner that assesses that the degree of permanent impairment of the injured offender is at least 15% and sets out the medical practitioner’s reasons for that assessment.

(4) A court may, at any stage in proceedings on a claim for damages, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist in accordance with the 1998 WC Act.

(5) Section 151H (No damages unless permanent impairment of at least 15%) of the Workers Compensation Act 1987 applies for the purposes of an assessment under this Part of whether the degree of permanent impairment resulting from an injury is at least 15%.

(6) In this section:

“modification” includes an addition, omission or substitution.

“WorkCover Guidelines” has the same meaning as it has in the 1998 WC Act.

Part 2A Division 3 - Damages for economic loss

(1) This section applies to an award of damages:

(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

(b) for future economic loss due to the deprivation or impairment of earning capacity.

(2) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased offender’s net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 of the Workers Compensation Act 1987 (even though that maximum amount under that section is a maximum gross earnings amount).

(3) The maximum amount of weekly payments of compensation under section 35 of the Workers Compensation Act 1987 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 (Indexation of amounts of benefits) of Part 3 of that Act.

In awarding damages for future economic loss due to deprivation or impairment of earning capacity, the court is to disregard any earning capacity of the injured offender after age 65.

In making an assessment for the purposes of an award for future economic loss about future earning capacity or other events on which an award is to be based in respect of an offender eligible for release on parole, a court is to assume that the offender is likely to be released when the offender becomes eligible for release on parole.

Part 2A Division 4 - Damages for non-economic loss

A court is not to award damages for non-economicloss except as permitted by this Division.

(1) A court may award damages for non-economic loss up to a maximum of the total amount to which a worker would be entitled as compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the Workers Compensation Act 1987 if the worker had received an injury that entitled the worker to compensation under that Act and that resulted in a degree of permanent impairment that is the same as the offender’s degree of permanent impairment.

(2) When determining the total amount to which a worker would be entitled as compensation under a provision of the Workers Compensation Act 1987, the amount is to be determined under the provision as it was in force when the injury to the offender was received.

Part 2A Division 5 - Victims support payments owed by offender

(1) A protected defendant who is liable to pay damages to an offender pursuant to an award to which this Part applies is entitled to deduct from those damages the amount of any victim support payment required to be paid by the offender.

(2) A “victim support payment” is an amount ordered to be paid by the offender by an order for restitution under Division 2 of Part 5 of the Victims Rights and Support Act 2013.

(3) In the case of an amount ordered to be paid by the offender pursuant to a provisional order for restitution under Division 2 of Part 5 of the Victims Rights and Support Act 2013, the protected defendant may (while the provisional order is pending) withhold that amount from the damages payable to the offender.

(3A) A protected defendant who withholds an amount under subsection (3) may require the NSW Trustee and Guardian to hold the amount on its behalf. However, the protected defendant must require the NSW Trustee and Guardian to hold the amount if the offender requests it.

(3B) Interest is payable on an amount that is withheld under subsection (3). The amount of interest payable on the withheld amount is:

(a) if the protected defendant has retained the withheld amount–the amount of interest determined in accordance with the provisions relating to interest payable under a judgment of the same amount of the Local Court in proceedings on a statement of claim under the Civil Procedure Act 2005, or

(b) if the NSW Trustee and Guardian holds the withheld amount for the protected defendant–the amount of interest received by the NSW Trustee and Guardian in respect of the investment of the amount as provided by the NSW Trustee and Guardian Act 2009.

(3C) If the provisional order for restitution on the basis of which an amount was withheld under subsection (3) is confirmed under the Victims Rights and Support Act 2013, any interest payable on the withheld amount under this section must be paid as follows:

(a) if the NSW Trustee and Guardian holds the withheld amount for the protected defendant–the reasonable costs of the NSW Trustee and Guardian in connection with that holding are to be paid out of the interest,

(b) if the amount ordered for restitution is not reduced on the confirmation–all of the interest (or remaining interest after payment of the NSW Trustee and Guardian’s costs) must be paid to the person (“payee”) to whom the order for restitution requires payment to be made or, if there is more than one payee, to each payee in the same proportion as corresponds to the payee’s proportion of the total amount of restitution,

(c) if the amount ordered for restitution is reduced on the confirmation:

(i) the offender must be paid the proportion of the interest (or remaining interest after payment of the NSW Trustee and Guardian’s costs) that corresponds to the proportion by which the withheld amount was reduced, and

(ii) the rest of the interest must be paid to the payee or, if there is more than one payee, to each payee in the same proportion as corresponds to the payee’s proportion of the reduced amount.

(4) The protected defendant or the NSW Trustee and Guardian (as the case may be) is to pay an amount deducted under this section to the person to whom the order for restitution requires payment be made.

(5) Payment made by a protected defendant or the NSW Trustee and Guardian (as the case may be) pursuant to this section is, to the extent of the amount paid, taken to be a payment to the offender in satisfaction of the obligation to pay the damages concerned.

Part 2A Division 6 - Offender damages trust funds

(1) In this Division:

“award” of damages means an award of damages by a court (including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages).

“offender” means a person to whom an award of offender damages is made.

“offender damages” means personal injury damages awarded pursuant to an award to which this Part applies. For the purposes of this Division, this Part has an extended application. See Part 7 of Schedule 1.

“victim claim” means a claim for personal injury damages in respect of:

(a) an injury to a person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence, or

(b) the death of a person caused by or resulting from an injury to the person caused by conduct of an offender that, on the balance of probabilities, constitutes an offence.

“victim trust fund” means offender damages awarded to an offender that are held on trust under this Division.

(2) The definition of “victim claim” in this section:

(a) operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned, and

(b) extends to conduct of a person that would have constituted an offence if the person had not been suffering from a mental illness at the time of the conduct (whether or not the person was acquitted of an offence concerning that conduct by reason of mental illness or was found by a court not to be fit to be tried for an offence concerning that conduct by reason of such an illness).

(1) The protected defendant liable to pay offender damages awarded to an offender is to pay those damages to the NSW Trustee and Guardian to be held in trust for the offender and paid out only as authorised by this Division.

(2) Offender damages held in trust for an offender under this Division comprise a “victim trust fund” for victims of the offender. The protected defendant liable to pay those damages is “responsible” for the fund.

(3) This section does not affect (and is subject to) any obligation imposed on the protected defendant by or under an enactment of the State or the Commonwealth to pay to some other person money owed or due to or held on account of the offender. Section 26T also provides an exception to this section for legal costs.

(4) An amount deducted or withheld from offender damages under Division 5 (Victims support payments owed by offender) is not required to be held in trust under this section.

(5) An amount held in a victim trust fund for victims of an offender is:

(a) not available for the payment of a creditor of the offender, and

(b) not liable to be attached or taken in execution at the instance of a creditor of the offender.

(6) While offender damages are held in a victim trust fund, the liability of a protected defendant to pay those damages is suspended.

(1) A victim trust fund is available to satisfy victim claims against the offender concerned as provided by this Division but only if the claim is “eligible” to be satisfied from the victim trust fund as provided by this section.

(2) A victim claim is “eligible” to be satisfied from a victim trust fund only if within the “eligibility period” for the victim trust fund:

(a) the person commences proceedings on the claim in a court (or proceedings by the person on the claim are pending in a court at the beginning of the eligibility period), and

(b) the person gives the protected defendant responsible for the victim trust fund notice in writing of those proceedings together with such details of those proceedings as the protected defendant may request, and

(c) the person certifies to the court before which those proceedings are taken that the person is making the claim as a claim that is eligible to be satisfied from the victim trust fund.

(3) The “eligibility period” for a victim trust fund comprising offender damages awarded to an offender is the period of 12 months following the date (the “award date” for those damages) on which the claim for those damages is finally determined by a court award of those damages.

(4) A claim is not finally determined if:

(a) any period for bringing an appeal as of right in respect of the claim has not expired (ignoring any period that may be available by way of extension of time to appeal), or

(b) any appeal in respect of the claim is pending (whether or not it is an appeal brought as of right).

(5) The protected defendant responsible for a victim trust fund must give the registrar of each court in which a victim claim may be brought notice of each victim claim of which the protected defendant is given notice under this section.

(1) The protected defendant responsible for a victim trust fund must send to each person who appears (from any information reasonably available to the protected defendant) to have a victim claim against the offender a notice in writing:

(a) naming the offender and stating that there is a victim trust fund for victims of the offender, and

(b) specifying the eligibility period for that victim trust fund, and

(c) stating that a victim claim made within the eligibility period for the victim trust fund may be eligible to be satisfied from the victim trust fund.

(1A) The notice must be sent as far as practicable within 28 days after the award date for the damages concerned (but this subsection does not prevent the notice from being sent more than 28 days after the award).

(2) The notice is to be sent to a person at the address of the person last known to the protected defendant or as disclosed by any information reasonably available to the protected defendant.

(3) The protected defendant may also publish such a notice in the Gazette.

(4) To remove doubt, “victim claim” in this section includes a victim claim that can be made as a result of section 26P (Commencement of victim claims proceedings despite expiry of limitation period).

(5) The Commissioner of Police is authorised to provide a protected defendant with any information in the Commissioner’s possession that the protected defendant may reasonably require for:

(a) identifying and contacting persons who may have a victim claim against the offender, or

(b) determining whether a person appears to have a victim claim against the offender.

