Liability of public authorities and section 43A of the Civil Liability Act: Court of Appeal holds that "irrationality" is not the test

Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328

Judgment date: 9 December 2010

Giles JA:

"87 Aronson sums it up in “Government Liability in Negligence” [2008] 32 MULR 44 at 80 that “[o]nly the grossest unreasonableness will invalidate the exercise of a statutory discretion”. The learned author suggests that instead of transplanting Wednesbury unreasonableness “[i]t might have been more straightforward to draft the new standard simply as ‘gross negligence’”. I say nothing of that; in seeking to give content to the language of s 43A, however, a constant is that Wednesbury unreasonableness must be at a high level. The force of s 43A, in its use of language modelled on that of Wednesbury unreasonableness, lies in “could properly consider”, with the restraint of “could” moderated by “properly”. Necessarily, questions of degree and judgment arise in both reasonableness and properness.

88 It would be preferable to avoid substituting for the language of s 43A the shorthand of whether the authority’s conduct was “irrational”, as the trial judge did (referring to Mr McGregor’s decision rather than the RTA’s conduct) at [121]. That his Honour made the substitution is understandable, since the Minister did so in the second reading speech in relation to s 43 of the CL Act (Second Reading Speech, Legislative Assembly, 23 October 2002, 5767 (Mr Carr)). Lord Diplock had much earlier equated irrationality with Wednesbury unreasonableness (Council of Civil Service Unions v Minister for the Civil Service at 410), and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 is a recent consideration of the place of irrationality or illogicality in judicial review. In Stovin v Wise (1996) AC 923 at 952-3 Lord Hoffman spoke of irrationality in connection with a road authority’s negligence.

89 However, that is not the language of s 43A. Irrationality is not necessarily an equivalent test in the private law of reasonable response to foreseeable risk of injury. For example, the response may objectively be one at which an authority acting reasonably could properly arrive, although arrived at irrationally. Conversely, as is pointed out by Airo-Farulla in the article previously mentioned at 573, a person might act rationally in the sense of having adopted the best means to his or her end, but still unreasonably because sufficiently inconsistently with common sense, moral values or the interests of others. Reference to irrationality may also lead to an incorrect focus on the decision-maker’s own thought processes.

90 Applying the terms of s 43A, I respectfully differ from the trial judge. Accepting the guiding principle that a warning sign should be close enough so that the driver would recognise the hazard when he or she came to it, and attributing to the RTA Mr McGregor’s observations of water in the dip, in my view the RTA could, and could properly consider placing the “Water Over Road” sign where it was placed a reasonable exercise of its special statutory power. Placing the “Water Over Road” sign east of the dip, to act as a warning for the dip and for the water over the road at “Lyntods”, was in the circumstances not an act so unreasonable that no authority having the RTA’s special statutory power to erect warning signs could properly consider it to be a reasonable exercise of that power."

Contributory negligence or momentary inattention?

Agresta v Agresta [2010] NSWCA 230

Judgment date: 7 December 2010

Macfarlan JA:

"25 The appellants challenged the primary judge’s finding that Mrs Agresta was not guilty of contributory negligence (see [14] above). In my view this challenge should fail.

26 Mrs Agresta gave uncontested evidence that she was “being very careful” and to concentrate when operating the machine (Transcript p 29). As identified by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, the question to be asked in a context such as the present is whether, assuming that the defendant has been negligent and taking into account all relevant circumstances, the plaintiff’s conduct “amounted to mere inadvertence, inattention or misjudgment, or to negligence” (at 493). The primary judge did not err in finding that Mrs Agresta’s conduct was appropriately described as one of the former, that is, as the primary judge put it, “momentary inattention”. As Ms Lusted pointed out, there was in light of the nature of the machine and the circumstances in which Mrs Agresta was operating it a high risk that Mrs Agresta might be injured as a result of a moment of inattention on her part when talking to others who were involved in the sauce-making operation (see [11] above).

