Duty – Public Authorities

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This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 327-359 [11.05-11.85].

Introduction

[1] The identity of the defendant can also play a role in determining a whether a duty of care exists. Special requirements can arise if the defendant is a public authority (also known as statutory authority). Public authorities are people who are given powers by statutes to serve the public[2] (i.e. police).

Policy/Operation distinction

The courts use the policy/operation distinction in order to separate which cases should be looked at and which cases are dismissed. What this means is that an act cannot be deemed negligent if there it is a matter of policy. It can be deemed negligent if it was operational, namely, the way the council implemented their policy:

  • Policy - the policy which the public authority set after considering its budgetary constraints.
  • Operation - the actual measures taken to implement that policy.
  • For example, a council has a policy of cleaning the streets twice a day.
  • A person walks in the streets and cuts his foot on a broken glass.
    • He can sue the council if the council neglected to clean the streets twice a day - because this means that they were negligent in implementing their policy. This is an operational matter.
    • However, if the council has cleaned the streets twice a day (in accordance with its policy), he cannot sue them claiming that they should have cleaned it more often. He cannot claim that their policy is negligent. This is because the policy is determined due to budgetary constraints etc.

Public authority's liability for an non-feasance/omission

[3] Since public authorities are given powers to serve public interest, they can become liable for negligence if they exercise those powers outside the public's interest. This is called a misfeasance.

The question arises whether a public authority will also become liable for negligence if it fails to exercise those powers for the public interest when it reasonably should have (i.e., can a policemen be sued in negligence for failing to help a person being mugged?). This is called non-feasance. Over the years, the conditions (in addition to reasonable foreseeability of course) for when a Plaintiff can recover damages for non-feasance has developed:

Reliance Approach

The prolific case Sutherland Shire Council v Heyman established reliance as the principle condition needed:

  • Generally, there is no duty or obligation to exercise statutory powers. A public authority will not be liable for non-feasance unless they have a statutory obligation to act.
  • However, it is possible that the public authority's conduct will cause people to rely on it for safety, and then it will indeed have a duty to act.
  • Thus, reliance is needed for a non-feasance.
  • However, there is also a thing called general reliance. This occurs where the authority's function is to provide general protection to the community thus people rely on it generally and take no steps to protect themselves
    • i.e. air traffic control. The public expects the public authority to protect it.
    • This is general reliance.
  • That means that in a case where the public authority has a general duty to (or that the purpose of their powers is to) protect the public, it will be obliged to exercise its powers and liable if it did not do so.

The reliance approach was reaffirmed in Parramatta City Council v Lutz[4], however, it was finally rejected in Pyrenees Shire Council v Day[5]. The court remained quite divided as to general conditions in that case.

The incremental approach

The incremental approach is similar to that of pure economic lost by negligent acts in the sense that it considers a number of factors (which arose in precedents) one by one. It was brought up firstly by McHugh J in Crimmins v Stevedoring Industry Finance Committee:

  • Firstly, check whether the case falls within a previous category.
    • If yes, apply the ruling of that precedent.
    • If no, we test for relevant factors (/'salient features') which have arisen in previous cases concerning public authorities. The process is as follows (please notice that the order is not important):
      1. Reasonable foreseeability - as usual, reasonable foreseability is the cornerstone of a duty of care.
      2. Power/control - did the defendant, by virtue of the statute giving it powers, have the power to protect the plaintiff? Also, did the defendant have a degree of control over the plaintiff ?
        • Control will also be satisfied if the defendant assumed responsibility for the plaintiff.
        • The presence of control pretty much means a duty of care - "it can seldom be the case that a person, who control or directs another person, does not that person a duty to take reasonable care to avoid risks of harm from that direction or the effect of that control[6]." and "usually the very fact of the direction or control will itself be sufficient to found a duty[7]."
      3. Vulnerability - was the plaintiff vulnerable, in the sense that he could not be reasonably expected to protect himself?
        • Exceptions:
          • If the public authority has control (or assumes a responsibility) to help the plaintiff, he is considered automatically vulnerable.
          • If the public authority has a statutory obligation to protect (however, this is rare, because if there was already a statutory obligation to protect, this would immediately entail a duty of care and there would be no way of denying the duty).
      4. Knowledge - did the defendant know or ought to have known that its non-feasance will most likely bring about harm to the plaintiff? Moreover, did the defendant have sole knowledge? (as in, no one else knew of the risk except for the defendant)
      5. Policy - is the alleged negligence a part of the defendant's exercising of 'core' policy areas or 'quasi-legislative' powers? If yes, no duty of care. Refer to the policy/operation distinction.
      6. Statutory scheme - check the statutory scheme to see whether imposing a common law duty would be inconsistent to the duties given to the public authority by the statute.If yes, there is no duty of care.
        • As in, will there be a conflict of duties?

This approached was discussed further in Graham Barclay Oysters Pty Ltd v Ryan:

And again in Amaca Pty Ltd v New South Wales:

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, p. 328 [11.10]
  2. Sutherland Shire v Heyman (1980) 157 CLR 424, 456-7
  3. Textbook, pp. 328-9 [11.10]
  4. (1988) 12 NSWLR 293
  5. (1998) ALJR 1
  6. (1999) 167 ALR 1 , 104
  7. (1999) 167 ALR 1 , 107
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