(1) A protected defendant must, in response to a request made during or within 1 month after the eligibility period for a victim trust fund by or on behalf of a person who appears to the protected defendant to be entitled to make a victim claim against the offender, provide such information as the protected defendant is reasonably able to provide concerning:

(a) the award of damages to the offender and the amount of the victim trust fund, and

(b) any other victim claim against the offender that may be eligible to be satisfied from the victim trust fund and of which the protected defendant has been given notice under this Division.

(2) The provision of information by a protected defendant under this section:

(a) is authorised despite any agreement to which the protected defendant is a party that would otherwise prohibit or restrict the disclosure of information concerning an award of offender damages, and

(b) does not constitute a contravention of any such agreement.

(3) A person to whom information is provided under this section must not disclose that information to any other person except for the purposes of or in connection with the taking and determination of proceedings on a victim claim against the offender concerned. Maximum penalty: 50 penalty units.

(4) Proceedings for an offence under this section may be dealt with summarily before the Local Court.

(1) If there is a victim trust fund for victims of an offender, an action on a cause of action to recover damages pursuant to a victim claim against the offender is (despite any provision of the Limitation Act 1969) maintainable by proceedings on the cause of action commenced during the eligibility period for the victim trust fund.

(2) The right and title to damages of a person formerly having such a cause of action that has been extinguished by the expiration of a limitation period fixed by or under the Limitation Act 1969 is reinstated for the purposes of proceedings on the cause of action that are commenced during the eligibility period for the victim trust fund.

(3) However, an award of damages in proceedings commenced under this section (that could not otherwise be commenced):

(a) has effect only for the purpose of enabling an order to be made under this Division for the payment of the whole or a specified part of those damages out of money held in the victim trust fund concerned, and

(b) cannot otherwise be enforced against the offender concerned or any property of the offender.

(1) A court that awards damages to a person on a victim claim against an offender may, if satisfied that the claim is eligible to be satisfied from a victim trust fund for victims of the offender, order that the whole or a specified part of those damages is to be paid out of money held in the victim trust fund.

(2) Before the court orders the payment of damages out of money held in the victim trust fund, the court must consider:

(a) whether there are or are likely to be other victim claims eligible to be satisfied from the victim trust fund that may be ordered to be wholly or partly satisfied by payment from the victim trust fund, and

(b) the amount of the damages likely to be awarded in respect of those claims.

(3) In determining the amount of any damages to be ordered to be paid out of a victim trust fund, a court must ensure that the amount ordered to be paid:

(a) is fair and reasonable having regard to the existence of other claims that are eligible to be satisfied from the fund and that may be ordered to be wholly or partly satisfied by payment from the fund, and the amounts likely to be awarded in respect of those claims, and

(b) does not, as a proportion of the amount of the victim trust fund, exceed the proportion that the damages awarded represents as a proportion of the total damages likely to be awarded in respect of all claims eligible to be satisfied from the fund.

(4) A court may defer making an order for the payment of damages out of a victim trust fund until the court is satisfied that it is able to make a reasonable assessment of the extent of claims eligible to be satisfied from the fund.

(5) The payment of an amount out of a victim trust fund in accordance with an order of a court under this section is taken to be a payment made at the direction of the offender and operates as a discharge, to the extent of the payment, of:

(a) the liability of the protected defendant to pay the amount to the offender concerned as offender damages, and

(b) the obligation of the NSW Trustee and Guardian to hold the amount in trust for the offender concerned.

(6) An order of a court under this section is not subject to appeal except on a question of law.

A court is to determine a victim claim made to it without conducting a hearing unless it is satisfied that the interests of justice require that a hearing be held in the presence of the parties.

(1) When the protected defendant responsible for a victim trust fund is satisfied that all claims eligible to be satisfied from the fund have been finally determined, the protected defendant is to make a determination of the surplus (if any) in the fund.

(1A) A claim is not finally determined if:

(a) any period for bringing an appeal as of right in respect of the claim has not expired (ignoring any period that may be available by way of extension of time to appeal), or

(b) any appeal in respect of the claim is pending (whether or not it is an appeal brought as of right).

(2) A court that awards damages to a person on a victim claim against an offender may give directions to the protected defendant concerned in respect of the determination by the protected defendant of the surplus (if any) in the victim trust fund concerned.

(3) If a protected defendant responsible for a victim trust fund determines and certifies to the NSW Trustee and Guardian that there is a surplus in the fund, the NSW Trustee and Guardian must pay the certified surplus to or at the direction of the offender concerned.

(4) The “surplus” in a victim trust fund is the amount that will remain in the fund after payment out of the fund of the following amounts:

(a) the amount of all claims eligible to be satisfied from the fund that are ordered by a court under this Division to be paid out of the fund,

(b) all amounts payable to the NSW Trustee and Guardian out of the fund.

(1) (Repealed)

(2) Interest received by the NSW Trustee and Guardian in respect of the investment of an amount held by the NSW Trustee and Guardian under this Division is payable to and forms part of the victim trust fund of which the amount forms part.

(3), (4) (Repealed)

(5) The fees and expenses payable to the NSW Trustee and Guardian in connection with the exercise of functions by the NSW Trustee and Guardian under this Division are payable out of the victim trust fund in connection with which those functions are exercised.

(6) The certificate of the NSW Trustee and Guardian as to the fees and expenses payable to the NSW Trustee and Guardian in connection with the exercise of functions by the NSW Trustee and Guardian under this Division is sufficient authority for the payment of the relevant amounts out of the victim trust fund concerned.

(1) This Division does not require any amount to be held in trust that is payable by the protected defendant as legal costs under an order for costs made against the protected defendant or (in the case of an award of damages that is inclusive of costs) that is reasonably attributable to the offender’s legal costs.

(2) The amount reasonably attributable to the offender’s legal costs in the case of an award of damages that is inclusive of costs is the amount determined by the protected defendant on the basis of a bill for those costs provided to the protected defendant by the legal practitioner concerned.

(3) If the amount determined by the protected defendant as the amount reasonably attributable to the offender’s legal costs is disputed, the protected defendant is to apply for the assessment of those costs under the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (as if the protected defendant were liable to pay those costs as a result of an order for the payment of an unspecified amount of costs made by a court).

(4) The costs of a costs assessment for the purposes of this section are payable:

(a) by the offender (by deduction from the offender damages concerned), unless paragraph (b) applies, or

(b) by the protected defendant if the amount of the costs as determined by the costs assessor is at least 10% more than the amount determined by the protected defendant.

(1) The maximum costs for legal services provided to the plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund are fixed as follows:

(a) if the amount recovered on the claim does not exceed $100,000–maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,

(b) if the amount recovered on the claim exceeds $100,000 but does not exceed $250,000–maximum costs are fixed at 18% of the amount recovered or $20,000, whichever is greater,

(c) if the amount recovered on the claim exceeds $250,000 but does not exceed $500,000–maximum costs are fixed at 16% of the amount recovered or $45,000, whichever is greater,

(d) if the amount recovered on the claim exceeds $500,000–maximum costs are fixed at 15% of the amount recovered or $80,000, whichever is greater.

(2) The regulations may prescribe an amount or percentage to replace any amount or percentage in subsection (1). When such a replacement amount or percentage is prescribed, it applies for the purposes of subsection (1) in place of the amount or percentage that it replaces.

(3) Schedule 1 (Maximum costs in personal injury damages matters) to the Legal Profession Uniform Law Application Act 2014 applies in respect of the maximum costs for legal services provided to a plaintiff in connection with a victim claim that is eligible to be satisfied from a victim trust fund as if subsections (1) and (2) of this section were substituted for subclauses (1) and (2) of clause 2 of that Schedule.

(4) (Repealed)

(5) The “amount recovered” on a claim is the full amount of the damages awarded (not just the amount ordered to be paid from a victim trust fund).

(1) An act or omission by a person as a public official does not subject the person personally to any action, liability, claim or demand if the act or omission was done or omitted to be done in good faith in the administration or execution of this Division.

(2) In this section:

“public official” means:

(a) a member of staff of or agent of a protected defendant, or

(b) the NSW Trustee and Guardian, or a member of staff or agent of the NSW Trustee and Guardian, when the NSW Trustee and Guardian is acting under this Division.

Division 2 (Supervision of damages arising out of criminal conduct by persons suffering from mental illness) of Part 7 does not apply to damages required to be held in trust under this Division.

Part 2A Division 7 - Miscellaneous

(1) In an action against a protected defendant for the award of personal injury damages where the act or omission that caused the injury or death was a tort (whether or not negligence) of a person for whose tort the protected defendant is vicariously liable, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.

(2) Subsection (1) does not limit the application of section 21 to actions for the award of personal injury damages to which this Part applies.

Note: Section 21 provides that a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages in an action for the award of personal injury damages where the act or omission that caused the injury or death was negligence.

Part 3 - Mental harm

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, and

(b) impairment of a person’s physical or mental condition, and

(c) disease.

“pure mental harm” means mental harm other than consequential mental harm.

(1) This Part (except section 29) applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) Section 29 applies to a claim for damages in any civil proceedings.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous 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.