27 Relying upon the judgment of Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1963 – 1964) 110 CLR 24 at 37 – 38, the appellants submitted that for the respondent to maintain the judgment in her favour the Court needed to conclude that a reasonable person in Mrs Agresta’s position might have been inattentive or inadvertent and that it should not do so (Written Submissions [34]). However in my view such a conclusion is clearly appropriate. Accordingly I see no error in the primary judge’s conclusion to that effect."

Causation of damage in medical negligence claims: what the plaintiff would have done

Hawkesbury District Health Service Limited & Anor v Patricia Chaker [2010] NSWCA 320

25 November 2010

Hoeben JA:

"141 As an alternative, Dr Tompsett submitted that on the basis that the operation she performed had merely unmasked a congenital lymphatic insufficiency, his Honour should have applied the principle set out in Wilson v Peisley (1976) 50 ALJR 207 at 209C-D that this was the sort of condition which would have been unmasked in any event. Accordingly, Dr Tompsett submitted a substantial discount should have been applied by his Honour to the damages which he awarded.

142 This submission is misconceived. It is not really a submission as to damages. It is a submission as to causation. It is the sort of problem which the High Court considered in Chappel v Hart (1998) HCA 55 (1998) 195 CLR 232. What the respondent was claiming in these proceedings was not damages for the loss of an opportunity or chance to have achieved a better result. She was claiming damages for the injuries which she sustained, i.e. the development of lymphoedema. If she established that causal connection she was entitled to full damages for her loss.

143 The relevant analysis was set out by Gummow J in Chappel v Hart as follows:

“76 Rather, Mrs Hart claimed damages for the injuries she sustained. To make good her case and to obtain the award of damages she recovered, Mrs Hart was not required to negative the proposition that any later treatment would have been attended with the same or a greater degree of risk.

77 This is not a case such as Hotson v East Berkshire Area Health Authority. There, the facts precluded the adoption of the plaintiff's hypothesis that he would have escaped disability to his hip joint but for the negligence of the defendant in failing to diagnose a fracture and to treat it promptly.

78 In the present case, the chain of causation appears from the historical facts found to have intervened between the negligent omission of Dr Chappel and the injuries sustained by Mrs Hart. There was no difficulty in demonstrating what would have happened if Dr Chappel had given Mrs Hart the warning required by Rogers v Whitaker before the surgical procedure on 10 June 1983 in which her oesophagus was perforated, leading to the development of mediastinitis and the paralysis of her right vocal cord. Mrs Hart would not have undergone that procedure at the hands of Dr Chappel. She would have wanted "the most experienced person with a record and reputation in the field", such as Professor Benjamin.”

144 As to whether or not the respondent is entitled to any damages will depend upon her being successful in establishing the sort of chain of causation referred to by Gummow J in [78] of this quotation. If she can establish causation of that kind then as a matter of principle she is entitled to damages for her loss, the loss being the development of lymphoedema. The difficulty in such claims is to establish not only what actually happened, but the hypothetical scenario or scenarios which would have occurred had the omission by the tortfeasor not occurred. This is yet another aspect of the failure by his Honour to properly deal with the question of causation which has been referred to earlier in these reasons."   

Another look at causation in shopping centre spillage cases

Harris v Woolworths Ltd [2000] NSWCA 312

11 November 2010

Hodgson JA:

 "34 On the question of causation, in my opinion cases such as Franklins Limited v Brown [2000] NSWCA 177, Drakos v Woolworths (South Australia) Limited (1991) 56 SASR 431, and Kocis v SE Dickens Pty Ltd t/as Coles New World Supermarket [1998] 3 VR 408 do not mean that, once a breach of duty is proved giving rise to a risk that a floor will become slippery, the plaintiff does not have to prove on the balance of probabilities that fulfilment of the duty would have prevented the accident. In my opinion, a contrary position at common law is indicated in cases such as Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Report 80-121, Shoeys Pty Limited v Allan (1991) Aust Torts Report 81-104, and Woolworths Limited v Strong [2010] NSWCA 282. The question of causation is now dealt with by ss 5D and 5E of the Civil Liability Act 2002. Those provisions confirm that proof of causation of the nature I have indicated is a requisite for liability."