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5) In this section:

“close member of the family” of a victim means:

(a) a parent of the victim or other person with parental responsibility for the victim, or

(b) the spouse or partner of the victim, or

(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or

(d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

“spouse or partner” means:

(a) the person to whom the victim is legally married (including the husband or wife of the victim), or

(b) a de facto partner,

but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

(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.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21

Mr Wright suffered PTSD after an attempt by Mr George to kill Mr Wright by throwing him off the roof of an Optus office building while both were attending a training course on those premises.  Mr George and Mr Wright were not Optus employees.  Mr Wright did not suffer compensable physical injury, but brought an action against Optus in negligence occasioning pure mental harm.

The issue on appeal was whether Optus was liable in negligence for Mr Wright’s psychological injury. This raised a question whether Optus or Optus’ staff owed Mr Wright a duty of care in respect of pure mental harm.

The Court held that s 32 requires a separate inquiry into the existence of a duty of care with respect to mental harm, such that the existence of a general duty of care is of limited relevance: [35]-[39], [207].  In conducting this separate inquiry, it may be necessary to specify the critical event with a degree of precision: [54].  It is necessary to formulate the duty of care prospectively: [96], [255].  In this case, it was necessary to ask: was it reasonably foreseeable that one call-centre trainee might assault another in a manner which, although it caused no physical injury, might nevertheless be so serious as to lead to a psychiatric illness in a person of normal fortitude?: [62].

High Court cases considered:

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22

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.

Part 4 - Proportionate liability

(1) This Part applies to the following claims (“apportionable claims”):

(a) a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury,

(b) a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law.

(1A) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).

(2) In this Part, a “concurrent wrongdoer”, in relation to a claim, is a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

(3) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).

(3A) This Part does not apply to a claim in an action for damages arising from a breach of statutory warranty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty.

(4) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.

(5) (Repealed)

Shinwari v Anjoul by her tutor Therese Anjoul [2017] NSWCA 74

The appellant was employed at the Psych N Soul Clinic.  The respondent’s mother underwent “rapid opiate detoxification” at the Clinic to cure her opiate addiction.  She suffered a cardiac arrest on the same day and later died after being taken off life support.  The respondent brought a dependency claim pursuant to the Compensation to Relatives Act 1897 (NSW), alleging that Dr Shinwari’s negligence caused her mother’s death.

Dr Shinwari argued that the dependency claim was an “apportionable claim” within the meaning of s 34(1)(a), because it was a claim for economic loss not “arising out of personal injury”.  Accordingly, he sought to apportion any damages between himself, the owner of the Clinic and its director.

The Court of Appeal held that the dependency claim required the respondent to prove that her deceased mother would have been able to maintain and recover damages in respect of the appellant’s “wrongful act, neglect, or default” which led to her death: [97].  Accordingly, the Court held that there was the necessary causal relationship between the dependency claim and the deceased’s injury such that the “claim” was one “arising out of personal injury” within the meaning of s 34(1)(a): [96], [110].  It was not necessary, for the purposes of s 34(1)(a), that the personal injury be suffered by the plaintiff making the claim: [97], [110].  Thus, the Court held that the claim was not apportionable.

High Court cases considered:

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
New South Wales Court of Appeal cases considered:
Walton v National Employers’ Mutual General Insurance Association [1973] 2 NSWLR 73
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
Cassegrain v Cassegrain [2016] NSWCA 71
Cassegrain, Felicity v Cassegrain, Denis [2016] NSWCA 71

The appellant was ordered to pay $2.6 million in equitable compensation to a Company. Her liability was held to be both joint and several with that of her husband. The appellant appealed on the basis that her liability ought not to have been joint and several for the full amount, but should have been limited to that proportion of the economic loss suffered which properly reflected her responsibility. The pleadings at first instance contained no reference to the Act of Part 4 thereof and the trial judge did not address the issue of proportionate liability. A dispute arose as to whether the appellant could rely on the Act on appeal.

It is difficult to see how Part 4 of the Act would have application in the present case. The liability arose because the appellant participated in transactions she knew constituted breaches of fiduciary duty by directors of the Company. It did not arise from a want of care or negligence and was therefore not “arising from a failure to take reasonable care” for the purposes of s 34.

The phrase “failure to take reasonable care” does envisage a duty expressed in negative terms but, more importantly, in terms which are inapt with respect to an intentional tort. Similar reasoning applies with respect to the liability based on receipt of property transferred in breach of a fiduciary duty. [22], [23], [83], [84]

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10

The respondent advanced money as security for the mortgage over a property that had fraudulently been obtained. The appellant solicitors were responsible for drawing up the loan documentation. The primary judge held that the respondent’s claim against the appellant was an apportionable claim. The Court of Appeal allowed an appeal from that decision on the basis that the appellant was not a concurrent wrongdoer because the fraudster’s acts did not cause the loss or damage claimed by the respondent. The principle issue on appeal concerned the identification of that loss or damage.

Section 34(2) involves two questions. First, what is the damage or loss that is the subject of the claim? Second, is there a person other than the defendant whose acts or omissions also caused that loss or damage? The question of the identification of the “damage or loss that is the subject of the claim” is anterior to the question of causation.

In the present case, the loss or damage for the purposes of s 34(2) was the harm the respondent suffered in being unable to recover the sums advanced. There could be no doubt that the appellant was a wrongdoer whose actions were a cause of that loss. The question under s 34(2) is whether the fraudster’s acts, independently of the appellant, also caused that damage. The respondent would never have taken the mortgage had it not been induced by the fraudsters. It is not consistent with Part 4 of the Act that the appellant be held wholly responsible for the loss when regard was had to the role played by the fraudsters. [18] [20], [28], [46], [58]

Note: Bell and Gageler JJ dissented, finding that the appellant was not a concurrent wrongdoer with the fraudster.

Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58

In the Court of Appeal, the respondent was found liable in damages for breach of its obligations of care under a mortgage origination deed. The Court did not deal with the question of apportionment because it was of the view that the respondent made concessions that required the rejection of the relevant Notice of Contention. The respondent then requested that the Court consider the Notice of Contention. The Court did so. Among other things, the appellant argued that its action was not one “arising from a failure to take reasonable care” under s 34(1) of the Act.

For a successful action for damages to have arisen from a failure to take reasonable care, it is necessary that the absence of reasonable care was an element of, or a, cause of the action upon which the plaintiff succeeded. If “innocent” parties were to fall within the meaning of s 34(1), a plaintiff could lose his or her contractual right to full damages from a party whose breach of a contractual provisions did stem from a failure to take reasonable care.

The application of Part 4 turns not on the facts that happen to be found but on the essential character of the plaintiff’s successful cause of action. If negligence is an essential element of that cause of action, it will have been pleaded. The text of s 34(1) indicates that a failure to take reasonable care must be part of, and therefore an element of, the plaintiff’s successful cause of action. [19], [22]-[23], [42]

Note: Barrett JA qualified his agreement with the foregoing, finding that it is a combination of the terms in which the claim is framed and the relevant findings of the court in relation to it that must be assessed in order to decide whether it is a claim “in an action for damages … arising from a failure to take reasonable care” under s 34(1)(a).

Rennie Golledge Pty Limited v Ballard [2012] NSWCA 376

The applicant surveyor mistakenly recorded a level reference point which resulted in the respondents having to raise or rebuild two houses. Liability was not disputed but prior to hearing the applicant sought to amend its defence in order to argue that the claims against it were “apportionable claims” within the meaning of Part 4 of the Act. The primary judge dismissed the application and the applicant sought to challenge that interlocutory judgment. One issue which fell to be determined was whether the respondents were “concurrent wrongdoers” for the purposes of s 34.

Whilst, on a literal reading of s 34(2) of the Act, a plaintiff whose acts or omissions have been a cause of the damage or loss that is the subject of the claim fits within the definition of “concurrent wrongdoer”, it should not be construed in that literal way. It is not ordinary English for a person to be a “wrongdoer” of any kind insofar as he causes harm to himself. No purpose of the legislation is served by regarding the meaning of “concurrent wrongdoer” as extending to a person who fails to take reasonable care of his own interests. [125], [129]-[132]

(1) Nothing in this Part operates to limit the liability of a concurrent wrongdoer (an “excluded concurrent wrongdoer”) in proceedings involving an apportionable claim if:

(a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim, or

(b) the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim, or

(c) the civil liability of the concurrent wrongdoer was otherwise of a kind excluded from the operation of this Part by section 3B.

(2) The liability of an excluded concurrent wrongdoer is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.

(3) The liability of any other concurrent wrongdoer who is not an excluded concurrent wrongdoer is to be determined in accordance with the provisions of this Part.

(1) In any proceedings involving an apportionable claim:

(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss, and

(b) the court may give judgment against the defendant for not more than that amount.

(2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim:

(a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and

(b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.

(3) In apportioning responsibility between defendants in the proceedings:

(a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and

(b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.

(4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.

(5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.

2019

Trajkovski v Simpson [2019] NSWCA 52

Mrs Trajkovski commenced proceedings against a firm of solicitors and its principal, alleging that they had breached a duty of care they owed her concerning the sale of a property registered in her name and that of her estranged husband. The trial judge found that the solicitors were not retained by her, and therefore owed her no duty. His Honour further held that even if the solicitors did owe her a duty, they had not breached it in conducting the sale as they did, because they acted on the instructions of her estranged husband who had her ostensible authority to give instructions on her behalf also. Both of these conclusions were reversed on appeal: the solicitors did owe Mrs Trajkovski a duty of care, and they had breached it by enabling that part of the proceeds of the sale to which she was entitled to be disbursed.

On s 35: The solicitors submitted that Mr Trajkovski was a concurrent wrongdoer under Part 4 of the Civil Liability Act 2002 (NSW). That argument foundered on the fact that the solicitors could not identify any cause of action sounding in damages which Mrs Trajkovski would have against Mr Trajkovski in respect of acts or omissions on his part which caused the same loss as that for which she sued the solicitors. Accordingly, s 35(1) was not engaged: [56], [196].

2018

Cam & Bear Pty Ltd v McGoldrick [2018] NSWCA 110

The appellant was the trustee of a self-managed superannuation fund, established for the benefit of two individuals, who were also the appellant company’s directors. The respondent was an accountant who had audited the accounts of the fund. The primary judge found that the respondent had been negligent, but that his conduct had not caused any loss. If he were wrong, the primary judge made findings as to contributory negligence and proportionate liability, including a finding that a company called Databank would be liable to the appellant. On appeal, the Court concluded that causation had been made out, and that the appellant had been contributorily negligent.

To be a concurrent wrongdoer, a person must be (or have been) liable in law to the plaintiff in respect of the same damage as that for which the defendant is liable. The respondent did not establish that Databank was liable to the appellant in respect of the appellant’s loss and therefore did not establish that Databank was a concurrent wrongdoer. Databank compiled the relevant annual financial statements but, without knowing the basis upon which Databank was engaged, it cannot be concluded that, by doing that, Databank rendered itself liable to the appellant in negligence.

The Court rejected an argument that the directors of the company were concurrent wrongdoers with appellant. To reduce the appellant’s damages for this reason would involve an inequitable double discount of the damages. This is because the appellant’s damages would be reduced both by reason of its liability for the negligent acts of its directors and by reason of the apportionment of a share of responsibility for the appellant’s loss to the directors because of the very same acts and omissions.

NSW Court of Appeal cases cited in discussion:

Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liq) [2011] NSWCA 367

Daniels v Anderson (1995) 37 NSWLR 438

2013

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10

The respondent advanced money as security for the mortgage over a property that had fraudulently been obtained. The appellant solicitors were responsible for drawing up the loan documentation. The primary judge held that the respondent’s claim against the appellant was an apportionable claim. The Court of Appeal allowed an appeal from that decision on the basis that the appellant was not a concurrent wrongdoer because the fraudster’s acts did not cause the loss or damage claimed by the respondent. The principle issue on appeal concerned the identification of that loss or damage.

The purpose of Part 4 is achieved by the limitation on a defendant’s liability which is effected by s 35(1)(b). That section requires that the court award a plaintiff only the sum which represents the defendant’s proportionate liability as determined by the court. For that purpose, it is not necessary that orders are able to be made against other wrongdoers in the proceedings. Section 34(4) provides that it does not matter that a concurrent wrongdoer is insolvent, being wound up, has ceased to exist or has died. The risk of a failure to recover under Part 4 of the Act is shifted to the plaintiff. [17]

2012

Rennie Golledge Pty Limited v Ballard [2012] NSWCA 376

The applicant surveyor mistakenly recorded a level reference point which resulted in the respondents having to raise or rebuild two houses. Liability was not disputed but prior to hearing the applicant sought to amend its defence in order to argue that the claims against it were “apportionable claims” within the meaning of Part 4 of the Act. The primary judge dismissed the application and the applicant sought to challenge that judgment on appeal. One issue which fell to be determined was whether the respondents were “concurrent wrongdoers”.

Section 35 is the central provision in Part 4 of the Act and sets out the manner in which a limit is imposed on the liability of a “defendant” who is a concurrent wrongdoer and who is not an excluded concurrent wrongdoer. There is an extended definition of “defendant” in s 35(5). A plaintiff is expressly excluded from that extended definition.

Section 35(1) enables the liability of a “defendant” to be limited. Section 35(1)(a) proceeds on the basis that a concurrent wrongdoer has a “liability”. A person who fails to take reasonable care of his own interests does not have a liability to himself, or anyone else, by virtue only of that failure to take care. For these reasons s 35(1)(a) has no work to do concerning a plaintiff. A plaintiff who is contributorily negligent is not a “concurrent wrongdoer”. [133]-[134], [143]

(1) If:

(a) a defendant in proceedings involving an apportionable claim has reasonable grounds to believe that a particular person (the “other person”) may be a concurrent wrongdoer in relation to the claim, and

(b) the defendant fails to give the plaintiff, as soon as practicable, written notice of the information that the defendant has about:

(i) the identity of the other person, and

(ii) the circumstances that may make the other person a concurrent wrongdoer in relation to the claim, and

(c) the plaintiff unnecessarily incurs costs in the proceedings because the plaintiff was not aware that the other person may be a concurrent wrongdoer in relation to the claim,

the court hearing the proceedings may order that the defendant pay all or any of those costs of the plaintiff.

(2) The court may order that the costs to be paid by the defendant be assessed on an indemnity basis or otherwise.

A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim:

(a) cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant), and

(b) cannot be required to indemnify any such wrongdoer.

(1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any damage or loss from bringing another action against any other concurrent wrongdoer for that damage or loss.

(2) However, in any proceedings in respect of any such action the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the damage or loss, would result in the plaintiff receiving compensation for damage or loss that is greater than the damage or loss actually sustained by the plaintiff.

(1) The court may give leave for any one or more persons to be joined as defendants in proceedings involving an apportionable claim.

(2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceedings in respect of the apportionable claim.

Nothing in this Part:

(a) prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable, or

(b) prevents a partner from being held severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable, or

(c) affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim.

Part 5 - Liability of public and other authorities

(1) This Part applies to civil liability in tort.

(2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

In this Part:

“exercise” a function includes perform a duty.

“function” includes a power, authority or duty.

“public or other authority” means:

(a) the Crown (within the meaning of the Crown Proceedings Act 1988), or

(b) a Government department, or

(c) a public health organisation within the meaning of the Health Services Act 1997, or

(d) a local council, or

(e) any public or local authority constituted by or under an Act, or

(e1) any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person’s public official functions, or

(f) a person or body prescribed (or of a class prescribed) by the regulations as an authority to which this Part applies (in respect of all or specified functions), or

(g) any person or body in respect of the exercise of public or other functions of a class prescribed by the regulations for the purposes of this Part.

Roads and Maritime Services v Grant [2015] NSWCA 138

The respondent suffered injuries when he crashed his motorcycle into a median strip in an intersection and, in suing the appellant, asserted negligence in the design of the intersection. The appellant relied on s 43A.

The Court noted that it would have been appropriate for the appellant to identify how it fell within the phrase “public or other authority” as referred to in s 43A(1) and defined in s 41. [17]

Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340

The respondent fell when descending the steps of a rotunda and sued the owner and occupier of the park, Bathurst City Council Crown Reserves Reserve Trust (the Trust), of whom the trustee was the appellant council (the council). The primary judge held that the Trust was not a public authority under the meaning of s 41. Therefore, the principles under s 42 were not applicable. The council argued that the Trust was not a separate legal entity and that, therefore, the true defendant was the council (which would then fall under the s 41 definition).

The Court dismissed this argument as no submission had been made at trial as to the lack of separate legal personality of the Trust, nor evidence provided as to the legal relationship between the Trust and the council. It would have been necessary, if the Trust were a separate legal entity, to consider whether the Trust were the “crown” or a “public or local authority” for the purposes of s 41. [40]-[41], [45]

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

Weber v Greater Hume Shire Council [2019] NSWCA 74

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 42:

  • the drafting of s 42(a) is awkward, but it is the resources available for the exercise of functions which are limited, not the functions themselves: [59].
  • in determining whether it would be reasonable to require the taking of additional precautions, the court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are ‘limited’. A court can, however, find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff’s case, is undertaken in accordance with s 5C(a): [97].
  • the reference to ‘functions required to be exercised by the authority’ in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a). The phrase ‘the broad range of its activities’ in s 42(c) would not, in this case, require reference to the activities of the Council that bore no direct relationship to the operation of waste management sites: [98].
  • a court is not permitted to allow a plaintiff to ‘challenge’ the general allocation of ‘those resources’, that is, the resources reasonably available for the exercise of the functions identified in s 42(a), as understood in accordance with the broad range of activities in s 42(c). The point here is that a court may not reach the conclusion that additional resources should have been made available although they had been allocated to the exercise of other functions at the relevant time. A court can conclude, however, that more unallocated resources should have been provided: [99]-[100].

High Court decisions cited in discussion:

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41

Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29

NSWCA decisions cited in discussion:

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263

Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserve Trust v Thompson [2012] NSWCA 340; 191 LGERA 182

Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319

Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308

An aircraft owned by the respondent and driven by its directing mind, Dr Alterator, was damaged when it collided with a kangaroo on landing at Kempsey Aerodrome. The primary judge held that the appellant Council had breached its duty of care to aerodrome users by, inter alia, not erecting a kangaroo-proof fence around the aerodrome.