Court of Appeal revisits threshold requirements for recovery of damages for domestic assistance

Hill v Forrester [2010] NSWCA 170

10 November 2010

Sackville AJA:

"100 In my opinion, the wording of the amended s 15(3)(b) makes it tolerably clear that a claimant must require attendant services for only one period of at least six consecutive months. The words “for a period of” strongly suggest that the duration requirement is limited to a single qualifying period. It is true that s 8(6) of the Interpretation Act 1987 provides that a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. However, s 15(3)(b) of the CL Act uses the words “a period” in combination with the expression “of at least 6 consecutive months”. Had the drafter intended that no damages should be awarded for gratuitous services except in respect of periods each of which was for at least six consecutive months, it might have been expected that the sub-section would have said so."

Causation in shopping centre spillage cases: onus on plaintiff to prove that reasonable system of cleaning and inspection would have avoided accident

Woolworths Limited v Strong & Anor [2010] NSWCA 282

Campbell JA:

"66 The present is not, however, a case in which proof of breach of duty in itself makes likely that, had the duty been performed, the damage would not have been caused. That is because there is no evidence that would justify a conclusion that taking reasonable care, in the present case, required the continuous presence of someone always on the lookout for potential slippery substances. Periodical inspections and cleanings were all that reasonable care required. That gives rise to the possibility that, even if periodical inspections and cleaning had been carried out, with the minimum frequency required for the Appellant to be taking reasonable care, the chip fell between the last such inspection and the time the First Respondent encountered it. The present is not a case in which one can infer that if the steps involved in taking reasonable care had been taken, the plaintiff’s harm was more likely than not to have not arisen. In this case, the particular hazard that the First Respondent encountered was not one with an approximately equal likelihood of occurrence throughout the day. She slipped on a chip near a food court at lunch time, and the reasonableness of a cleaning system depends on the range of items it is foreseeable might be dropped rather than just on the particular hazard a particular plaintiff encountered. Because of those aspects of the facts, I am not prepared to draw that inference."

Breach of duty: burden of proof on a plaintiff to prove that a reasonable response to a foreseeable risk of injury would have lessened the risk of injury

Kempsey Shire Council v Glenice Baguley [2010] NSWCA 284

Sackville AJA:

"50 The critical issue on which the primary Judge found in the respondent’s favour was that a reasonable person in the position of the Council would have erected a continuous fence along the side of the pit as a precaution against injuries of the kind sustained by the respondent. In my opinion, his Honour erred in making that finding. The evidence did not permit him to conclude that the erection of such a barrier would lessen the risk of injury to customers using the tip, in particular those depositing rubbish at the pit. The burden of proof on this issue rested on the respondent. She adduced no evidence to demonstrate that the risks associated with constructing a fence or wall alongside the pit were less than the risks of a fall by reason of a customer coming into contact with the riser and falling into the Pit.

51 In the absence of evidence justifying a finding that the risks inherent in the erection of a fence or wall were less than those associated with the configuration of the pit, the primary Judge was incorrect to conclude that a reasonable person in the council’s position would have constructed a wall or fence along the side of the pit. On the evidence, that would simply have substituted for one risk another set of risks."

Calderbank offers: Court of Appeal confirms that reasonableness of rejecting a Calderbank offer is to be considered prospectively at the time the offer is made

Noon & Anor v Bondi Beach Astra Retirement Village Pty Ltd & Anor (No 2) [2010] NSWCA 285

Giles JA; Macfarlan JA; Young JA:

"11 The appellants’ submissions amounted to little more than that their ultimate success meant that it was unreasonable for the respondents not to have accepted the offer. That is incorrect reasoning. Reasonableness is not to be determined with hindsight; rather, the strength or otherwise of the appellants’ claim should be considered prospectively as at the time of the offer (for example, Gretton v Commonwealth of Australia [2007] NSWSC 149 at [24]). A claimant can reasonably seek to have a claim determined in court, although ultimately it fails, rather than accept an offer of much less than that which success would bring. The appellants’ submissions did not descend to why, viewed prospectively, the offered $200,000 should have been accepted."

Appointment of Senior Counsel 2010

http://www.nswbar.asn.au/circulars/2010/oct/silks_prez.pdf