The principle in s 42(a) is not limited to functions that public or other authorities are legally required to exercise. In the case of councils, it extends to functions exercised in response to requirements imposed by the needs of the community as understood by the council, under Local Government Act 1993 (NSW), s 24. Accordingly, the appellant’s operation of the aerodrome engaged s 42(a): [55].

Even if s 42(a) were not engaged, it would not necessarily follow that s 42(b) was not engaged. Section 42(b) only refers back to s 42(a) to identify the resources to which it applies, namely “the financial and other resources” of the authority: [58].

The evidence demonstrated that the Council did not have available resources to build a fence, without reducing funds allocated to other works and purposes. Section 42(b) precluded the Court finding a breach of duty by failure to take a precaution, in circumstances where any decision to take the precaution required an assessment of conflicting demands on the Council’s budget: [64].

Coffs Harbour City Council v McLeod [2016] NSWCA 94

The respondent slipped and fell on a pool of water on a concrete footpath and sued the applicant council. The council, in an application for leave to appeal, raised a defence under s 42.

As the council had expressly eschewed any reliance on s 42 at trial, the failure of the primary judge to consider the financial and other resources that were reasonably available to the council, or the broad range of the council’s activities, was not a reason to grant leave to appeal. [35]

Collins v Clarence Valley Council [2015] NSWCA 263

The appellant was injured when she rode her bicycle over a bridge and the front wheel of her bicycle became stuck in a gap between the wooden planks of the bridge. She sued the respondent council for negligence which had care, control and management of the bridge. The council submitted that the appellant’s argument that it failed to take certain precautions in relation to the bridge surface was an impermissible challenge to the “general allocation of … resources” by reason of s 42(b).

The proposed precautions, and the appellant’s arguments as to why more money from the relevant budget should have been spent on the bridge’s repair by adopting such precautions, were precluded by s 42(b). [182]

Holroyd City Council v Zaiter [2014] NSWCA 109

The respondent, a nine year old, rode his bicycle down a slope and into a concrete drainage channel in a sports field under the care and control of the appellant council. The council submitted on appeal that the finding of the primary judge that the council should not have funded improvements to the sports field (including the proposed fencing off of the drainage channel) solely with revenue from sports field advertising, as opposed to general revenue, conflicted with s 42(b) as it constituted a challenge to the “general allocation of resources”.

Whilst the general allocation of resources to functions such as “public order and safety health” or “recreation and culture” cannot be challenged, allocations within those functions can. Therefore, the reasonableness of a decision that revenue from advertising from the sports field is to be the sole source of funding for improvements was not protected by s 42(b) and was open to challenge. [97]

NSW Court of Appeal cases cited in discussion:

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360

Bathurst Regional Council (as Trustee for the Bathurst City Council Crown Reserves Reserve Trust) v Thompson [2012] NSWCA 340

The respondent fell when descending the steps of a rotunda and sued the appellant owner and occupier of the relevant park. The appellant council submitted the primary judge erred in failing to take into account the principles under s 42.

To succeed under s 42 there has to be evidence of the financial and other resources that are available to the authority, the general allocation of those resources, and the range of the authority’s activities. Without such evidence, such matters cannot be taken into account by a court, and there is no subject matter to which the s 42 principles can be applied. [46]-[50]

NSW Court of Appeal cases cited in discussion:

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority.

(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances 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.

(3) In the case of a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364

The appellant’s application for development approval was initially rejected by the respondent council because of the council’s failure to make certain calculations accurately. The appellant sought damages for economic loss alleging the council had breached a common law duty of care and that, but for the council’s error, development approval would have been granted in a timely manner.

Section 43 is inapplicable to a common law duty of care. [92] (per Macfarlan JA, in dissent on whether the council owed a duty of care)

McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476

Mr Pettigrove was released from compulsory detention at a mental hospital under the Mental Health Act 1990 (NSW) and subsequently strangled Mr Rose. The family of Mr Rose (the appellants) claimed damages for psychiatric injury resulting from nervous shock caused by the negligence of the respondent.

There was no good reason why s 43 was not inapplicable to a common law liability. [167]

Note: This case was reversed on appeal by the High Court in Hunter & New England Local Health District v McKenna; Hunter & New England Local Health District v Simon [2014] HCA 44; 253 CLR 270, but as the High Court found no duty of care, Macfarlan JA’s findings on s 43 were not addressed.

NSW Court of Appeal cases cited in discussion:

Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A “special statutory power” is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority 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.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

Weber v Greater Hume Shire Council [2019] NSWCA 74

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 43A: the precautions which the Council failed to undertake did not involve a failure to exercise any special statutory power conferred on the Council, and so s 43A, and the special standard of care which it imposes, was not engaged here: [50], [200], [211].

Collins v Clarence Valley Council [2015] NSWCA 263

The appellant was injured when she rode her bicycle over a bridge and the front wheel of her bicycle became stuck in a gap between the wooden planks. She sued the respondent council for negligence which had care, control and management of the bridge, arguing that they should have erected a warning sign. The council raised a defence under s 43A at trial, submitting that the erection of a warning sign was a “special statutory power”.

A warning sign was a “traffic control facility” within the meaning of the Roads Act 1993 (NSW) and, therefore, the erection of a sign would constitute the exercise of a “special statutory power”, being a power of a kind that persons generally are not authorised to exercise without specific statutory authority. Given the council’s knowledge of bicycle traffic over the bridge, there was no rational reason for the council not to erect such a sign. Accordingly, s 43A was satisfied. [172]-[174], [177]-[179]

NSW Court of Appeal cases cited in discussion:

Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 88 NSWLR 10
Rockdale City Council v Simmons [2015] NSWCA 102; (2015) 207 LGERA 285
Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; 57 MVR 80
Roads and Maritime Services v Grant [2015] NSWCA 138

The respondent suffered injuries when he crashed his motorcycle into a median strip in an intersection, and claimed that the appellant’s failure to install a sign was negligent. The appellant raised a defence under s 43A.

Section 43A applied as the erection of a sign on public land was the exercise of a “special statutory power”.

Section 43A requires unreasonableness to be assessed by reference to a hypothetical reasonable public authority, and proof that no authority acting reasonably would have taken the precaution identified by the plaintiff.

Section 43A reformulates the standard by which a breach of duty is to be judged to fall within the residual liability provided for by s 43A(3). [34], [35]-[37], [58]

NSW Court of Appeal cases cited in discussion:

Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 88 NSWLR 10

Rockdale City Council v Simmons [2015] NSWCA 102

The respondent was seriously injured when he rode his bicycle into a boom gate installed by the appellant council and brought proceedings in negligence against the council. The council raised a defence under s 43A.

The council had not exercised a power “conferred by or under statute” in installing the boom gate for the purposes of s 43A(2)(a). The boom gate was installed to preclude vehicular entry into a car park at night and therefore was not a “traffic control facility”, nor was it for protecting members of the public from hazards on public roads. Therefore, it did not come under ss 87 or 115(2) of the Roads Act 1993, (NSW) the council had not exercised a “special statutory power” and s 43A was not engaged. [91]-[107]

In obiter, the Court noted that the question of whether s 43A is engaged turns on a consideration of the acts or omission pleaded in support of the cause of action, rather than the express identification of the statutory source of any power which might be involved. In order to raise a defence under s 43A, a defendant must therefore plead not the terms of the special statutory power as such, but the facts giving rise to its engagement. [108]-[109]

NSW Court of Appeal cases cited in discussion:

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360
Curtis v Harden Shire Council [2014] NSWCA 314; (2014) 88 NSWLR 10
Colavon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355, 51 MVR 549
Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364

The appellant’s application for development approval was initially rejected by the respondent council because of the respondent’s failure to make certain calculations accurately. The appellant sought damages for economic loss alleging the council had breached a common law duty of care and that, but for the respondent’s error, development approval would have been granted in a timely manner. The council raised a defence under s 43A.

The council failed to establish that their actions could not be described as actions which no council acting reasonably could have made and, accordingly, the council’s s 43A defence failed. [93] (per Macfarlan JA in dissent on whether the council owed a duty of care)

NSW Court of Appeal cases cited in discussion:

Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102
Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399; 105 LGERA 370
Curtis v Harden Shire Council [2014] NSWCA 314

A motorist was fatally injured when the car she was driving ran off the road. The appellant, her partner, claimed that the respondent negligently failed to provide adequate signage. The council raised s 43A.

Section 43A first requires identification of the extent to which the purported liability is based on the exercise of a statutory power, and second, requires determination of whether the power is a special statutory power.

As persons are generally prohibited from installing traffic control signs, the council’s statutory power to erect such signs was a “special statutory power”.

Once s 43A is found to apply, s 43A(3) assumes the existence of a duty of care and identifies the standard for that duty, requiring that “no authority acting reasonably” would consider the act or omission a reasonable exercise of its power.

Determining whether that standard is met is determined by viewing the matter from the perspective of a public authority exercising that power, having particular expertise and functions. [2]-[6], [220]-[224], [233]-[279].

High Court cases cited in discussion:

Rogers v Whitaker (1992) 175 CLR 479
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105
Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; 199 CLR 575
NSW Court of Appeal cases cited in discussion:
Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; 57 MVR 80
Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360
Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; 188 LGERA 169
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476

Mr Pettigrove was released from compulsory detention at a mental hospital under the Mental Health Act 1990 (NSW) and subsequently strangled Mr Rose. The family of Mr Rose (the appellants) claimed damages for psychiatric injury resulting from nervous shock caused by the negligence of the respondent. The respondent alleged that the appellants’ case concerned the exercise of a special statutory power under the Mental Health Act, and therefore that s 43A applied.

As the discharge of Mr Pettigrove was not an exercise of a power under the relevant section of the Mental Health Act 1990 (which would have constituted the exercise of a “special statutory power”), but was unauthorised according to the evidence, this was not case where the respondent’s liability was based on an exercise of, or failure to exercise, a special statutory power. Therefore, s 43A did not apply. [178]-[179]

Note: This case was reversed on appeal by the High Court in Hunter & New England Local Health District v McKenna; Hunter & New England Local Health District v Simon [2014] HCA 44; 253 CLR 270, but as the High Court found no duty of care, Macfarlan JA’s findings on defences were not addressed.

NSW Court of Appeal cases cited in discussion:

Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102
Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742
Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382

A property owner sued the respondent council for nuisance, alleging that the council’s consent to the construction of drains and stormwater outlets in order to preserve a habitat for a colony of frogs, and the council’s failure to maintain certain drains, resulted in drainage problems and a diminution of the value of the land. The council submitted that s 43A applied as the liability in the proceedings was based on the exercise or non-exercise of a special statutory power.

There is a distinction between liability “based on” a special statutory power and an act or omission “involving” a special statutory power. Accordingly, as this case concerned liability in nuisance rather than a breach of statutory duty or negligent exercise of a particular power, the purported liability was not “based on” the council’s exercise of a statutory power and, therefore, s 43A had no application in the proceedings. [196]-[197]

NSW Court of Appeal cases cited in discussion:

Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102
MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 7) [2012] NSWCA 417

The appellants sued the respondents alleging negligence and misfeasance in public office in respect of a development application.

Section 43A is based on an implicit assumption that there may be a duty of care in considering the exercise of at least some “special statutory powers”. [213]

(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.

(2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity.

Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364

The appellant’s application for development approval was initially rejected by the respondent council because of the respondent’s failure to make certain calculations accurately. The appellant sought damages for economic loss alleging that the council had breached a common law duty of care and that but for the respondent’s error, development approval would have been granted in a timely manner.

As the case concerned an aspect of the council’s functions in approving developments, not a failure to prohibit or regulate an activity of the appellant or any other persons, s 44 did not apply. [95] (per Macfarlan JA in dissent on whether the council owed a duty of care)

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section:

“carry out road work” means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.

“roads authority” has the same meaning as in the Roads Act 1993.

Coffs Harbour City Council v McLeod [2016] NSWCA 94

The respondent slipped and fell on a patch of water on a concrete footpath and sued the applicant council. The council, seeking leave to appeal, raised a defence under s 45.

The precautions a reasonable person in the council’s position would have taken to avoid the risk of harm fell under the definition of “traffic control facility” and, as such, did not fall within the meaning of “road work” under the Roads Act 1993 (NSW). They therefore did not fall within the meaning of “carrying out roadwork” for the purposes of s 45(3).

Actual knowledge of the particular risk that resulted in harm to the respondent may be evidenced by formal complaints made to the council. [48]-[49]

Nightingale v Blacktown City Council [2015] NSWCA 423

The appellant suffered a fall when he stepped onto a sunken area of a public footpath and subsequently sued the respondent council. The council raised a defence under s 45, and submitted that as a “roads authority” lacking actual knowledge of the particular risk the materialisation of which resulted in the harm, they were not liable.

Section 45 can only be addressed by identifying the officers who have the delegated or statutory authority, responsibility or function of carrying out roadwork or of considering carrying out roadwork, being the persons whose actual knowledge of a risk is relevant for s 45. [16]-[17]

The “particular risk” which materialised must be identified and it is not sufficient to just identify a type or kind of risk. Whilst the immunity does not extend to misfeasance as opposed to non-feasance, the impugned failure was the failure to rectify the unevenness and not a failure to take reasonable care in repairing the footpath. [40]-[41], [45]-[46] [49]-[52], [83].

Note: Special Leave to Appeal to the High Court was refused.

NSW Court of Appeal cases cited in discussion:

North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240
Blacktown City Council v Hocking [2008] Aust Torts Reports 91-956
Collins v Clarence Valley Council [2015] NSWCA 263

The appellant was injured when she rode her bicycle over a bridge and the front wheel of her bicycle became stuck in a gap between the wooden planks. She sued the respondent council for negligence which had care, control and management of the bridge. The council claimed a defence under s 45, submitting they had no actual knowledge.

A finding of actual knowledge can be made by inference. As the inference was available and the roads authority called no evidence to rebut it, the Court could more comfortably find actual knowledge. “[P]articular risk” in s 45 is the same as the s 5B(1) risk of harm. [158]-[160], [164]

High Court cases cited in discussion:

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
NSW Court of Appeal cases cited in discussion:
North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240
Leichhardt Council v Serratore [2005] NSWCA 406
Council of the City of Liverpool v Turano [2008] NSWCA 270; (2008) 164 LGERA 16
Botany Bay City Council v Latham [2013] NSWCA 363; (2013) 197 LGERA 211
Cavric v Willoughby City Council [2015] NSWCA 182

A woman fell in a car park after her trolley hit a pothole, on land acquired by the respondent council, and subsequently sued the council. The council argued that s 45 applied, and that as a roads authority without actual knowledge it was immune from liability for failure to carry out road works.

Section 45 only applies where the council is a roads authority with respect to the area in question and if the place of the accident was part of a “public road” as defined in the Roads Act 1993. Because the area was not a public road under the Roads Act, the council was not a “roads authority” under s 45, and the statutory defence did not apply. [6], [36], [52]

Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382

A property owner sued the respondent council for nuisance, alleging that the council’s consent to the construction of drains and stormwater outlets in order to preserve a habitat for a colony of frogs, and the council’s failure to maintain certain drains, resulted in drainage problems and a diminution of the value of the land. The council argued that, as a “roads authority”, it was not liable under s 45 for carrying out “road work” without actual knowledge under s 45.

Because the construction of the drains were not “road works” as defined under the Roads Act 1993 (NSW), s 45 did not apply. Even if the construction did constitute “road works”, s 45 only extends to road works carried out in the capacity of the council as a roads authority, not as a drainage authority, and statutory immunity, such as that conferred by s 45, must be construed strictly.

Section 45 is only concerned with non-feasance, rather than misfeasance and therefore would not apply in any case. [193], [194], [283

High Court cases cited in discussion:

Australian National Airlines Commission v Newman (1987) 162 CLR 466

NSW Court of Appeal cases cited in discussion:

North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240

Botany Bay City Council v Latham [2013] NSWCA 363

The respondent tripped on an uneven paver and fell near a tree close to an intersection, and sued the appellant council. The council argued that, as a “roads authority”, it was not liable under s 45 for failure to carry out road works where it had no actual knowledge of the “particular risk” the materialisation of which resulted in the harm.

The “particular risk” referred to in s 45 is of the same level of generality as the reference to the “particular harm” in s 5D. The actual knowledge required was actual knowledge of the particular risk posed by the unevenness of the very paver that caused her to trip and fall. It was not sufficient for the council to know of a general risk that someone might trip and fall in an area of irregular pavers. In the absence of evidence of the council possessing such knowledge of the particular risk of the particular harm that eventuated, the s 45 defence would apply. [45]-[49] (observed as obiter)

In proceedings to which this Part applies, 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.

Part 6 - Intoxication

(1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

A reference in this Part to a person being “intoxicated” is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).

(1) The following principles apply in connection with the effect that a person’s intoxication has on the duty and standard of care that the person is owed:

(a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated,

(b) a person is not owed a duty of care merely because the person is intoxicated,

(c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.

(2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision.

Johnston v Stock [2014] NSWCA 147—14/05/2014

The respondent was injured when she drunkenly stepped in front of the appellant’s motor vehicle. On appeal, consideration of s 49 was relevant to the determination of the applicable standard of care.

Section 49(1)(c) of the Act means that the fact that it crossed the mind of a person that another person might be intoxicated does not of itself increase or otherwise affect the standard of care owed to the intoxicated person. In this case, the required standard of care was that engendered by observing a pedestrian progress down a hill in a “stumbling” fashion, come to a halt on pedestrian ramp at the side of the road and apparently fix her eyes on the approaching vehicle in the manner of someone waiting for it to pass. [33]-[34]

NSW Court of Appeal cases cited in discussion:

Vale v Eggins [2006] NSWCA 348

(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.

(5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced.

Part 7 - Self-defence and recovery by criminals

Part 7 Division 1 - Limitations on damages

(1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property.

(2) This Part extends to any such liability even if the damages are sought in an action for breach of contract or any other action.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

(1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:

(a) was unlawful, or

(b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:

(a) to protect property, or

(b) to prevent criminal trespass or to remove a person committing criminal trespass.

Croucher v Cachia [2016] NSWCA 132

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery and found that self-defence was not made out. On appeal, the appellant submitted that the act was one of self-defence to which s 52 applied.

Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was “unlawful”. “Unlawful” conduct extends to conduct which is merely tortious as opposed to criminal. Further, the onus of establishing the elements of self-defence lies on the defendant. Section 52 then prescribes two necessary and sufficient conditions to establish a defence of self-defence: demonstrating, first, that the requisite subjective belief on the part of the defendant and, second, that the defendant’s conduct was a reasonable response to the circumstances as perceived by him or her. The second limb of the test contains both subjective and objective elements.

In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages which can be lifted if the court considers that circumstances are exceptional.

In the immediate case, the findings of the primary judge disclosed error in several senses – the primary judge treated the reasonable response limb as dispositive and confined attention to crime, not dealing with the possibility that the respondent was committing an assault. Further, the primary judge applied the wrong test for the appellant’s subjective state of mind, proceeding on the basis that his state of mind could not be inferred from the circumstances of the case but could only be sourced from direct evidence.

However, there were insufficient factual findings as to the appellant’s state of mind to determine whether the defence should be made out. A retrial was ordered. [42]-[45], [109]-[114]

NSW Court of Appeal cases cited in discussion:

State of New South Wales v McMaster [2015] NSWCA 228

Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204

State of New South Wales v McMaster; State of New South Wales v Karakizos; State of New South Wales v McMaster [2015] NSWCA 228

The first respondent was shot by a police officer who was responding to a violent home invasion occurring at the premises at which the first respondent was living. The first respondent brought claims against the State in negligence and trespass to the person. The trial judge found that the State was liable in battery. On appeal, the State contended, among other things, that the defence of self-defence was made out pursuant to s 52 of the Act.

There were three elements of the defence for which s 52 provides which were relevant in the present matter: first, the conduct of the other person must have been unlawful; second, the person must have believed the conduct was necessary to defend another person; and third, the conduct must have been a reasonable response in the circumstances. The critical question in the immediate case was whether the first respondent was acting unlawfully. The answer to that question was “yes” – the first respondent was acting unlawfully by committing an assault in contravention of the Crimes Act 1900 (NSW) s 61 at the time he was shot. The first respondent was not acting in self-defence and , therefore, responsibility for the assault was not precluded by s 418 of the Crimes Act. The State therefore successfully made out the defence of self-defence under s 52 of the Act.

Furthermore, “unlawful” conduct extends to purely tortious conduct under s 52 of the Act such that the section may apply as a defence to liability for actions done in self-defence against the commission of a tort. As the first respondent was at least negligent in committing a civil assault when he was shot, s 52 would also apply on that basis.

[190]-[199], [200]-[209]

(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:

(a) the circumstances of the case are exceptional, and

(b) in the circumstances of the case, a failure to award damages would be harsh and unjust.

(2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award:

(a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and

(b) no damages may be awarded for non-economic loss.

Croucher v Cachia [2016] NSWCA 132

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The primary judge awarded the respondent common law damages at first instance for battery and found that self-defence was not made out. On appeal, the appellant pleaded that the act was one of self-defence to which s 52 applied.

Sections 52 and 53 depend upon whether the conduct to which the defendant was responding was “unlawful”. “Unlawful” conduct extends to conduct which is merely tortious as opposed to criminal. Further, the onus of establishing the elements of self-defence lies on the defendant. Section 52 then prescribes two necessary and sufficient conditions to establish a defence of self-defence: demonstrating, first, that the requisite subjective belief on the part of the defendant and, second, that the defendant’s conduct was a reasonable response to the circumstances as perceived by him or her. The second limb of the test contains both subjective and objective elements.

In the event that the only reason for the defence under s 52 being unavailable is that the reasonable response limb was not satisfied, then s 53 imposes a prohibition upon ordering damages which can be lifted if the court considers that circumstances are exceptional.

In the immediate case, the findings of the primary judge disclosed error in several senses – the primary judge treated the reasonable response limb as dispositive and confined attention to crime, not dealing with the possibility that the respondent was committing an assault. Furtehr, the primary judge applied the wrong test for the appellant’s subjective state of mind, proceeding on the basis that his state of mind could not be inferred from the circumstances of the case but could only be sourced from direct evidence.

However, there were insufficient factual findings as to the appellant’s state of mind to determine whether the defence should be made out. A retrial was ordered. [42]-[45], [109]-[114]

NSW Court of Appeal cases cited in discussion:

State of New South Wales v McMaster [2015] NSWCA 228

Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204

Sahade v Bischoff [2015] NSWCA 418

An altercation occurred when the respondent caught the appellant breaking apart his staircase with a sledgehammer. The applicant submitted that the primary judge applied the incorrect test and incorrect onus for the defence of self-defence.

The effect of s 53 is that, ordinarily, no award for damages can be made if the defence of self-defence is not available only because the defendant’s conduct was not a reasonable response to the circumstances as perceived by the defendant. However, this is subject to an exception where the Court is satisfied that the circumstances of the case are exceptional and a failure to award damages would be harsh and unjust. Even where the exception applies, s 53(2) limits the award of damages.

The onus of proof is on the plaintiff since the provision operates to prevent a court awarding damages against the defendant unless the court is satisfied of the two matters required to make out the exception. [65]-[66]

(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:

(a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).

Note: Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant’s conduct constitutes an offence.

 

(3) A “serious offence” is an offence punishable by imprisonment for 6 months or more.

(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.

(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.

Croucher v Cachia [2016] NSWCA 132

An altercation between two neighbours led to the respondent being seriously injured by gardening shears wielded by the appellant. The appellant alleged that the respondent’s actions amounted to breaches of the Crimes Act 1900 (NSW) and Crimes (Domestic and Personal Violence) Act 2007 (NSW) and invoked s 54 of the Act.

A “serious offence” is an offence that is punishable by imprisonment for six months or more. The onus of proof lies on the defendant and the standard of proof is the civil standard pursuant to s 54(1)(a). Under s 54(2), the prohibition in s 54(1) does not apply if the conduct of the defendant is itself an offence. In circumstances where the plaintiff suffers actual bodily harm, it is clear that the availability of s 54 will be inter-related with questions of self-defence. [50]-[51], [114]

NSW Court of Appeal cases cited in discussion:

Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204

(1) This section applies to a liability to which this Part applies in circumstances where:

(a) the liability arises out of the death of, or injury or damage to, a person, and

(b) that death, injury or damage occurred at the time of, or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not been suffering from a mental illness at the time of the conduct, and

(c) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.

(2) If a court awards damages in respect of a liability to which this section applies, the following limitations apply to that award:

(a) no damages may be awarded for non-economic loss, and

(b) no damages for economic loss may be awarded for loss of earnings.

(3) A “serious offence” is an offence punishable by imprisonment for 6 months or more.

(4) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned:

(a) constitutes an offence (whether or not a serious offence), or

(b) would have constituted an offence (whether or not a serious offence) if the defendant had not been suffering from a mental illness at the time of the conduct.

(5) This section operates whether or not a person whose conduct is in issue was acquitted of an offence concerning that conduct by reason of mental illness or was found by a court not to be fit to be tried for an offence concerning that conduct by reason of such an illness.

Part 7 Division 2 - Supervision of damages arising out of criminal conduct by persons suffering from mental illness

In this Division:

“award” of damages means an award of damages by a court (including such an award pursuant to judgment entered in accordance with an agreement between the parties to a claim for damages).

“damages supervision order” means an order granted under section 54D.

“serious offence” means an offence punishable by imprisonment for 6 months or more.

(1) This Division applies to an award of damages to which this Part applies if:

(a) the award is made in respect of a civil liability that arises out of injury or damage to the person, and

(b) the injury or damage occurred at the time of, or following, conduct of the person that, on the balance of probabilities, would have constituted a serious offence if the person had not been suffering from a mental illness at the time of the conduct, and

(c) the conduct contributed materially to the injury or damage or to the risk of injury or damage.

(2) This Division does not apply to offender damages within the meaning of Division 6 of Part 2A.

(3) This Division does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned:

(a) constitutes an offence (whether or not a serious offence), or

(b) would have constituted an offence (whether or not a serious offence) if the defendant had not been suffering from a mental illness at the time of the conduct.

(4) This Division does not apply to an award of damages made before the commencement of this Division.

(1) A court that makes an award of damages must make an order directing the NSW Trustee and Guardian to take control of the amount of damages if it is satisfied, on the balance of probabilities, that the amount of damages is an amount to which this Division applies and that it is in the best interests of the person to whom the damages were awarded to make the order.

(2) The NSW Trustee and Guardian must ensure that an amount of damages subject to a damages supervision order is used to cover the costs of past, present and future medical or other therapeutic treatment, rehabilitation costs and care costs of the person awarded the damages, subject to the terms of the order.

(3) A damages supervision order may not take effect before the later of the final determination of any appeal relating to the award of damages or the end of the period during which any such appeal may be made.

(4) A damages supervision order may be made whether or not the person awarded the damages is a mentally ill person (within the meaning of the Mental Health Act 2007) or a mentally incapacitated person when the order is made.

(5) Any part of an award payable or paid for properly payable legal expenses incurred in connection with proceedings for damages may not be made subject to a damages supervision order.

(6) The NSW Trustee and Guardian holds the amount of damages in trust for the person awarded the damages.

(1) A damages supervision order may:

(a) require an amount of damages to be paid to the NSW Trustee and Guardian instead of, or by or on behalf of, the person awarded the damages, and

(b) regulate the manner in which the NSW Trustee and Guardian may exercise his or her functions under the order, and

(c) determine any matter relating to the payment of amounts of the damages, including:

(i) the purposes for which amounts may be disbursed, and

(ii) the obligations of the NSW Trustee and Guardian and the person awarded the damages, and

(d) make such other provision as the court thinks fit in the circumstances of the case.

(2) A damages supervision order ceases to have effect:

(a) if it is revoked by a court, or

(b) on the death of the person awarded the damages.

(3) If a damages supervision order ceases to have effect, any remaining amount of damages, or the proceeds of an amount of damages, is (subject to any order of a court and to payment of any fees or other expenses of the NSW Trustee and Guardian) to be paid to the person awarded the damages or the legal personal representative of the person.

(1) A damages supervision order may be made in relation to a person even though the estate of the person is subject to management under the NSW Trustee and Guardian Act 2009.

(2) The NSW Trustee and Guardian Act 2009 does not apply to or in respect of property of a person whose estate is subject to management under that Act to the extent that the property is the subject of a damages supervision order.

(1) A person must not hinder or obstruct the NSW Trustee and Guardian in the performance of the NSW Trustee and Guardian’s obligations under a damages supervision order. Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.

(2) In this section:

“NSW Trustee and Guardian” includes members of staff and agents of the NSW Trustee and Guardian.

If a damages supervision order is made directing the NSW Trustee and Guardian to take control of property, a certificate under the hand of the NSW Trustee and Guardian or an officer authorised by the Chief Executive Officer of the NSW Trustee and Guardian and sealed with the NSW Trustee and Guardian’s seal:

(a) certifying that the damages supervision order has been made and is in force, and

(b) stating the terms of the order,

is to be accepted by all courts, officers and other persons, whether acting under any Act or not, as evidence of the matters so certified and stated and of the NSW Trustee and Guardian’s right to act under the damages supervision order, without production of any other proof.

Part 8 - Good samaritans

(1) This Part applies to civil liability of any kind.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

For the purposes of this Part, a “good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.

(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.

(1) The protection from personal liability conferred by this Part does not apply if it is the good samaritan’s intentional or negligent act or omission that caused the injury or risk of injury in respect of which the good samaritan first comes to the assistance of the person.

(2) The protection from personal liability conferred by this Part in respect of an act or omission does not apply if:

(a) the ability of the good samaritan to exercise reasonable care and skill was significantly impaired by reason of the good samaritan being under the influence of alcohol or a drug voluntarily consumed (whether or not it was consumed for medication), and

(b) the good samaritan failed to exercise reasonable care and skill in connection with the act or omission.

(3) This Part does not confer protection from personal liability on a person in respect of any act or omission done or made while the person is impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance.

Part 8A - Food donors

In this Part:

“donate” food includes distribute, without payment or other reward, food donated by others.

“food”, “handling” and “unsafe food” have the same meanings as they have in the Food Act 2003.

“personal injury” includes:

(a) pre-natal injury, and

(b) impairment of a person’s physical or mental condition, and

(c) disease.

(1) This Part applies to civil liability of any kind.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

(1) A person who donates food (the “food donor”) does not incur any civil liability in respect of any death or personal injury that results from the consumption of the food if:

(a) the food donor donated the food:

(i) in good faith for a charitable or benevolent purpose, and

(ii) with the intention that the consumer of the food would not have to pay for the food, and

(b) the food was safe to consume at the time it left the possession or control of the food donor, and

(c) where the food was of a nature that required it to be handled in a particular way to ensure that it remained safe to consume after it left the possession or control of the food donor–the food donor informed the person to whom the food donor gave the food of those handling requirements, and

(d) where the food would only have remained safe to consume for a particular period of time after it left the possession or control of the food donor–the food donor informed the person to whom the food donor gave the food of that time limit.

(2) For the purposes of this section, food is safe to consume if it is not unsafe food.

Part 9 - Volunteers

(1) This Part applies to civil liability of any kind, other than liability for defamation.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

(1) In this Part:

“community organisation” means any of the following that organises the doing of community work by volunteers and that is capable of being sued for damages in civil proceedings:

(a) a body corporate,

(b) a church or other religious organisation,

(c) an authority of the State.

“community work” means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose, and includes work declared by the regulations to be community work but does not include work declared by the regulations not to be community work.“organised” includes directed or supervised.“volunteer” means a person who does community work on a voluntary basis.“work” includes any activity.

(2) For the purposes of this Part:

(a) community work done by a person under an order of a court is not to be regarded as work done on a voluntary basis, and

(b) community work for which a person receives remuneration by way of reimbursement of the person’s reasonable expenses in doing the work, or within limits prescribed by the regulations, is to be regarded as work done on a voluntary basis.

(3) A regulation declaring work to be community work may be expressed to extend to apply in respect of civil liability for an act or omission occurring before the commencement of the regulation, except in a case in which proceedings to recover damages for the act or omission were commenced in a court before that commencement.

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a) organised by a community organisation, or

(b) as an office holder of a community organisation.

This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of the volunteer if it is established (on the balance of probabilities) that at the time of the act or omission the volunteer was engaged in conduct that constitutes an offence.

The protection from personal liability conferred on a volunteer by this Part in connection with any community work does not apply if:

(a) the ability of the volunteer to exercise reasonable care and skill when doing the work was significantly impaired by reason of the volunteer being under the influence of alcohol or a drug voluntarily consumed (whether or not it was consumed for medication), and

(b) the volunteer failed to exercise reasonable care and skill when doing the work.

This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting:

(a) outside the scope of the activities authorised by the community organisation concerned, or

(b) contrary to instructions given by the community organisation.

This Part does not confer protection from personal liability on a volunteer if the liability is a liability that is required by or under a written law of the State to be insured against.

The protection from personal liability conferred on a volunteer by this Part does not apply if the liability would, but for this Part, be covered by a third-party insurance policy under the Motor Accidents Compensation Act 1999 or be recoverable from the Nominal Defendant under that Act.

Part 10 - Apologies

(1) This Part applies to civil liability of any kind.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B or civil liability for defamation.

Note: Section 20 of the Defamation Act 2005 makes similar provision to this Part about the effect of apologies in defamation proceedings.

In this Part:

“apology” means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.

(1) An apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person:

(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, and

(b) is not relevant to the determination of fault or liability in connection with that matter.

(2) Evidence of an apology made by or on behalf of a person in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

Part 11 - Damages for the birth of a child

(1) This Part applies to any claim for damages in civil proceedings for the birth of a child, regardless of whether that claim is made in tort, in contract, under statute or otherwise.

(2) This Part does not apply to any claim for damages by a child in civil proceedings for personal injury (within the meaning of Part 1A) sustained by the child pre-natally or during birth.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B but, despite that section, does apply to liability of the kind referred to in section 3B (1) (a).

(1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:

(a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or

(b) any loss of earnings by the claimant while the claimant rears or maintains the child.

(2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

Part 12 - Damage by aircraft

(cf former s 2 (1) and (5) of Damage by Aircraft Act 1952)

(1) No action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft over any property at a height above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with.

(2) In this section, “Air Navigation Regulations” means the regulations made under the Air Navigation Act 1920 of the Commonwealth and includes such of the provisions of those regulations as are applicable to and in respect of air navigation within New South Wales by virtue only of the Air Navigation Act 1938.

(cf former s 2 (2), (3) and (5) of Damage by Aircraft Act 1952)

(1) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage are recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.

(2) However, where the material loss or damage is caused in circumstances in which:

(a) damages are recoverable in respect of that loss or damage by virtue only of subsection (1), and

(b) a legal liability is created in some person other than the owner to pay damages in respect of that loss or damage,

the owner is entitled to be indemnified by that other person against any claim in respect of that loss or damage.

(3) Where the aircraft concerned has been bona fide demised, let or hired out for a period exceeding 14 days to any other person by the owner of the aircraft, and no pilot, commander, navigator or operative member of the crew of the aircraft is in the employment of the owner, references in this section to the owner are to be read as references to the person to whom the aircraft has been so demised, let or hired out.

(4) In this section:

“article” includes mail or animal.

“loss or damage” includes, in relation to persons, loss of life and personal injury.

South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312—7/12/2017

Parkes Shire Council engaged South West Helicopters to provide a helicopter and pilot to conduct a weed survey. The helicopter was owned by Country Connection. The helicopter struck a power line owned by Essential Energy and crashed, killing the pilot and council employees on board, including Mr Stephenson. Mr Stephenson’s relatives commenced proceedings against the various parties involved, including claims for “nervous shock”.

The majority held that the nervous shock claims were precluded by the operation of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), because the salient event was the death of a passenger on the aircraft in the course of carriage by air. Claims by the family were therefore claims “in respect of” the death of Mr Stevenson and should have been dismissed: [163]; [364].

It was not necessary to express a concluded view as to whether “material loss or damage” in s 73(1) extends to mental distress or psychiatric injury, although one may note that s 73(4) defines “loss or damage” to include personal injury, and personal injury elsewhere in the Act includes mental injury: [326]. “Material loss or damage” was held to include psychiatric injury in the United Kingdom, under a provision identical in terms to s 73(1): [325]-[326].